People v. Henderson

• Decision Date: 14 March 1977
• Docket Number: Cr. 19532
• Citation: 560 P.2d 1180,19 Cal.3d 86,137 Cal.Rptr. 1
• Court: California Supreme Court
• Parties: , 560 P.2d 1180 The PEOPLE, Plaintiff and Respondent, v. Carl Wayne HENDERSON et al., Defendants and Appellants.

Page 1

137 Cal.Rptr. 1

19 Cal.3d 86, 560 P.2d 1180

The PEOPLE, Plaintiff and Respondent, v. Carl Wayne HENDERSON et al., Defendants and Appellants.

Cr. 19532.

Supreme Court of California, In Bank.

March 14, 1977.

As Modified on Denial of Rehearing April 13, 1977.

Fred E. Corbin and Larrie R. Brainard, San Diego, under appointments by the Supreme Court, for defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., M. Howard Wayne and Michael E. Lasater, Deputy Attys. Gen., for plaintiff and respondent.

SULLIVAN, ^* Justice.

Defendants Carl Wayne Henderson and Herbert Jeffrey Hawthorne were charged by information with murder (Pen. Code, § 187) (count one), ¹ kidnaping (§ 207) (count two), and false imprisonment (§§ 236, 237) (count three). Henderson was also charged with assault with a deadly weapon (§ 245, subd. (a)) (count four). It was also charged that Henderson used a firearm (§ 12022.5) and that Hawthorne was armed with a deadly weapon (§ 12022) in the commission of each of the offenses with which they were charged. A jury found defendants guilty of murder of the second degree and false imprisonment, but acquitted them of kidnaping. Defendant Henderson was also found guilty of assault with a deadly weapon. The jury found that Henderson used a firearm ² and Hawthorne was armed with a deadly weapon in the commission of the offenses of which they were convicted. Henderson was sentenced to state prison for the term prescribed by law and Hawthorne was granted probation. They appeal from the judgments of conviction. ³

We must determine whether the trial court erred in instructing the jury on the theory of second degree felony murder. We conclude on the basis of settled principles that the offense of false imprisonment as proscribed by sections 236 and 237 is not a felony inherently dangerous to human life in the abstract and, therefore, not capable of supporting a second degree felony murder instruction. The trial court erred in giving such an instruction and the error was prejudicial. We reverse the judgments insofar as they convict defendants of second degree murder.

Early in the evening of October 13, 1974, defendants were visited by Jim Reinesto who attempted to sell them certain articles of personal property. Defendants refused to buy the items and Reinesto departed. Returning home from a party around midnight, defendants discovered that Henderson's color television set was missing. They suspected that Reinesto had taken it and determined to find him and recover the property. Henderson carried Hawthorne's shotgun.

Defendants went in Hawthorne's car to a residence where Reinesto had been seen but failed to find him there. Henderson borrowed a pistol from an occupant of the house. He testified that he removed the clip from the gun, believing that he had thereby unloaded it, and then put the gun in the waistband of his pants.

Defendants then drove to another house where they had earlier seen Reinesto's car parked. They entered the house unannounced and found Reinesto sitting in a chair. Hawthorne held a club and stood near the door. Henderson pointed the pistol at Reinesto and demanded return of the television set. There was testimony that Henderson threatened to take Reinesto to a canyon and kill him if he did not return the television. After Henderson's repeated demands for the set and Reinesto's continuous denials that he had taken it, the latter suggested that they should all go to the home of Mr. and Mrs. Gilhooley who would confirm that Reinesto had been with them during the evening and that he had not taken the television.

At this point Henderson said either 'Let's go' or 'Let's go to the canyon.' Reinesto got up from his chair and walked out to Hawthorne's car thinking that Henderson was directly behind him. Instead Hawthorne walked along side carrying the club and Henderson followed a short time later. Henderson sat in the rear seat and ordered Reinesto to sit in the front passenger seat. Hawthorne drove. During the ride, Henderson placed the barrel of the shotgun at the back of Reinesto's neck and threatened to take him to the canyon. Hawthorne drove in the direction of the canyon but after some urging by Reinesto and upon Henderson's order finally drove to the Gilhooleys' house.

Upon arrival, Reinesto walked to the front door, followed by Henderson with the pistol in his waistband and by Hawthorne carrying the club. Mr. and Mrs. Gilhooley came out onto their front porch. Henderson pulled the pistol out of his waistband and pressed the barrel against the back of Reinesto's neck. Defendants then told the Gilhooleys that they were there to determine if Reinesto had stolen Henderson's television and sold it. Mr. and Mrs. Gilhooley confirmed Reinesto's claim that he had been with them most of the evening.

Henderson apparently disbelieving the Gilhooleys, again threatened to take Reinesto to the canyon and kill him. He ordered Reinesto 'Come on, let's go,' and according to the latter pushed him with the gun. At that moment, Reinesto ducked, twisted to the left and threw up his arm in an attempt to move the gun away from his head. The weapon discharged and a bullet struck Mrs. Gilhooley in the chest. Henderson immediately took flight while Hawthorne attempted to assist the victim who died shortly thereafter. Hawthorne told Reinesto that Henderson and he had not intended to shoot him but had only been trying to scare him into returning the television.

Instructing on both murder and involuntary manslaughter, the trial court told the jury that if their verdict was murder, it was murder of the second degree. The court instructed on two theories of second degree murder: a killing directly resulting from an act involving a high degree of probability of death (CALJIC (3d ed.) (1974 Pocket Part) No. 8.31) and second degree felony murder (CALJIC (3d ed. 1970) No. 8.32). ⁴ The court also instructed on the elements of false imprisonment and specifically instructed that '(w)hen a false imprisonment is effected by violence, menace, fraud or deceit, it is a felony. Otherwise it is a misdemeanor.' Defendants objected to the inclusion of false imprisonment as a felony upon which a murder conviction could be based under the second degree felony murder rule.

We see no necessity in the instant case to review in detail the history of, and the decisions of this court explaining, the second degree felony murder doctrine which we discussed but a few years ago in People v. Satchell (1971) 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P.2d 1361. We need only briefly restate the fundamental principles and apply them to this case. In doing so, however, we are aware that the felony murder rule is disfavored because it relieves the prosecution of the burden of proving one element of murder, malice aforethought. We repeat our belief that the "highly artificial concept' (People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353) of strict criminal liability incorporate in the felony-murder 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 (see People v. Washington (1965) 62 Cal.2d 777, 781, 44 Cal.Rptr. 442, 402 P.2d 130, and authorities there cited.)' (People v. Satchell, supra, 6 Cal.3d 28, 34, 98 Cal.Rptr. 33, 37, 489 P.2d 1361, 1365.)

In accord with the aforementioned purpose, we have held that application of the second degree felony-murder doctrine can be supported only by those felonies which are 'inherently dangerous to human life.' (People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892.) 'If the felony is not inherently dangerous it is highly improbable that the potential felon will be deterred; he will not anticipate that any injury or death might arise solely from the fact that he will commit the felony.' (People v. Williams (1965) 63 Cal.2d 452 458, fn. 4, 47 Cal.Rptr. 7, 10, 406 P.2d 647, 650.) Moreover, 'we look to the elements of the felony in the abstract, not the particular 'facts' of the case,' in determining whether the felony involves an inherent danger to human life. (Id. at p. 458, fn. 5, 47 Cal.Rptr. at p. 10, 406 P.2d at p. 650; People v. Phillips, supra, 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353.) Thus, our task in the instant case is to determine whether the offense of felony false imprisonment, as defined in part by Penal Code section 236 and proscribed by Penal Code section 237, when considered in the abstract, is inherently dangerous to human life.

As defined in section 236, 'False imprisonment is the unlawful violation of the personal liberty of another.' Without more, the conduct described in section 236 is a misdemeanor offense. (§ 237.) If effectuated by 'violence, menace, fraud or deceit,' false imprisonment is elevated to a felony. (§ 237.) ⁵

In determining whether the offense of felony false imprisonment is inherently dangerous to human life, we proceed through a two-step analysis. First, we conclude that the primary element of the offense, namely the unlawful restraint of another's liberty, does not necessarily involve the requisite danger to human life. The aspect of confinement is not life threatening. It has been said that '(a)ll that is necessary to make out a charge of false imprisonment is that the individual be restrained of his liberty without any sufficient complaint or authority therefor . . .. Temporary detention is sufficient, and the use of actual physical force is not necessary.' (Ware v. Dunn (1947) 80 Cal.App.2d 936, 943, 183 P.2d 128, 132.) The unlawful conduct by which the confinement is accomplished also does not necessarily involve a hazard to the victim's life. "The wrong may be committed by acts or by words, or both, and by merely operating upon the will of the individual or by personal violence, or...