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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California Plaintiff and Respondent, v. James Patrick PENDLETON and Bob Lee Tanner, Defendants and Appellants.

Cr. 39472.

Decided: August 16, 1982

Quin Denvir, State Public Defender, Richard Avila, J. Courtney Shevelson, Deputy State Public Defenders, under appointment by the Court of Appeal, for defendant and appellant Pendleton. Michael W. McIsaac, Pasadena, under appointment by the Court of Appeal, for defendant and appellant Tanner. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow, William V. Ballough, Deputy Attys. Gen., for plaintiff and respondent.

Between September 29, 1979 and October 9, 1979, these defendants committed a series of robberies while armed with shotguns.

On October 6, 1979, one of the robberies was committed in a bar in Long Beach.   After Pendleton removed the grand sum of $27 from the cash register of the establishment, Tanner shot and killed one of the patrons with a single blast from a shotgun.   On October 9, 1979, in attempting to avoid apprehension, Pendleton, using a shotgun, shot and blinded a deputy sheriff.

Defendants were tried and convicted, inter alia, of first degree murder with special circumstances in the death of the bar patron.   Surprisingly enough, they received only a sentence of life without possibility of parole.

On this appeal defendants do not challenge the evidence or deny their guilt.   They complain (1) the jury was made up of only registered voters, (2) the felony murder rule should be abolished, and (3) in any event, Penal Code section 190.2, the so-called death penalty statute, by its terms may not be invoked on the basis of the felony murder rule and thus a principal in the commission of the underlying felony is not subject thereto unless he intended the victim be killed.   We reject these contentions.

 The defendants, who are both white, contend that the use of the voter registration list as a source for selecting jurors fails to produce enough eligible persons who are Black or Hispanic.   This contention has been previously considered and rejected.  (People v. Sirhan, 7 Cal.3d 710, 102 Cal.Rptr. 385, 497 P.2d 1121;  People v. Garcia, 121 Cal.App.3d 54, 175 Cal.Rptr. 244.)

In the case at bench, the killing of the bar patron appears to have been intentional because the victim made a move to leave the premises and ignored a command by Tanner to stop.

The trial court, however, did not instruct the jury on premeditation, but did instruct on the felony murder rule.   Defendants now argue that the felony murder rule is unconstitutional in that it creates a presumption of malice and in any event it should be abolished since it “erodes the relationship between criminal liability and moral culpability.”

Defendants constitutional argument was laid to rest in People v. Johnson, 38 Cal.App.3d 1, 112 Cal.Rptr. 834, where it was pointed out that the felony murder rule does not create any presumption of malice but in fact substitutes the mens rea of the underlying felony for the element of malice.   As was pointed out in Johnson, the argument which was presented there and repeated here, is based on a misapprehension of the felony murder rule in particular and the role of “malice” in the law of homicide generally.

 In our view, as we will discuss, infra, the felony murder rule expresses a sound public policy aimed at preventing the commission of dangerous and violent crimes.   The contention in this case that it erodes the concept of moral culpability can only be advanced by someone who, in our opinion, has a distorted view of the moral culpability of the armed robber or who at least is blinding himself to the true nature of the crime of armed robbery.

Here counsel for defendants suggest that we examine the appropriateness of imposing responsibility for murder on an individual who “only” intended to commit armed robbery.

 There is nothing unfair, immoral, illegal or unconstitutional about the felony murder rule, especially in its application to the heinous felonies specified in Penal Code section 189,1 which defines first degree murder as any killing in the perpetration of such felonies.

 Punishment for crime serves two objectives.  (1) punishment or retribution, and (2) deterrence.   In the final analysis, the felony murder doctrine is a legislative and judicial expression of society's desire to prevent and deter serious violent crimes.

In the law of homicide, the physical result is always the same—a person is dead—whether the killing was justifiable, the result of a traffic violation, or the result of premeditated murder.   Hence the various punishments which are specified for the various types of criminal homicide are based on the culpability of the state of mind of the slayer and the societal significance of the crime.

Murder is one form of unlawful homicide which, by definition, is the unlawful killing of another accompanied by that state of mind which is described as “malice.”   Malice is an amorphous concept which in its simplest terms is merely that state of mind which society, speaking through its Legislature or its courts, views as sufficiently culpable to constitute a killing as murder.

In California, malice has been defined by statute as follows:

“․ malice may be express or implied.   It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.   ¶ When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought.  (Pen.Code, § 188.)

 Malice does not require a deliberate intent to take human life and has been found to be present under the circumstances of a person committing an unlawful act of the magnitude of felony.   Thus the culpable state of mind which inheres in the underlying felony has been determined to be sufficient to raise even an accidental killing in the perpetration thereof to the level of murder.

The next step in the law of homicide in California is that the highest degree of punishment is imposed for those murders which involve an additional element of specific culpability.   Thus first degree murder requires, inter alia, premeditation, poison, torture, lying in wait, or for the purpose of this discussion, the perpetration of certain especially heinous felonies, one of which is robbery.

Based on the number of cases in which the identical arguments have been proffered, it appears that the state public defender's office is waging a statewide coordinated campaign to eliminate the use of the felony murder doctrine in special circumstance cases and to abolish by judicial fiat the felony murder doctrine in its entirety.

This effort is premised on two mistaken notions.  (1) that an intent to kill is the sine qua non of all murders, and (2) the purely judgmental conclusion that an intentional killing must under all circumstances be considered more culpable than a negligent or accidental killing.

From these notions the argument in this case proceeds that life without possibility of parole when applied to a first degree murder based on the felony murder doctrine is disproportionate to the crime and further that the death penalty law which carries life without possibility of parole as an alternative sentence cannot by its terms be applied on the basis of the felony murder rule.

 In Re Lynch, 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921, sets forth a three-pronged test in determining whether a punishment is so disproportionate to the crime as to be invalid.   Those prongs are essentially (1) an analysis of the crime itself, (2) a comparison of the punishment for the crime with punishments in California for other serious crimes, and (3) a comparison with the punishment for the same crime in other jurisdictions.

 As we have earlier stated, the punishment for criminal homicide is pegged to the culpability of the slayer and the societal significance of the crime.   While it seems clear to us that the murder in this case was intentional rather than accidental, an analysis of the propriety of the punishment for a killing in the perpetration of a robbery, accidental or intentional, must proceed from an analysis of the crime of robbery itself, since the felony murder rule, especially as it is embodied in Penal Code section 189, is designed to deter the commission of the underlying felony.

Along with political assassination and the deliberate killing of a policeman in the performance of his duty, the crime of robbery has vital significance for society.

Society's condemnation of the crime of robbery by the imposition of criminal sanctions is the one law that stands between civilized living on the one hand and the law of the jungle on the other.   The most elementary ingredient of what we call civilization is the right of all citizens to possess property, enjoy the fruits of their labor and the security of their persons without the fear that someone who is stronger physically or better armed can deprive them of those things.2

The individual who takes up a weapon and embarks on a robbery transgresses against that very fundamental precept.   While the fascination with and romanticization of the so-called “gentlemen bandit” or “Robin Hood” by the press and fiction writers has tended to obscure the vicious nature of the crime in the minds of some, the fact is that there is no such thing as a “nice” armed robber, and while an intentional killing under some circumstances may be justifiable, excusable, or lacking in “malice,” a robbery is never justifiable, excusable or lacking in evil purpose.

The implicit threat in any robbery is “your money or your life.”   Thus an armed robber must be assumed to be prepared to enforce the alternative.   In order to prevent the possibility that an armed robber may take money and life, albeit accidentally, the Legislature has issued its warning that the penalty will either be the same or more severe than in the case of an intentional killing under other circumstances.

Without minimizing the seriousness of any murder we must observe that the killing of the innocent victim under the circumstances of this case, or for that matter in any armed robbery, even in a state of panic or by accident, is far more heinous ergo more culpable than certain emotionally charged intentional killings with differing motives, that we have had occasion to deal with.

 In summary, we find nothing disproportionate, arbitrary or unreasonable in the Legislature decreeing that as a matter of substantive law a killing in the perpetration of a felony is a murder, and such a murder in the perpetration of certain specified serious felonies is a murder of the first degree to be punished accordingly.  (See People v. Isitt, 55 Cal.App.3d 23, 127 Cal.Rptr. 279;  People v. Washington, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130;  People v. Coefield, 37 Cal.2d 865, 236 P.2d 570;  People v. Stamp, 2 Cal.App.3d 203, 82 Cal.Rptr. 598.)   Such an approach does not shock our conscience or offend fundamental notions of decency.   Nor is it necessary to look to other jurisdictions to make that determination.

It follows from the foregoing that there is no legal bar to imposing criminal liability on all principals in the underlying felony to the same degree as that imposed on the individual who directly commits the act which caused the death.  (People v. Johnson, supra, 38 Cal.App.3d 1, 112 Cal.Rptr. 834.)

As a result of the passage in 1978 of Proposition 7, an initiative measure amending Penal Code section 190.2, that section now provides for the penalty of death or life without possibility of parole for persons “whether or not the actual killer” who is found guilty of “intentionally aiding, abetting ․ or assisting any actor in the commission of murder in the first degree ․”  Any requirement of a finding of premeditation or deliberation was deleted from the law.

 Contrary to defendants' assertion, we cannot read the amendment as evidencing an intent to alter the above mentioned concepts.   The history of the statute and the ballot arguments concerning Proposition 7 all point unerringly to the conclusion that the intent underlying the statute was to bring within its sweep those persons who intentionally participate as principals in the commission of a robbery, among other felonies, regardless of whether they personally kill anyone or intend that their accomplices kill anyone.

Proposition 7 was not intended to limit the law in favor of criminals—quite the reverse.   After the enactment of Proposition 7, the felony murder rule as well as the concept of vicarious liability for all persons chargeable as principals remains intact.

Here we deal with two individuals who, in order to further their desire to pursue a career of armed robbery, gunned down and killed an innocent citizen and blinded a police officer who attempted to apprehend them.   They will not be heard, at least not by this court, to argue that the provisions of the law providing the most severe punishment for the most heinous of crimes does not apply to them.

We have examined defendants' remaining contentions and find them to be devoid of arguable merit.  (Cal.Const., Art. VI, § 13.)

The judgments are affirmed.


1.   Penal Code section 189 provides in part:  “All murder which is perpetrated by means of a destructive device or explosive, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree;  and all other kinds of murders are of the second degree.”

2.   These same analyses apply with equal force to the crime of rape.

COMPTON, Acting Presiding Justice.

BEACH and GATES, JJ., concur.

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