The PEOPLE, Plaintiff and Respondent,
TRAYNOR, Chief Justice.
Defendant appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree robbery (Pen.Code, ss 211, 211a) and first degree murder and fixing the murder penalty at life imprisonment. (Pen.Code, ss 187, 189, 190, 190.1.) He was convicted of murder for participating in a robbery in which his accomplice was killed by the victim of the robbery.
Shortly before 10 p. m., October 2, 1962, Johnnie Carpenter prepared to close his gasoline station. He was in his office computing the receipts and disbursements of the day while an attendant in an adjacent storage room deposited money in a vault. Upon hearing someone yell 'robbery,' Carpenter opened his desk and took out a revolver. A few moments later, James Ball entered the office and pointed a revolver directly at Carpenter, who fired immediately, mortally wounding Ball. Carpenter then hurried to the door and saw an unarmed man he later identified as defendant running from the vault with a moneybag in his right hand. He shouted 'Stop.' When his warning was not heeded, he fired and hit defendant who fell wounded in front of the station.
The Attorney General, relying on People v. Harrison, 176 [p. 780] Cal.App.2d 330, 1 Cal.Rptr. 414, contends that defendant was properly convicted of first degree murder. In that case defendants initiated a gun battle with an employee in an attempt to rob a cleaning business. In the cross fire, the employee accidentally killed the owner of the business. The court affirmed the judgment convicting defendants of first degree murder, invoking Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 12 A.L.R.2d 183, and People v. Podolski, 332 Mich. 508, 52 N.W. 2d 201, which held that robbers who provoked gunfire were guilty of first degree murder even though the lethal bullet was fired by a policeman.
Defendant would distinguish the Harrison, Almeida, and Podolski cases on the ground that in each instance the person killed was an innocent victim, not one of the felons. He suggests that we limit the rule of the Harrison case just as the Supreme Courts of Pennsylvania and Michigan have limited the Almeida and Podolski cases by holding that surviving felons are not guilty of murder when their accomplices are killed by persons resisting the felony. (Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472; People v. Austin, 370 Mich. 12, 120 N.W.2d 766; see also People v. Wood, 8 N.Y.2d 48, 201 N.Y.S.2d 328, 167 N.E.2d 736.) A distinction based on the person killed, however, would make the defendant's criminal liability turn upon the marksmanship of victims and policemen. A rule of law cannot reasonably be based on such a fortuitous circumstance. The basic issue therefore is whether a robber can be convicted of murder for the killing of any person by another who is resisting the robbery.
'Murder is the unlawful killing of a human being, with malice aforethought.' (Pen.Code, s 187.) Except when the common-law-felony-murder doctrine is applicable, an essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill. (See People v. Thomas, 41 Cal.2d 470, 475, 261 P.2d 1 (concurring opinion).) The felony-murder doctrine ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. (People v. Ford, 60 Cal. 2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892; People v. Coefield, 37 Cal.2d 865, 868, 236 P.2d 570.) That doctrine is incorporated in section 189 of the Penal Code, which provides in part: 'All murder * * * committed in the perpetration or attempt to perpetrate * * * robbery * * * is murder of the first degree.' Thus, even though section 189 [p. 781] speaks only of degrees of 'murder,' inadvertent or accidental killings are first degree murders when committed by felons in the perpetration of robbery. (People v. Coefield, supra, 37 Cal.2d 865, 868, 236 P.2d 570; People v. Boss, 210 Cal. 245, 249, 290 P. 881.)
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 and that the robbery might therefore be regarded as a proximate cause of the killing. 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. Indeed, in the present case the killing was committed to thwart a 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.
The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (See Holmes, The Common Law, pp. 58-59; Model Penal Code (Tent.Draft No. 9, May 8, 1959) s 201.2, comment 4 at pp. 37-38; Report of the Royal Commission on Capital Punishment, Cmd. No. 8932, at pp. 35-36 (1949-1953).) This purpose is not served by punishing them for killings committed by their victims.
It is contended, however, that another purpose of the felony-murder rule is to prevent the commission of robberies. Neither the common-law rationale of the rule nor the Penal Code supports this contention. In every robbery there is a possibility that the victim will resist and kill. The robber has little control over such a killing once the robbery is undertaken as this case demonstrates. To impose an additional penalty for the killing 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. An additional penalty for a homicide committed by the victim would deter robbery haphazardly at best. To 'prevent stealing, (the law) would do better to hang one thief in every thousand by lot.' (Holmes, The Common Law, p. 58.)
A defendant need not do the killing himself, however, [p. 782] to be guilty of murder. He may be vicariously responsible under the rules defining principals and criminal conspiracies. All persons aiding and abetting the commission of a robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. (People v. Boss, 210 Cal. 245, 249, 290 P. 881; People v. Kauffman, 152 Cal. 331, 334, 92 P. 861.) Moreover, when the defendant intends to kill or intentionally commits acts that are likely to kill with a conscious disregard for life, he is guilty of murder even though he uses another person to accomplish his objective. (Johnson v. State, 142 Ala. 70, 38 So. 182, 2 L.R.A.,N.S., 897; see also Wilson v. State, 188 Ark. 846, 68 S.W.2d 100; Taylor v. State, 41 Tex.Cr.R. 564, 55 S.W. 961.)
Defendants who initiate gun battles may also be found guilty of
murder if their victims resist and kill. Under such circumstances,
'the defendant for a base, anti-social motive and with wanton disregard
for human life, does an act that involves a high degree of probability
that it will result in death' (People v. Thomas, 41 Cal.2d 470, 480, 261
P.2d 1, 7 (concurring opinion)), and it is unnecessary to imply malice
by invoking the felony-murder doctrine. [n. 2] To invoke the felony-murder
doctrine to imply malice in such a case is unnecessary and overlooks the
principles of criminal liability that should govern the responsibility
of one person for a killing committed by another. (See Hart and Honore
, Causation in the Law, pp. 296- 299; Hall, Criminal Law, 2d ed., pp. 270-281;
Morris, The Felon's Responsibility for the Lethal Acts of Others, 105 U.Pa.L.Rev.
50; Brett, An Inquiry Into Criminal Guilt, pp. 123-124.)
2. One scholar has commented that 'People v. Harrison, 176 Cal.App.2d 330, 1 Cal.Rep. 414 (1959), is probably not, strictly speaking, a felony-murder case at all, but rather a case taking a very relaxed view of the necessary causal connection between the defendant's act and the victim's death, and approach which is possible quite independent of the felony-murder rule.' (Packer, The Case for Revision of the Penal Code, 13 Stan.L.Rev. 252, 259, fn. 39.)
To invoke the felony-murder doctrine when the killing is not committed by the defendant or by his accomplice could lead to absurd results. Thus, two men rob a grocery store and flee in opposite directions. The owner of the store follows one of the robbers and kills him. Neither robber may have fired a shot. Neither robber may have been armed with a deadly weapon. If the felony- murder doctrine applied, however, [p. 783] the surviving robber could be convicted of first degree murder (see Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204, overruled by Commonwealth v. Redline, 391 Pa. 486, 137 A.2d 472), even though he was captured by a policeman and placed under arrest at the time his accomplice was killed. (Commonwealth v. Doris, 287 Pa. 547, 135 A. 313; see People v. Corkery, 134 Cal.App. 294, 25 P.2d 257.)
The felony-murder rule has been criticized on the grounds that
in almost all cases in which it is applied it is unnecessary and that it
erodes the relation between criminal liability and moral culpability.
(See e. g., Model Penal Code (Tent. Draft No. 9, May 8, 1959) s 201.2,
comment 4 at pp. 37-39; Report of the Royal Commission on Capital Punishment,
Cmd. No. 8932, at pp. 34-43, 45 (1949-1953), 3 Stephen, History of the
Criminal Law of England 57-58; 74-75 (1883); Packer, The Case for Revision
of the Penal Code, 13 Stan.L.Rev. 252, 259; Morris, The Felon's Responsibility
for the Lethal Acts of Others, 105 U.Pa.L.Rev. 50; 66 Yale L.J. 427.) [n.
3] Although it is the law in this state (Pen.Code, s 189), it should
not be extended beyond any rational function that it is designed to serve.
Accordingly, for a defendant to be guilty of murder under the felony-murder
rule the act of killing must be committed by the defendant or by his accomplice
acting in furtherance of their common design. (Commonwealth v. Campbell,
7 Allen 541, 89 Mass. 541; Butler v. People, 125 Ill. 641, 18 N.E. 338,
1 L.R.A. 211; Commonwealth v. Moore, 121 Ky. 97, 88 S.W. 1085, 2 L.R.A.,
N.S., 719; State v. Oxendine, 187 N.C. 658, 122 S.E. 568; See also People
v. Ferlin, 203 Cal. 587, 597, 265 P. 230.) Language in People v. Harrison,
176 Cal.App.2d 330, 1 Cal. Rptr. 414, inconsistent with this holding, is
3. The felony-murder rule has been abolished in England (English Homicide Act, s 1, 1957, 5 & 6 Eliz. II, c. 11), and has been converted to a rebuttable presumption of malice by the Model Penal Code. (Model Pen.Code (Tent. Draft No. 9, May 8, 1959) s 201.2.)
* * *
The judgment is affirmed as to defendant's conviction of [p. 785]
first degree robbery and reversed as to his conviction of first degree
BURKE, Justice (dissenting).
I dissent. The unfortunate effect of the decision of the majority in this case is to advise felons:
'Henceforth in committing certain cirmes, 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 of the most meaningful deterrents to the commission of armed felonies.
* * *
I agree with the majority (p. 445) 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 (p. 445), a 'killing was a risk reasonably to be foreseen. * * * In every robbery there is a possibility that the victim will resist and kill.' As declared in People v. Chavez (1951) 37 Cal.2d 656, 669, 234 P.2d 632, 'The statute (Pen.Code, s 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 killing 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.' (p. 445) 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 kills does not cloak him with innocence of the homicide. The truth is, of course, that the robber may exercise various 'controls over' a possible killing 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 which 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, while 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'?
[p. 791] The robber's conduct which froms 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 that the knowledge that this awesome, that tthe 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, 1 Cal.Rptr. 414, 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.