Defendant appeals from a judgment convicting him of first degree felony murder and attempted robbery. The case presents two principal issues. First, we inquire whether a standing crop can be the subject of robbery; declining to perpetuate an archaic distinction between that crime and larceny, we conclude that it can. We next address a multiple attack on the first degree felony-murder rule. After reviewing its legislative history we find that in California the rule is a creature of statute, and hence cannot be judicially abrogated. We also reject various constitutional challenges to the rule; we hold primarily that the rule does not deny due process of law by relieving the prosecution of the burden of proving malice, because malice is not an element of the crime of felony murder.
We further hold, however, that the penalty for first degree felony murder, like all statutory penalties, is subject to the constitutional prohibition against cruel or unusual punishments (Cal. Const., art. I, § 17), and in particular to the rule that a punishment is impermissible if it is grossly disproportionate to the offense as defined or as committed, and/or to the individual culpability of the offender. (In re Lynch (1972) 8 Cal.3d 410 [105 Cal.Rptr. 217, 503 P.2d 921].) Because such disproportion is manifest on the record before us — as it was to the triers of fact — we modify the judgment to punish this defendant as a second degree murderer. As modified, the judgment will be affirmed.
The two boys departed promptly, but defendant stayed inside the tree trunk until it grew dark. Finally emerging, he went to take another look at the plantation. Again Johnson confronted him with a shotgun, pointed the weapon at him, and ordered him to go. He left without further ado.
Some weeks later defendant returned to the farm to show it to his brother. As the latter was looking over the scene, however, a shotgun blast was heard and once more the boys beat a hasty retreat.
After the school term began, defendant and a friend discussed the matter further and decided to attempt a "rip-off" of the marijuana with the aid of reinforcements. Various plans were considered for dealing with Johnson; defendant assertedly suggested that they "just hold him up. Hit him over the head or something. Tie him to a tree." They recruited six other classmates, and on the morning of October 17, 1978, the boys all gathered for the venture. Defendant had prepared a rough map of the farm and the surrounding area. Several of the boys brought shotguns, and defendant carried a .22 caliber semi-automatic rifle. They also equipped themselves with a baseball bat, sticks, a knife, wirecutters, tools for harvesting the marijuana, paper bags to be used as masks or for carrying plants, and rope for bundling plants or for restraining the guards if necessary. Along the way, they found some old sheets and tore them into strips to use as additional masks or bindings to tie up the guards. Two or three of the boys thereafter fashioned masks and put them on.
The boys climbed a hill towards the farm, crossed the barricades, split into four pairs, and spread out around the field. There they saw one of the
One of the boys returning to the farm then accidentally discharged his shotgun, and the two ran back down the hill. While the boys near the field reconnoitered and discussed their next move, their hapless friend once more fired his weapon by mistake. In the meantime Dennis Johnson had circled behind defendant and the others, and was approaching up the trail. They first heard him coming through the bushes, then saw that he was carrying a shotgun. When Johnson drew near, defendant began rapidly firing his rifle at him. After Johnson fell, defendant fled with his companions without taking any marijuana. Johnson suffered nine bullet wounds and died a few days later.
Defendant first contends the court erred in phrasing the attempted robbery charge in terms of CALJIC instructions Nos. 6.00 and 6.01. CALJIC No. 6.00 provides, inter alia, that an attempt to commit a crime requires proof of a specific intent to commit the crime and of "a direct but ineffectual act done toward its commission"; and that in determining whether such an act took place "it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt," but the acts will be sufficient when they "clearly indicate a certain, unambiguous intent to commit that specific crime, and, in themselves, are an immediate step in the present execution of the criminal design...." CALJIC No. 6.01 states, "If a person has once committed acts which constitute an attempt to commit crime, he cannot avoid responsibility by not proceeding further with his intent to commit the crime, either by reason of voluntarily abandoning his purpose or because he was prevented or interfered with in completing the crime."
We are not persuaded to so limit the law of attempts. The instructions given here accurately state that law (Pen. Code, § 664; see People v. Gallardo (1953) 41 Cal.2d 57, 66 [257 P.2d 29]; People v. Miller (1935) 2 Cal.2d 527, 530 [42 P.2d 308]; People v. Murray (1859) 14 Cal. 159), while defendant's proposal would frustrate its aim.
Defendant submits that his proposed test is supported by the following language from People v. Buffum (1953) 40 Cal.2d 709, 718 [256 P.2d 317]: "Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter...." (See also People v. Miller (1935) supra, 2 Cal.2d 527, 530, quoting from 1 Wharton's Criminal Law (12th ed. 1957) p. 280.) We did not mean by this language, however, to depart from the generally accepted definition of attempt. Our reference to an "appreciable fragment of the crime" is simply a restatement of the requirement of an overt act directed towards immediate consummation; it does not establish the novel requirement that an actual element of the offense be proved in every case.
There was also substantial evidence from which a reasonable jury could have found that defendant accomplished direct but ineffectual acts towards the commission of the intended robbery. It appears that defendant did not actually encroach on the marijuana field before he fled, but this circumstance does not immunize him from criminal liability; to hold otherwise would be to import the technical rules of trespass into the common sense appraisal of facts required of juries in attempt cases, a step that no other California court has taken.
The rule has long been the subject of ridicule and limitation. Our court first criticized it over a century ago: "This rule involved many technical niceties, which have resulted in what appear to us to be pure absurdities. For example, if the article stolen was severed from the soil by the thief himself and immediately carried away, so that the whole constituted but one transaction, it was held to be only a trespass; but if, after the severance, he left the article for a time and afterward returned for it and took it away on another occasion, then it became a larceny.... [¶] We confess we do not comprehend the force of these distinctions, nor appreciate the reasoning by which they are supported. We do not perceive why a person who takes apples from a tree with a felonious intent should only be a trespasser, whereas, if he had taken them from the ground, after they had fallen, he would have been a thief; nor why the breaking from a ledge of a quantity of rich gold-bearing rock with felonious intent should only be a trespass, if the rock be immediately carried off; but if left on the ground, and taken off by the thief a few hours later, it becomes larceny. The more sensible rule, it appears to us, would have been, that by the act of severance the thief had converted the property into a chattel; and if he then removed it, with a felonious intent, he would be guilty of a larceny, whatever dispatch may have been employed in the removal." (People v. Williams (1868) 35 Cal. 671, 676.) But while the rule could no longer command the respect of reason, it was nevertheless honored by time, and on that basis alone the court felt compelled to follow it. Reluctantly putting aside common sense in favor of common law, the court confessed that it "adverted to the question mainly for the purpose of directing the attention of the Legislature to a subject which appears to demand a remedial statute." (Id. at p. 677.)
The Legislature was quick to respond. In 1872 it adopted a statute redefining detachable fixtures and crops as personalty subject to larceny, "in the same manner as if the thing had been severed by another person at some previous time." (Pen. Code, § 495.) Contemporaneously, it enacted a statute dividing the crime of larcenous severance of realty into grand larceny, if the object of the theft is worth $50 or more, and petty larceny otherwise. (Stats. 1871-1872, ch. 218, p. 282; now see Pen. Code, §§ 487b, 487c.)
We recognize that it did not do so. But this circumstance does not compel us to conclude that the old rule as to larceny applies today to robbery. In fact, defendant offers no evidence that there ever existed at common law an explicit doctrine regarding robbery of crops, and we have been unable to find a single case in any jurisdiction raising that precise issue. Ordinarily, of course, we are under no obligation to apply even an exemplary common law rule to an area of law not traditionally associated with it.
Defendant points out that despite the lack of any express rule regarding robbery of crops or fixtures, it has always been understood that the law of robbery borrows its definition of subject property from the law of larceny, because the former crime is distinguished from the latter only by the less circuitous means of its accomplishment. (People v. Butler (1967) 65 Cal.2d 569, 572-573 [55 Cal.Rptr. 511, 421 P.2d 703]; People v. Leyvas (1946) 73 Cal.App.2d 863, 866 [167 P.2d 770]; 2 Burdick, The Law of Crime (1946) § 595, pp. 408-409; 4 Blackstone, Commentaries 242.)
First, the rule requiring an interruption between severance and asportation has suffered such erosion and criticism during the past century that we no longer feel compelled to preserve it, as this court did in Williams, particularly in an area of law not previously marred by its application. Many courts
Moreover, in England the rule has been continuously eroded by statute since 1601 (4 Blackstone, Commentaries 233-234), and in those few American jurisdictions in which courts have refrained from adopting the modern rule, lawmakers have often done so. (Commonwealth v. Meinhart (1953) 173 Pa.Super. 495 [98 A.2d 392, 393]; Garrett v. State (Miss. 1952) supra, 56 So.2d 809, 810; Williams v. State (1948) 186 Tenn. 252 [209 S.W.2d 29, 31]; State v. Jackson (1940) 218 N.C. 373 [11 S.E.2d 149, 151, 131 A.L.R. 143]; Beall v. State (1882) 68 Ga. 820.) Hence despite the common law, "it is the generally accepted modern rule that he who by his wrongful act converts a fixture into personal property, and then with larcenous intent forthwith carries it away without the consent of the owner, may be rightfully convicted of larceny." (50 Am.Jur.2d, Larceny, § 73, p. 245.)
Lastly, defendant argues that in 1872 the Legislature expressly restricted the scope of its new rule to larceny by the introductory clause of Penal Code section 495, which states, "The provisions of this Chapter [i.e., chapter 5, relating to theft] apply where the thing taken is any fixture or part of the realty...." But the quoted language does not preclude application of the section to other chapters of the Penal Code; it merely specifies that when its conditions are satisfied, the theft provisions may be applied. Admittedly, it does not authorize its own application to robbery, but it need not do so; that authority exists by virtue of the close relationship between robbery and larceny. (See fn. 7, ante.) Moreover, even if we refrain from employing section 495 for the present purpose, sections 487b and 487c contain no similar language, and are therefore eligible to clarify the law of robbery as it was understood when the Legislature acted, and as it is understood today.
For the reasons stated, we hold that a robbery within the meaning of section 211 is committed when property affixed to realty is severed and taken therefrom in circumstances that would have subjected the perpetrator to liability for robbery if the property had been severed by another person at some previous time. Defendant was properly convicted of attempting to commit such a robbery.
On the murder charge the court gave the jury the standard CALJIC instructions defining murder, malice aforethought, wilful, deliberate and premeditated first degree murder, first degree felony murder, second degree murder, manslaughter, and self-defense. The felony-murder instruction (CALJIC No. 8.21) informed the jury that an unlawful killing, whether intentional, negligent, or accidental, is murder in the first degree if it occurs during an attempt to commit robbery. Defendant mounts a two-fold attack on the first degree felony-murder rule in this state: he contends (1) it is an uncodified common law rule that this court should abolish, and (2) if on the contrary it is embodied in a statute, the statute is unconstitutional.
We begin with Aaron. After a detailed survey of the history of the felony-murder doctrine in England and the United States (299 N.W.2d at pp. 307-316), the opinion observes that in Michigan the Legislature has not seen fit to codify either murder, malice, or felony murder, but instead has left each to be governed by the common law (id. at pp. 319-323). The court then explains, however, that in order to mitigate the harshness of the common law rule that all murders were of one kind and were punishable alike by death (see 2 Pollock & Maitland, History of English Law (2d ed. 1909) p. 485; 4 Blackstone, Commentaries 194-202), the Michigan Legislature adopted in 1837 a statute dividing murder into two degrees with different punishments for each. The statute provides that "murder" committed either (1) by certain listed means (poison, lying in wait, or other wilful, deliberate, and premeditated killing) or (2) during the commission or attempted commission of certain listed felonies (e.g., arson, rape, robbery, or burglary), is murder in the first degree, and all other kinds of murder are murder in the second degree. The opinion points out (299 N.W.2d at pp. 321-323) that
Concluding that Michigan has no statutory felony-murder rule, the Aaron court stresses that it has already severely restricted the common law felony-murder rule in its prior decisions, e.g., by barring its application when the felony is not "inherently dangerous to human life" or when the homicide is not directly attributable to the defendant because it is committed by the intended felony victim acting in self-defense. (Id. at pp. 324-325.) As a "logical extension" of those decisions, the court holds it no longer permissible in any prosecution in Michigan to automatically equate a mere intent to commit the underlying felony with the malice aforethought required for murder. (Id. at p. 326.) The court concludes by abolishing the common law felony-murder rule in its jurisdiction, reasoning that the rule is either unnecessary — when malice can be proved by other evidence, including when relevant the nature and circumstances of the underlying felony — or unjust — when such malice cannot be proved, because in those cases the rule violates the criminal law's basic premise of individual moral culpability. (Id. at pp. 327-329.)
From the reported history of the 1794 Pennsylvania statute it clearly appears the Aaron court was correct in characterizing it as a degree-fixing measure rather than a codification of the common law felony-murder rule. (See Keedy, History of the Pennsylvania Statute Creating Degrees of Murder (1949) 97 U.Pa.L.Rev. 759, 764-773.)
At this point, however, our law appears to diverge sharply from that of Pennsylvania and Michigan.
Except for the addition of the category of murder by means of torture, the quoted language of amended section 21 was identical to the 1794 Pennsylvania statute. (Compare Keedy, op. cit. supra, 97 U.Pa.L.Rev. at p. 773.) It was therefore construed in the same way by this court, i.e., as a degree-fixing measure designed to mitigate the harshness of the common law of murder. (See, e.g., People v. Moore (1857) 8 Cal. 90, 93; People v. Bealoba (1861) 17 Cal. 389, 393-399.) The court explained that by adopting the amendment the Legislature did not "attempt to define murder anew, but only to draw certain lines of distinction by which it might be told in a particular case whether the crime was of such a cruel and aggravated character as to deserve the extreme penalty of the law, or of a less aggravated character, deserving a less severe punishment." (People v. Haun (1872) 44 Cal. 96, 98; accord, People v. Keefer (1884) 65 Cal. 232, 235 [3 P. 818].)
Thus on the eve of the enactment of the Penal Code of 1872, two relevant statutes were in force in California: (1) section 25 of the 1850 act, which codified the felony-murder rule; and (2) amended section 21 of the same act, which divided the crime of murder into degrees and tailored the punishment accordingly. The two statutes were not only consistent but complimentary. When a killing occurred in the commission of a felony, section 25 declared it to be murder; thereupon section 21 prescribed the degree of that murder according to the particular felony involved — first degree if the felony was arson, rape, robbery, or burglary, second degree if it was any other felony. This court recognized the relationship between the statutes in a decision reviewing a conviction of murder committed shortly before the Penal Code of 1872 took effect. (People v. Doyell (1874) supra, 48 Cal. 85.) The court first observed (at p. 94) that "Whenever one, in doing an act with the design of committing a felony, takes the life of another, even accidentally, this is murder. (Acts of 1850, p. 220, Sec. 25; ...)" The court then reasoned
What was plainly evident before 1872, however, was much less so after the adoption of the Penal Code. The enactment of that code operated to repeal the Act of 1850, including therefore sections 21 and 25. (Pen. Code, § 6.) But of those two provisions only section 21 reappeared in the Penal Code, as section 189 thereof;
Second, aside from a few grammatical changes the wording of section 189 was identical to that of section 21. (Compare fns. 13 & 14.) Indeed, its draftsmen acknowledged this obvious fact: "This section is founded upon Sec. 21 of the Crimes and Punishment Act, as amended by the Act of 1856. — Stats. 1856, p. 219. The Commission made no material change in the language." (1872 Code Com. note, p. 82.) In these circumstances, the code itself decreed the proper construction of section 189: "The provisions of this Code, so far as they are substantially the same as existing statutes,
Seeking to overcome these inferences, the Attorney General contends that three items of statutory history are proof of a contrary legislative intent. He first relies on the California Code Commission's note to section 189, but in point of fact that commentary sheds little or no light on the issue before us. The commission began with a correct historical justification for the continued role of section 189 as a degree-fixing measure.
Lacking direct evidence in the history of the murder statute, the Attorney General next refers us to the evolution of the manslaughter statute during the same period. The 1850 act (Stats. 1850, ch. 99, p. 229) provided a rather diffuse definition of manslaughter, covering four sections. (§§ 22-25.) Involuntary manslaughter was defined as an unintentional killing occurring in the commission of either (1) a lawful act likely to produce death, in an unlawful manner or without due caution, or (2) "an unlawful act." (§§ 22, 25.) In 1872 the manslaughter definitions of 1850 were reenacted in simplified form as section 192 of the Penal Code. No change in meaning was intended, and the commission reported that section 192 "embodies the material portions" of sections 22 through 25 of the 1850 law. (1872 Code Com. note, p. 85.)
One change in wording, however, is now stressed by the Attorney General. As we have seen, in drafting section 192 the commission deleted the proviso of former section 25 which affirmatively declared that when the "unlawful act" is a felony the killing will be deemed murder; but at the same time the commission added to the definition of manslaughter during
For the answer, the Attorney General turns to his third and last piece of evidence, to wit, the legislative history not of homicide but of the crime of arson. The arson statute in force before adoption of the Penal Code contained a specialized felony-murder rule applicable to that felony alone.
From the emphasized language the Attorney General asks us to infer that the commission intended its proposed version of section 189 to incorporate a statutory first degree felony-murder rule, i.e., that as to any killing occurring during the commission of one of the listed felonies (including therefore arson) the section served both (1) the felony-murder function of making such killing the crime of murder and (2) the degree-fixing function of making that crime murder in the first degree. Again the inference is not unreasonable, although it may be doubted that the commission thought the matter through as carefully as the Attorney General would have us conclude. Rather, it appears the commission simply assumed it was making no change in the law: its heavy reliance on the 1864 Sanchez opinion in its note to section 189 suggests the commission read that opinion to mean that the predecessor to section 189 — i.e., amended section 21 of the 1850 act — had itself codified the felony-murder rule. For the reasons explained above, that reading of either Sanchez or section 21 would have been mistaken.
Nevertheless, for present purposes any such error by the commission is immaterial. It no longer matters that the commission may have misread pre-1872 law on this point; what matters is (1) the commission apparently believed that its version of section 189 codified the felony-murder rule as to the listed felonies, and (2) the Legislature adopted section 189 in the form proposed by the commission.
Nothing in the ensuing history of section 189 (see fn. 14, ante) suggests that the Legislature acted with any different intent when it subsequently amended the statute in various respects, most recently in 1981. We infer that the Legislature still believes, as the code commission apparently did in 1872, that section 189 codifies the first degree felony-murder rule. That belief is controlling, regardless of how shaky its historical foundation may be.
First, he invokes the principle that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (Italics added.) (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068].) He then reasons as follows: because malice aforethought is an element of the crime of murder as defined in California (Pen. Code, § 187), the quoted language of Winship requires the People to prove malice beyond a reasonable doubt in every murder prosecution. When such a prosecution is conducted on a theory of felony murder, however, the felony-murder rule relieves the People of this burden of proof because it raises a "presumption" of malice from the defendant's intent to commit the underlying felony. The rule, defendant concludes, thus violates the due process clause.
For specific authority defendant relies on Mullaney v. Wilbur (1975) 421 U.S. 684 [44 L.Ed.2d 508, 95 S.Ct. 1881], and Sandstrom v. Montana (1979) 442 U.S. 510 [61 L.Ed.2d 39, 99 S.Ct. 2450]. In Mullaney the
In Sandstrom the defendant was convicted of "deliberate homicide," defined by Montana law as a killing which is "purposely or knowingly" committed. The United States Supreme Court held it a denial of due process in that context to instruct the jury that the law presumes a person intends the ordinary consequences of his voluntary acts. (See Evid. Code, § 665.) The court stressed that the question whether the homicide was committed "purposely or knowingly" — i.e., the defendant's state of mind with respect to the killing — was an essential element of the crime under the Montana statutory scheme. (442 U.S. at pp. 520-521 [61 L.Ed.2d at p. 49].) The court then reasoned (at pp. 521-523 [61 L.Ed.2d at pp. 49-51]) that if the jury understood the challenged instruction to state a conclusive presumption, it would have wholly denied the defendant the benefit of the presumption of innocence on the mental element of the crime, a procedure unconstitutional under Morissette v. United States (1952) 342 U.S. 246, 274-275 [96 L.Ed. 288, 306, 72 S.Ct. 240]. If on the other hand the jury took the instruction to raise a rebuttable presumption, it would have shifted to the defendant the burden of disproving the same element, a procedure unconstitutional under Mullaney. (442 U.S. at p. 524 [61 L.Ed.2d at p. 51].)
This court has adopted the foregoing view. For example, in upholding the "conclusive presumption" of legitimacy now declared by Evidence Code section 621, subdivision (a), we stated that "A conclusive presumption is in actuality a substantive rule of law" (Kusior v. Silver (1960) 54 Cal.2d 603, 619 [7 Cal.Rptr. 129, 354 P.2d 657]). Again, in Jackson v. Jackson (1967) 67 Cal.2d 245, 247 [60 Cal.Rptr. 649, 430 P.2d 289], we observed that "the so-called conclusive presumption is really not a presumption but rather a rule of substantive law." (Accord, Vincent B. v. Joan R. (1981)
Our decisions have recognized this reality. "Killings by the means or on the occasions under discussion [i.e., enumerated in Pen. Code, § 189] are murders of the first degree because of the substantive statutory definition of the crime. Attempts to explain the statute to the jury in terms of nonexistent `conclusive presumptions' tend more to confuse than to enlighten a jury unfamiliar with the inaccurate practice of stating rules of substantive law in terms of rules of evidence." (Italics added.) (People v. Valentine (1946) supra, 28 Cal.2d 121, 136; accord, People v. Bernard (1946) 28 Cal.2d 207, 211-212 [169 P.2d 636].) The "substantive statutory definition" of the crime of first degree felony murder in this state does not include either malice or premeditation: "These elements are eliminated by the felony-murder doctrine, and the only criminal intent required is the specific intent to commit the particular felony." (People v. Cantrell (1973) 8 Cal.3d 672, 688 [105 Cal.Rptr. 792, 504 P.2d 1256], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12 [160 Cal.Rptr. 84, 603 P.2d 1], and People v. Wetmore (1978) 22 Cal.3d 318, 324, fn. 5, 326 [149 Cal.Rptr. 265, 583 P.2d 1308].) This is "a rule of substantive law in California and not merely an evidentiary shortcut to finding malice as it withdraws from the jury the requirement that they find either express malice or ... implied malice" (People v. Stamp (1969) 2 Cal.App.3d 203, 210 [82 Cal.Rptr. 598]). In short, "malice aforethought is not an element of murder under the felony-murder doctrine." (People v. Avalos (1979) 98 Cal.App.3d 701, 718 [159 Cal.Rptr. 736].)
For the same reason we need not be detained by defendant's second due process claim, i.e., that the felony-murder doctrine violates the rule that a statutory presumption affecting the People's burden of proof in criminal cases is invalid unless there is a "rational connection" between the fact proved (here, felonious intent) and the fact presumed (malice). (See Ulster County Court v. Allen (1979) 442 U.S. 140, 165 [60 L.Ed.2d 777, 797, 99 S.Ct. 2213]; Leary v. United States (1969) 395 U.S. 6, 36 [23 L.Ed.2d 57, 81, 89 S.Ct. 1532]; Tot v. United States (1943) 319 U.S. 463, 467-468 [87 L.Ed. 1519, 1524, 63 S.Ct. 1241].) If, as we here conclude, the felony-murder doctrine actually raises no "presumption" of malice at all, there is no occasion to judge it by the standard that governs the validity of true presumptions. The point is therefore without substance, as the Court of Appeal has already held.
Under this standard we held in Lynch that an indeterminate life-maximum sentence for second-offense indecent exposure was unconstitutionally excessive. In succeeding years we have invoked the proportionality rule to strike down legislation barring recidivist narcotic offenders from being considered for parole for 10 years (In re Foss (1974) 10 Cal.3d 910, 917-929 [112 Cal.Rptr. 649,
With respect to "the nature of the offense," we recognize that when it is viewed in the abstract robbery-murder presents a very high level of such danger, second only to deliberate and premeditated murder with malice aforethought. In conducting this inquiry, however, the courts are to consider not only the offense in the abstract — i.e., as defined by the Legislature — but also "the facts of the crime in question" (In re Foss (1974) supra, 10 Cal.3d 910, 919) — i.e., the totality of the circumstances surrounding the commission of the offense in the case at bar, including such factors as its motive, the way it was committed, the extent of the defendant's involvement, and the consequences of his acts.
Secondly, it is obvious that the courts must also view "the nature of the offender" in the concrete rather than the abstract: although the Legislature can define the offense in general terms, each offender is necessarily an individual. Our opinion in Lynch, for example, concludes by observing that the punishment in question not only fails to fit the crime, "it does not fit the criminal." (8 Cal.3d at p. 437.) This branch of the inquiry therefore focuses on the particular person before the court, and asks whether the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind.
The cases since Lynch demonstrate that a punishment which is not disproportionate in the abstract is nevertheless constitutionally impermissible if it is disproportionate to the defendant's individual culpability. Thus in Foss we had "no doubt that heroin abuse presents a serious problem to our society or that harsh penalties may be necessary to restrict the supply, sale and distribution of this substance." (Fn. omitted; 10 Cal.3d at p. 921.) Yet we stressed that the defendant had agreed to assist an acquaintance to obtain heroin only because the latter was an addict and was going through withdrawal; that the defendant was himself an addict and was suffering from withdrawal at the time of the events; and that the sole payment he took was enough of the narcotic for a dose of his own. (Id., at p. 918.) We concluded that in such circumstances it shocked the conscience to automatically bar the defendant from parole for 10 years "without consideration for either the offender or his offense" (id., at p. 923).
In Rodriguez the defendant was convicted of child molesting (Pen. Code, § 288) and given the indeterminate life-maximum sentence then prescribed by the statute for that crime. The Adult Authority did not fix his term at less than maximum, and after serving 22 years he sought release on habeas corpus. He first claimed the statute was unconstitutional on its face, contending that the life-maximum sentence it prescribed was grossly disproportionate to the offense of child molesting; we held to the contrary, stressing the crime's potential for grave injury and even death (14 Cal.3d at pp. 647-648). In the alternative the defendant attacked the statute as applied to him, urging that the 22 years he had served were disproportionate to his actual culpability in the circumstances of the case. We held this claim meritorious and ordered him discharged from custody. We reasoned that even though a statutory maximum penalty may not be facially excessive, the constitutional prohibition against cruel or unusual punishment requires that
Applying this rule to the record in Rodriguez, we stressed the manner in which the defendant committed the offense and his past history and personal traits: "Nor do the particular characteristics of this offender at the time of the offense justify 22 years' imprisonment. He was only 26 years old at the time of the offense. His conduct was explained in part by his limited intelligence, his frustrations brought on by intellectual and sexual inadequacy, and his inability to cope with these problems. He has no history of criminal activity apart from problems associated with his sexual maladjustment. Thus, it appears that neither the circumstances of his offense nor his personal characteristics establish a danger to society sufficient to justify such a prolonged period of imprisonment." (Id., at p. 655.)
Finally, we take note of the recent United States Supreme Court case of Enmund v. Florida (1982) supra, 458 U.S. 782 [73 L.Ed.2d 1140, 102 S.Ct. 3368]; although it deals with the federal constitutional prohibition against cruel and unusual punishment, the reasoning of the opinion is instructive. In Enmund two persons robbed and fatally shot an elderly couple at their farmhouse; defendant Enmund's sole involvement was that at the time of the crimes he was sitting in a car parked some 200 yards away, waiting to help the robbers escape. Enmund was convicted of being a constructive aider and abettor and hence a principal in the commission of a first degree felony murder, and was sentenced to death. The United States Supreme Court reversed, holding that such punishment is unconstitutionally disproportionate in the circumstances. The court explained that "The question before us is not the disproportionality of death as a penalty for murder, but rather the validity of capital punishment for Enmund's own conduct. The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on `individualized consideration as a constitutional requirement in imposing the death sentence,' [citation] which means that we must focus on `relevant facets of the character and record of the individual offender.'" (Italics in original; id., at p. 798 [73 L.Ed.2d at p. 1152, 102 S.Ct. at p. 3377].)
Turning to those facts, the court reasoned that "Enmund did not kill or intend to kill and thus his culpability is plainly different from that of the robbers who killed; yet the state treated them alike and attributed to Enmund the culpability of those who killed [the victims]. This was impermissible
Thus defendant stated that when he heard the first shotgun blast accidentally set off by his hapless colleague, he became concerned that one of his friends might have been shot. Next he watched as a man guarding the marijuana plantation walked towards the sound while carrying a shotgun, and five or ten minutes later he heard a second shotgun blast from the same direction. At that point anxiety turned to alarm, and he testified that "we just wanted to get the hell out of there, because there were shotgun blasts going off and we thought our friends were being blown away."
One of defendant's companions then told him he had overheard a guard say, "These kids mean business." Shortly afterwards the boys heard a man stealthily coming up the trail behind them; they believed at first it was one of their friends, but soon saw it was Dennis Johnson, carrying a shotgun at port arms. The boys could neither retreat nor hide, and defendant was sure that Johnson had seen them. According to defendant, as Johnson drew near
On cross-examination defendant testified that when Johnson pointed the shotgun in his direction, "Nobody told me what to do and I had no support, and I just pulled the trigger so many times because I was so scared...." When asked why he had fired nine times, defendant replied, "I never thought between pulling the trigger the first time or the ninth time. I just kept pulling because he was going to shoot me and I had to do something. I didn't have it aimed at him. I didn't know whether it would hit him or not. I just had it pointed. I just pulled the tigger so many times because I was so frightened."
Called as an expert witness, a clinical psychologist testified that after conducting a series of tests and examinations he concluded that defendant was immature in a number of ways: intellectually, he showed poor judgment and planning; socially, he functioned "like a much younger child"; emotionally, he reacted "again, much like a younger child" by denying the reality of stressful events and living rather in a world of make-believe. In particular, the psychologist gave as his opinion that when confronted by the figure of Dennis Johnson armed with a shotgun in the circumstances of this case, defendant probably "blocked out" the reality of the situation and reacted reflexively, without thinking at all. There was no expert testimony to the contrary.
At the close of the evidence the jury sent the judge a note asking, in view of the fact that defendant was being tried as an adult, what was the purpose of the psychologist's testimony. The note explained that "From his testimony, it appears that Norman's [i.e., defendant's] mentality and emotional maturity is that of a minor." The judge directed the jury not to speculate why defendant was being tried as an adult, and to give the expert's testimony whatever effect the instructions permitted.
Among those instructions, as noted at the outset, was the standard first degree felony-murder instruction which informed the jury that an unlawful
In his final remarks before discharging the jurors, however, the judge expressed sympathy with their evident reluctance to apply the felony-murder rule to these facts: "I don't want to say a lot about the verdict at this point, but I can tell you that, based upon the evidence, your decision is certainly supported by the evidence. This felony murder rule is a very harsh rule and it operated very harshly in this case. I felt that the evidence did not support a first degree murder conviction under any theory other than felony first degree murder, and the law is the law." (Italics added.) The judge then told the jurors that defendant could either be sent to state prison to serve a life sentence or be committed to the Youth Authority, and the prosecutor advised them that any observations they may have about the disposition of the case would be welcomed.
In response to that invitation, the foreman of the jury wrote to the judge two days later, confirming the jury's unwillingness to return the verdict compelled by the felony-murder rule. The letter stated in relevant part: "It was extremely difficult for most of the members, including myself, not to allow compassion and sympathy to influence our verdict as Norman Dillon by moral standards is a minor....
".... .... .... .... .... .... .
"We covered every aspect, including the possibility of abandonment of the attempted robbery, but as [the prosecutor] so aptly put it, `The ship had left the dock and had set sail'; the action had gone beyond the stage of preparation.
"We, the jury, would have considered a lesser verdict, but it seemed our hands were tied when all 8 of the elements of `attempted robbery' had been met. The only other two elements to make it felony-murder were homicide and a causal connection. It is obvious from the evidence that this was so." (Italics in original.)
Expressing "the general consensus of opinion of most or all the jurors," the foreman then implored the judge to give defendant "his best opportunity in life" by committing him to the Youth Authority rather than sentencing him to state prison. Emphasizing that defendant was even more immature than a normal minor of his age, the foreman explained that "Mere confinement would not be the answer for him"; rather, there was a need for psychological counseling and training in a skill or trade "to assist this young person in trying to cope with his fellow man in an already tough world to live in, even under normal circumstances."
At the sentencing hearing the intake supervisor of the Youth Authority testified by stipulation that he had reviewed the probation report, interviewed defendant, and found that defendant meets the discretionary eligibility standards of the Youth Authority.
Adverting to the fact that the gun was fired nine times, the judge acknowledged that prior to this trial "I could not imagine how somebody could kill another person, shoot them nine times, without deliberation, premeditation, and ... a total absence of any concern for another human being at all." After hearing the testimony, however, "I am satisfied, on the basis of the evidence here, that the shooting of Dennis Johnson was not planned by you. I accept that. I am not only indicating that I have a reasonable doubt as to whether that happened, but I accept, on the basis of the evidence, that that was not a planned, deliberate killing." Rather, although it was "an intentional killing," it was "a killing that, spontaneously, you decided to engage in. I think, whether your story is completely true or not, it is basically true. You were trapped. You were trapped in a situation of your own making."
Against this showing of defendant's attenuated individual culpability we weigh the punishment actually inflicted on him. That punishment, we first observe, turned out to be far more severe than all parties expected. After the trial court committed defendant to the Youth Authority and he took this appeal, the People collaterally attacked the commitment order on the ground of excess of jurisdiction. The Court of Appeal held that at the time of the offense herein a minor convicted of first degree murder was ineligible as a matter of law for commitment to the Youth Authority. (People v. Superior
Because of his minority no greater punishment could have been inflicted on defendant if he had committed the most aggravated form of homicide known to our law — a carefully planned murder executed in cold blood after a calm and mature deliberation.
Finally, the excessiveness of defendant's punishment is underscored by the petty chastisements handed out to the six other youths who participated with him in the same offenses.
In his thoughtful analysis of the subject, Professor Fletcher finds it surprising — and unjustifiable — that heretofore "neither state legislatures nor the courts have sought to bring the felony-murder rule into line with well-accepted criteria of individual accountability and proportionate punishment."
For the reasons stated we hold that in the circumstances of this case the punishment of this defendant by a sentence of life imprisonment as a first degree murderer violates article I, section 17, of the Constitution. Nevertheless, because he intentionally killed the victim without legally adequate provocation, defendant may and ought to be punished as a second degree murderer.
The judgment is affirmed as to the conviction of attempted robbery. As to the conviction of murder, the judgment is modified by reducing the degree of the crime to murder in the second degree and, as so modified, is affirmed. The cause is remanded to the trial court with directions to arraign and pronounce judgment on defendant accordingly, and to determine whether to recommit him to the Youth Authority.
Bird, C.J., and Kingsley, J.
I concur in the result.
Generally, the role of a high court is to settle the law. That is, we are a court which sets decisional policy, not a court which corrects error. Accordingly, we have an institutional duty to speak with a voice which can be followed by the courts of this state. Too many separate opinions, more often than not, confuse decisional law. The case at bench, unlike most decisions demands separate opinions so that the bench and bar may know which of the distinct sections commands a majority.
I write separately only to indicate the sections in which I concur, and those sections in which I concur only in the result.
With respect to part V, although my views concerning the seriousness of defendant's conduct parallel those of Justices Richardson and Broussard, it is evident that they were not shared by the jury. The facts recited in part V, B of Justice Mosk's opinion leave no doubt that the trial court's instructions — both before and during deliberations — caused an unwilling jury to return a verdict of first degree murder. In fact, the record compels the conclusion that if the trial court had fully answered the jury's question posed in its second note — whether it "had to" bring in a verdict of first degree murder if it found that the victim was killed during an attempted robbery — at worst, defendant would have been found guilty of second degree murder.
When the jury asked whether it was compelled to find defendant guilty of first degree murder if it found certain facts to be true, it was obviously looking for a way to avoid the harsh consequences of the felony-murder rule. The court reiterated its earlier instruction on the law, concluding that if "this killing occurred during the attempted robbery, then it would be murder of the first degree." When this instruction is coupled with the court's earlier standard admonition that it is the jury's duty "to apply the rules of law that I state to you to the facts as you determine them ..." (CALJIC No. 1.00) this left the jury no choice. As far as the average lay juror is concerned, failure to follow the court's instructions invites legal sanctions of some kind and unless the juror is willing to risk a fine, jail or heaven knows what, he or she feels bound to follow the instructions. Yet the essence of the jury's power to "nullify" a rule or result which it considers unjust is precisely that the law cannot touch a juror who joins in a legally unjustified acquittal or guilty verdict on a lesser charge than the one which the proof calls for.
The power of a jury to nullify what it considers an unjust law has been part of our common law heritage since Bushell's Case (1670) 6 Howell's State Trials 999. Bushell had been the foreman of a jury which — against all the evidence and in defiance of the direction of the court — acquitted William Penn and William Mead for preaching to an unlawful assembly. Imprisoned for their disobedience, the jurors were eventually freed on a writ of habeas corpus. The case established for all practical purposes, that thenceforth a jury was immune from legal sanctions for rendering a perverse acquittal.
Judicial attitudes toward jury nullification run the gamut from grudging acceptance to enthusiastic endorsement. For example, in United States v. Dougherty (D.C. Cir.1972) 473 F.2d 1113, the defense claimed that it was entitled to an instruction that the jury could disregard the law as stated by the court. The majority disagreed. After recalling some of the shining moments of jury nullification in American history — the acquittal of Peter Zenger and the many refusals to convict in prosecutions under the fugitive slave law — the court stated: "What makes for health as an occasional medicine would be disastrous as a daily diet. The fact that there is widespread existence of the jury's prerogative, and approval of its existence as a `necessary counter to case-hardened judges and arbitrary prosecutors,' does not establish as an imperative that the jury must be informed by the judge of that power." (473 F.2d at p. 1136.) The dissent failed to understand why a doctrine that "permits the jury to bring to bear on the criminal process a sense of fairness and particularized justice" (id., at p. 1142 (dis. opn. of Bazelon, J.)) should not be brought to the attention of the jury which may be bursting with a desire to be fair and render particularized justice, but does not know how.
One does not have to be as starry-eyed about jury nullification as the Dougherty dissent to appreciate that the issue here is different than the one presented in Dougherty. To instruct on nullification at the outset of deliberations affirmatively invites the jury to consider disregarding the law. I understand the arguments against such a course and do not advocate it. What happened here, however, is that the court was faced with a jury which, after
I know of no case which has turned on the question whether such an answer is error which may affect the eventual jury verdict. Perhaps Sparf and Hansen v. United States (1895) 156 U.S. 51 [39 L.Ed. 343, 15 S.Ct. 273] comes closest. There the defendants were charged with capital murder. During deliberations several jurors returned to ask whether they could return a verdict of manslaughter. The court, in effect, said that they could not. On appeal the issue was formulated as being whether questions of law, as well as of fact, should be left to the jury. The answer was, predictably, in the negative.
Actually, Dougherty itself suggests that if the jury spontaneously feels the urge to nullify, a different situation is presented. The "occasional medicine ... daily diet ..." passage quoted above, continues in this fashion: "On the contrary, it is pragmatically useful to structure instructions in such wise that the jury must feel strongly about the values involved in the case, so strongly that it must itself identify the case as establishing a call of high conscience, and must independently initiate and undertake an act in contravention of the established instructions." (473 F.2d at pp. 1136-1137.) (Italics added.) While this language does not visualize that a spontaneous "call of high conscience" will result in a note to the trial court asking "what do we do now?" it is clear that even in the opinion of the Dougherty majority it creates a situation quite different from the one it had previously discussed — the jury which, absent judicial nudging, may be perfectly content to apply the strict letter of the law.
That shoving the jury in the direction of nullification is something the trial court need not do does not mean that it is permitted to pressure the jury
The point of Spock is that it considers jury nullification not as a sick doctrine that has occasional good days, but as a positive value which must not be smothered by procedural gimmicks.
As I have said, I do not share the lead opinion's relatively benign view of defendant's crime. The jury, however, did. It asked whether it could put its assessment of defendant's culpability into effect. The court said "no" when the correct answer was plainly "yes." Under the circumstances the error clearly calls for a reversal.
If three of my colleagues agreed with me, we would face a knotty problem of disposition: Reversal? Modification to second degree murder? Modification to manslaughter? I am not sure what the proper answer would be. Under the circumstances, however, I am convinced that the only practical solution for me is to concur in the reduction of degree. I so concur.
I concur in Justice Mosk's opinion.
I have read with interest the scholarly opinion by Justice Kaus on the subject of "jury nullification," but do not agree that that doctrine has anything to do with the case at bench. The concept of "jury nullification" is one that permits a jury to ignore the plain letter of the law and administer what those 12 persons, as a body, regard the socially more appropriate verdict in a particular case. The doctrine represents what Dean Pound called a "soft spot" in the law, which permitted the law to yield in a special case rather than cast doubt on the justice of the applicable law in general.
I join in Justice Mosk's opinion for the court. However, I write separately to emphasize that today's decision still leaves unresolved some important challenges to the felony-murder rule.
Although the first degree felony-murder rule in this state appears to be a "creature of statute" (ante, at p. 463), this cannot be said for second degree felony murder. As Justice Mosk's opinion observes, "the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code...." (Ante, at p. 472, fn. 19.)
This court has repeatedly criticized the felony-murder rule as a "highly artificial" and "barbaric" concept which "not only `erodes the relation between criminal liability and moral culpability' but also is usually unnecessary for conviction...." (See People v. Phillips (1966) 64 Cal.2d 574, 582, 583, fn. 6 [51 Cal.Rptr. 225, 414 P.2d 353]; People v. Satchell (1971) 6 Cal.3d 28, 33 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383].) This court is precluded by statute from abrogating the "unwise" and "outdated" first degree felony-murder rule (ante, at p. 463), but there is nothing which prevents this court from reassessing the second degree felony-murder doctrine. In view of the criticisms that this court and others have leveled against the rule over the past decade, the time seems to be at hand for doing away with that portion of the "barbaric" anachronism which we are responsible for creating.
Moreover, as to the first degree felony-murder rule, there are still a number of open questions that have not been decided by this court. As the majority opinion notes, the rule encompasses a wide range of individual culpability. (Ante, at p. 477.) With regard to those felons who come within its ambit — i.e., those who kill deliberately and with premeditation and malice in the course of the enumerated felonies — the first degree felony-murder rule is superfluous. These individuals would be convicted of first degree murder by the traditional malice-plus-premeditation route, regardless of the existence or nonexistence of the felony-murder rule.
The elimination of the element of malice for felony murder is also unnecessary to obtain the conviction of those felons who, in the course of the
Thus, the only actual consequence of this first degree felony-murder rule is to mete out to certain persons who cause a death unintentionally or accidentally the punishment which society prescribes for premeditated murder. Serious questions remain as to whether the state and federal Constitutions permit the government to exact such extreme punishment in the absence of proof that an accused deliberated or harbored malice.
The Constitution "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." (In re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375, 90 S.Ct. 1068].) Today's majority opinion correctly holds that the "substantive statutory definition" of the crime of first degree felony murder in this state does not include malice as an element. (Ante, at p. 475.) However, this conclusion does not necessarily mean that the Constitution permits a first degree murder conviction to be based on a killing where an accused harbored no malice.
Winship requires proof beyond a reasonable doubt of every element of murder, but the language of the Winship decision has broader implications. According to Winship, due process requires proof beyond a reasonable doubt of "every fact necessary to constitute the crime." (397 U.S. at p. 364 [25 L.Ed.2d at p. 375], italics added.) The United States Supreme Court did not tell us in Winship how to determine which "facts" are so "necessary" that the prosecution must prove them beyond a reasonable doubt. However, the high court has recognized that state legislatures will not be permitted to evade Winship by merely eliminating a "fact necessary to constitute the crime" from their statutory definition of the offense. (See Mullaney v. Wilbur (1975) 421 U.S. 684, 698 [44 L.Ed.2d 508, 519, 95 S.Ct. 1881]; see also Patterson v. New York (1977) 432 U.S. 197, 211, fn. 12 [53 L.Ed.2d 281, 292, 97 S.Ct. 2319].) As that court has taken pains to point out, "there are obviously constitutional limits beyond which the States may not go in this regard." (Patterson, supra, 432 U.S. at p. 210 [53 L.Ed.2d at p. 292].) The exact location of these "limits," however, has remained largely undefined in subsequent cases. (But see post, fn. 3.)
While the Supreme Court has managed to avoid this issue thus far, commentators have found it a fertile ground for theoretical discussion. Some have argued merely that those facts specified by the Legislature as necessary
What the exact contours of this doctrine are is another matter. The two most frequently mentioned constitutional limitations on substantive criminal law are a constitutional doctrine of mens rea (see Jeffries & Stephan, op. cit. supra, 88 Yale L.J. at pp. 1371-1376; Packer, Mens Rea and the Supreme Court, 1962 Sup. Ct. Rev. 107, 148-149; Hippard, The Unconstitutionality of Criminal Liability Without Fault: An Argument for a Constitutional Doctrine of Mens Rea (1973) 10 Houston L.Rev. 1039) and the Eighth Amendment's requirement of proportionality in criminal punishment.
If either source for such a theory is adopted,
I respectfully dissent, however, from the majority's conclusions that, as applied to defendant, the penalty of life imprisonment with possibility of parole constitutes cruel or unusual punishment under the California Constitution (art. I, § 17), and that accordingly the judgment must be modified to reduce the offense to second degree murder. In my view, modification of the judgment in reliance on the cruel or unusual punishment clause constitutes an unwarranted invasion both of the powers of the Legislature to define crimes and prescribe punishments, and of the Governor to exercise clemency and commute sentences.
We have long insisted that "appellate courts do not have the power to modify a sentence or reduce the punishment therein imposed absent error in the proceedings. [Citation.]" (People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal.Rptr. 577, 534 P.2d 65]; see People v. Odle (1951) 37 Cal.2d 52, 57 [230 P.2d 345].) Use of such a power by the appellate courts would constitute an exercise of "clemency powers similar to those vested in the governor ... and raise serious constitutional questions relating to the separation of powers." (Odle, at p. 58.) And although a truly disproportionate sentence may constitute "error" which would invoke our limited power to vacate or reduce a sentence (see People v. Frierson (1979) 25 Cal.3d 142, 182-183 [158 Cal.Rptr. 281, 599 P.2d 587]), nevertheless, as I will explain, this defendant's sentence of life with possibility of parole cannot reasonably be deemed disproportionate to his offense of first degree murder.
We have defined "cruel or unusual punishment" under the state Constitution as one which is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424 [105 Cal.Rptr. 217, 503 P.2d 921], fn. omitted.) The punishment here, as the majority itself acknowledges, is an enhanced base term of only 20 years in prison for the murder which he committed. (Ante, p. 487, fn. 37.) Moreover, he may well be released on parole at a much earlier date if the Board of Prison Terms
The sovereign people of this state have provided in their Constitution that "The death penalty ... shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments...." (Cal. Const., art. I, § 27, italics added.) But for his age (17) at the time of his offenses, defendant herein could have been charged with the death penalty or with life imprisonment without parole. (See Pen. Code, § 190.5; People v. Davis (1981) 29 Cal.3d 814 [176 Cal.Rptr. 521, 633 P.2d 186].) If the infliction of the death penalty cannot be deemed cruel or unusual punishment under the state Constitution, how can a substantially lesser penalty be so characterized?
The majority stresses defendant's youth, his immaturity, his lack of a prior criminal record, and the asserted fact that "The shooting in this case was a response to a suddenly developing situation...." (Ante, p. 488.) Each of these factors properly may be considered by the Board of Prison Terms in determining defendant's parole date. (Cal. Admin. Code, tit. 15, §§ 2281, 2284.) They do not, however, assist us one whit in measuring the constitutional propriety of a "life" sentence for first degree murder.
The majority's mild characterization of the killing as a mere benign "response to a suddenly developing situation" finds little support in the record, this is the way I read this record: Defendant had previously attempted to invade the marijuana plantation for the purpose of seizing some of the contraband. He met armed resistance by the owners and was forced to retreat. He thereupon carefully planned his second foray. He was going to "get even." He and a friend each planned to recruit three other friends. They chose the month of October because the marijuana would be ready for harvesting. Defendant told the gang to arm themselves, saying that he would bring his .410 and .22 rifles but that he needed ammunition. He rejected one proposal to start a diversionary fire, telling one companion that they should "just go up there. If the guy came out, we would just hold him up, hit him over the head or something. Tie him to a tree."
The time of the departure and place and time of assembly of the crew were agreed upon. Defendant prepared a map. Six of the persons, one of them armed with a shotgun, rendezvoused and obtained shotgun shells, paper
The men split into either three or four separate groups for their final approach to the marijuana field from different directions. Defendant and three other companions heard someone coming up a trail. Two of the party hid. Defendant either remained standing or, having crouched, then stood, and as the victim emerged from the bushes, defendant fired at him point blank at a distance of 10 to 30 feet. The victim did not point his gun at defendant and no words were exchanged. Defendant's rifle required that its trigger be pressed separately each time a bullet was fired. A subsequent autopsy of the victim's body revealed that nine bullets had found their mark. Defendant knew exactly what he was doing. He had carefully prepared for this ultimate culmination of his lethal plans.
There was nothing unplanned about this killing; indeed, under the circumstances recited above, an armed confrontation with tragic consequences appeared almost inevitable. The felony-murder rule, specifying that any homicide occurring during the perpetration or attempted perpetration of a robbery is first degree murder, clearly was designed to foreclose any argument regarding the actor's lack of premeditation or planning. Yet it is precisely such an argument that the majority accepts when it agrees to reduce defendant's sentence to second degree murder.
None of the disproportionality cases cited and relied on by the majority is apposite here. In re Lynch, supra, 8 Cal.3d 410, held excessive an indeterminate life-maximum sentence for a second offense of indecent exposure. In re Foss (1974) 10 Cal.3d 910, 917-929 [112 Cal.Rptr. 649, 519 P.2d 1073], and In re Grant (1976) 18 Cal.3d 1, 5-18 [132 Cal.Rptr. 430, 553 P.2d 590], struck down legislation barring recidivist drug offenders from parole consideration for 10 years. In re Rodriguez (1975) 14 Cal.3d 639, 653-656 [122 Cal.Rptr. 552, 537 P.2d 384], mandated the release of a nonviolent child molester who had been imprisoned for 22 years. None of these cases, which involved relatively minor offenses, supports a challenge to a probable 7- to 20-year "life" sentence for a first degree murder.
As Enmund explains, a defendant's punishment should be "tailored to his personal responsibility and moral guilt." (458 U.S. at p. 801 [73 L.Ed.2d at p. 1154, 102 S.Ct. at p. 3378].) Defendant was personally responsible for, and morally guilty of, a homicide committed in the attempted perpetration of a robbery. Although defendant, had he been a year older, could have been sentenced to death or life imprisonment without parole, by reason of his youth he received a far less severe sentence. A probable 7- to 20-year "life" sentence is very modest penal treatment for a deliberate killing. Any further clemency should rest with the Governor.
I would affirm the judgment in its entirety.
In part III of their opinion, however, the majority pile "inference on inference" (ante, p. 472, fn. 19) to reach the conclusion that Penal Code section 189 codifies the common law rule that a killing during the commission of a felony is considered to be murder without requiring proof of malice. The majority's account of the history of section 189, however, persuades me to a contrary conclusion.
As the majority explain, as of 1872 California had two felony-murder statutes: former section 25, which codified the common law felony-murder rule; and former section 21, which fixed the degree of the murder. The
We do not know why the Legislature failed to reenact section 25. (It seems fanciful to attempt to trace that failure to a mistaken comment by the Code Commissioners in their discussion of an arson statute.) It is possible that the Legislature intended to reenact the common law felony-murder rule and failed through inadvertence or oversight. But the fact remains that the Legislature did not reenact that rule, but retained only the statute which fixed the degree of the murder.
I do not believe the language of section 189, the degree-fixing statute, can reasonably be construed to encompass the common law felony-murder rule. As the majority carefully explain, the language of section 189 derives from former section 21 and similar enactments in other states — enactments clearly intended to serve solely the function of distinguishing between first and second degree murder. The current wording of section 189 reflects this limited purpose.
I conclude that the felony-murder rule remains judge-created and judge-preserved common law. It is therefore within the power of this court to overturn that rule. (See People v. Drew (1978) 22 Cal.3d 333, 347 [149 Cal.Rptr. 275, 583 P.2d 1318].) If we were to consider that matter, we
I dissent also to part V of the majority opinion. The statutory punishment of life imprisonment with possibility of parole is not constitutionally disproportionate to the crime of first degree murder. Neither is it excessive under the circumstances of this particular murder.
The defendant before us planned the robbery and recruited other youths to help him. The would-be robbers expected to meet armed resistance, planned to overcome that resistance, and armed themselves accordingly. When defendant, as he must have anticipated, met the armed guard he had encountered on two previous forays, defendant shot the guard nine times. Although defendant claims he shot impulsively and from panic, the same may well be true of many adult murderers. On this record, defendant is equally culpable as the typical adult felony-murder defendant — perhaps more so, since defendant was the instigator of the robbery and knew he would probably have to use his weapon to consummate the robbery.
The state, of course, does not have to punish every defendant to the maximum extent permitted by the Constitution. It may decide that certain defendants are good prospects for rehabilitation, and that severe punishment would interfere with that goal. The defendant before us may be one who would benefit from a rehabilitative commitment. But the decision whether to create rehabilitative programs, and who should be eligible for commitment under those programs, is essentially a legislative decision. So long as the Legislature does not punish disproportionately to the gravity of the crime and the culpability of the offender, its refusal to extend lenient treatment or to offer rehabilitative programs to those convicted of first degree murder does not constitute cruel or unusual punishment. I would therefore affirm the judgment against defendant.
Respondent's petition for a rehearing was denied October 6, 1983. Richardson, J., was of the opinion that the petition should be granted.
The amendment also made corresponding changes in punishment, prescribing the death penalty for first degree murder and a term of imprisonment of 10 years to life for second degree murder.
Over the ensuing years the Legislature added one further "means" of committing first degree murder (by "destructive device or explosive") and two further listed felonies (mayhem and a violation of § 288 [child molesting]), but the essential structure of the statute remains the same today. (Compare fn. 10, ante.)
"Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:
"1. Voluntary — upon a sudden quarrel or heat of passion.
"2. Involuntary — in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (Italics added.)
Except for a 1945 amendment adding the offense of vehicular manslaughter, the 1872 wording of the section is still in effect.
By another quirk of draftsmanship (cf. fn. 12, ante) the statute purported to apply this proviso to second degree arson (§ 5) but not to first degree arson (§ 4), and again a literal reading of the statute would have been absurd. The proviso had been taken verbatim from our first arson statute, which recognized only one degree of that crime. (Stats. 1850, ch. 99, § 56, at p. 235.) The discrepancy arose in 1856 when the Legislature divided arson into two degrees but did not make the proviso plainly applicable to both.
We recognize that from the standpoint of consistency the outcome of this analysis leaves much to be desired. Although the misdemeanor-manslaughter rule is plainly a creature of statute (Pen. Code, § 192, par. 2), we reach the same conclusion as to the first degree felony-murder rule only by piling inference on inference; and the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code (see People v. Phillips (1966) supra, 64 Cal.2d 574, 582, and cases cited). A thorough legislative reconsideration of the whole subject would seem to be in order.
Iowa: State v. Nowlin (1976) 244 N.W.2d 596, 604-605.
North Carolina: State v. Swift (1976) 290 N.C. 383 [226 S.E.2d 652, 668-669]; accord, State v. Womble (1977) 292 N.C. 455 [233 S.E.2d 534, 536-537]; State v. Wall (1982) 304 N.C. 609 [286 S.E.2d 68, 71-72].
Oklahoma: James v. State (1981) 637 P.2d 862, 865.
West Virginia: State ex rel. Peacher v. Sencindiver (1977) 233 S.E.2d 425, 426-427.
"We need a clarification[.] If defendant is guilty of attempted robbery, can we consider
if some one is killed during the commission of an attempted robbery, even accidental, are we to bring in a verdict of guilty to 1st degree murder[?]"
We need not invoke the third Lynch technique — a comparison of the challenged penalty with those prescribed for the same offense in other jurisdictions — in order to complete our analysis. We discussed these techniques in Lynch only as examples of the ways in which courts approach the proportionality problem; we neither held nor implied that a punishment cannot be ruled constitutionally excessive unless it is disproportionate in all three respects. (See, e.g., In re Rodriguez (1975) supra, 14 Cal.3d 639, 656 ["Petitioner has already served a term which by any of the Lynch criteria is disproportionate to his offense" (italics added)].) The sole test remains, as quoted above, whether the punishment "shocks the conscience and offends fundamental notions of human dignity." (Lynch, 8 Cal.3d at p. 424.)
"The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory `But I didn't mean to,' and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution." (Id., at pp. 250-251 [96 L.Ed. at pp. 293-294].)
In United States v. United States Gypsum Co. (1978) 438 U.S. 422, 436 [57 L.Ed.2d 854, 868, 98 S.Ct. 2864], the court again relied on Morissette in holding that a showing of intent was required to sustain criminal liability under the antitrust laws. Although the court purported to interpret the statute so as to require a mens rea element, despite a substantial body of contrary precedent, it referred to and clearly relied on the constitutionally disfavored status of strict liability crimes. (Id., at pp. 437-438 [57 L.Ed.2d at pp. 869-870].)
Once the prosecution proves defendant's culpable mental state with respect to the underlying felony, that culpability level is punishable by the sanction attached to the felony itself. The felony-murder rule, which mandates the imposition of severe additional punishment without any showing of additional mental culpability, is properly characterized as a strict liability criminal law concept. It is a concept which is blatantly unconstitutional if the Constitution prohibits the imposition of criminal punishment without a showing of a culpable mental state with respect to the result achieved. As Justice Mosk noted in dissent in Taylor v. Superior Court (1970) 3 Cal.3d 578, 593 [91 Cal.Rptr. 275, 477 P.2d 131]: "Fundamental principles of criminal responsibility dictate that the defendant be subject to a greater penalty only when he has demonstrated a greater degree of culpability. To ignore that rule is at best to frustrate the deterrent purpose of punishment, and at worst to risk constitutional invalidation on the ground of invidious discrimination."
The problem with such an application is that the escape, during which the death occurred, had no logical connection to the nature of the underlying felony. The felons could have been escaping from the scene of any crime with identical results. Although the Court of Appeal felt compelled by past cases to hold otherwise, it suggested that application of the doctrine should be limited to inherently dangerous burglaries. While this represents a more enlightened view, it misconceives the crucial point. The nature of the underlying crime is totally irrelevant. It is the felon's dangerous conduct during the escape which must be deterred. In Fuller, that conduct (reckless driving) already subjected the defendants to charges of vehicular manslaughter and possibly second degree murder on a reckless murder theory. (86 Cal. App.3d at p. 629.)
It is utterly irrational to subject some defendants to a first degree murder charge and a possible death sentence while others are charged only with vehicular manslaughter (or indeed no crime at all if their conduct was not grossly negligent) based solely on the nature of the crime from which they are escaping. Moreover, in People v. Olivas (1976) 17 Cal.3d 236, 251 [131 Cal.Rptr. 55, 551 P.2d 375], we recognized that distinctions in criminal punishments affect the citizen's fundamental interest in personal liberty and are thus subject to strict judicial scrutiny. The state can surely claim no compelling interest in imposing grossly disproportionate punishment on escaping burglars as opposed to escaping kidnapers or escaping thieves for unintended deaths which occur during such escapes.