The PEOPLE of the State of California, Plaintiff and Respondent, v. Thaddeus FLEETON et al., Defendants and Appellants.
Thaddeus Fleeton, Troy Rush and Terence Standifer appeal their convictions for the second degree murder (Pen.Code, §§ 187, 189) 1 and kidnaping (§ 207) of Peter Holmes. They raise several challenges to the application of the second degree felony-murder rule in this case. We hold that, although not codified in the Penal Code, the second degree felony murder doctrine is well established by California Supreme Court authority. We also hold, however, that simple kidnaping, viewed in the abstract, is not an inherently dangerous felony under the standard set by the Supreme Court. It was prejudicial error to give felony murder instructions in this case, and we therefore reverse defendants' convictions.
At about 1 a.m. on March 22, 1989, Thaddeus Fleeton and Troy Rush went to the Geneva Towers housing project and spoke with a security guard, Flando Watts. Rush told Watts that he had been robbed earlier in an apartment there. He had been “set up” by a woman named Michelle Davis and had been robbed at gunpoint of his coat and jewelry. Rush said he was going to have to kill the robber. Rush, Fleeton and Watts went to Davis' apartment, but no one answered their knock. When Watts suggested that if they found the robber they should just “kick his ass,” Fleeton replied, “No. I'm going to kill him,” or “No. I'm going to get him.” When they came back downstairs, Watts saw a man get out of the elevator wearing a coat like that described by Rush; Rush said, “There he go,” and Fleeton and Rush ran after him.
Security guard Lerietta Clayborn testified she saw the victim, Peter Holmes, come out of a Geneva Towers building. Rush and Fleeton tried to grab Holmes, then chased him toward the street. Holmes ran back to the building, and Rush and Fleeton caught him as he reached the door. They knocked him to the ground, then kicked and beat him. Terence Standifer came up and joined in, kicking and beating Holmes. Rush, Fleeton and Standifer then carried Holmes to a double-parked car. Clayborn heard the doors close and saw the car speed off, but could not actually see them put Holmes in the car. After the car started down the street, Watts heard gunshots coming from the Geneva Towers.
Holmes' body was found in McClaren Park, about a mile and a half from the Geneva Towers, on the morning of March 22. He had died from two gunshot wounds to the head. There was also a laceration on his head which contained a small piece of glass. Glass bottle fragments, stained with blood, were found next to the body.
Troy Rush testified that he went to visit Michelle Davis in her Geneva Towers apartment on the evening of March 21, believing that her husband, “Bunny,” was absent. He was surprised there by Bunny, Peter Holmes, and a third man. At gunpoint they robbed him of his money, jewelry, pager, and coat. When Rush protested, a gun was put to his head and cocked; Holmes asked if he wanted to die. Holmes and the third man hit Rush a few times and threw him out of the apartment.
Rush returned to his father's house in the Fillmore District, where he located Fleeton, Standifer and a fourth man, Maurice Ellis, all of whom agreed to go back with him and try to recover his stolen property. They stopped at two houses where Fleeton obtained guns, then at Rush's mother's house to borrow her car, and, after a stop at a liquor store where they bought a bottle of whiskey, drove to the Geneva Towers.
At the Geneva Towers they took a gun from the trunk and put it in the back seat. Fleeton and Rush accompanied Watts to the apartment. When they saw Holmes they chased him, knocked him down and dragged him to the car. Once in the car Rush heard yelling and gunshots from the building. In the car, Rush demanded his property back, but Holmes defiantly refused. Ellis drove them to the park, where Rush told him to stop. Rush pushed Holmes out of the car and took his coat. As he was walking back to the car he heard two shots, and, turning around, saw Fleeton had shot Holmes with a shotgun.
Fleeton testified that Rush asked him to help get Rush's property back; Rush also said he was going to kill “her and him.” Rush continued to say he was going to kill them but Fleeton did not take him seriously. Fleeton obtained three guns, which he thought they might need for protection. When they got to the Geneva Towers they saw Holmes walking towards the building. Rush started after him, but Fleeton pulled Rush back because he saw a police car nearby and did not want the police to interfere with their efforts.
They saw Holmes again after going with Watts to an apartment. Fleeton and Rush chased and caught him. Rush and Holmes fought, then Standifer joined in, punching and kicking Holmes. Fleeton got in the back seat of the car, where Rush and Holmes were already seated. Rush directed Ellis to the park, saying he knew a “dark spot.” They stopped at Rush's direction. Standifer hit Holmes on the head with a bottle as Holmes started out of the car, and Holmes collapsed. Fleeton saw Rush at the trunk, loading a shotgun, and asked him what was going on. Rush said he was going to “handle my business,” then shot Holmes twice.
The jury was instructed, over defense objections, on second degree felony murder with kidnaping as the underlying felony. Specifically, the jury was told: “The unlawful killing of a human being whether intentional, unintentional or accidental which occurs as a direct causal result of the commission or attempted commission of the crime of kidnapping, is murder of the second degree when the perpetrator had the specific intent to commit such crime.” (CALJIC No. 8.32 (5th ed. 1988).2 In addition, the jury was instructed that liability for such a felony murder may extend to those conspiring in or aiding and abetting the underlying felony (CALJIC Nos. 8.33, 8.34). Defendants raise numerous claims of error as to these instructions.
Defendants contend that the second degree felony-murder rule should not be applied because it has no statutory foundation. They argue it is invalid under section 6, which provides, in part, “ ‘No act or omission’ ․ is criminal or punishable, except as prescribed or authorized by this code․” (See Keeler v. Superior Court (1970) 2 Cal.3d 619, 631–632, 87 Cal.Rptr. 481, 470 P.2d 617 [there are no common law crimes in California].) We agree that the second degree felony-murder rule lacks a satisfactory basis in the Penal Code, but we consider ourselves and the trial courts bound to apply it by the many California Supreme Court decisions affirming its existence.
In People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, the Supreme Court considered a similar challenge to the first degree felony-murder rule. Relying primarily on legislative history from the enactment of the 1872 Penal Code, the court determined that section 189, which on its face appears only to distinguish first degree from second degree murder, was actually intended to codify the first degree felony-murder rule as well, making all killings occurring during the commission of the enumerated felonies first degree murder. (Id., at pp. 468–472, 194 Cal.Rptr. 390, 668 P.2d 697.)
The Crimes and Punishments Act of 1850 had expressly provided for a felony-murder rule, through a proviso in the definition of involuntary manslaughter (section 25 of the 1850 act) stating that an involuntary killing was to “be deemed and adjudged to be murder” if performed in the course of a felony. (People v. Dillon, supra, 34 Cal.3d at p. 465, 194 Cal.Rptr. 390, 668 P.2d 697.) Murder, then as now, was defined as an unlawful killing with malice aforethought. (Ibid.) In 1856, murder was divided into degrees through an amendment of section 21 of the 1850 act. (See id., at p. 466, 194 Cal.Rptr. 390, 668 P.2d 697.) The drafters of the 1872 code continued that part of section 21 as section 189 of the code, but, for reasons unknown, failed to codify the express felony-murder language from section 25 of the 1850 act. (Id., at p. 467, 194 Cal.Rptr. 390, 668 P.2d 697.)
From the history of section 189 and of the manslaughter and arson statutes, the Dillon court concluded that the drafters of section 189 believed (erroneously) that its predecessor, section 21 of the 1850 act, had itself embodied the felony-murder rule as to the listed felonies, and that section 189 would do the same. (Dillon, supra, 34 Cal.3d at p. 471, 194 Cal.Rptr. 390, 668 P.2d 697.) Dillon's reasoning is applicable only to the felony-murder rule as it applies to the crimes listed in section 189—that is, to the first degree felony-murder rule. Nothing in the history recited in Dillon suggests that in 1872 the drafters and legislators believed that section 189, which specifically enumerates several felonies as the predicates for first degree murder, also codified a second degree felony-murder rule for offenses not listed. Indeed, at the conclusion of its discussion the Dillon court noted that while it had found a statutory foundation in section 189 for the first degree felony-murder rule, “the second degree felony-murder rule remains, as it has been since 1872, a judge-made doctrine without any express basis in the Penal Code [citation].” (Id., at p. 472, fn. 19, 194 Cal.Rptr. 390, 668 P.2d 697.)3 Section 189 does not codify the second degree felony-murder rule.
People v. Taylor (1980) 112 Cal.App.3d 348, 356–357, 169 Cal.Rptr. 290, reached a contrary conclusion based on a passage in People v. Sanchez (1864) 24 Cal. 17, 29, which was quoted at length in a code commissioner's note to the 1872 version of section 189. The quoted passage from Sanchez, however, was concerned exclusively with explaining the differences between first and second degree murder, and was cited in the 1872 note for that same purpose. As the Dillon court explained, it is possible the drafters of section 189 misread Sanchez to hold that section 21 of the 1850 act codified the first degree felony-murder rule (Dillon, supra, 34 Cal.3d at p. 471, 194 Cal.Rptr. 390, 668 P.2d 697); it strains credulity to claim that the section, in which the only reference to second degree murder is the statement that “all other kinds of murders are of the second degree,” was intended as an independent definition of that offense.
The Attorney General does not suggest any statutory basis for the second degree rule other than section 189. It might be argued that intentional commission of an inherently dangerous felony is a kind of malice aforethought, and hence within the definition of murder in section 187. Indeed, the common law concept of the rule was that “one perpetrating or attempting to perpetrate a dangerous felony ‘possesses a malevolent state of mind which the law calls “malice” ․’ ” (Perkins & Boyce, Criminal Law (3d ed. 1982) p. 71, fn. omitted.) An early California case, People v. Doyell (1874) 48 Cal. 85, 96, included “felonious purpose” along with “wanton recklessness” as two types of implied malice, both showing “an abandoned and malignant heart.” Many later decisions have stated that the felony-murder rule “presumes,” “ascribes,” “posits,” or “imposes” malice. (See Dillon, supra, 34 Cal.3d at p. 473, fn. 20, 194 Cal.Rptr. 390, 668 P.2d 697, and cases cited therein.) This approach, however, was rejected in Dillon. Answering the contention that the felony-murder rule created an unconstitutional presumption of malice, the Dillon court held that the substantive definition of murder, when the theory of liability is felony murder, does not include malice aforethought as an element. The “conclusive presumption” of malice is in actuality a substantive rule of law defining the offense so as to substitute intentional commission of the felony for the element of malice. “In short, ‘malice aforethought is not an element of murder under the felony-murder doctrine.’ [Citation.]” (34 Cal.3d at p. 475, 194 Cal.Rptr. 390, 668 P.2d 697.) Although Dillon involved first degree murder, its reasoning on this point is equally applicable to second degree. Under California law second degree murder can be shown in either of two ways: by proving malice aforethought or by proving the killing occurred as the result of an inherently dangerous felony. (See People v. Patterson (1989) 49 Cal.3d 615, 626 & fn. 8, 262 Cal.Rptr. 195, 778 P.2d 549 [second degree felony-murder doctrine acts as a “substitute” for, not a presumption of, implied malice (citing Dillon ) ].) Since section 187 defines murder as an unlawful killing with malice aforethought, it does not codify the second degree felony-murder rule.4
Despite the lack of an express statutory basis for the rule, the California Supreme Court has repeatedly reaffirmed its existence, even while refining and restricting it. (See People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892 [felony must be inherently dangerous]; People v. Williams (1965) 63 Cal.2d 452, 458 & fn. 5, 47 Cal.Rptr. 7, 406 P.2d 647 [felony to be evaluated in the abstract]; People v. Satchell (1971) 6 Cal.3d 28, 35–40, 98 Cal.Rptr. 33, 489 P.2d 1361 [examining offense as a whole, including less dangerous means of commission]; People v. Burroughs (1984) 35 Cal.3d 824, 829, fn. 3, 201 Cal.Rptr. 319, 678 P.2d 894 [acknowledging doctrine is “creature of judicial invention” but declining to reconsider its validity]; People v. Patterson, supra, 49 Cal.3d at pp. 621, 626–627, 262 Cal.Rptr. 195, 778 P.2d 549 [declining to reconsider validity but raising standard of inherent dangerousness].)
In People v. Phillips (1966) 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353, the court rejected (albeit without satisfactory discussion) the very contention made here, that the rule should not be applied because it lacks a statutory basis: “Despite defendant's contention that the Penal Code does not expressly set forth any provision for second degree felony murder and that, therefore, we should not follow any such doctrine here, the concept lies embedded in our law.” (Id., at p. 582, 51 Cal.Rptr. 225, 414 P.2d 353, citing Williams, supra, 63 Cal.2d 452, 47 Cal.Rptr. 7, 406 P.2d 647 and Ford, supra, 60 Cal.2d 772, 36 Cal.Rptr. 620, 388 P.2d 892.) Standifer argues this statement was dictum because the Phillips court went on to find the rule inapplicable in that case (because the underlying felony was not inherently dangerous). We disagree with this characterization. While the Supreme Court could have declined to decide the continuing validity of the rule, it chose instead to decide that question before reaching the particulars of the case, in the process expressly rejecting the argument that the felony-murder rule should not be applied because it lacked a basis in the Penal Code. That holding has never been overruled, and together with the court's repeated affirmations of the doctrine's existence it binds us, as a lower court, to apply the second degree felony-murder doctrine where it is properly applicable. (Accord, People v. Landry (1989) 212 Cal.App.3d 1428, 1436–1437, 261 Cal.Rptr. 254.)5
Defendants contend the court erred in instructing on kidnaping murder because simple kidnaping is not inherently dangerous to human life. They rely on the recent decision in People v. Patterson, supra, 49 Cal.3d at page 627, 262 Cal.Rptr. 195, 778 P.2d 549, holding that a felony is inherently dangerous only if, viewed in the abstract, its commission creates a “ ‘high probability’ that death will result.” The Attorney General argues that Patterson should not be taken literally to require a statistical analysis of the probability of death, because such an interpretation could mean, in practice, elimination of the second degree felony-murder rule.
The exact question presented here is of limited importance to future cases, as kidnaping has been added to section 189's list of predicate felonies for first degree murder. (§ 189, amended by Prop. 115, approved June 5, 1990.) The more general question of how to interpret and apply the Patterson “high probability” test will continue to be a difficult one for the trial courts and Courts of Appeal. It should be clear from our discussion that more explicit guidance from the Supreme Court would be welcomed.
Simple kidnaping was held an inherently dangerous felony in People v. Ford, supra, 60 Cal.2d at page 795, 36 Cal.Rptr. 620, 388 P.2d 892, and People v. Ford (1966) 65 Cal.2d 41, 50, 52 Cal.Rptr. 228, 416 P.2d 132, successive appeals in the same case. Doubt was cast on the precedential value of the Ford decisions in People v. Satchell, supra, 6 Cal.3d at pages 36–37, 98 Cal.Rptr. 33, 489 P.2d 1361, in which it was noted that neither Ford decision viewed the felonies involved in the abstract, as required by intervening authority. Ford involved both kidnaping and firearm possession by an ex-felon (§ 12021). Satchell was a section 12021 case, and hence can be read to overrule Ford only as to that offense, not as to kidnaping. That was apparently the view taken in People v. Burroughs, supra, 35 Cal.3d at page 833, 201 Cal.Rptr. 319, 678 P.2d 894, which cites the first Ford decision for the proposition that kidnaping is an inherently dangerous felony, with a note that Ford was “overruled on other grounds” in Satchell. The Ford holding on kidnaping was also followed in People v. Romo (1975) 47 Cal.App.3d 976, 989, 121 Cal.Rptr. 684, and Romo was in turn followed in People v. Kelso (1976) 64 Cal.App.3d 538, 541, 134 Cal.Rptr. 364.
Even if the Ford holdings on kidnaping are considered to have remained good law after Satchell, they cannot be taken as definitive authority after Patterson. “High probability” of death is a very different test than “substantial risk” to human life, the previous standard as stated in People v. Burroughs, supra, 35 Cal.3d at page 833, 201 Cal.Rptr. 319, 678 P.2d 894. Many crimes which have generally been thought of as inherently dangerous might fail a literal application of the Patterson test. (See Patterson, supra, 49 Cal.3d at pp. 628–629, 262 Cal.Rptr. 195, 778 P.2d 549 [dis. opn. of Lucas, C.J.].) Moreover, none of the pre-Patterson cases on kidnaping contain any substantial discussion so as to give them continuing persuasive authority. Whether simple kidnaping is an inherently dangerous felony should be considered as an open question after Patterson.
One post-Patterson decision concludes that simple kidnaping is inherently dangerous. (People v. Pearch (1991) 229 Cal.App.3d 1282, 280 Cal.Rptr. 584.) “[T]he crime of kidnapping is fraught with violence—either the actual use of physical force or the threat of physical harm․ [¶] The use of physical force against another individual is always dangerous and presents extreme risks in the circumstances of a kidnap where the kidnapper must apply force not only to overcome the victim's resistance but also to move that victim a substantial distance; such force, by its nature, is dangerous and life threatening. [¶] A kidnapping accomplished by threats of harm or injury which the victim reasonably feels compelled to obey under the circumstances is also extremely dangerous. In order to compel the victim to comply, the kidnapper must make a serious threat of real harm, i.e., death or significant injury, and make the victim believe the threat is real, e.g., by displaying or alluding to a gun or a knife or other similar weapon. Idle threats of harm which are not reasonably believable under the circumstances are not sufficient. Threats of serious harm or death made with a show of willingness to carry through on those threats present an inherently dangerous situation.” (Pearch, supra, at pp. 1297–1298, 280 Cal.Rptr. 584.) The Pearch court concluded that kidnaping was inherently dangerous under either standard—“substantial risk” or “high probability of death.” (Id., at p. 1296, fn. 4, 280 Cal.Rptr. 584; see also People v. Ordonez (1991) 226 Cal.App.3d 1207, 1228, 277 Cal.Rptr. 382 [kidnaping for ransom inherently dangerous under Patterson standard].)
The factors pointed to in Pearch are certainly sufficient to show that kidnaping is “inherently dangerous,” as one might understand that phrase were it not a term of art, and that the offense would meet Burroughs' “substantial risk” test. Asportation of the victim through the use of physical force or credible threats of violence does inherently create substantial risks to human life.
It cannot be said, however, that movement by force or threat produces, in all cases, a “high probability” that death will result. It must be remembered that the offense is to be viewed in the abstract, and as a whole, taking into account even the less hazardous or nonhazardous ways of violating the law. (People v. Burroughs, supra, 35 Cal.3d at pp. 829–830, 201 Cal.Rptr. 319, 678 P.2d 894.) Contrary to the statement in Pearch, force may be threatened without display of or allusion to a deadly weapon. (See, e.g., People v. Reber (1986) 177 Cal.App.3d 523, 535, 223 Cal.Rptr. 139 [evidence of threat sufficient where victim accompanied defendants to their house out of fear, because they had physically and sexually abused him several days earlier]; People v. Dagampat (1959) 167 Cal.App.2d 492, 495, 334 P.2d 581 [victim was compelled to enter car by defendants' “dirty looks” and knowledge one defendant had used a knife in a fight several days earlier].) A large number of cases have found force was used where a victim entered an automobile voluntarily and then was unable to get out because the driver refused to stop the car. (See, e.g., People v. Camden (1976) 16 Cal.3d 808, 812–813, 129 Cal.Rptr. 438, 548 P.2d 1110; People v. Galvan (1986) 187 Cal.App.3d 1205, 1213–1215, 232 Cal.Rptr. 410; Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 402, 173 Cal.Rptr. 906; People v. La Salle (1980) 103 Cal.App.3d 139, 146–147, 162 Cal.Rptr. 816.) Moreover, while kidnaping is generally done for a malevolent purpose, simple kidnaping, viewed in the abstract, does not require intent to commit any further crime or, indeed, any evil motive. “[A] person who forcibly carries and transports another, capable of giving consent, against his or her will, is guilty of kidnapping ‘however good or innocent [the defendant's] motive or intent may otherwise be․’ [Citations.]” (People v. Kelly (1990) 51 Cal.3d 931, 959, 275 Cal.Rptr. 160, 800 P.2d 516; see, e.g., People v. Bruno (1920) 49 Cal.App. 372, 375–376, 193 P. 511 [defendant who forced victim into car was not entitled to instruction that he was not guilty if he wanted only to talk with her and had no intention of hurting her].) It could thus be considered kidnaping for one person to drive another a few miles against the other person's will with no purpose but to talk to the other person. Yet this behavior, while dangerous, would not create a high probability of death.6
The Patterson opinions provide little guidance on application of the new “high probability” standard; the court chose to remand to the trial court for a determination of inherent dangerousness rather than deciding the question itself for the offense involved (furnishing cocaine). (Patterson, supra, 49 Cal.3d at p. 625, 262 Cal.Rptr. 195, 778 P.2d 549.) The majority derived the “high probability” standard from cases defining the physical component of implied malice—commission of an act dangerous to human life—for which commission of the felony substitutes under the felony-murder rule. (Id., at pp. 626–627, 262 Cal.Rptr. 195, 778 P.2d 549.) Examination of the implied malice cases cited for the “high probability” standard yields the following examples of acts creating a high probability of death, or raising a jury question thereof: aiming and shooting a gun either at the victim or at the cup of coffee she was holding in front of her face (People v. Thomas (1953) 41 Cal.2d 470, 480, 261 P.2d 1); initiating a gun battle (People v. Washington (1965) 62 Cal.2d 777, 782, 44 Cal.Rptr. 442, 402 P.2d 130); and driving at excessive speeds through city streets while intoxicated (People v. Watson (1981) 30 Cal.3d 290, 300–301, 179 Cal.Rptr. 43, 637 P.2d 279). Acts such as these create risks to human life well beyond those produced by the less hazardous ways of committing simple kidnaping, as where no deadly weapon is used, “force” is applied only through refusal to stop an automobile, and the motive is not malevolent.
We conclude simple kidnaping is not an inherently dangerous felony under the standard announced in Patterson. The instructions on second degree felony murder should not have been given. Moreover, we are unable to find this error harmless on any recognized standard of prejudice. The prosecutor relied heavily on kidnaping murder as a theory in his argument to the jury, and the jury returned during deliberations with several questions which strongly suggested that at least some jurors relied upon that theory in reaching their murder verdicts.7 We are compelled to reverse the defendants' second degree murder convictions. They may be retried on that charge under theories of express and implied malice.
The convictions for second degree murder are reversed, and the causes remanded for new trial on those charges. The judgments are otherwise affirmed.
1. All further statutory references are to the Penal Code unless otherwise noted.
2. All further CALJIC references are to the fifth edition.
3. The Attorney General characterizes this remark as ill-considered dictum. In strict terms it is dictum, since Dillon was a first degree murder case. But in a case such as Dillon, chosen by the Supreme Court to attempt a systematic exposition and clarification of the law in a particular area, the court's analysis of closely related questions is highly persuasive authority.
4. Because we conclude malice is not an element of second degree felony murder, we reject Standifer and Fleeton's contentions that the rule creates an unconstitutional presumption of malice. Dillon's logic refutes this claim for both first and second degree felony murder.
5. It follows that this court may not accept Fleeton's invitation to abolish the second degree felony-murder doctrine as unsound in policy. Such a step could only be taken by our Supreme Court or our Legislature.
6. Section 207 was amended in 1990, after commission of the acts on which these convictions are based. The forbidden means of taking were broadened to include “any other means of instilling fear” as well as taking by force, and exceptions were added for one who takes a child under 14 years of age to protect the child from imminent harm and for the making of arrests. (Stats.1990, ch. 55, No. 4 West's Cal. Legis. Service, § 1, p. 320.)
7. One such question was: “[I]f the jury first finds the defendant guilty of manslaughter, then second guilty of kidnaping, can the manslaughter decision stand or must the jury by law increase it to a minimum of murder?”
FOOTNOTE. See footnote *, ante.
LOW, Presiding Justice.
KING and HANING, JJ., concur.