Witkin & Epstein California Criminal Law, Third Edition

CHAPTER IV - CRIMES AGAINST THE PERSON

V. HOMICIDE C. Second Degree Murder. 6. Killing in Perpetration of Felony. d. Merger Doctrine. 1. Application in Assault Cases.

1 Witkin Cal. Crim. Law Crimes - Pers § 186

[§ 186] Application in Assault Cases.

In People v. Ireland (1969) 70 C.2d 522, 75 C.R. 188, 450 P.2d 580, defendant shot and killed his wife. The jury was instructed that it could return a second degree felony-murder verdict based on the underlying felony of assault with a deadly weapon, and defendant was convicted of second degree murder. Held, reversed.

(a) To permit use of the felony-murder rule under these circumstances "would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault--a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged." (70 C.2d 539.)

(b) New York and other states recognize a similar limitation on the felony-murder rule. The reasoning underlying this "merger" doctrine "is basically sound and should be applied to the extent that it is consistent with the laws and policies of this state." (70 C.2d 540.) (See People v. Francisco (1994) 22 C.A.4th 1180, 1189, 27 C.R.2d 695 [allowing aiding and abetting assault with firearm to be used for felony-murder does not violate Ireland rule]; 20 U.C.L.A. L. Rev. 250; 40 A.L.R.3d 1341; on application of "merger" doctrine to first degree felony-murder, see supra, §145.)

Following People v. Ireland, courts have consistently held that a second degree felony- murder instruction is improper when the underlying felony is assault with a deadly weapon. (See People v. Mahle (1969) 273 C.A.2d 309, 314, 78 C.R. 360; People v. Jenkins (1969) 275 C.A.2d 545, 547, 80 C.R. 257; People v. Wilson (1969) 1 C.3d 431, 438, 82 C.R. 494, 462 P.2d 22; on use of circumstances of assault with deadly weapon to imply malice in homicide case, see infra, §199.)

In People v. Carlson (1974) 37 C.A.3d 349, 112 C.R. 321, 1 Cal. Crim. Law (3d), Elements, §14, defendant killed his wife. He was convicted of voluntary manslaughter of his wife and, by use of the felony-murder rule with the manslaughter as the underlying felony, of the second degree murder of the fetus she was carrying. Held, murder conviction reversed. "[I]f, as reasoned in Ireland, a man assaulting another with a deadly weapon could not be deterred by the second degree felony-murder rule because the assault was an integral part of the homicide, it seems to us equally reasonable to conclude that a man assaulting two persons at the same time and by the same act would not be deterred by the felony-murder rule since the assault was an integral part of the resulting homicide of the two victims." (37 C.A.3d 354.) [§ 187] Rejection in Nonassault Cases.

The Supreme Court revisited People v. Ireland (1969) 70 C.2d 522, 75 C.R. 188, 450 P.2d 580, supra, §186, in People v. Hansen (1994) 9 C.4th 300, 36 C.R.2d 609, 885 P.2d 1022, a case involving wilful discharge of a firearm at an inhabited dwelling (P.C. 246, supra, §49), and concluded that the felony-murder rule applied. (9 C.4th 311.)

(a) The name of the doctrine, "merger," is a shorthand explanation for the conclusion that the felony-murder rule should not be applied where the only underlying felony is assault; the assault is said to have "merged" with the resulting homicide. Because most homicides are caused by some kind of assault, if felony-murder could be predicated on assault, every felonious assault resulting in death would be elevated to murder. This would "usurp most of the law of homicide," relieve prosecutors of the burden of proving malice, and frustrate the legislative design of punishing homicides resulting from malice aforethought more harshly than other homicides. (9 C.4th 311.)

(b) The Supreme Court has not extended the Ireland doctrine beyond the context of assault, even under the circumstance where the underlying felony could be characterized as "an integral part of" the resulting homicide. People v. Mattison (1971) 4 C.3d 177, 93 C.R. 185, 481 P.2d 193, infra, §190, relying on People v. Taylor (1970) 11 C.A.3d 57, 89 C.R. 697, infra, §189, rejected the merger doctrine in the context of felony-murder based on P.C. 347 (poisoning food, drink, or medicine). (9 C.4th 313, 314.) Taylor itself rejected Ireland's "integral part of the homicide" language as constituting the test for merger, and none of the Supreme Court's decisions since Ireland has applied the doctrine outside the assault context in which it arose. (9 C.4th 312, 314.)

(c) The Taylor rationale is approved except for its conclusion that the critical test for merger is whether the felony was committed with a collateral and independent design. (9 C.4th 314, 315.) Under that test, a felon whose purpose is something other than injuring another person (for example, by selling narcotics or firing a gun at a building solely to intimidate the occupants) would be subject to greater liability for a resulting death than a person who sets out to injure the victim. (9 C.4th 315.)

(d) The appropriate focus is on the principles and rationale underlying Taylor, "namely, that with respect to certain inherently dangerous felonies, their use as the predicate felony supporting application of the felony-murder rule will not elevate all felonious assaults to murder or otherwise subvert the legislative intent." (9 C.4th 315.)

(e) Here, application of the felony-murder rule would not subvert legislative intent, because most homicides do not result from violations of P.C. 246, and that crime is not one in which actual malice (apart from the requirement that the firearm be discharged "maliciously and wilfully") is required. (9 C.4th 315.)

This is an interesting note explaining why in this case, the court said that in a situation where they couldn’t prove malice in charging someone with poisoning under PC §189 (which would’ve been 1st degree murder) – they could still get them for 2nd degree murder using the FMR because administering poison is inherently dangerous & not an integral part of the offense of killing.

In People v. Mattison (1971) 4 C.3d 177, 93 C.R. 185, 481 P.2d 193, use of P.C. 347 (wilful poisoning of food, drink, or medicine) as the underlying felony for a second degree felony- murder conviction was held proper. The victim, a prison inmate, bought alcohol from defendant, a fellow inmate who was working as a medical technician. The drink proved to be methyl alcohol, and ingestion of it was fatal. After his conviction of second degree murder, defendant contended on appeal that he was guilty of first degree murder or was innocent. Held, conviction affirmed.

(a) A murder committed by means of poison is first degree murder by virtue of P.C. 189 (see supra, §130). But a killing by means of poison is not murder unless malice, express or implied, is shown. Hence, to establish first degree murder by poison, malice aforethought must first be established. (4 C.3d 182, 183.)

(b) Here, there was no evidence of express malice (specific intent to kill), and the evidence of implied malice (deliberate administration of the poison with conscious disregard for life) was less than convincing. Hence, the jury could properly reject the theory of first degree murder by poison. (4 C.3d 183, 184.)

(c) Even so, defendant could properly have been convicted of second degree murder under the felony-murder doctrine. The offense here was not an integral part of the homicide, but rather was committed with an independent felonious design. In other words, administration of the poison "was not done with the intent to commit injury which would cause death." (4 C.3d 185.) This case is therefore "virtually indistinguishable" from People v. Taylor (1970) 11 C.A.3d 57, 89 C.R. 697, supra, §189. (4 C.3d 185.)