34 Cal. 3d 441, 194 Cal. Rptr. 390, 668 P.2d 697 (1983)
In 1978 seventeen-year-old high school student Norman Dillon lived in the Santa Cruz Mountains near a quarter-acre marijuana farm guarded by Dennis Johnson and his brother.1 After learning of the farm Dillon made several trips to the property with schoolmates crossing posted barricades and encountering Johnson who carried a shotgun and issued threats.2 Weeks later Dillon returned with his brother and again fled after hearing a shotgun blast.3
Dillon and a friend then recruited six additional classmates for a planned rip-off of the marijuana.4 On the morning of October 17 1978 the group of eight equipped themselves with shotguns a .22 caliber semi-automatic rifle a baseball bat sticks a knife wirecutters paper-bag masks rope and strips of sheeting.5 Dillon prepared a rough map of the area and the boys proceeded to the farm.6
The boys split into pairs and surrounded the field where Johnson tended the plants.7 After two accidental shotgun discharges by one participant Johnson approached the group along a trail carrying his own shotgun.8 Dillon fired his rifle rapidly at Johnson inflicting nine bullet wounds from which Johnson died several days later.9 The group fled without taking any marijuana.10
A jury convicted Dillon of attempted robbery and first degree felony murder.11 The trial court initially committed him to the Youth Authority but after the People obtained a writ the court sentenced him to life imprisonment.12 Dillon appealed the judgment to the Supreme Court of California.13
Whether a standing crop of marijuana can be the subject of robbery or attempted robbery?14
Robbery under Penal Code section 211 may be committed when property affixed to realty is severed and taken in circumstances that would subject the perpetrator to liability for robbery if the property had been severed by another at a previous time.15 The common law rule limiting larceny and robbery to personalty is rejected as an archaic formalism.16
Yes. The established facts show that Dillon and his companions equipped themselves with tools for harvesting the marijuana plants and intended to take the standing crop by force if necessary after prior encounters with the armed guard.17 The court applied the modern rule that a standing crop may be the subject of robbery because the Legislature had eliminated the archaic distinction for larceny in Penal Code sections 487b, 487c, and 495.18 No rational basis existed to preserve it only for the more serious crime of robbery.19 The boys' conduct of arming themselves, dividing into pairs, and encircling the field demonstrated the requisite intent and overt acts toward taking the crop by force.20
The facts further establish that the marijuana was a valuable standing crop guarded by armed men.21 The group knew force would likely be required.22 This satisfied the elements of attempted robbery even without actual severance and asportation.23
Yes, a standing crop of marijuana can be the subject of robbery or attempted robbery.24
Whether the first degree felony-murder rule in California is a statutory enactment that cannot be judicially abrogated?25
Yes. The established facts show that Dillon was convicted of first degree felony murder based on the killing occurring during the attempted robbery of the marijuana farm.28 The court reviewed the legislative history from the 1850 Act through the 1872 Penal Code and concluded that section 189 embodies the rule.29 This conclusion was confirmed by the Code Commission's notes and subsequent legislative acquiescence.30 Although the court acknowledged the rule's dubious origins and harshness, it held that judicial abrogation is unavailable because the Legislature has adopted the rule by statute.31
The facts of the accidental discharges and the approach of the guard leading to the shooting during the ongoing attempt confirm that the statutory rule was properly applied to fix the degree at first degree without independent proof of malice.
Yes, the first degree felony-murder rule is a statutory enactment that cannot be judicially abrogated.32
Related opinions on this issue
Justice Broussard concurred in the result on the statutory nature of the rule but dissented from the historical analysis.33 He concluded that section 189 is only a degree-fixing statute and that the felony-murder rule remains judge-made common law subject to judicial reconsideration.34 He would have held that the Legislature did not codify the rule in 1872 and that the court retains power to abolish it.35
Broussard emphasized that the omission of former section 25 from the 1872 Penal Code left no statutory basis for the rule itself.36 He argued that the language of section 189 cannot reasonably be construed to encompass the common law felony-murder rule because it refers to murder in perpetration of felonies, which presupposes malice has already been established.37
Justice Richardson concurred that the first degree felony-murder rule is statutory and constitutional but dissented from the reduction of the sentence.38 He argued that the life sentence was not disproportionate given the planned armed raid and the intentional shooting of nine bullets at close range.39 Richardson stressed that the defendant had prepared extensively and fired deliberately at the victim.40
He detailed how Dillon planned the raid, armed the group, and fired nine times at point blank range after previous confrontations.41 Richardson viewed the killing as the foreseeable result of the armed robbery attempt rather than a spontaneous panic response.42
Whether the first degree felony-murder rule violates due process by relieving the prosecution of the burden to prove malice?43
The felony-murder rule does not violate due process because malice is not an element of felony murder under the substantive statutory definition in section 189.44 The conclusive presumption language is merely a procedural fiction describing a rule of substantive law that eliminates the need to prove malice.45
No. The established facts demonstrate that the jury was instructed on felony murder and returned a first degree verdict based solely on the killing during the attempted robbery without any requirement to find malice.46 The court held that the rule raises no true presumption of malice and therefore does not shift any burden or violate Winship or Mullaney.47 The substantive crime of first degree felony murder simply does not include malice as an element.48 The psychologist's testimony and the jury's questions about the defendant's immaturity were irrelevant to the felony-murder count because malice need not be proved.49
The facts of the rapid firing of nine shots during the confrontation confirm that the prosecution met its burden by proving the underlying felony and the causal killing.50 This satisfied due process.51
No, the first degree felony-murder rule does not violate due process by relieving the prosecution of the burden to prove malice.52
Related opinions on this issue
Chief Justice Bird joined the majority opinion but wrote separately to note that while the first degree rule is statutory, the second degree felony-murder rule remains judge-made and subject to reexamination.53 Bird highlighted unresolved constitutional questions about proportionality and mens rea for unintentional killings under the first degree rule.54 She observed that the rule's elimination of malice raises serious due process concerns for accidental deaths even if the first degree rule itself is upheld as statutory.55
Whether the penalty of life imprisonment for first degree felony murder is subject to the constitutional prohibition against cruel or unusual punishments when applied to this defendant?56
Under article I, section 17 of the California Constitution and the proportionality rule of In re Lynch, a statutory penalty of life imprisonment for first degree felony murder is subject to judicial review.57 It may be reduced if it is grossly disproportionate to the offense as committed and to the individual culpability of the offender.58 Relevant factors include age, immaturity, lack of prior record, and the circumstances of the killing.59
Yes. The established facts show that seventeen-year-old Dillon, with no prior record and described by the trial judge and jury as unusually immature, panicked and fired during a suddenly developing confrontation after accidental shotgun blasts.60 This led to a killing the triers of fact viewed as lacking premeditation.61 The court applied the Lynch factors to the nature of the offense and the offender and concluded that life imprisonment as a first degree murderer was disproportionate to Dillon's attenuated culpability.62 This was especially true when compared to the minimal punishments received by his seven companions.63 The jury's notes and the judge's comments confirmed their belief that the felony-murder rule produced an excessive result.64
The facts of Dillon's prior failed attempts, his recruitment of others, and the arming for the raid were weighed but did not overcome the evidence of his youth, lack of criminal history, and the spontaneous nature of the shooting as perceived by the fact finders.65
Yes, the penalty of life imprisonment is subject to the constitutional prohibition against cruel or unusual punishments when applied to this defendant, requiring reduction to second degree murder.66
Related opinions on this issue
Justice Reynoso concurred in the result on the cruel or unusual punishment issue and in sections I, II, and V of the majority opinion.67 He agreed that the conduct constituted an attempt and that the Lynch analysis properly reduced the degree.68 Reynoso concurred only in the result on the felony-murder rule discussion in sections III and IV because he had grave concerns about the reasoning on the statutory status of the rule.69
He emphasized that the proportionality holding stands independently of the felony-murder analysis.70
Justice Kaus concurred in the reduction of degree but on the additional ground that the trial court erred by failing to inform the jury of its power to nullify the harsh felony-murder rule when the jury explicitly asked whether it could return a lesser verdict.71 Kaus viewed the court's negative response as error that affected the verdict.72 He explained that the jury had sought a way to avoid the rule's consequences and that the court was obligated to acknowledge the jury's power to nullify in that specific circumstance.73
Kaus drew on historical precedents like Bushell's Case to support the jury's power and argued that the trial court's instruction improperly pressured the jury to follow the law strictly despite their evident desire for a lesser verdict.74
Justice Kingsley concurred fully in Justice Mosk's opinion.75 He emphasized that the constitutional prohibition against cruel or unusual punishment is itself part of the law being applied and that the court was not engaging in jury nullification but enforcing the full law including the proportionality requirement.76 Kingsley distinguished the majority's approach from true nullification by noting that the court was applying an established constitutional limit rather than disregarding statutory text.77
He stressed that the court was upholding the law in its entirety, including constitutional constraints on punishment.78