Friday, August 20, 2004
State Supreme Court Rejects ‘Merger’ of Weapons Charge Into Homicide Offense
By a MetNews Staff Writer
Jurors who convicted an Oakland man of second degree murder for shooting vandals stealing hubcaps from his vehicle were properly instructed they could find the requisite intent based on his discharging a firearm in a grossly negligent manner, the state high court ruled yesterday.
Three of his colleagues joined in the opinion authored by Chief Justice Ronald M. George, but one of them wrote separately to question the continued viability of the crime of second degree felony murder.
Three other justices dissented separately.
George said the weapons offense, Penal Code Sec. 246.3, did not “merge” with the homicide crime under People v. Ireland (1969) 70 Cal.2d 522, since defendant Quincy Robertson testified he was only trying to frighten the victims when he discharged the firearm in their direction. The weapons charge was therefore “independent of or collateral to” an intent to cause injury that would result in death, taking it outside the merger doctrine under the reasoning of People v. Mattison (1971) 4 Cal.3d 177, George explained.
But the dissenting jurists pointed out that the chief justice’s rationale would permit a second degree felony murder conviction where the intent to harm was absent from the predicate weapons offense while barring it where that intent was present.
“In cases where evidence of malice is likely to be absent or highly equivocal, the second degree felony-murder rule makes proof of malice unnecessary and imposes murder liability for what might otherwise be manslaughter,” Justice Janice Rogers Brown observed. “It takes no genius to discern that a rule that relieves the People of the need to prove malice because the defendant asserts he did not harbor any is problematic.”
Brown and Justices Joyce L. Kennard and Kathryn M. Werdegar noted that second degree felony murder is a judicial creation, unlike first degree felony murder, the elements of which are statutorily prescribed. Werdeger noted that former members of the court, including Chief Justice Rose Bird in 1984 and Justice Edward Panelli in 1989, suggested in dissenting opinions that the need for the rule should be reexamined.
“It simply cannot be the law that a defendant who shot the victim with the intent to kill or injure, but can show he or she acted in unreasonable self-defense, may be convicted of only voluntary manslaughter, whereas a defendant who shot only to scare the victim is precluded from raising that partial defense and is strictly liable as a murderer. The independent and collateral purposes referred to in Mattison must be understood as limited to nonassaultive conduct. In circumstances like the present, the merger doctrine should preclude presentation of a second degree felony-murder theory to the jury.”
Kennard said the majority also erred in concluding that Robertson had “a felonious purpose independent of the killing.”
Justice Carlos Moreno, concurring in the opinion authored by the chief justice, noted that lawyers for Robertson had not challenged the second degree felony murder rule. In the past, he observed, the high court has cited the absence of legislative action abrogating the doctrine as a basis for retaining it.
“Because I believe the doctrine is deeply flawed and the issue is important, I do not believe legislative acquiescence should deter this court from reassessing the rule in an appropriate case,” Moreno declared.
“I am not fully convinced prosecutors should be permitted to use, or even need, this back-door route to secure a second degree murder conviction,” he commented.
The case is People v. Robertson, 04 S.O.S. 4569.
Copyright 2004, Metropolitan News Company