PEOPLE v. PATTERSON

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Sandy PATTERSON, Defendant and Respondent.

No. G004443.

Decided: June 15, 1988

Cecil Hicks, Dist. Atty., Michael R. Capizzi and Maurice L. Evans, Chief Asst. Dist. Attys., William W. Bedsworth, Randell L. Wilkinson, Brent Romney, and Thomas J. Borris, Deputy Dist. Attys., for plaintiff and appellant. Stephen Gilbert, Santa Monica, under appointment by the Court of Appeal, for defendant and respondent.

OPINION

Is an offer to transport cocaine in violation of Health and Safety Code section 11352 an inherently dangerous felony viewed in the abstract?   We think not and consequently are compelled to affirm the superior court's pretrial dismissal of this second degree felony-murder prosecution, even though it was based on an alleged furnishing of the drug to the victim and notwithstanding a number of outdated appellate opinions to the contrary.   This seemingly illogical conclusion symbolizes the seriously flawed state of the law of second degree felony murder today.

I

According to the prosecution, Sandy Patterson supplied cocaine to Jennie Licerio and one of her friends.   The three inhaled “lines” of the powdered substance and smoked “coco puffs,” hand-rolled cigarettes containing a mixture of tobacco and cocaine.   Licerio died within hours of acute cocaine intoxication.

Patterson was charged with her murder and several felony counts of furnishing the illegal substance, and the magistrate held him to answer after the preliminary hearing.   In the superior court, Patterson moved to dismiss the murder count on the basis that furnishing cocaine is not an inherently dangerous felony (Pen.Code, § 995).   The motion was denied.

Before the first trial witness was sworn, however, counsel and the court engaged in an on-the-record summation of an unreported chambers discussion.   The trial judge announced he had considered the elements of the offense in the abstract and, in his opinion, the mere furnishing of cocaine was not an inherently dangerous act.   The court dismissed the murder charge on its own motion in the interest of justice (Pen.Code, § 1385).   Patterson then pleaded guilty to three felony counts of furnishing cocaine.

II

 Preliminarily, we reject Patterson's suggestion that his pleas to the lesser offenses render the prosecution's appeal moot.  People v. Orin (1975) 13 Cal.3d 937, 120 Cal.Rptr. 65, 533 P.2d 193 is dispositive of the issue.   Orin was charged with attempted robbery, burglary, and assault with a deadly weapon.   Over a prosecution objection, the court accepted a guilty plea to the assault charge and dismissed the remaining two counts in the “furtherance of justice.”  (Pen.Code, § 1385.)   The minute order failed to detail any reasons for the dismissal, however.

The district attorney appealed, as in this case, pursuant to Penal Code section 1238, subdivision (a)(8).1  The Supreme Court reversed the order of dismissal and remanded the matter for trial, with the proviso that the defendant be given an opportunity to withdraw his guilty plea to the assault charge “and that in the event of his subsequent conviction of, and sentence on, [that offense] he would be entitled to credit for the interim time served.  [Citation.]”  (Id., at p. 942, fn. 7, 120 Cal.Rptr. 65, 533 P.2d 193.)

The issue arose again, although somewhat obliquely, in People v. Drake (1977) 19 Cal.3d 749, 139 Cal.Rptr. 720, 566 P.2d 622, where the court dismissed a purported prosecution appeal from a trial court order reducing the defendant's conviction from robbery to grand theft.   Contrasting the facts with those in Orin, the court noted the Drake appeal did not fall within the ambit of subdivision (a)(8) of Penal Code section 1238 because it did not terminate the action;  it merely set the stage for the defendant's sentencing on a lesser offense.   The court added, “In [Orin ], we implied that an order dismissing two counts of a three-count indictment might fall under [subdivision (a)(8) ].   The information filed in this case involved only one count, however, and the trial court's order did not terminate the action on that count.”  (Id., at p. 757, fn. 9, 139 Cal.Rptr. 720, 566 P.2d 622;  see also People v. Shirley (1978) 78 Cal.App.3d 424, 427–430, 144 Cal.Rptr. 282.)

Here, the trial court determined the murder charge should be dismissed in the interest of justice.   The order was made before jeopardy attached and had the effect of terminating only one of several counts in the information.   The Legislature has authorized appeals by the prosecution in the case of pre-jeopardy dismissals (Pen.Code, § 1238, subd. (a)(8));  and aside from moving to dismiss them, disposition of companion charges is essentially beyond the prosecution's ability to control.  (See People v. Reza (1984) 152 Cal.App.3d 647, 651–654, 199 Cal.Rptr. 664.)   Adoption of the defense argument would create a Hobson's choice for prosecutors, who might be forced to abandon a meritorious count in order to preserve an appeal of a potentially erroneous dismissal of another.   The notion has little to recommend it.   Consequently, we hold the prosecution's statutory right to appeal the dismissal of one count survives resolution of any related charges in the trial court.2

III

A

The second degree felony-murder doctrine, unlike its first degree counterpart (Pen.Code, § 189), is “a creature of judicial invention.”   (People v. Burroughs (1984) 35 Cal.3d 824, 829, fn. 3, 201 Cal.Rptr. 319, 678 P.2d 894;  see also People v. Dillon (1983) 34 Cal.3d 441, 472, fn. 19, 194 Cal.Rptr. 390, 668 P.2d 697;  but see People v. Taylor (1980) 112 Cal.App.3d 348, 356, 169 Cal.Rptr. 290.)   A consistently recurring subject in Supreme Court jurisprudence for many years, the doctrine has experienced an uneven relationship with its creators.   For example, in 1966, after noting the doctrine had been extensively criticized, the court mused, “ ‘The felony-murder rule, composed as it is of several presumptions, is a legal Hydra.  [¶] Like the multiheaded beast of Greek mythology, the felony murder rule has several “heads” of its own, each willing to consume one of the accused's defenses by presuming a needed element in the proof of felony murder.’   Recent Developments, California Rewrites Felony Murder Rule (1966) 18 Stan.L.Rev. 690.”  (People v. Phillips (1966) 64 Cal.2d 574, 583, fn. 7, 51 Cal.Rptr. 225, 414 P.2d 353.)

Virtually every Supreme Court opinion to treat with the rule since Phillips has included a brief litany decrying the artificiality of the doctrine and resolving to apply it only where absolutely necessary.   The court's frustration with its own rule peaked in Dillon with the suggestion that “[a] thorough legislative reconsideration of the whole subject [i.e., first degree felony murder, second degree felony murder, and the misdemeanor-manslaughter rule] would seem to be in order.”  (People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19, 194 Cal.Rptr. 390, 668 P.2d 697.)   A year later, the court indicated that perhaps the time was “ripe” for it to “reconsider [the] continued vitality [of the second degree felony-murder rule].”  (People v. Burroughs, supra, 35 Cal.3d at p. 829, fn. 3, 201 Cal.Rptr. 319, 678 P.2d 894.)   But the issue had not been raised or briefed, and the court went no further.

Thus, at least in theory, the second degree felony-murder rule continues to survive.   But, as this case illustrates, its utility has approached the vanishing point.   Also, application of the rule is so haphazard and unpredictable, it arguably poses a serious equal protection and due process problem with respect to those snared in its web.   To understand why this is so, it is necessary to outline several decades of the rule's evolution into its current state.

In 1964, the court announced the underlying offense must be “inherently dangerous to human life” in order to support a felony-murder conviction.   (People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892.)   The underlying felonies in Ford were possession of a firearm by an ex-felon and kidnapping, and they were both held to be inherently dangerous.   In People v. Washington (1965) 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, the court determined the doctrine could not be applied to a defendant who was not the killer or an accomplice of the killer acting in furtherance of a common plan.

The same year a highly significant gloss was added:  Not only did the felony have to be inherently dangerous, but it had to be inherently dangerous viewed in the abstract.  (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5, 47 Cal.Rptr. 7, 406 P.2d 647.)   The murder conviction in Williams was based on the felony of conspiracy to possess methedrine without a prescription, and the court held it was not inherently dangerous under such an analysis.

Williams' “viewed in the abstract” requirement hatched in a footnote, without any explanation of its heritage or legal justification for its existence.   It is now defended on the basis that juries will automatically find felonies resulting in death inherently dangerous (People v. Burroughs, supra, 35 Cal.3d at p. 830, 201 Cal.Rptr. 319, 678 P.2d 894), although they are routinely expected to avoid such prejudgments in other instances, e.g., murder prosecutions based on an implied malice theory.

Only a year after Williams the court seemingly overlooked its new rule when the sequel to People v. Ford reappeared.  (People v. Ford (1966) 65 Cal.2d 41, 52 Cal.Rptr. 228, 416 P.2d 132.)   The court did not undertake an abstract analysis of either kidnapping or possession of a firearm by an ex-felon.   Instead, the court relied on language from its pre–Williams decision to affirm the conviction.

In 1969, however, the scope of the second degree felony-murder rule itself was further restricted when the court determined it could not be used in cases involving “a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.”  (People v. Ireland (1969) 70 Cal.2d 522, 539, 75 Cal.Rptr. 188, 450 P.2d 580, fn. omitted.)   The Ireland rule effectively removed assaultive and most violent offenses from the purview of the felony-murder doctrine.

In People v. Satchell (1971) 6 Cal.3d 28, 36–43, 98 Cal.Rptr. 33, 489 P.2d 1361, the court acknowledged its oversight in Ford II and used a “viewed in the abstract” analysis to determine that an ex-felon in possession of a firearm and possession of a sawed-off shotgun are not felonies inherently dangerous to human life.   The court did give an example of a felony it believed would be inherently dangerous, however:  discharging a firearm at an inhabited dwelling (Pen.Code, § 246).  (Id., at p. 43, fn. 22, 98 Cal.Rptr. 33, 489 P.2d 1361.)   In a companion case, People v. Lopez (1971) 6 Cal.3d 45, 98 Cal.Rptr. 44, 489 P.2d 1372, the concept was applied to Penal Code section 4532, escape from a county or city penal facility.   The court found the offense not inherently dangerous to human life viewed in the abstract, and the analysis greatly expanded the scope of the viewed in the abstract principle.   Even though the statute carried a greater penalty for escapes by force or violence and Lopezdid escape in that manner, the court found it was possible to escape in a nonviolent manner.   Consequently the felony-murder rule could not apply.

The Lopez rationale was applied with a vengeance in People v. Henderson (1977) 19 Cal.3d 86, 137 Cal.Rptr. 1, 560 P.2d 1180 (felony false imprisonment) and People v. Burroughs, supra, 35 Cal.3d 824, 201 Cal.Rptr. 319, 678 P.2d 894 (practicing medicine without a license).   In Burroughs the court also gave its most extensive explanation of the viewed in the abstract notion to date:  “[A] reviewing court should look first to the primary element of the offense at issue, then to the ‘factors elevating the offense to a felony,’ to determine whether the felony, taken in the abstract, is inherently dangerous to human life [citing Henderson ], or whether it possibly could be committed without creating such peril.  [Citations.]  In this examination we are required to view the statutory definition of the offense as a whole, taking into account even nonhazardous ways of violating the provisions of the law which do not necessarily pose a threat to human life.   [Citation.]”  (Id., at p. 830, 201 Cal.Rptr. 319, 678 P.2d 894.)

 As will appear below, the contribution added by the Burroughs–Henderson–Lopez line of authority has essentially brought the viewed in the abstract requirement, and the second degree felony-murder rule itself, to the brink of logical absurdity.   Because those decisions require us to analyze Health and Safety Code section 11352 in its entirety, as opposed to an examination of the portion of the statute actually violated in the present case, the result here is compelled whether or not furnishing cocaine is a felony inherently dangerous to life viewed in the abstract.   Remarkably, any consideration of that point is entirely unnecessary to our decision;  only the least dangerous manner of violating Health and Safety Code section 11352 is of interest.

In other words, second degree felony murder, apart from its other well-chronicled deficiencies, has entirely lost touch with reality.   Although we are, of course, bound by these holdings, we find their rationale difficult to accept.   As we will conclude, they persuade us that the second degree felony-murder rule ought to simply be abolished or, if retained, that the “viewed in the abstract in its entirety” notion should be jettisoned.   We also believe juries should be trusted to evaluate the dangerousness of the defendant's felonious act.

A brief discussion of the Burroughs decision will illustrate the difficulty with the law in its present state.   On egregious facts the Supreme Court determined in Burroughs that the felony of practicing medicine without a license was not inherently dangerous to human life.   The defendant had instructed a terminal leukemia patient to “avoid contact with his physician” and then proceeded to treat him with “a unique ‘lemonade,’ exposure to colored lights, and a brand of vigorous [abdominal] massage.”  (Id., at p. 827, 201 Cal.Rptr. 319, 678 P.2d 894.)

The circumstances of the offense were apparently recited merely to provide a background for the opinion, for they were essentially avoided in the court's viewed in the abstract analysis.   The court first recited from Business and Professions Code section 2053, noting the “primary element of the offense” is the treatment of the sick without a license.  (Id., at p. 830, 201 Cal.Rptr. 319, 678 P.2d 894.)   It then reasoned the treatment of ill persons is not inherently dangerous because “[o]ne can certainly conceive of treatment of the sick or afflicted which has quite innocuous results—the affliction at stake could be a common cold, or a sprained finger, and the form of treatment an admonition to rest in bed and drink fluids․”  (Ibid.)   Proceeding to “[t]he next level of analysis,” the court noted the statutory element which elevates the crime of practicing medicine without a license to a felony includes “ ‘circumstances or conditions which cause or create a risk of great bodily harm, serious mental or physical illness, or death.’ ”  (Ibid.)

The court quickly dispatched the notion that infliction of “great bodily harm” could be inherently dangerous to human life:   “[A] broken arm or leg would constitute serious bodily injury—and by implication, great bodily harm as well.   While painful and debilitating, such bone fractures clearly do not, by their nature, jeopardize the life of the victim.”  (Id., at p. 831, 201 Cal.Rptr. 319, 678 P.2d 894.)   The discussion wound down by avoiding an important issue;  it was unnecessary to decide, said the court, “[w]hether risk of serious physical illness is inherently dangerous to life” because “the existence of the category of risk of serious mental illness also renders a breach of the statute's prohibitions potentially less than inherently dangerous to life.”  (Ibid.)

The court never did consider the final element, death.   It laconically concluded by noting, “the underlying purpose of the felony-murder rule, to encourage felons to commit their offenses without perpetrating unnecessary violence which might result in a homicide, would not be served by applying the rule to the facts of this case.”  (Id., at p. 833, 201 Cal.Rptr. 319, 678 P.2d 894.)   Violent felonies of the assaultive variety were, however, already removed from the reach of the felony-murder rule by the Ireland decision.   Burroughs, Henderson, and Lopez accomplished virtually the same result in the case of nonviolent felonies.

The Burroughs opinion acknowledged that few offenses will qualify for second degree felony murder under its analysis, although it named three dubious examples:  “[T]he few times we have found an underlying felony inherently dangerous (so that it would support a conviction of felony murder), the offense has been tinged with malevolence totally absent from the facts of this case.”   (Id., at pp. 832–833, 201 Cal.Rptr. 319, 678 P.2d 894.)   The “facts” are supposed to have nothing to do with the outcome, of course, but these cases are worthy of a brief digression.

The court first noted People v. Mattison (1971) 4 Cal.3d 177, 93 Cal.Rptr. 185, 481 P.2d 193, where the underlying felony was poisoning food, beverage, or medicine with the intent that it be taken by another (Pen.Code, § 347).  (People v. Burroughs, supra, 35 Cal.3d at p. 833, 201 Cal.Rptr. 319, 678 P.2d 894.)   Sounds “malevolent,” but the defendant merely sold a solution of water and methyl alcohol purloined from a prison hospital to an alcoholic fellow inmate and, from the court's recital of the facts, may have been unaware methyl alcohol is a poison.  (If the jury believed Mattison did know, presumably a first degree murder verdict would have been returned.)   Interestingly, the court in Mattison chiefly relied on People v. Taylor (1970) 11 Cal.App.3d 57, 89 Cal.Rptr. 697, in which furnishing heroin was held to support application of the felony-murder rule.  Taylor failed to consider the implications of Lopez, however;  after Burroughs and Henderson it is clear Taylor is not good authority, as will appear below.

People v. Nichols (1970) 3 Cal.3d 150, 89 Cal.Rptr. 721, 474 P.2d 673, the next example cited in Burroughs, involved the intentional burning of a car parked in a garage attached to an occupied home.   Nichols set fire to his estranged wife's car while it was parked in an attached garage, and the couple's two children died of smoke inhalation inside the home.   The Supreme Court reduced the defendant's conviction to second degree felony murder.   The entire viewed in the abstract analysis consumed but a few lines:  “[T]he courts ‘look to the elements of the felony in the abstract, not the particular “facts” of the case.’  [Citations.]  Certainly the burning of a motor vehicle, which usually contains gasoline and which is usually found in close proximity to people, is inherently dangerous to human life.   We therefore conclude that the wilful and malicious burning of a motor vehicle calls into play the second degree felony-murder rule.”  (Id., at p. 163, 89 Cal.Rptr. 721, 474 P.2d 673.)   Absolutely no mention of the underlying statute, former Penal Code section 449a, appeared in the discussion, however.   That section proscribed the burning not only of cars, but also of a host of other items, including stacks of hay, piles of coal, and lumber, items whose fiery destruction would not necessarily endanger human life.3

In People v. Henderson, supra, 19 Cal.3d 86, 137 Cal.Rptr. 1, 560 P.2d 1180, the court had occasion to reflect on the Nichols decision.   There, the defendant was convicted of second degree murder based on felony false imprisonment.   With confederates, he held the victim and several others captive at gunpoint (although he had removed the clip and believed the gun to be unloaded), menaced them with a club, and threatened to kill them and dump their bodies in a canyon.   The victim was shot when another hostage slapped at the gun, accidentally discharging a chambered bullet.

On its facts Henderson appeared to present a classic case for application of the felony-murder rule.   But the Supreme Court did not consider the facts.   Its analysis focused only on the elements of the felony offense of false imprisonment, as outlined in Penal Code section 237.   That crime may be accomplished by “violence, menace, fraud, or deceit.”   Viewing the language of the statute in the abstract, the court conceded that violence and menace “may involve danger to human life,” but concluded fraud and deceit “obviously” do not.  (Id., at p. 94, 137 Cal.Rptr. 1, 560 P.2d 1180.)   Because the statutory offense of false imprisonment could be committed by the latter methods, the court determined, “ ‘it proscribes an offense which considered in the abstract, is not inherently dangerous to human life.’  [Citation.]”  (Id., at pp. 94–95, 137 Cal.Rptr. 1, 560 P.2d 1180.)

In Henderson the Attorney General argued the crime of felony false imprisonment should not be analyzed as a whole.   Rather, the court was urged to first consider the method by which the crime was committed in the particular case and then decide whether it was inherently dangerous to human life, i.e., the precise analysis undertaken in Nichols and People v. Cline (1969) 270 Cal.App.2d 328, 75 Cal.Rptr. 459, the first Court of Appeal decision to conclude the furnishing of a controlled substance is inherently dangerous to human life viewed in the abstract.   The court's response is critical to the resolution of the issue before us:  “We reject this approach.   The Attorney General's argument supposes a legislative intent that the second sentence of section 237 [citation] proscribes not one, but four separate felonies depending upon the means by which false imprisonment is effected.   Reading and considering the statute as a whole in order to determine the true legislative intent [citation], we find no basis for severing false imprisonment by violence or menace from the offense of felony false imprisonment.   The Legislature has not drawn any relevant distinctions between violence, menace, fraud, or deceit.   These types of conduct are specified only as a basis for distinguishing between false imprisonment punishable as a misdemeanor and false imprisonment punishable as a felony.   Most significantly, the Legislature has not distinguished between false imprisonment effected by violence or menace on the one hand and nonviolent methods of fraud or deceit on the other.   The Legislature has not evinced a particular concern for violent as opposed to nonviolent acts of false imprisonment by separate statutory treatment, proscription, or punishment.”  (People v. Henderson, supra, 19 Cal.3d at p. 95, 137 Cal.Rptr. 1, 560 P.2d 1180.)

Having said this, the court then reexamined Nichols:  “We did not decide whether section 449a, including as it does the proscription against a variety of burnings of personal property not all of which are dangerous to human life, is when considered in the abstract inherently dangerous to human life.   The issue was not in fact raised and we therefore had no occasion to consider it.   We are not disposed to decide questions not advanced by the parties.   Nonetheless, any suggestion in Nichols inconsistent with the views expressed in this opinion should not be followed.”  (Id., at p. 96, 137 Cal.Rptr. 1, 560 P.2d 1180;  italics in original.)

Consequently, Henderson effectively disapproved the Nichols approach;  and that was the approach of People v. Cline, supra, 270 Cal.App.2d 328, 75 Cal.Rptr. 459, which held furnishing a controlled substance inherently dangerous to human life viewed in the abstract.4  The Cline court relied on the facts before it, however, and failed to analyze the statute as a whole.   As discussed below, when Health and Safety Code section 11352, as opposed to that portion of the statute proscribing the furnishing of cocaine, is viewed in its entirety and in the abstract, it may obviously be committed in ways not inherently dangerous to human life.

Burroughs' final example in the suggested trilogy of cases in which felony murder might continue to operate when the underlying statute is viewed in the abstract is an old friend, People v. Ford, supra, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892.  (People v. Burroughs, supra, 35 Cal.3d at p. 833, 201 Cal.Rptr. 319, 678 P.2d 894.)   But recall that Ford I was a pre-Williams opinion.   Also, Ford II was partially overruled in People v. Satchell, supra, 6 Cal.3d 28, 35–41, 98 Cal.Rptr. 33, 489 P.2d 1361 with respect to the crime of possession of a firearm by an ex-felon.   Thus, none of the potential exceptions suggested in Burroughs is particularly helpful to our analysis.

 To summarize, the rule is unequivocal:  Where a statute proscribes several different types of conduct or methods of commission, its violation will not support a conviction for second degree felony murder unless every means by which the crime may be committed is inherently dangerous to human life.   As noted in Burroughs, if the underlying felony “possibly could be committed without creating such peril,” the felony-murder rule may not be applied.   (People v. Burroughs, supra, 35 Cal.3d at p. 830, 201 Cal.Rptr. 319, 678 P.2d 894, emphasis added.)

Given these developments, we cannot simply reverse the trial court's determination based on the substantial body of law available to support such a holding.  (People v. Poindexter (1958) 51 Cal.2d 142, 330 P.2d 763;  People v. Taylor, supra, 112 Cal.App.3d 348, 169 Cal.Rptr. 290;  People v. Taylor, supra, 11 Cal.App.3d 57, 89 Cal.Rptr. 697;  People v. Cline, supra, 270 Cal.App.2d 328, 75 Cal.Rptr. 459.)  Poindexter was decided before Williams discovered the viewed in the abstract principle, and the other opinions simply are obsolete after the Burroughs–Henderson–Lopez expansion of the concept to encompass an abstract analysis of the entire statute.

One newer decision has given us pause, however.   In People v. Edwards (1985) 39 Cal.3d 107, 216 Cal.Rptr. 397, 702 P.2d 555, a post-Burroughs opinion, the Supreme Court flirted with approval of application of the felony-murder rule under facts quite similar to those before us.   Edwards and his girlfriend, neither of whom had ever tried heroin, met another couple who suggested they buy some.   The novices agreed to share the cost of two balloons with their more experienced acquaintances, and the latter injected Edwards and his girlfriend with half a balloon each.   The girlfriend died soon after of heroin poisoning.

Edwards was convicted of second degree felony murder.   Citing People v. Mayfield (1964) 225 Cal.App.2d 263, 37 Cal.Rptr. 340, he challenged the trial court's refusal to let the jury decide whether he furnished the heroin to his girlfriend or whether they were partners in the fatal venture.   The court first noted the appellate panel deciding Mayfield “implicitly held that the defendants were not guilty of furnishing [the heroin],” unlike the situations in People v. Taylor, supra, 112 Cal.App.3d 348, 169 Cal.Rptr. 290 and People v. Cline, supra, 270 Cal.App.2d 328, 75 Cal.Rptr. 459.   (People v. Edwards, supra, 39 Cal.3d at p. 113, fn. 4, 216 Cal.Rptr. 397, 702 P.2d 555.)

The Edwards opinion then made the following observation:  “The distinction drawn by the Mayfield court between one who sells or furnishes heroin and one who simply participates in a group purchase seems to us a valid one, at least where the individuals involved are truly ‘equal partners' in the purchase and the purchase is made strictly for each individual's personal use.   Under such circumstances, it cannot reasonably be said that each individual has ‘supplied’ heroin to the others.   We agree with defendant that there was substantial evidence from which the jury could reasonably have concluded that he and [the victim] were equal partners in both the financing and execution of the heroin purchase.”  (Id., at p. 113–114, 216 Cal.Rptr. 397, 702 P.2d 555, fns. omitted.)

In a footnote, the court suggested the Mayfield “equal partners” test would be difficult to meet:  “We expect there will be few cases involving a copurchase by truly equal partners.   Where one of the copurchasers takes a more active role in instigating, financing, arranging or carrying-out the drug transaction, the ‘partnership’ is not an equal one and the more active ‘partner’ may be guilty of furnishing to the less active one.   Furthermore, one who acts as a go-between or agent of either the buyer or seller clearly may be found guilty of furnishing as an aider and abettor to the seller.   [Citations.]  However, because one who merely purchases drugs is not guilty of furnishing as an aider and abettor of the seller [citation], an equal partner in a copurchase cannot be found guilty of furnishing to his copurchaser on a theory that he aided and abetted the actual seller.”  (Id., at p. 114, fn. 5, 216 Cal.Rptr. 397, 702 P.2d 555.)

The Supreme Court concluded, “[T]he trial court erred in failing to instruct the jury that defendant was not guilty of furnishing if he and [the victim] were copurchasers.”  (Id., at p. 117, 216 Cal.Rptr. 397, 702 P.2d 555.)   Thus, the majority opinion might be read to imply that if the jury believed Edwards furnished heroin to his girlfriend, the conviction for second degree felony murder could be upheld on appeal.   But this would be a dubious interpretation.   The court simply followed the common practice of deciding the matter on the narrowest available ground and reserved the issue presently before us for another day.  (Id. at p. 113, fn. 3.)   As the Supreme Court has noted on a number of occasions, “[A] case is not authority for a point that was not actually decided․”  (Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902, 160 Cal.Rptr. 124, 603 P.2d 41;  People v. Henderson, supra, 19 Cal.3d 86, 96, 137 Cal.Rptr. 1, 560 P.2d 1180.)   Consequently, in light of the clear holdings of Burroughs, Henderson, and Lopez, we must now consider whether Health and Safety Code section 11352 proscribes inherently dangerous conduct when the entire statute is viewed in the abstract.

B

First, Health and Safety Code section 11352 is violated not only by selling, furnishing, or administering controlled substances, but also by transporting a drug or merely offering to transport or furnish it.5  For example, a motorist who carries a small amount of cocaine in his pocket for personal use, or simply offers to do so, violates section 11352 and may be convicted without any further intent to sell or furnish the drug.   (People v. Rogers (1971) 5 Cal.3d 129, 137, 95 Cal.Rptr. 601, 486 P.2d 129;  People v. Cortez (1985) 166 Cal.App.3d 994, 997–998, 212 Cal.Rptr. 692.)   The latter acts are obviously not inherently dangerous to human life.6

Nor is there any way to compartmentalize the statute into separate components, even if the Burroughs–Henderson–Lopez rule would so permit.   There is no evidence of a legislative intent to distinguish between the various methods of violating the statute.   Generally, Health and Safety Code section 11352 is concerned with the movement or exchange of controlled substances;  it attempts to describe virtually every such transfer.   The sentencing scheme is the same no matter which method is employed.7  The Legislature has not singled out furnishing, for example, by “separate statutory treatment, proscription, or punishment.”  (People v. Henderson, supra, 19 Cal.3d at p. 95, 137 Cal.Rptr. 1, 560 P.2d 1180.)

Our conclusion is supported by past interpretations of section 11352.   In People v. Cornejo (1979) 92 Cal.App.3d 637, 155 Cal.Rptr. 238, the jury “erroneously” determined the defendant was guilty of the sale of heroin when the evidence showed only that he had furnished the drug.   The court upheld the conviction, however; and it in effect substituted one means of violating section 11352 for another.   Presumably, if there had been no evidence of furnishing, but the defendant had brought heroin to the scene in his car, the court would have upheld the conviction based on transportation of the narcotic.

Similarly, in People v. Pierre (1959) 176 Cal.App.2d 198, 1 Cal.Rptr. 223, the defendant argued the jury should have been instructed as to the theory—selling, furnishing, or giving away—on which the prosecution was relying.   But the Court of Appeal rejected this contention:  “The indictment is couched in the language of the statute, is in the conjunctive, and the verdict is that the defendant is guilty [of violating former Health and Safety Code section 11500] ‘as charged in the indictment.’   In no respects is this improper procedure [citations].   The foregoing authorities also dispose of the contention that the verdict is incomplete because it does not ‘specifically find upon which of these premises ․ that the statute was violated.’ ” 8  (Id., at p. 203, 1 Cal.Rptr. 223.)

 The interchangeability of the acts proscribed in section 11352 further supports the conclusion that violation of the statute is not inherently dangerous to human life when viewed in the abstract and in its entirety.   As these cases demonstrate, the prosecution is not required to elect the means by which section 11352 has been violated.   Nor must the jury choose between furnishing or transporting.   Thus, a prosecutor could seek a felony-murder conviction based on furnishing to a friend, as here.   The jurors, however, might believe our hypothetical defendant's testimony that the victim was a burglar, not a friend, but convict nonetheless if they agreed the defendant had transported the cocaine to his home for personal use.   Our decision must follow Henderson in its treatment of Nichols and the standards described in Burroughs:  A violation of Health and Safety Code section 11352 is not inherently dangerous viewed in the abstract considering the entire statute;  contrary holdings never undertook such an analysis and must be viewed as legally obsolete.

We realize today's decision would apply equally well to a defendant who actually injects proscribed substances into the veins of the victim, and that is not a particularly palatable result in view of the deadly risk involved in such conduct and the frequency with which it occurs in today's society.   In fact, such conduct is dangerous enough to warrant a murder prosecution based on an implied malice theory.  (See, e.g., People v. Protopappas (1988) 201 Cal.App.3d 152, 246 Cal.Rptr. 915.)   And the same would likely be true with respect to other dangerous offenses as well.   Thus, it could be maintained that second degree felony murder is unnecessary baggage and should be eliminated entirely.   If it is to be retained, however, the doctrine should be considerably reformed.

The peculiar requirement of viewing the underlying offense in its entirety and in the abstract, rather than considering the facts of the particular crime, is the heart of the problem.   If the purpose was to lessen the reach of the felony-murder rule, it has undoubtedly succeeded.   But the concept has also widened the already expansive gap between criminal responsibility and moral culpability inherent in the felony-murder doctrine itself.9

The abstract test is untenable for another reason:  It is generally not taken into consideration by the Legislature when describing criminal behavior.   Health and Safety Code section 11352 is a perfect example.   It is a typically broad statute aimed at a variety of related (mis)behavior, some life-threatening, some clearly not.   If we are correct, the test will allow many otherwise culpable defendants to escape the felony-murder rule even though they have engaged in highly dangerous conduct in violation of that section, e.g., personally injecting a controlled substance of unknown potency into another, simply because the statute can be violated by the relatively innocuous act of driving the same controlled substance around the block or offering to do so.   At the same time, less reprehensible criminal conduct might trigger use of the rule merely because the underlying felony was more narrowly drawn by the Legislature and appears inherently dangerous when viewed in the abstract.   For example, the Supreme Court has suggested that discharging a firearm at an inhabited dwelling in violation of Penal Code section 246 would qualify.   (People v. Satchell, supra, 6 Cal.3d 28, 43, fn. 22, 98 Cal.Rptr. 33, 489 P.2d 1361.)   But should that be the case where the defendant fired a shotgun at a dwelling out of range or, if in range, when he believed no one was home?

Whether various methods of violating Health and Safety Code Section 11352 should be sufficient to invoke the felony-murder doctrine is a policy decision of the sort the Legislature should make.   There is no common law of crimes in this state (Pen.Code, § 6;  People v. Taylor, supra, 112 Cal.App.3d 348, 356–357, 169 Cal.Rptr. 290), but in the unique area of second degree felony murder California courts have essentially created one.10  If the rule is not abolished, it should be codified by the Legislature with meaningful guidelines to effectuate its use.

Also, if second degree felony murder is to survive as a viable prosecutorial tool, under the state and federal Constitutions, juries should decide whether an accused committed a felony by means of an act inherently dangerous to human life.   They, not judges, should be asked to determine whether the means of committing the crime created a high probability it would result in death.   While our thoughts are only an academic exercise at this level, the reforms proposed would restore at least some consistency to a rule that too often resists concepts of fairness.   The fear of “unjustifiable bootstrapping” simply because a death occurred (People v. Burroughs, supra, 35 Cal.3d at p. 830, 201 Cal.Rptr. 319, 678 P.2d 894) places too little faith in our jury system.   As previously noted, in implied malice cases, juries are asked to make similar evaluations and presumably are able to do so fairly.  (See, e.g., People v. Protopappas, supra, 201 Cal.App.3d 152, 246 Cal.Rptr. 915.)

If the objective aspect of the law of implied malice were to be grafted onto the requirement of inherently dangerous conduct,11 juries would be asked to determine whether the underlying felony was committed in such a manner as to create “a high probability that it would result in death.”  (State of California ex. rel. Dept. of Transportation v. Superior Court, supra, 37 Cal.3d at p. 856, 210 Cal.Rptr. 219, 693 P.2d 804;  see also People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279.)   This test would at least establish a relationship between moral culpability and criminal responsibility:  Those who commit dangerous acts would receive felony-murder treatment, while criminals who are morally corrupt and merely unlucky to boot would avoid the strict liability consequences of the present scheme.

Judgment affirmed.

I join in the majority's criticism of the current muddled state of the law on the applicability of the second degree felony-murder rule.   By its decision in People v. Burroughs (1984) 35 Cal.3d 824, 201 Cal.Rptr. 319, 678 P.2d 894, the Supreme Court has emasculated the rule, leaving only enough to tempt the prosecution and dishearten the defense.

There is no question in my mind that furnishing cocaine may be an act inherently dangerous to human life, regardless of how the concept is viewed;  but the conclusion reached in this opinion is unfortunately compelled.   (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

Either the Legislature should act to restore the rule to a sensible level of vitality, or at the very least the Supreme Court should reexamine Burroughs in light of the reality that homicide, unlike a legal opinion, never occurs in the abstract.

FOOTNOTES

1.   A temporary version of Penal Code section 1238 is currently in effect until January 1, 1989.   The text of subdivision (a)(8), however, has remained unchanged.   It provides for a prosecution appeal from “[a]n order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.”

2.   Of course, an appeal might be mooted by collateral estoppel.   If Patterson had been acquitted of the furnishing charges, he could hardly be tried on a felony-murder theory based on the same acts.

3.   Penal Code section 449a has since been repealed and its components relegated to other parts of the code.   At the time it read, “Any person who willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any barrack, cock, crib, rick or stack of hay, corn wheat, oats, barley or other grain or vegetable product of any kind;  or any field standing hay or grain of any kind;  or any pile of coal, wood or other fuel;  or any pile of planks, boards posts, rails or other lumber;  or any streetcar, railway car, ship, boat or other watercraft, automobile or other motor vehicle․”

4.   People v. Taylor, supra, 11 Cal.App.3d 57, 89 Cal.Rptr. 697 deferred to Cline.   By the time People v. Taylor, supra, 112 Cal.App.3d 348, 169 Cal.Rptr. 290 affirmed a felony-murder conviction based on furnishing heroin, deference to Cline seemingly dissuaded the defendant from even raising the issue.

5.   Health and Safety Code section 11352 states:  “Except as otherwise provided in this division, every person who transports, imports into this state, sells, furnishes, administers, or gives away, or offers to transport, import into this state, sell, furnish, administer, or give away, or attempts to import into this state or transport (1) any controlled substance specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), or (20) of subdivision (d) of Section 11054, or specified in subdivision (b), (c), or (g) of Section 11055, or (2) any controlled substance classified in Scheduled III, IV, or V which is a narcotic drug, unless upon the written prescription of a physician, dentist, podiatrist or veterinarian licensed to practice in this state, shall be punished by imprisonment in the state prison for three, four or five years.”The statute has been amended since the present crime was committed to increase the number of prohibited controlled substances.   The changes do not affect our resolution of the case.

6.   Although not requiring a full discussion, we note section 11352 covers scores of controlled substances, not all of which appear inherently dangerous to human life.   The distribution of peyote seeds (Health & Saf. Code, § 11054, subd. (d)(15)), for example, can certainly be accomplished in ways that are not life threatening.

7.   There are potential enhancements based on the amount of illegal substance transferred.  (Health & Saf. Code, §§ 11352.5, 11370.4.)   Probation is unavailable to those who violate section 11352 and have enumerated prior felony drug convictions.  (Health & Saf. Code, § 11370.2.)   We do not view these enhancements as distinguishing between the various methods of violating section 11352.

8.   The information in this case highlights “furnish or give away,” but it also sets forth all of the other means by which section 11352 may be violated.   As in Pierre, the language of the information “is couched in the language of the statute.”  (Ibid.)

9.   For example, a crook who accidentally runs down an innocent pedestrian in a crosswalk will be guilty of first or second degree murder or manslaughter depending on the nature of the crime he is fleeing.   Robbers and burglars are first degree murderers.   Petty thieves only face manslaughter.   Second degree murderers are those who have committed some unrelated act which just happens to have been inherently dangerous to human life (when, of course the entire statute previously violated is viewed in the abstract), even though the criminal act itself did not cause the death and the victims are different.

10.   With a few exceptions, we can probably conceive of a fact pattern not endangering human life for almost any felony statute.   A decision to apply the felony-murder rule after Williams, Burroughs, Henderson, and Lopez based on any given statute is little better than a judicial value judgment.   We know intuitively that an offer to transport a small quantity of cocaine is not inherently dangerous to life when viewed in the abstract.   Talk is cheap, as they say.   Others may disagree, however.   They will have a decent objection, as well, for judicial intuition is not the gift the founding fathers promised.   We aspire to be a society of laws, not of men.

11.   A defendant is said to have acted with implied malice when he “intentionally committed an act with a high probability that it would result in death, and (2) [he] subjectively appreciated the risk created by [his] act.”  (State of California ex. rel. Dept. of Transportation v. Superior Court (1985) 37 Cal.3d 847, 856, 210 Cal.Rptr. 219, 693 P.2d 804;  Pen.Code, § 188.)   The first part of the test is objective;  the latter goes to the defendant's state of mind.   The subjective element would, of course, be eliminated in determining the applicability of the felony-murder rule, which does not consider the intent of an accused killer.This standard is consistent with the principle announced long ago that deterrence is better served where the felon can “anticipate” that death might result from his conduct.  (People v. Williams, supra, 63 Cal.2d 452, 457, fn. 4, 47 Cal.Rptr. 7, 406 P.2d 647.)   Penal sanctions should not turn on a criminal's ability to read and analyze the statutory elements of Penal Code sections;  it should focus attention on the risk to the victim of the contemplated crime.

CROSBY, Acting Presiding Justice.

WALLIN, J., concurs.