People v. Smith

• Decision Date: 16 April 1984
• Docket Number: Cr. 22872
• Citation: 201 Cal.Rptr. 311,35 Cal.3d 798,678 P.2d 886
• Court: California Supreme Court
• Parties: , 678 P.2d 886 The PEOPLE, Plaintiff and Respondent, v. Linda Lee SMITH, Defendant and Appellant.

Page 311

201 Cal.Rptr. 311

35 Cal.3d 798, 678 P.2d 886

The PEOPLE, Plaintiff and Respondent, v. Linda Lee SMITH, Defendant and Appellant.

Cr. 22872.

Supreme Court of California In Bank.

April 16, 1984.

Antonia D. Radillo, Deputy State Public Defender, Sacramento, for defendant and appellant.

Margaret E. Garnand, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

MOSK, Justice.

Defendant appeals from a judgment convicting her of second degree murder (Pen.Code, § 187), ¹ felony child abuse (§ 273a, subd. (1)), and child beating (§ 273d). The court sentenced her to imprisonment for 15 years to life on the murder count (§ 190) and stayed service of sentence on the 2 remaining counts to avoid double punishment (§ 654). The principal issue on appeal is whether felony child abuse may serve as the underlying felony to support a conviction of second degree murder on a felony-murder theory. We conclude that because the acts constituting such child abuse in the present case were an integral part of the homicide, the offense merged into the homicide; it was therefore error to give a felony-murder instruction, and the judgment must be reversed insofar as it convicts defendant of second degree murder.

Defendant and her two daughters, three-and-a-half-year-old Bethany (Beth) and two-year-old Amy, lived with David Foster. On the day Amy died, ² she refused to sit on the couch instead of the floor to eat a snack. Defendant became angry, took Amy into the children's bedroom, spanked her and slapped her in the face. Amy then went towards the corner of the bedroom which was often used for discipline; defendant hit her repeatedly, knocking her to the floor. Foster then apparently joined defendant to "assist" in Amy's discipline. Beth testified that both Foster and defendant were striking Amy, who at that point had been at least partially undressed by defendant. Defendant and Foster used both their hands and a paddle on the child, and were also biting her. In addition, Beth testified that Foster put a wastebasket on Amy's head and hit her on the head with his fist. ³ Eventually, defendant knocked the child backwards and she fell, hitting her head on the closet door.

Amy stiffened and went into respiratory arrest. Defendant and Foster took her to the hospital, where defendant admitted that she "beat her too hard." She also stated that Foster had not come home until after the incident. Amy died that evening. Her injuries were consistent with compressive force caused by numerous blows by hands, fists, and a paddle. The severe head injury that was the direct cause of death occurred within an hour before the child was brought to the hospital.

Defendant testified that although she had spanked Amy on the day in question, she then left Amy in the children's room. Foster, believing additional discipline was warranted, went into the room, closed the door and began shouting at Amy. Although defendant heard thumping noises, she was not overly concerned because Foster had behaved similarly in the past and Amy had not been injured. After a half hour, defendant became somewhat worried and entered the room. She observed that Amy had a puffy lip, and bite marks and bruises all over her lower body. Foster left the room at defendant's request after defendant said she would continue the discipline. Defendant then shouted at Amy for 15 to 20 minutes to allow Foster time to "cool off." To avoid the possibility that Foster might also attack Beth, she took Beth into another bedroom and closed the door. Foster returned to the children's room and began slapping Amy because she would not look at him. Defendant testified she was afraid that if she interfered she would become the object of Foster's attack. She stated that although she realized that Amy was being abused, she did not believe the child's life was in danger. Defendant eventually did intervene, at which point Amy stiffened and fainted. Defendant expressed a desire to take the child to hospital, but Foster objected because of his concern about the possible effect on his probation status. Defendant therefore agreed to take all responsibility for Amy's injuries and initially did so in her statement at the hospital. As noted above, however, defendant later denied any active involvement in the beating that led to Amy's death.

I

The court gave the jury the standard instructions defining murder, malice aforethought, second degree murder, second degree felony murder, and manslaughter. The second degree felony-murder instruction (CALJIC No. 8.32 (4th ed. 1979)) informed the jury that an unlawful killing, whether intentional, unintentional, or accidental, is second degree murder if it occurs during the commission of a felony inherently dangerous to human life, and that felony child abuse (§ 273a, subd. (1)) is such a crime. Defendant contends that on the facts of this case the crime of felony child abuse was an integral part of and included in fact within the homicide, and hence that it merged into the latter under the rule of People v. Ireland (1969) 70 Cal.2d 522, 538-540, 75 Cal.Rptr. 188, 450 P.2d 580. We agree.

Our opinions have repeatedly emphasized that felony murder, although the law of this state, is a disfavored doctrine: "We have recognized that the rule is much censured 'because it anachronistically resurrects from a bygone age a "barbaric" concept that has been discarded in the place of its origin' ( [People v. Phillips (1966) 64 Cal.2d 574, 583, fn. 6, 51 Cal.Rptr. 225, 414 P.2d 353] ) and because 'in almost all cases in which it is applied it is unnecessary' and 'it erodes the relation between criminal liability and moral culpability' (People v. Washington (1965) 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 402 P.2d 130)." (People v. Dillon (1983) 34 Cal.3d 441, 463, 194 Cal.Rptr. 390, 668 P.2d 697.) Accordingly, we have reiterated that this "highly artificial concept" (Phillips, supra, 64 Cal.2d at p. 582, 51 Cal.Rptr. 225, 414 P.2d 353) "should not be extended beyond any rational function that it is designed to serve." (Washington, supra, 62 Cal.2d at p. 783, 44 Cal.Rptr. 442, 402 P.2d 130.) "Applying this principle to various concrete factual circumstances, we have sought to insure that the [doctrine] ... be given the narrowest possible application consistent with its ostensible purpose--which is to deter those engaged in felonies from killing negligently or accidentally" (People v. Satchell (1971) 6 Cal.3d 28, 34, 98 Cal.Rptr. 33, 489 P.2d 1361).

In accord with this policy, we restricted the scope of the felony-murder rule in Ireland by holding it inapplicable to felonies that are an integral part of and included in fact within the homicide. In that case the defendant and his wife were experiencing serious marital difficulties which eventually culminated in defendant's drawing a gun and killing his wife. The jury was instructed that it could find the defendant guilty of second degree felony murder if it determined that the homicide occurred during the commission of the underlying felony of assault with a deadly weapon. Like all felony-murder instructions, this instruction had the "effect of 'reliev[ing] the jury of the necessity of finding one of the elements of the crime of murder' [citation] to wit, malice aforethought." (People v. Ireland, supra, 70 Cal.2d at p. 538, 75 Cal.Rptr. 188, 450 P.2d 580.) We reasoned that "the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule 'beyond any rational function that it is designed to serve.' [Citation.] To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault--a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. We therefore hold that a second degree felony-murder instruction may not properly be given when it is based 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." (Id. at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580; italics added.)

Very soon after Ireland we again had occasion to consider the question of merger in People v. Wilson (1969) 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22. There the defendant forcibly entered his estranged wife's apartment carrying a shotgun. Once inside the apartment, he fatally shot a man in the living room and proceeded to break into the bathroom where he killed his wife. The jury was instructed on second degree felony murder based on the underlying felony of assault with a deadly weapon, and convicted the defendant of second degree murder of the man. We determined that the predicate felony was a "necessary ingredient of the homicide" and reversed under Ireland, which explicitly prohibited use of the felony-murder rule in such circumstances. (Id. at p. 438, 82 Cal.Rptr. 494, 462 P.2d 22.)

The defendant was also convicted of the first degree murder of his wife, and we reversed that conviction on similar grounds. The jury was instructed on first degree felony murder on the theory that the homicide was committed in the course of a burglary because the defendant had entered the premises with intent to commit a felony, i.e., assault with a deadly weapon. We held that the felony-murder rule cannot apply to burglary-murder cases in which "the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide and is included in fact in the offense charged ...." (Id. at p. 440, 82 Cal.Rptr. 494, 462 P.2d 22.) Because under Ireland the "elements of the assault were necessary elements of the homicide" (id. at p. 441, 82 Cal.Rptr. 494, 462 P.2d 22), the felony of burglary based on an intent to commit assault was included in...