People v. Hansen

• Decision Date: 30 December 1994
• Docket Number: No. S036384,S036384
• Citation: 36 Cal.Rptr.2d 609,9 Cal.4th 300,885 P.2d 1022
• Court: California Supreme Court
• Parties: , 885 P.2d 1022 The PEOPLE, Plaintiff and Respondent, v. Michael HANSEN, Defendant and Appellant.

Page 609

36 Cal.Rptr.2d 609

9 Cal.4th 300, 885 P.2d 1022

The PEOPLE, Plaintiff and Respondent, v. Michael HANSEN, Defendant and Appellant.

No. S036384.

Supreme Court of California,

In Bank.

Dec. 30, 1994.

Rehearing Denied Feb. 23, 1995.

Joan T. Anyon, under appointment by the Supreme Court, and E. Stephen Temko, San Diego, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Howard Wayne, Keith I. Motley, Holly D. Wilkens and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

GEORGE, Justice.

In this case we must determine whether the offense of discharging a firearm at an inhabited dwelling house (Pen.Code, § 246) ¹ is a felony "inherently dangerous to human life" for purposes of the second degree felony-murder doctrine, and, if so, whether that doctrine nonetheless is inapplicable in the present case under the so-called "merger" doctrine applied in People v. Ireland (1969) 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580, and its progeny. For the reasons explained hereafter, we conclude that this offense, for such purposes, is a felony inherently dangerous to human life and does not "merge" with a resulting homicide so as to preclude application of the felony-murder doctrine. Because the Court of Appeal reached a similar conclusion, we affirm the judgment of that court upholding defendant's conviction of second degree murder.

I

On September 19, 1991, defendant Michael Hansen, together with Rudolfo Andrade and Alexander Maycott, planned to purchase $40 worth of methamphetamine. With that purpose, defendant, accompanied by his girlfriend Kimberly Geldon and Maycott, drove in defendant's Camaro to an apartment duplex located in the City of San Diego. Upon arriving at the duplex, defendant pounded on the door of the upstairs apartment where Christina Almenar resided with her two children. When he received no response, defendant proceeded to return to his automobile and was approached by Michael Echaves.

Echaves resided in the downstairs apartment with Martha Almenar (Christina's sister) and Martha's two children, Diane Rosalez, thirteen years of age, and Louie Miranda, five years of age. At the time, Diane and Louie were outside with Echaves helping him with yard work. In response to a question from Echaves, defendant said he was looking for Christina. When Echaves stated he had not seen her, defendant asked whether Echaves would be able to obtain some crystal methamphetamine (speed). After making a telephone call, Echaves informed defendant that he would be able to do so. Defendant said he would attempt to purchase the drug elsewhere but, if unsuccessful, would return.

Defendant and his companions departed but returned approximately 20 minutes later. Defendant, accompanied by Echaves, Maycott, and Geldon, then drove a short distance to another apartment complex. Defendant parked his vehicle, gave Echaves two $20 bills, and told Echaves he would wait while Echaves obtained the methamphetamine. Echaves said he would be back shortly.

When Echaves failed to return, defendant and his companions proceeded to Echaves's apartment. Defendant knocked on the door and the windows. Diane and Louie were inside the apartment alone but did not respond. Their mother, Martha, had left the apartment to meet Echaves, who had telephoned her after eluding defendant. After meeting Echaves at a hardware store, Martha telephoned her children from a public telephone booth. Diane answered and told her mother that the "guys in the Camaro" had returned, pounded on the door, and then had left.

Meanwhile, defendant, Maycott, and Geldon returned to the location where Andrade was waiting for them, acquiring en route a handgun from an acquaintance. The three men then decided to return to Echaves's apartment with the objective either of recovering their money or physically assaulting Echaves. At approximately 7:30 p.m., defendant approached the apartment building in his automobile with the lights turned off, and then from the vehicle fired the handgun repeatedly at the dwelling. At the time, Diane was inside the apartment, in the living room with her brother. The kitchen and living room lights were on. Diane was struck fatally in the head by one of the bullets fired by defendant.

On the basis of information furnished by witnesses to the shooting, the police were able to trace to defendant the vehicle from which the shots had been fired. On September 20, at approximately 3 a.m., police officers arrested defendant at the room of a motel where he was staying. Searching the trunk of his Camaro, the police discovered a nine-millimeter semi-automatic handgun and an empty ammunition clip for the weapon.

Five bullet holes were found at the scene of the homicide inside the apartment. It later was determined that shell casings and three bullets recovered at that location had been fired from the handgun found inside the trunk of defendant's vehicle.

That same morning, at 7 a.m., defendant was advised of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and waived them. He then confessed to having fired several shots from a handgun aimed at the apartment building. He stated that he had been waiting for someone whom he believed "took off with forty bucks" belonging to him, that he was shooting at "[j]ust the house," and that he would not have engaged in this conduct had he known "those kids were in there."

At trial, as part of the defense case, defendant testified that on the day of the shooting he had consumed a substantial quantity of alcohol and some crystal methamphetamine. He further testified that, when he initially returned to Echaves's apartment, he had observed the lights were on, but after knocking on the door and receiving no response, he believed no one was inside. He denied any recollection of actually having fired the shots at the apartment, although he remembered hearing "four or five loud noises," and denied having intended to harm anyone.

A neurologist and a neuropsychologist testified that defendant suffered from a mild prefrontal lobe injury that, in conjunction with the use of alcohol and drugs, could result in sudden, unplanned, and impulsive actions. A toxicologist testified regarding defendant's blood-alcohol level and its possible effects, based upon defendant's report as to the amount of alcohol he had consumed prior to the shooting. (His testimony did not refer to the possible effect of defendant's use of crystal methamphetamine, as testified to by defendant.)

The trial court instructed the jury on several theories of murder, including second degree felony murder as an unlawful killing that occurs during the commission or attempted commission of a felony inherently dangerous to human life, further instructing that the felony of shooting at an inhabited dwelling is inherently dangerous to human life. The jury returned a verdict finding defendant guilty of second degree murder (without specifying the theory upon which the conviction was based), and found true the allegation that he personally used a firearm during the commission of that offense (§ 12022.5, subd. (a)). The jury also found defendant guilty of discharging a firearm at an inhabited dwelling. At sentencing, the trial court imposed a term of imprisonment of 15 years to life for the second degree murder conviction, plus a consecutive term of 4 years for the personal-use-of-a-firearm enhancement. The court also imposed a term of five years for the offense of shooting at an inhabited dwelling, but stayed the sentence for that offense pursuant to section 654.

On appeal, defendant asserted, among other contentions, that the trial court erred in instructing the jury on second degree felony murder based upon the underlying felony of discharging a firearm at an inhabited dwelling, because the latter offense merged with the resulting homicide within the meaning of Ireland, supra, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580. Defendant relied upon People v. Wesley (1970) 10 Cal.App.3d 902, 905-910, 89 Cal.Rptr. 377, a decision holding that the offense proscribed by section 246 was an integral part of the resulting homicide and therefore could not support a second degree felony-murder conviction. Defendant also asserted as error the imposition of the firearm-use enhancement. Concluding the underlying felony proscribed by section 246 did not merge with the homicide, the Court of Appeal affirmed the conviction of second degree murder but struck the section 12022.5 firearm-use enhancement.

II

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (§ 187, subd. (a).) Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. (§§ 187, subd. (a); 189; People v. Nieto Benitez (1992) 4 Cal.4th 91, 102, 13 Cal.Rptr.2d 864, 840 P.2d 969.)

Malice may be express or implied. (§ 188.) It is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188.) It is implied "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188.) We have held that implied malice has both a physical and a mental component, the physical component being the performance of " 'an act, the natural consequences of which are dangerous to life,' " and the mental component being the requirement that the defendant " 'knows that his conduct endangers the life of another and ... acts with a conscious disregard for life.' " (People v. Patterson (1989) 49 Cal.3d 615, 626, 262 Cal.Rptr. 195, 778 P.2d 549; People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

The felony-murder rule imputes the requisite...