People v. Carlson

• Decision Date: 20 February 1974
• Docket Number: Cr. 11449
• Citation: 112 Cal.Rptr. 321,37 Cal.App.3d 349
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Gregory CARLSON, Defendant and Appellant.

Page 321

112 Cal.Rptr. 321

37 Cal.App.3d 349

The PEOPLE of the State of California, Plaintiff and Respondent, v. Paul Gregory CARLSON, Defendant and Appellant.

Cr. 11449.

Court of Appeal, First District, Division 1, California.

Feb. 20, 1974.

Harkjoon Paik, Public Defender, David A. Barish, Deputy Public Defender, Salinas, for defendant and appellant.

Evelle J. Younger, Atty. Gen., of Cal., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Thomas P. Dove, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from the judgment upon his conviction by the trial court of voluntary manslaughter Pen.Code, § 192, subd. 1) and second degree murder (Pen.Code, § 187). Although the appeal is from the entire judgment, the only issue on appeal is whether the manslaughter conviction for the killing of defendant's wife is a felony which can sustain the second degree conviction for the killing of the fetus carried by the wife at the time of her death under the felony-murder rule. The trial court determined that the killing of defendant's wife was without malice and the result of 'the combination of sudden quarrel, heat of passion and mental confusion.' Upon the basis of this determination the trial court concluded that since the manslaughter was a felony it was constrained to find defendant guilty of the second degree murder of the fetus under the felony-murder rule.

Defendant was charged with the murder of two separate entities, his wife and his unborn child. Under the provisions of Penal Code section 187, subdivision (a), ¹ 'Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.' ² The two homicides alleged resulted from the one act of defendant. The cause of the wife's death was lack of oxygen to the brain. The fetus died as a direct result of the death of the mother.

It should be observed here that although the murder of two persons by the same act constitutes two offenses for each of which separate prosecutions may be had with conviction or acquittal in one case not barring prosecution in the other (People v. Majors, 65 Cal. 138, 146--147, 3 P. 597), it is implicit in the trial court's findings that defendant did not have the specific intent to kill his unborn child. It is equally apparent from the court's findings that upon a consideration of the offense charged with respect to the fetus, independent of the offense charged with respect to defendant's wife, the court concluded that the evidence was insufficient to support a finding that defendant was guilty of the murder of the fetus, or of any lesser and included offense. The sole basis upon which the court concluded that defendant was guilty of the murder of the fetus was the offense found, upon sufficient evidence, to have been committed against the wife, i.e., voluntary manslaughter. This determination, as declared by the court, was made on the basis of the application of the felony-murder rule.

The second degree felony-murder rule was developed by the courts in the course of defining second degree murder. ³ It is basically an adoption of the common law rule that homicides which occur during the perpetration of any felony constitute murder. (See Comments, Merger and the California Felony-Murder Rule, 20 U.C.L.A.L.Rev. 250, 252 (1972); and see Pike, What is Second Degree Murder in California?, 9 So.Cal.L.Rev. 112, 118 (1936).) The application of the rule has, however, been limited by the courts to require that the commission of the felony involve substantial risk to human life. Accordingly, in California the felony which forms the basis for the rule must be one, when viewed in the abstract, that is inherently dangerous to human life. (People v. Satchell, 6 Cal.3d 28, 39--40, 98 Cal.Rptr. 33, 489 P.2d 1361; People v. Ireland, 70 Cal.2d 522, 538, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Phillips, 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Williams, 63 Cal.2d 452, 457--458, fn. 4, 47 Cal.Rptr. 7, 406 P.2d 647; People v. Ford, 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892, cert. den. 377 U.S. 340, 84 S.Ct. 1342, 12 L.Ed.2d 303.)

Since the effect of the felony-murder doctrine is to erode the relation between criminal liability and moral culpability the Supreme Court has declared the caveat that the doctrine 'should not be extended beyond any rational function that it is designed to serve.' (People v. Washington, 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 446, 402 P.2d 130, 134; People v. Satchell, supra, 6 Cal.3d 28, 33--34, 98 Cal.Rptr. 33, 489 P.2d 1361; People v. Ireland, supra, 70 Cal.2d 522, 539, 75 Cal.Rptr. 188, 450 P.2d 580.) Accordingly, the doctrine should 'be given the narrowest possible application consistent with its ostensible purpose--which is to deter those engaged in felonies from killing negligently or accidentally (citation).' (People v. Satchell, supra, at p. 34 of 6 Cal.3d, p. 37 of 98 Cal.Rptr., p. 1365 of 489 P.2d; see People v. Washington, supra, 62 Cal.2d at pp. 781--783, 44 Cal.Rptr. 442, 402 P.2d 130 and authorities there cited.)

In the instant case it is clear that the fetus was killed by defendant while he was engaged in the commission of a felony, i.e., manslaughter, which, in the abstract, was one inherently dangerous to life. The question presented is whether its application under the circumstances of the present case extends it beyond any rational function that it is designed to serve, particularly in view of the fact that the death of both defendant's wife and her unborn child resulted from one act of defendant and in view of the principle that the murder of two persons by the same act constitutes two offenses for each of which separate prosecutions may be had.

Defendant contends that the application by the trial court of the felony- murder doctrine was improper because it permitted the prosecution to bootstrap a manslaughter to a murder. Reliance is placed on Ireland where it was held that a second-degree felony-murder conviction may not be predicated upon 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. (70 Cal.2d at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580.) In that case the defendant shot and killed his wife. The court gave an instruction which could be understood by the jury to mean that if the homicide was committed in the perpetration of the crime of assault with a deadly weapon it should find the defendant guilty of second degree murder.

Ireland is clearly distinguishable from the instant case in that the victim of the homicide was the same person upon whom the underlying felony of assault with a deadly weapon was purportedly perpetrated. Here the felony utilized as the underlying felony, i.e., the manslaughter of defendant's wife, was used as the basis for defendant's conviction of the murder of his unborn son. We therefore must consider whether the rationale of Ireland is applicable under the circumstances of the present case because there are two victims rather than one.

It should be noted here that the effect of the felony-murder rule is to withdraw from the trier of fact the issue of malice and thus relieve the trier of fact from the necessity of finding one of the elements of the crime of murder. (People v. Ireland, supra, 70 Cal.2d 522, 538, 75 Cal.Rptr. 188, 450 P.2d 580; People v. Phillips, supra, 64 Cal.2d 574, 584, 51 Cal.Rptr. 225, 414 P.2d 353.) As applied to the instant case the rule would permit a conviction of second degree murder for the killing of the fetus merely upon a showing that the death of the fetus resulted from defendant's conduct amounting to manslaughter of the mother in whose womb the fetus was being carried.

We are persuaded that it is unnecessary to resort to the felony-murder rule where the homicide of two persons by the same act constitute separate offenses for which separate prosecutions and conviction may be had independent of the short cut of the felony-murder rule. In such a case conviction can be predicated on the normal rules of murder and the element of malice aforethought may be established under the evidence including defendant's conduct and the inferences arising from it. (See People v. Phillips, supra, 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Satchell, supra, 6 Cal.3d 28, 33--34, fn. 11, 98 Cal.Rptr. 33, 489 P.2d 1361; and see Packer, The Case for Revision of the Penal Code (1961) 13 Stan.L.Rev. 252, 259; Note (1967) 55 Cal.L.Rev. 329, 340.) As observed in People v. Sears, 2 Cal.3d 180, 187, 84 Cal.Rptr. 711, 715, 465 P.2d 847, 851, 'That doctrine can serve its purpose only when applied to a felony independent of the homicide.' Accordingly, if, as reasoned in Ireland, a man assaulting another with a deadly weapon could not be deterred by the second degree felony-murder rule because the assault was an integral part of the homicide, it seems to us equally reasonable to conclude that a man assaulting two persons at the same time and by the same act would not be deterred by the felony-murder rule since the assault was an integral part of the resulting homicide of the two victims.

In the present case it is apparent from the trial court's findings that the trial court concluded from the evidence that defendant did not manifest any express malice or any implied malice, other than that implied under the felony-murder doctrine, toward either the wife or the unborn child since it did not find defendant guilty of second degree murder of either of the victims upon the predicate of malice. It would seem under the circumstances that if defendant was guilty of manslaughter with respect to the wife he would also be guilty of manslaughter with respect to the fetus, since the killing of both resulted from the same act. Accordingly, it would be unnecessary to resort to the...