The Dangerous-Felony Limit

The Dangerous-Felony Limit

The deterrence rationale ended on a question of reach: which felonies are dangerous enough that treating a death as murder makes sense? At early common law the question hardly arose, because the rule covered any felony, without regard to how dangerous the felony was or how likely death was from the way the defendant committed it.¹ That breadth was tolerable while few felonies existed and each was punished as a capital offense. Legislatures have since created a wide range of statutory felonies, many of them concerning minor misconduct and carrying penalties far below those for murder.² Applied with its old rigor to such offenses, the rule would make a seller who violates a felony liquor statute a murderer if the buyer falls asleep on the way home and dies of exposure.³ Courts and legislatures answered by confining the rule: by the type of felony, by a stricter view of proximate cause, by a narrower view of when the felony is still in progress, and by requiring that the felony be independent of the homicide.⁴ This section takes up the first of those limits, the requirement that the felony be dangerous to life, and then gives a short account of the independence requirement.

The dangerousness requirement follows directly from what the rule claims to do. Felony murder treats the intent to commit the felony as the equivalent of the malice that murder requires, and that equivalence is believable only if the nature of the felony is such that intending it shows a conscious disregard for human life.⁵ In Commonwealth v. Matchett the Massachusetts court agreed, describing the reasons for limiting the rule to inherently dangerous felonies as sound.⁶ When a felony carries no special danger to life, forming the intent to commit it reveals nothing about the defendant's attitude toward human life, and the substitution of that intent for malice has nothing to rest on. Confining the rule to dangerous felonies therefore keeps the substitution tied to the reason that justifies it and keeps the rule from spreading to every crime during which a death happens to occur.

The three sections that follow take the limit in order. The first states the requirement and its paradigm, armed robbery. The second explains how danger is measured, which is by the definition of the felony rather than by the way the defendant happened to commit it. The third shows how the limit interacts with the legislature's list of felonies to fix the degree of murder. Before those sections, one companion limit needs a place, because it screens the predicate felony on a different ground and applies even to a felony that is plainly dangerous.

A felony can endanger life and still be unavailable as a predicate if it is not independent of the homicide. Under the merger doctrine, a felony whose elements are an integral part of the killing merges into the homicide and cannot supply the malice for felony murder.⁷ The classic example is assault with a deadly weapon, because every element of that crime is included in murder, whereas robbery contains an element, the taking of property, that murder does not.⁸ The reason for merger is a bootstrap problem. Nearly every unlawful killing is committed by means of some felonious assault, so if assault could serve as the predicate, the rule would reach nearly every killing and would supply malice automatically in each. In People v. Ireland a defendant shot his wife, and the jury was told it could find second-degree felony murder based on assault with a deadly weapon. The California Supreme Court held the instruction improper where the felony is an integral part of the homicide, because it would keep the jury from considering malice in the great majority of homicides, a result the court called "bootstrapping."⁹

The cost of that bootstrap falls hardest at the boundary between murder and manslaughter. Imputed malice eliminates the possibility that a felony killing is manslaughter, yet an intentional killing committed under sufficient provocation, or by a defendant whose mental illness, mental defect, or intoxication prevented malice, would ordinarily be reduced to voluntary manslaughter.¹⁰ An assault predicate would erase those distinctions, which is why the great majority of jurisdictions adopt some merger doctrine to protect the grading choices the legislature appears to have made.¹¹ The deterrence logic points the same way. A person who sets out to assault someone is not deterred by a threat of felony-murder liability, so the rule can serve its purpose only when applied to a felony independent of the homicide.¹²

People v. Burton shows where the line falls. The defendant argued that armed robbery, because it technically includes an assault with a deadly weapon, should merge into the killing. The California Supreme Court rejected the argument, reasoning that the inquiry turns on the purpose of the conduct. In Ireland and in People v. Wilson the only purpose was the infliction of bodily injury, a single course of conduct with a single purpose, while armed robbery has an independent felonious purpose, the acquisition of another's property.¹³ The felon who embarks on robbery is therefore within the rule's warning, and a death directly resulting is felony murder. In People v. Smith the same court applied merger on the other side of the line. A child died after a beating, the jury was instructed on second-degree felony murder with felony child abuse as the predicate, and the court agreed with the defendant that the abuse was an integral part of the homicide and had merged into it.¹⁴

On an exam stem, a death that follows a simple assault, with nothing sought beyond the injury, is the signal that the predicate fails for want of independence.¹⁵ The rule varies by jurisdiction, because a few states still allow felonious assault to serve as a predicate, but the majority position is the one to state first.¹⁶

Inherently Dangerous Felonies

The felony-murder rule works by substitution: the intent to commit the felony stands in for the malice that murder otherwise requires.¹⁸ A substitute is only as reliable as the thing it replaces, so the practical question becomes what kind of felony is doing the replacing. Most states answer that only a felony inherently dangerous to human life will do, and the usual examples are rape, arson, robbery, and burglary.¹⁹ California, whose decisions supply the leading illustrations here, states the limit the same way: a felony supports the rule only if it is itself inherently dangerous to human life.²⁰ Some courts phrase the limit instead as a requirement that the felony be a common-law felony or one that is wrong in itself, but those formulations overlap heavily with danger to life, and the limit is best worded in terms of danger.²¹ Later sections take up how danger is measured and how the limit interacts with the degree of murder; this one shows the limit at work on both sides of the line, starting with armed robbery.

Armed robbery is the paradigm of a felony that qualifies. In People v. Stamp robbers held up a victim named Honeyman, who suffered from advanced atherosclerosis, and medical witnesses attributed his fatal heart attack to the fright the robbery produced.²² The court rejected the argument that the felony-murder rule could not reach such a death. It explained that the rule presumes malice aforethought from the commission of a felony inherently dangerous to human life, that no intentional act is needed beyond attempting or committing the robbery itself, and that when a robber enters a place with a deadly weapon intending to rob, malice is shown by the nature of the crime.²³ The death in Stamp was an unintended heart attack, which shows how little the rule depends on what the robber meant to do to the victim.

The reason robbery fits lies in its definition. Robbery is a taking accomplished by force or fear.²⁴ A person who sets out to commit it has therefore chosen a course whose working tools are violence and fright, and a death from a struggle, a discharged weapon, or a shock to a frail victim is the kind of harm that course invites. Intending that crime shows disregard for human life in a way that intending most other crimes does not, and that is exactly what the substitution of felony intent for malice requires. Burglary rests on a similar footing, because the burglary statute exists largely to forestall dangerous confrontations between intruders and occupants.²⁵ Arson belongs on the list for a comparable reason, and the standard illustration is a firefighter who dies fighting a blaze the defendant set.²⁶

The counter-example is a felony that sounds serious and was followed by a real death, yet fails the test. In People v. Phillips the prosecution's theory was that the defendant committed grand theft by false pretenses through a fraudulent cancer-cure scheme, and the trial court instructed that a death occurring in the course of conduct amounting to grand theft was second-degree murder even though the death was not intended.²⁷ The California Supreme Court held the instruction erroneous, because a felony-murder charge can rest only on a felony inherently dangerous to life, and grand theft is not one.²⁸ The error was prejudicial because the instruction withdrew the issue of malice from the jury. It allowed conviction on the bare showing that the death proximately resulted from conduct amounting to grand theft, without any finding of express malice or of the implied malice shown by acting with conscious disregard for life.²⁹

Set the two decisions side by side and the variable that matters is the felony. Each followed a crime aimed at someone's money, and each involved a death the defendant did not intend. In Stamp the felony was robbery, whose force-or-fear element makes malice visible in the crime itself, while in Phillips it was fraud, whose elements say nothing about how the defendant regards human life. The prosecution in Phillips could show that the death was real and tie it to the scheme, but a real death does not make a felony dangerous. The two cases also arise under different parts of California homicide law, since robbery is a listed felony under section 189 and the felony in Phillips was outside that list, a difference the section on degrees of murder takes up.³⁰

The limit protects one specific thing, which is the jury's chance to decide malice. When the predicate felony is dangerous, the rule treats the nature of the crime as doing the work that proof of a mental state would otherwise do, and the jury is relieved of finding express malice or implied malice separately.³¹ That shortcut is defensible only where committing the felony itself reveals disregard for life. Where the felony reveals nothing of the kind, the same shortcut removes the one question that separates murder from lesser homicide. A Michigan opinion in People v. Aaron quotes the state's earlier ruling making this point: many felonies are not inherently dangerous to human life, and treating every killing during a felony as murder would take the question of malice out of the jury's hands.³²

Closing the felony-murder route does not end the prosecution for murder; it sends the prosecution back to ordinary malice. A defendant who kills during a non-dangerous felony is still guilty of murder if the evidence shows express malice, or a reckless indifference to an unjustifiably high risk to human life, the mental state often called an abandoned and malignant heart.³³ The felony may add evidence of that mental state, but it is not a prerequisite to finding it.³⁴ Phillips itself shows the arrangement, because the jury there had been given two malice-based theories alongside the felony-murder theory, and it was the felony-murder theory that allowed jurors to skip the malice inquiry.³⁵

Courts sort other felonies by the same logic. California decisions have treated shooting at an inhabited dwelling, arson of a motor vehicle, kidnapping, and manufacturing methamphetamine as inherently dangerous, and have treated grand theft, extortion, prison escape, and possession of a concealable firearm by a convicted felon as not.³⁶ Minnesota applies a special-danger-to-life standard that looks at the felony's elements in the abstract and also at the circumstances of the offense. In State v. Anderson its supreme court held that felon in possession of a firearm and possession of a stolen firearm cannot support second-degree felony murder, because using a firearm can endanger life but simple possession standing alone does not.³⁷ The catalog is therefore a working guide rather than a closed list, and close cases turn on how a court measures danger, which the next section addresses.

Elements, Not Facts

The preceding section established that only a felony inherently dangerous to human life can supply malice. That limit leaves open what a court should examine when it decides whether a felony qualifies: the defendant's conduct on the night of the killing, or the felony as the legislature defined it. California measures danger by the elements in the abstract. In assessing the peril to human life inherent in a given felony, its supreme court has said, "we look to the elements of the felony in the abstract, not the particular 'facts' of the case."³⁹ The unit of analysis is therefore the statutory felony. Reckless conduct by a particular defendant cannot upgrade a felony whose definition carries no danger to life, and careful conduct by a particular robber cannot downgrade a felony whose definition does.

The clearest refusal to measure danger by the facts came in People v. Phillips. The prosecution there admitted that grand theft is not inherently dangerous to life, and it asked the court to consider the defendant's whole course of conduct instead. The Attorney General described that conduct as "grand theft medical fraud," a newly created felony that, on the State's argument, clearly involved danger to human life.⁴⁰ The California Supreme Court declined, because that framing would abandon the statutory definition of the felony and substitute the factual elements of the defendant's actual conduct.⁴¹ A death had occurred and the prosecution could tie it to the scheme, but the felony being measured remained grand theft, and grand theft fails the test.

The reason a fact-based test fails is that it has no stopping point. If a court could fold the surrounding facts into the felony, almost any felony could be redescribed until it sounded perilous: theft becomes theft by a method that endangers the victim's health, and a paperwork felony becomes a paperwork felony committed at high speed. The Phillips court said as much, explaining that once the legislature's definition is discarded, the number and nature of the contextual elements that could be added to an expanded description of the felony would be limitless, and the rule would reach any felony during which the defendant happened to act in a way that endangered life.⁴² The dangerous-felony limit exists to protect the jury's chance to decide malice, so a limit that any prosecutor could satisfy by choosing which facts to emphasize would protect nothing. The court also called the felony-murder doctrine a highly artificial concept that deserves no extension beyond its required application, which explains its preference for the narrower, definition-based measure.⁴³

The abstract test also fits the justification offered for the rule itself. The rule rests on the idea that when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to claim ignorance of the danger to life, because declaring the conduct a felony already warned the defendant of the risk.⁴⁴ Only the definition of a crime can deliver that warning, because the definition exists before anyone acts, while the facts of a particular episode exist only afterward. Measuring danger by the elements keeps the warning and the classification tied to the same text.

The abstract approach operates in the prosecution's favor as readily as against it. In People v. Stamp two armed robbers held up a business, and the owner, who suffered from heart disease, died of a heart attack between fifteen and twenty minutes later.⁴⁵ The robbers' main argument was that the death was unforeseeable. The court answered that the doctrine is not limited to foreseeable deaths: a felon is strictly liable for all killings committed in the course of the felony, so long as the homicide is the direct causal result of the robbery.⁴⁶ What carried the case was the category of the crime rather than a measurement of how threatening this particular holdup had been. Stamp arose under the statutory list of first-degree felonies, so it applies the category logic directly instead of the abstract-elements test, but the two ideas point the same way: a person who commits robbery has committed a felony whose definition signals the risk, however careful that person tried to be.⁴⁷

The point students most often miss is that the abstract test can defeat felony murder even on terrible facts. In People v. Sanchez, a defendant with a blood alcohol level of .18 percent led police on a chase through residential streets at speeds up to 100 miles per hour while his passengers pleaded with him to pull over, and one passenger died when the car crashed.⁴⁸ The prosecution proceeded in part on second-degree felony murder, with the predicate being a felonious violation of Vehicle Code section 2800.3, which punishes flight from a pursuing officer that proximately causes death or serious bodily injury.⁴⁹ The trial court itself told the jury that evading a peace officer is a felony inherently dangerous to human life, which is how the classification question normally reaches jurors: the judge answers it as a matter of law and the jurors apply the answer.⁵⁰ The appellate court held that instruction wrong. A felony qualifies only if, viewed in the abstract, its dispositive elements cannot be satisfied without creating a substantial risk that someone will be killed, and the elements of section 2800.3 can be satisfied by conduct that does not necessarily pose a high probability of death.⁵¹ That violations usually do involve a high probability of death was no answer, because the test asks what the elements permit, and they permit safer conduct. The defendant's actual driving remained relevant to a different theory, implied malice, on which the jury had also been instructed and for which the court found overwhelming evidence, yet the felony-murder alternative still mattered because the prosecutor urged jurors to shorten their deliberations by relying on it.⁵²

When a statute describes more than one kind of conduct, the choice of what to measure can itself be contested. In People v. Howard the felony was flight from a pursuing officer with willful or wanton disregard for safety, under a statute whose later-added second subdivision reached certain traffic-point violations. The majority treated the statute as a single felony and held that it was not inherently dangerous, because some ways of committing it place no life at risk.⁵³ Justice Baxter, dissenting, would have analyzed only the first subdivision, the reckless-driving provision under which the defendant was charged and tried, and would have found it inherently dangerous.⁵⁴ Even the dissent measured a statutory provision and not the defendant's driving, so the disagreement concerned which text defines the felony. The majority's treatment of the statute as written is the holding, and the dissent marks how far the abstraction can be argued.

Not every jurisdiction confines the inquiry to the definition. Minnesota's special-danger-to-life standard looks at the elements in the abstract and also at the facts of the particular case and the circumstances in which the felony was committed.⁵⁵ In State v. Cole a defendant armed with a loaded gun entered a department store to exchange stolen goods for cash and shot a police officer to avoid arrest, and the court held that both the theft and the assault were proper predicates because the circumstances showed special danger.⁵⁶ A theft predicate that qualified there because of its circumstances would fail under the California approach, which is why an exam problem set in California should be run on the elements alone, and one set in Minnesota should add the circumstances after the abstract inquiry.

First and Second Degree

Once a felony is dangerous enough to supply malice, a second question remains: how severely the resulting murder is graded. At common law murder was one undivided crime, and the division into degrees is a creation of statute that many states have adopted.⁵⁸ California's Penal Code section 189 serves as the illustration in this section. It classifies as first degree any murder committed by listed means such as poison, lying in wait, or torture, any other willful, deliberate, and premeditated killing, and any murder committed in the perpetration of, or attempt to perpetrate, certain enumerated felonies, and it assigns all other murder to the second degree.⁵⁹ The enumerated felonies decide which felony killings sit in the top tier and which fall to the lower one. Other jurisdictions draw these lines differently, so the California scheme is a worked example, and the statute in front of the reader always controls the grade.

For a felony on the list, the first-degree felony-murder rule is severe and simple. In People v. Washington the court read section 189 together with the felony-murder doctrine and concluded that inadvertent or accidental killings are first-degree murders when felons commit them in the perpetration of robbery.⁶⁰ People v. Stamp states the same rule: a killing in the perpetration of, or attempt to perpetrate, robbery is first-degree murder whether it is willful, deliberate, and premeditated or merely accidental or unintentional, and whether or not it was planned as part of the robbery.⁶¹ The prosecution therefore needs to prove the robbery or attempt and the killing, and the grade follows without any showing of premeditation or intent to kill. The usual marks of first-degree murder drop out because the statute has already placed the whole category in the top tier.

The reason for so harsh a rule lies in what the legislature did when it wrote the list. According to People v. Burton, a person who embarks on one of the enumerated felonies for its own independent purpose, such as acquiring another's property in a robbery, comes within a clear legislative warning that a resulting death will be first-degree murder regardless of the circumstances.⁶² The court added that the legislature, by that choice, weighed the deterrent purpose of the felony-murder rule above the usual policy of examining each killer's state of mind and calibrating the punishment to it.⁶³ Each half of that reasoning depends on the grade staying the same whatever the killer was thinking. The warning works because the list is fixed in advance, so a would-be robber can read the statute before acting and learn that carelessness with a victim's life will be punished as severely as a planned killing. The deterrence works for the same reason, since a penalty that fell only on planned killings would give the felon no reason to take care, and the felony-murder rule exists to deter felons from killing negligently or accidentally.⁶⁴

The shape of section 189 also has a history. California's first criminal statute, enacted in 1850, defined murder as a single offense punishable by death and, through a proviso in its manslaughter provisions, treated an involuntary killing in the course of an unlawful act prosecuted with felonious intent as murder, which in effect codified the common-law felony-murder rule.⁶⁵ When the legislature amended the statute in 1856 to divide murder into two degrees, it placed killings by listed means or in the perpetration of listed felonies in the first degree and left all other murders to the second.⁶⁶ Section 189 therefore does two jobs. For a homicide committed by a listed means such as poison or lying in wait, it only fixes the degree, because malice must first be proved independently, and once murder is established under the malice sections, section 189 may be invoked to set its grade.⁶⁷ For a homicide in the perpetration of a listed felony, the California decisions treat the statute as also codifying the felony-murder rule, so no independent proof of malice is required and the killing is first-degree murder as a matter of law.⁶⁸ That second job is why an accidental robbery killing reaches the first degree without any inquiry into the killer's mind.

Statutes of this kind usually enumerate arson, burglary, kidnapping, rape, and robbery.⁶⁹ The list attaches to each felony under the name the statute gives it, which can produce surprising results. Burglary, for example, is complete on an entry with the required intent and needs no taking, and in People v. Gonzales the California Supreme Court quoted a footnote from an earlier decision stating that a defendant who enters a store intending to commit theft by false pretenses, and who kills an employee while fleeing, can be convicted of felony-murder burglary.⁷⁰ A dissenting justice in Gonzales described that footnote as dicta that never carefully considered the question, so it shows how the list may operate without settling the point.⁷¹ The grade of a felony killing thus depends first on the statute's text and only afterward on how dangerous the offense looked on the particular night.

When the felony is not on the list, felony murder survives as second-degree felony murder, and the dangerous-felony limit from the preceding sections becomes the gate. First-degree felony murder is a creation of statute, while the second-degree rule is a common-law doctrine because no statute specifically describes it. It covers an unlawful killing in the course of a felony that is inherently dangerous to human life but is not among the felonies enumerated in section 189.⁷² In People v. Phillips the court recognized that the perpetration of some felonies outside section 189 can support a murder conviction under the felony-murder rule, but it held that such a charge can rest only on a felony inherently dangerous to life, and grand theft is not one.⁷³ A statement from an earlier decision, People v. Ford, quoted in the Washington dissent, gives the grading consequence directly: a homicide that is the direct causal result of an inherently dangerous felony other than the listed ones is at least second-degree murder.⁷⁴ Jurors hear the same rule in the standard instruction, which says that an unlawful killing, whether intentional, unintentional, or accidental, is second-degree murder when it occurs during a felony inherently dangerous to human life.⁷⁵

Two features of this tier follow from its source. It stops at the second degree because the statute reserves the felony route to first degree for the listed felonies and assigns all other murder to the second.⁷⁶ It demands inherent danger because the legislature has not pre-judged an unlisted felony, so a court must ask whether the felony carries enough peril to stand in for malice. The justification for the second-degree rule shows what the felony replaces: when society has declared certain inherently dangerous conduct to be a felony, a defendant cannot excuse the conduct by claiming ignorance of the danger to life, and committing such a felony is an act whose natural consequences are dangerous to life, which satisfies the physical side of implied malice.⁷⁷ The rule supplies the missing mental side, so liability requires no intent to kill, and not even implied malice, only an intent to commit the underlying felony.⁷⁸

Second degree is the limit only of the felony-murder route for an unlisted felony. A prosecutor who proves a willful, deliberate, and premeditated killing can still reach first degree under section 189's separate language.⁷⁹ The more common error is to grade by how dangerous the felony seems instead of by whether the statute lists it, which leads a student to call a violent but unlisted felony first degree, or to litigate abstract danger for a listed felony that the legislature has already classified.

Because grading is a matter of statute, the California tiers do not travel automatically. In Comber v. United States the court described the District of Columbia scheme as making a purposeful killing in the perpetration of a felony first-degree murder, while limiting first-degree liability for unintentional killings to six enumerated felonies.⁸⁰ Arizona's first-degree statute, described in Walton v. Arizona, reaches a death caused in the course of specified offenses without any mental state beyond what those offenses themselves require, alongside a separate category of premeditated murder.⁸¹ The California arrangement resembles Arizona's, since listed felonies need no separate mental state toward the death, and it differs from the District of Columbia's, where the purposefulness of the killing matters outside the six enumerated felonies.