People v. Washington ( 1965 )

BURKE, J.

I dissent. The unfortunate effect of the decision of the majority in this case is to advise felons:

“Henceforth in committing certain crimes, including robbery, rape and burglary, you are free to arm yourselves with a gun and brandish it in the faces of your victims without fear of a murder conviction unless you or your accomplice pulls the trigger. If the menacing effect of your gun causes a victim or policeman to fire and kill an innocent person or a cofelon, you are absolved of responsibility for such killing unless you shoot first.”

Obviously this advance judicial absolution removes one the most meaningful deterrents to the commission of armed felonies.

In the present ease defendant’s accomplice was killed when the robbery victim fired after the accomplice had pointed a revolver at him. In People v. Harrison (1959) 176 Cal.App. 2d 330 [1 Cal.Rptr. 414] (hearing in Supreme Court denied without a dissenting vote), the rationale of which the majority now disapprove, the robbery victim was himself accidentally killed by a shot fired by his employee after defendant robbers had opened fire, and the robbers were held guilty of murder for the killing. The majority now attempt to distinguish Harrison on the ground that there the robbers “initiated” the gun battle; in the present case the victim fired the first shot. As will appear, any such purported distinction is an invitation to further armed crimes of violence. There is no room in the law for sporting considerations and distinctions as to who fired first when dealing with killings which are caused by the actions of felons in deliberately arming themselves to commit any of the heinous crimes listed in Penal Code section 189. If a victim—or someone defending the victim—seizes an opportunity to shoot first when confronted by robbers with a deadly, weapon (real or simulated), any “gun battle” is initiated by the armed robbers. In such a situation application of the felony-murder rule of section 189 of the Penal Code supports, if not compels, the conclusion that the surviving robbers committed murder even if the lethal bullet did not come from one of their guns, and whether it is an innocent person or an accomplice who dies.

Section 187 of the Penal Code declares that “Murder is the unlawful[¹] killing of a human being, with malice aforethought.” Section 188 states that “Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away ... life.... It is implied... when the circumstances attending the killing show an abandoned and malignant heart.”

Section 189 specifies that “All murder which is perpetrated by . .. any . .. kind of wilful, deliberate, and premeditated killing, or which is committed in the perpetration or attempt to perpetrate... robbery [or five other named felonies^{1 2}], is murder of the first degree....”

So heinous has the Legislature considered murders in the perpetration of these offenses that it grouped them with murder by means of poison, lying in wait or by torture, and, fundamentally, the law in this respect has remained unchanged for more than one hundred years. (Stats. 1850, p. 231; Stats. 1856, p. 219; now Pen. Code, § 189.)

In People v. Milton (1904) 145 Cal. 169,171-172 [78 P. 549], the court pointed out that a killing is unlawful which is “perpetrated in the performance or attempt to perform one of these felonies, and the malice of the abandoned and malignant heart is shown from the very nature of the crime” the defendant is attempting to commit. Thus the killing is established as murder under section 187, in the light of the definition of malice found in section 188, and section 189 makes it first degree murder. Therefore, held the court, even if the killing be accidental or unintentional, if committed in the attempt to perpetrate one of the felonies named in section 189 it is first degree murder.

This principle has been repeatedly upheld by this court (see People v. Raber (1914) 168 Cal. 316, 318 [143 P. 317] ; People v. Witt (1915) 170 Cal. 104, 107-108 [148 P. 928]; People v. Denman (1918) 179 Cal. 497, 498-499 [177 P. 461]; People v. Boss (1930) 210 Cal. 245, 249 [290 P. 881]; People v. Valentine (1946) 28 Cal.2d 121, 135 [169 P.2d 1] ; People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570]), and is expressly recognized by the majority in the instant case with the declaration (ante, p. 781) that “inadvertent or accidental killings are first degree murders when committed by felons in the perpetration of robbery.” (Italics added.) The majority further expressly recognize the rule (ante, pp. 781-782) that “A defendant need not do the killing himself . . . to he guilty of murder. . . . All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills” in the perpetration of the robbery. (See People v. Boss, supra.)

Despite these declared principles—long established and effective in their deterrence of crimes of violence—the majority now announce (ante, p. 781) that “When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him, in the perpetration or attempt to perpetrate robbery. It is not enough that the killing was a risk reasonably to be foreseen.... Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony.... To include such killings within section 189 would expand the meaning of the words‘murder . . . which is committed in the perpetration... [of] robbery... ’ beyond common understanding.” (Italics added.)

But section 189 carries not the least suggestion of a requirement that the killing must take place 'to perpetrate the felony. If that requirement now be read into the section by the majority, then what becomes of the rule—which they purport to recognize—that an accidental and unintentional killing falls within the section ? How can it be said that such a v killing takes place to perpetrate a robbery 1

Moreover, as already noted, the malice aforethought of the abandoned and malignant heart is shown from the very nature of the crime, here armed robbery, the defendant is attempting to commit. (People v. Milton (1904) supra, 145 Cal. 169, 171-172.) This truism was confirmed in People v. Bostic (1914) 167 Cal. 754, 761 [14 P. 380], wherein the court pointed out that the argument that to be first degree murder a killing during robbery must be planned as a part of the scheme, carries its own refutation, “for it must be apparent that without reference to the robbery such a murder would be a ‘wilful, deliberate and premeditated killing,’ ” and hence, first degree murder; further, said-the court, “The moment [defendant] entered that [train] car with a deadly weapon in his hand, with the purpose of committing robbery, the law fixed upon him the intent which would make any killing in the perpetration of the robbery or in the attempt.. . a murder of the first degree. In such cases the law does not measure the delicate scruples of the robber with reference to shooting his victim. ’ ’ Again in People v. Coefield, supra (1951) 37 Cal.2d 865, 868 [2] the court took note of the rule “that when one enters a place with a deadly weapon for the purpose of committing robbery, malice is shown by the nature of the attempted crime. ’ ’ This is also the approach of the general felony-murder doctrine, a doctrine which (the majority confirm) ascribes malice aforethought where the killing is in the perpetration of an inherently dangerous felony. As expressed in People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892], cited by the majority, “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen. Code, sec. 189) constitutes at least second degree murder. [Citations.] ” (Italics added.)

A homicide which arises out of an attempt at armed robbery is a direct causal result of the chain of events set in motion by the robbers when they undertook their felony. When a victim fires the lethal bullet, whether or not he fires first, the killing is caused by the act of the felon and the felon is as responsible therefor as when the firing is by his accomplice or when it is accidental or unintentional.³ The majority suggest (ante, p. 782), “it is unnecessary to imply malice by invoking the felony-murder doctrine” where the robber “initiates” a gun battle by shooting first. This suggestion by the majority, I respectfully submit, emphasizes the inconsistency of their opinion. First they declare (ante, p. 781) that “When a killing is not committed by a robber... but by his victim, malice aforethought is not attributable to the robber, for the killing is not committed by him in ... robbery.” (Italics added.) Later they state (ante, p. 782) that “Defendants who initiate gun battles may also be found guilty of murder if their victims resist and kill . . . and it is unnecessary to imply malice by invoking the felony-murder doctrine.” (Italics added.)

But malice aforethought is an essential element of murder. (Pen. Code, § 187.) If it is not attributable to the robber when a killing is “committed by” his victim rather than by himself in a gun battle initiated by the robber, is the essential malice express—or is it to be implied under some doctrine other than the felony-murder rule? Do the majority imply the malice of the abandoned and malignant heart (Pen. Code, § 188) only if the robber shoots first, but not if he merely creates the foreseeable risk that 11 the victim will resist and kill”? And this despite the fact that, as the majority further affirm {ante, p. 781), “the robbery might therefore be regarded as a proximate cause of the killing”?

Even if, as the majority suggest (ante, p. 782), it is unnecessary to imply malice by invoking the felony-murder doctrine where the robber shoots first, that doctrine can and should be invoked in a ease in which, as here, a robber with a gun in his hand confronts a victim who can and does resist by firing the first shot. In such a case, the robber “initiated” the criminal plan, he “initiated” it by wilfully, maliciously and wantonly putting the victim in fear of his life, and he “initiated” any resultant shooting, whether by his gun or that of the victim. Where the victim is in a position to shoot first and his bullet kills, the killing should be viewed in law and in fact as having been “committed” by the robber (as it was in People v. Harrison, supra, 176 Cal.App.2d 330), and application of the felony-murder rule to such circumstances is, in my view, exactly the sort of “rational function that it is designed to serve”—in the phrasing of the majority (ante, p. 783).

Extreme examples may he imagined in which the application of a rule of criminal liability would appear manifestly unjust. However, when this court and others have been faced with such an example exceptions have been made to avoid an unconscionable result. To reject invocation of the felony-murder rule here, as do the majority {ante, pp. 782-783), because of possible harshness in its application in other circumstances, for example, to fleeing robbers who are not armed, dilutes the enforcement of criminal responsibility. The case anticipated and the injustice sought to be protected against by the majority are not before us, and can best be dealt with when and if encountered. It may be observed, however, that robbers are not compelled to flee and thus to be shot at endangering themselves and others. They need only surrender, as many have done, to avoid death, to themselves or others, and the awesome penalties which attach under the felony-murder law.

I agree with the majority (ante, p. 781) that one purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. However, another equally cogent purpose is to deter them from undertaking inherently dangerous felonies in which, as the majority state (ante, p. 781), a “killing was a risk reasonably to be foreseen. ... In every robbery there is a possibility that the victim will resist and MIL” As declared in People v. Chavez (1951) 37 Cal.2d 656, 669 [234 P.2d 632], “The statute [Pen. Code, § 189] was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker.” Why a felon who has undertaken an armed robbery, which this court now expressly notifies him carries a “risk” and “a possibility that the victim will resist and kill,” and which “might therefore be regarded as a proximate cause of the killing” should nevertheless be absolved because, fortuitously, the victim can and does shoot first and the lethal bullet comes from the victim’s gun rather than from his own, will be beyond the comprehension of the average law-abiding citizen, to say nothing of that of victims of armed robbery. Nor is such a view compatible with the felony-murder doctrine.

But, say the majority, “The robber has little control over such a killing once the robbery is undertaken,” and “To impose an additional penalty for the Mlling would discriminate between robbers, not on the basis of any difference in their own conduct, but solely on the basis of the response by others that the robber’s conduct happened to induce.” (Ante, p. 781). A robber has no control over a bullet sent on its way after he pulls the trigger. Certainly his inability to recall it before it Mils does not cloak him with innocence of the homicide. The truth is, of course, that the robber may exercise various “controls over” a possible Mlling from his victim’s bullet “once the robbery is undertaken.” The robber can drop his own weapon, he can refrain from using it, he can surrender. Other conduct can be suggested wMeh would tend to reassure the victim and dissuade him from firing his own gun. Moreover, the response by one victim will lead to capture of the robbers, wMle that of another victim will permit their escape. Is the captured felon to be excused from responsibility for his crime, in order not to “discriminate between robbers... solely on the basis of the response by others that the robber’s conduct happened to induce”?

The robber’s conduct which forms the basis of his criminal responsibility is the undertaking of the armed felony, in which a “killing was a risk reasonably to be foreseen” including the “possibility that the victim will resist and kill.” If that risk becomes reality and a killing occurs, the guilt for it is that of the felon. And when done, it is murder in the first degree—calling for death or life imprisonment. And to say that the knowledge that this awesome, sobering, terrifying responsibility of one contemplating the use of a deadly weapon in the perpetration of one of the listed offenses is not the strongest possible deterrent to the commission of such offenses belies what is being demonstrated day after day in the criminal departments of our trial courts.

I would hold, in accord with the rationale of People v. Harrison, supra (1959) 176 Cal.App.2d 330, that the killing is that of the felon whether or not the lethal bullet comes from his gun or that of his accomplice and whether or not one of them shoots first, and would affirm the judgment of conviction of murder in the instant case.

McComb, J., concurred.

Respondent’s petition for a rehearing was denied June 23, 1965. Mosk, J., did not participate therein. McComb J., and Burke, J., were of the opinion that the petition should be granted.

1 I.e., not excusable (§ 195) or justifiable (§§ 196, 197).

2 I.e., arson, rape, burglary, mayhem, or any act punishable under section 288 (lewd or lascivious acts against children).

3 It should be noted that the doctrine of proximate causation has not been confined to civil eases. In People v. Monk (1961) 56 Cal.2d 288, 296 [14 Cal.Rptr. 633, 363 P.2d 865], for example, the defendant made threats of serious bodily harm to a person whom he had kidnaped for purposes of robbery, and the threats caused her to jump from an automobile and receive injuries. This court held that the doctrine of proximate causation was applicable, that the victim had suffered “bodily harm” within the meaning of Penal Code section 209, and that the penalty of death was proper.