People v. Patterson

• Decision Date: 07 September 1989
• Docket Number: No. S006538,S006538
• Court: California Supreme Court
• Parties: , 778 P.2d 549 The PEOPLE, Plaintiff and Appellant, v. Sandy PATTERSON, Defendant and Respondent.

Page 195

262 Cal.Rptr. 195

49 Cal.3d 615, 778 P.2d 549

The PEOPLE, Plaintiff and Appellant, v. Sandy PATTERSON, Defendant and Respondent.

No. S006538.

Supreme Court of California,

In Bank.

Sept. 7, 1989.

Rehearing Denied Nov. 8, 1989.

[778 P.2d 551] Cecil Hicks, Dist. Atty. (Orange) Michael R. Capizzi, Maurice L. Evans, Chief Asst. Dist. Attys., Thomas M. Goethals, Thomas J. Borris, Brent Romney, William W. Bedsworth and Randall L. Wilkinson, Deputy Dist. Attys., for plaintiff and appellant

Stephen Gilbert, under appointment by the Supreme Court, Santa Monica, for defendant and respondent.

Ronald A. Zumbrun, Anthony T. Caso, Laurel E. DeFoe, Sacramento, John Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Pat Zaharopoulos and Roy W. Hewitt, Deputy Attys. Gen., Michael D. Bradbury, Dist. Atty. (Ventura) and Michael D. Schwartz, Deputy Dist. Atty., amici curiae on behalf of plaintiff and appellant.

Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena, Deputy Public Defender, Harvey R. Zall, State Public Defender, Michael Pescetta and Philip M. Brooks, Deputy State Public Defenders, amici curiae on behalf of defendant and respondent.

KENNARD, Justice.

The issue before us is whether the second degree felony-murder doctrine applies to a defendant who, in violation of Health and Safety Code section 11352, furnishes cocaine to a person who dies as a result of ingesting it. We reaffirm the rule that, in determining whether a felony is inherently dangerous to human life under the second degree felony-murder doctrine, we must consider "the elements of the felony in the abstract, not the particular 'facts' of the case." (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5, 47 Cal.Rptr. 7, 406 P.2d 647.) While Health and Safety Code section 11352 includes drug offenses other than the crime of furnishing cocaine, which formed the basis for the prosecution's theory of second degree felony murder here, we conclude that the inquiry into inherent dangerousness must focus on the felony of furnishing cocaine, and not on section 11352 as a whole. We further hold that--consistent with the established definition of the term "inherently dangerous to life" in the context of implied malice as an element of second degree murder--a felony is inherently dangerous to life when there is a high probability that its commission will result in death.

We reverse the decision of the Court of Appeal affirming the trial court's ruling that, as a matter of law, the second degree felony-murder doctrine was inapplicable to this case. We direct the Court of Appeal to remand the matter to the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

According to the testimony at the preliminary hearing, the victim Jennie Licerio and her friend Carmen Lopez had been using cocaine on a daily basis in the months preceding Licerio's death. On the night of November 25, 1985, the two women were with defendant in his motel room. There, all three drank "wine coolers," inhaled "lines" of cocaine, and smoked "coco The People filed an information charging defendant with one count each of murder (Pen.Code, § 187), possession of cocaine (Health & Saf.Code, § 11350), and possession of cocaine for sale (Health & Saf.Code, § 11351). Defendant was also charged with three counts of violating Health and Safety Code section 11352, in that he "did willfully, unlawfully and feloniously transport, import into the State of California, sell, furnish, administer, and give away, and attempt to import into the State of California and transport a controlled substance, to-wit: cocaine."

[778 P.2d 552] puffs" (hand-rolled cigarettes containing a mixture of tobacco and cocaine). Defendant furnished the cocaine. When Licerio became ill, Lopez called an ambulance. Defendant stayed with the two women until the paramedics and the police arrived. The paramedics were unable to revive Licerio, who died of acute cocaine intoxication.

Defendant moved under Penal Code section 995 to set aside that portion of the information charging him with murder, contending the evidence presented at the preliminary hearing did not establish probable cause to believe he had committed murder. In opposing the motion, the People did not suggest the murder charge was based on a theory of implied malice. Instead, they relied solely on the second degree felony-murder doctrine. They argued that by furnishing cocaine defendant committed an inherently dangerous felony, thus justifying application of the rule. The trial court denied the motion. However, when the case was reassigned for trial, the court dismissed the murder charge under Penal Code section 1385. ¹ In compliance with Penal Code section 1385's requirement that "[t]he reasons for the dismissal must be set forth in an order entered upon the minutes," the court gave this explanation in its minute order: "Court finds that violation of 11351 H & S and 11352 H & S are not inherently dangerous to human life and on the Courts [sic] own motion orders count 1 of the information dismissed in the interest of justice under section 1385 P.C." ²

Following the dismissal, defendant entered a negotiated plea of guilty to the three counts of violating Health and Safety Code section 11352. In his written plea form, defendant specifically admitted he had "furnished a controlled substance, to wit: cocaine, knowing it was cocaine." The remaining charges were dismissed, and defendant was placed on probation for three years, with credit for the time he had already spent in custody. The People appealed the dismissal of the murder charge. (Pen.Code, § 1238, subd. (a)(8).) ³

The Court of Appeal affirmed the dismissal of the murder count. Based on its review of the applicable decisions of this court, the Court of Appeal felt compelled to analyze Health and Safety Code section 11352 in its entirety (as opposed to only that portion of the statute actually violated in the present case) to determine whether defendant had committed an inherently dangerous felony. The court observed that section 11352 could be violated in various nonhazardous ways, such as transporting or offering to transport controlled substances.. ⁴ The Court of Appeal reached this conclusion reluctantly. The court noted that consideration of the entire statute, which included offenses unrelated to defendant's conduct, had brought the second degree felony-murder rule "to the brink of logical absurdity." The court suggested that "[i]f the rule is not abolished, it should be codified by the legislature with meaningful guidelines to effectuate its use."

                [778 P.2d 553] 4  As the court said, "The latter acts are [49 Cal.3d 620] obviously not inherently dangerous to human life."   While recognizing that the murder charge against defendant rested on his furnishing cocaine to the victim, the court concluded that, viewing the statute "in the abstract," a violation of section 11352 could not be characterized as an inherently dangerous felony
                

As we shall explain, the Court of Appeal has interpreted our previous decisions in this area too broadly. In determining whether defendant had committed an inherently dangerous felony, the court should have considered only the particular crime at issue, namely, furnishing cocaine, and not the entire group of offenses included in the statute but not involved here. Thus, it is the offense of furnishing cocaine, not the statute as a whole, which must be examined "in the abstract."

DISCUSSION

1. Second degree felony-murder doctrine

There is no precise statutory definition for the second degree felony-murder rule. ⁵ In People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892, we defined the doctrine as follows: "A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen.Code, § 189) constitutes at least second degree murder. [Citations.]" In determining whether the felony is inherently dangerous, "we look to the elements of the felony in the abstract, not the particular 'facts' of the case." (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5, 47 Cal.Rptr. 7, 406 P.2d 647; People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Henderson (1977) 19 Cal.3d 86, 93, 137 Cal.Rptr. 1, 560 P.2d 1180; People v. Burroughs (1984) 35 Cal.3d 824, 829-830, 201 Cal.Rptr. 319, 678 P.2d 894.)

The Court of Appeal's opinion in this case criticized the second degree felony-murder rule in its present form, suggesting the doctrine should either be completely eliminated or considerably "reformed." In response, defendant and amici curiae on his behalf have urged us to abolish the rule. The People and their amici curiae, on the other hand, have asked that we "reform" the doctrine by looking solely to the actual conduct of a defendant, thereby dispensing with the requirement that the elements of the offense be viewed in the abstract. We decline both invitations for the reasons discussed below.

The second degree felony-murder doctrine has been a part of California's criminal law for many decades. (See People v. Wright (1914) 167 Cal. 1, 5, 138 P. 349; We also turn down the People's invitation that we expand the second degree felony-murder doctrine by eliminating the requirement of People v. Williams, supra, 63 Cal.2d 452, 47 Cal.Rptr. 7, 406 P.2d 647, that the elements of the offense be viewed "in the abstract," and by adopting a new standard focusing instead on the actual conduct of a defendant in determining whether the felony is inherently dangerous.

                [778 P.2d 554] Pike, Second Degree Murder in California (1936) 9 So.Cal.L.Rev. 112, 118-119.)   In recent years, we have characterized the rule as "anachronistic" (People v. Burroughs, supra, 35 Cal.3d at p. 829, 201 Cal.Rptr. 319, 678 P.2d 894) and "disfavored" (People v. Henderson, supra, 19 Cal.3d at p. 92, 137 Cal.Rptr. 1, 560 P.2d 1180), based on

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