Opinion
[CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rule 976.1 this opinion is certified for publication with the exception of Discussion parts B, C, D, E and F. In an unpublished concurring opinion, Presiding Judge Kremer concurs in the opinion save for Discussion part B, concurring only in the result.
Review Granted Feb. 3, 1994.
Review Granted Previously published at: 29 Cal.App.4th 1096, 19 Cal.App.4th 1514, 24 Cal.App.4th 1320
Opinion on pages 1096-1106 omitted.
REVIEW GRANTED. [Copyrighted Material Omitted] COUNSEL
[24 Cal.Rptr.2d 243] Joan T. Anyon, San Diego, under appointment by the Court of Appeal, for defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Sr. Asst. Atty. Gen., Howard Wayne and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.
OPINION
BENKE, Associate Justice.
Convicted of second degree murder with a firearm use finding and shooting at an inhabited dwelling, appellant Michael Hansen argues (1) error in instructing on second degree felony murder, (2) failure to instruct concerning the relationship of voluntary intoxication to the concept of implied malice, (3) jury misconduct, (4) imposition of cruel or unusual punishment, (5) improper imposition of a firearm use enhancement and (6) improper imposition of a restitution fine.
FACTS
A. Prosecution Case
On the afternoon of September 19, 1991, Rudolfo Andrade, Alexander Maycott and appellant wished to purchase $40 worth of methamphetamine. To that end, appellant, his girlfriend Kimberly Geldon and Maycott drove in appellant's orange Camaro to an apartment at 5675 Albemarle in the City of San Diego.
On arriving, appellant attempted to contact Christina Almenar in her upstairs apartment. Unable to do so, appellant started to walk back to his car when he was stopped by Michael Echaves who lived in the apartment below Christina's with Martha Almenar and her two children, 13-year-old Diane and 5-year-old Louie. As appellant walked to and from Christina's apartment, Michael, Diane and Louie were cleaning the yard.
Echaves asked appellant who he was looking for. Appellant asked Echaves if he had seen Christina. When he said he had not, appellant asked Echaves if he could get some methamphetamine. After making a telephone call, Echaves told appellant he could. Appellant stated he would attempt to buy the drug elsewhere but if unsuccessful he would return. Appellant and his friends departed but returned about 20 minutes later. Appellant asked Echaves if he could still get the methamphetamine. He stated he could, got into appellant's car and drove with appellant, Maycott and Geldon to another location.
Appellant gave Echaves two $20 bills and told Echaves he would wait while Echaves got the methamphetamine. Echaves got out of the car and walked away.
When Echaves did not return, appellant and his friends went back to Echaves's apartment on Albemarle. Appellant went to the door and knocked. Diane and Louie were home alone and did not answer the door.
After waiting for a time, appellant, Maycott and Geldon decided to return to where Andrade, who had put up part of the money for the drug purchase, was waiting. On the way they stopped at the home of Danny Gomez and acquired a handgun.
The three returned to where Andrade was waiting. Geldon got out of the car and Andrade got in. The men decided they would return to the apartment on Albemarle to find Echaves and to either get [24 Cal.Rptr.2d 244] their money or beat him up. At about 7:30 p.m., appellant drove his car down Albemarle with the lights out, maneuvered nearer the house and fired the gun repeatedly at the dwelling. Diane was struck in the head by one of the shots and later died from her wound.
Based on information from witnesses, the police were able to trace the car from which the shots were fired to appellant. At approximately 3 a.m. on September 20, officers contacted appellant at his motel in San Ysidro. A search of the car's trunk revealed a 9mm semi-automatic pistol and an empty ammunition clip for the weapon. No fingerprints were found on the gun but tests indicated shell casings found at the scene were ejected from the gun and bullets collected at the apartment were fired by the weapon.
Appellant agreed to talk with the officers and admitted firing the gun at the apartment. Appellant refused to give the names of the other persons who were with him.
Appellant later gave an officer the names of the other two persons in the car. Appellant also told the officer he and the other two men in the car wanted to do the shooting but appellant fired the gun because he was in the best position.
B. Defense Case
Appellant testified in his own defense and stated that on the day of the shooting he consumed a considerable quantity of alcohol and did a " line" of methamphetamine. Appellant testified he had been involved in motorcycle accidents in the past in which he had been seriously injured and had lost consciousness. Appellant stated when he first drove back to the apartment on Albemarle, he saw a light on and believed Echaves was inside. After knocking, however, and getting no response, appellant concluded Echaves was not at home.
Appellant testified Maycott had the gun as the men returned to the apartment. Appellant took the gun from him when he pointed it at a boy on the street. Appellant denied any recollection of firing the gun but did remember hearing shots. Appellant stated he had doubts he fired the gun. Appellant stated that much of what he told the officers after the shooting was untrue and that he told them he fired the gun because he felt responsible and because he did not wish to be a " snitch." Appellant stated he had no intention to kill anyone. Appellant denied making any subsequent statements to the police concerning the shooting. Appellant specifically denied telling officers all three of the men wanted to do the shooting but appellant fired the gun since he was in the best position to do so.
A neurologist and a psychologist testified appellant suffered from a mild prefrontal lobe injury that, especially in conjunction with the use of alcohol, could result in sudden, unplanned and impulsive actions.
A toxicologist testified that based on appellant's report of the amount of alcohol he had consumed the evening of the shooting and given the reported time of that ingestion, appellant would have had a 0.20 to 0.30 blood alcohol level at the time of the shooting. The expert testified an " alcohol blackout" occurs when after the use of alcohol the individual is conscious and goes about normal activities but is later unable to remember what happened during that period of time.
DISCUSSION
A. Instructions on Second Degree Felony Murder
Appellant argues the trial court erred in instructing the jury that he could be convicted of second degree murder if the jury concluded the homicide occurred during the commission of the felony of discharging a firearm at an inhabited dwelling house. (Pen.Code, § 246.) Citing People v. Wesley (1970) 10 Cal.App.3d 902, 905- 910, 89 Cal.Rptr. 377( Wesley ), appellant argues firing at an inhabited dwelling house is an " integral part of the homicide" and is an [24 Cal.Rptr.2d 245] offense " included in fact within the offense charged." (See also People v. Smith (1984) 35 Cal.3d 798, 805, 201 Cal.Rptr. 311, 678 P.2d 886.) Appellant contends, therefore, the felony of firing at an inhabited dwelling house " merges" with the homicide and cannot be a basis for a conviction of second degree murder. (See People v. Ireland (1969) 70 Cal.2d 522, 538-539, 75 Cal.Rptr. 188, 450 P.2d 580 (Ireland ).)
All statutory references are to the Penal Code unless otherwise specified.
1. Law
In People v. Wesley , supra , 10 Cal.App.3d at pages 905- 910, 89 Cal.Rptr. 377, the court, looking to concepts enunciated in People v. Ireland, supra, 70 Cal.2d at pp. 538-539, 75 Cal.Rptr. 188, 450 P.2d 580, concluded the felony of discharging a firearm at an inhabited dwelling could not support a finding of second degree murder. In People v. Smith, supra, 35 Cal.3d at page 805, 201 Cal.Rptr. 311, 678 P.2d 886, our Supreme Court noted, but did not comment on, Wesley's conclusion. Since the decision in Wesley the concept of second degree felony-murder has been in development. We believe it appropriate in light of that evolution to reconsider the use of the felony of discharging a firearm at an inhabited dwelling as a basis for a finding of second degree felony-murder.
In Ireland the defendant shot and killed his wife. The jury was instructed it could return a verdict of second degree murder based on the second degree felony-murder rule and was told the felony of assault with a deadly weapon could serve as the basis for such a verdict. The court concluded it was error to so instruct. (People v. Ireland, supra, 70 Cal.2d at pp. 538-539, 75 Cal.Rptr. 188, 450 P.2d 580.)
The court noted the felony-murder rule makes it unnecessary the jury find malice aforethought. The court further observed the great majority of homicides are the result of felonious assaults. If assault with a deadly weapon was a sufficient basis for a finding of second degree murder based on the felony-murder rule, then in most homicide prosecutions it would be unnecessary the jury find the crime was committed with malice aforethought. (People v. Ireland, supra, 70 Cal.2d at p. 539, 75 Cal.Rptr. 188, 450 P.2d 580.) The court stated: " We have concluded that 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.]" (Ibid. )
The court offered this general rule: " 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." (70 Cal.2d at p. 539, fn. omitted, 75 Cal.Rptr. 188, 450 P.2d 580.) This very general pronouncement has created numerous questions. (See id. at p. 540, 75 Cal.Rptr. 188, 450 P.2d 580; see also the comments of then justice of the Court of Appeal Otto Kaus in People v. Taylor (1970) 11 Cal.App.3d 57, 60, 63-64, 89 Cal.Rptr. 697 (Taylor ).)
In People v. Wilson (1969) 1 Cal.3d 431, 82 Cal.Rptr. 494, 462 P.2d 22 (Wilson), the court found the Ireland rule applied not only to the nonstatutory second degree felony-murder rule but also to the statutorily created first degree murder rule (§ 189). In Wilson the jury instructions allowed a conviction of first degree murder based on the felony-murder rule. The only possible supporting felony, however, was burglary which in turn was based on an entry to commit an assault with a deadly weapon. The court stated: " Where a person enters a building with a intent to assault his victim with a deadly weapon, he is not deterred by the felony-murder rule. That doctrine can serve its purpose only when applied to a felony independent of the homicide." (Id. at p. 440, 82 Cal.Rptr. 494, 462 P.2d 22.)
In People v. Sears (1970) 2 Cal.3d 180, 84 Cal.Rptr. 711, 465 P.2d 847, the court addressed a variation on the theme announced in Wilson. In Sears the jury was instructed if it concluded the killing occurred during the commission of a burglary, the offense was murder in the first degree. The felony underlying the burglary [24 Cal.Rptr.2d 246] conviction was assault with a deadly weapon. The Attorney General argued the case was distinguishable from Wilson since in Sears, while the defendant killed his stepdaughter, there was evidence he entered only with the intent to assault his wife. The underlying felonies, i.e., burglary based on entry with the intent to assault with a deadly weapon, therefore, were independent and collateral from the homicide itself. (Id. at pp. 184-186, 84 Cal.Rptr. 711, 465 P.2d 847.)
The court rejected the argument, noting first the jury was not instructed concerning the effects of finding the entry was made solely with the intent to assault the wife. More generally the court concluded the rule suggested by the Attorney General ran afoul of ordinary concepts of culpability. The court stated: " It would be anomalous to place the person who intends to attack one person and in the course of the assault kills another inadvertently or in the heat of battle in a worse position than the person who from the outset intends to attack both persons and killed one or both." (2 Cal.3d at p. 189, 84 Cal.Rptr. 711, 465 P.2d 847.)
Our Supreme Court again addressed the Ireland issue in People v. Mattison (1971) 4 Cal.3d 177, 93 Cal.Rptr. 185, 481 P.2d 193 (Mattison). In Mattison the defendant sold methyl alcohol to a fellow prison inmate. The inmate drank the alcohol and died. The jury was fully instructed concerning first and second degree murder, including both first and second degree felony-murder. As to the offense of second degree felony-murder, the jury was instructed the willful mingling of any poison with any food or drink intended for human consumption knowing such would cause injury was a felony. (See § 347.) The defendant was convicted of second degree murder. (People v. Mattison, supra, 4 Cal.3d at pp. 180-182, 184, 93 Cal.Rptr. 185, 481 P.2d 193.)
The defendant argued instruction on second degree felony-murder based on providing methyl alcohol for human consumption was a violation of the Ireland rule since providing the poison was an " ‘ integral part of the homicide’ " and, based on the evidence, shows the offense to be " ‘ included in fact within the offense charged.’ " (People v. Mattison, supra, 4 Cal.3d at p. 185, 93 Cal.Rptr. 185, 481 P.2d 193.)
The court rejected the argument, finding the situation distinguishable from that in Ireland. The court noted the facts in Mattison were similar to those in People v. Taylor, supra, 11 Cal.App.3d 57, 89 Cal.Rptr. 697, where it was found proper to instruct on second degree felony-murder based on the felony of furnishing heroin. The court cited with approval the conclusion in Taylor that the felony-murder rule may properly be applied when the underlying felony is committed with a " ‘ collateral and independent felonious design.’ [Citation.]" (People v. Mattison, supra, 4 Cal.3d at p. 185, 93 Cal.Rptr. 185, 481 P.2d 193.) The court in Mattison stated: " In other words the felony was not done with the intent to commit injury which would cause death. Giving a felony-murder instruction in such a situation serves rather than subverts the purpose of the rule." (People v. Mattison, supra, 4 Cal.3d at p. 185, 93 Cal.Rptr. 185, 481 P.2d 193.) The court explained: " ‘ knowledge that the death of a person to whom heroin is furnished may result in a conviction of murder should have some effect on the defendant's readiness to do the furnishing.’ [Citation.]" (Ibid. )
The court in Mattison stated: " By making it a felony to administer poison with the intent to cause any injury, the Legislature has evidenced its concern for the dangers involved in such conduct, and the invocation of the second degree felony-murder rule in such cases when unforeseen death results serves further to deter such dangerous conduct." (4 Cal.3d at p. 186, 93 Cal.Rptr. 185, 481 P.2d 193.)
In People v. Burton (1971) 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793 (Burton), the defendant argued the Ireland rule should be applied to armed robbery, reasoning such offense is simply a robbery accomplished by an assault. The court noted such rule would eliminate both the first and second degree felony-murder rule [24 Cal.Rptr.2d 247] whenever the underlying felony was accomplished by means of a deadly weapon. The court rejected the suggestion. (Id. at pp. 386-387, 99 Cal.Rptr. 1, 491 P.2d 793.) The court held there was a significant difference between deaths resulting from assaults with a deadly weapon where the very purpose of the conduct was the assault itself and deaths resulting from conduct carried " for an independent felonious purpose." The court stated: " Our inquiry cannot stop with the fact that death resulted from the use of a deadly weapon and, therefore, technically included an assault with a deadly weapon, but must extend to an investigation of the purpose of the conduct." (People v. Burton, supra, 6 Cal.3d at p. 387, 99 Cal.Rptr. 1, 491 P.2d 793.) The court explained when the motivation for the underlying felony was some purpose other than assault the deterrent effect of the felony-murder rule was meaningful and the rule properly applied. (Id. at pp. 385-386, 99 Cal.Rptr. 1, 491 P.2d 793.)
The court next addressed the Ireland issue in People v. Smith, supra, 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886, a case dealing with the application of the felony-murder rule to felony child abuse. (§ 273a, subd. (1).) The court noted felony child abuse can be either active or passive, i.e., it can be based on direct assaultive behavior or on the failure to protect the child. In Smith the child abuse was based on an assault. Citing Ireland, Wilson and Burton, the court concluded when the abusive behavior is an assault, the " ‘ purpose of the child abuse was the very assault which resulted in death.’ " (Id. at p. 806, 201 Cal.Rptr. 311, 678 P.2d 886.) The court stated: " It would be wholly illogical to allow this kind of assaultive child abuse to be bootstrapped into felony-murder merely because the victim was a child rather than an adult, as in Ireland. " (Ibid. )
2. Discussion
While it is true that People v. Wesley , supra , 10 Cal.App.3d 902, 89 Cal.Rptr. 377, concludes the discharging of a firearm at an inhabited dwelling house cannot serve as a felony supporting instruction on second degree felony-murder, Wesley was decided before the decisions in Mattison, Burton and Smith. We believe in light of the analysis in those cases and considering the policy basis for the felony-murder rule, Wesley was wrongly decided. We conclude it proper to instruct that a death resulting from the intentional discharging of a firearm at an inhabited dwelling is a basis for a conviction of second degree murder.
We begin by noting that unlike the felonies of assault with a deadly weapon, burglary based on an entry to commit a felonious assault or assaultive child abuse, assault is not an element of the crime of discharging a firearm at an inhabited dwelling. We further note that unlike the use of the felony-murder rule to elevate a felonious assault to murder, application of the felony-murder rule to the crime of discharging a firearm at an inhabited dwelling, will not swallow whole the concept of malice aforethought. Since the crime of firing into a dwelling is not in the abstract assaultive, its obvious purpose must be to deter firing into dwellings with any intent, purpose or motive. It takes little imagination to understand the reason. Discharging a firearm into an inhabited dwelling is so dangerous to those seen or unseen, so likely to cause death however accidental or unintended that it is reasonable to treat such conduct as a felony. In Mattison the court states: " ‘ The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit’ [citation]." (4 Cal.3d at p. 185, 93 Cal.Rptr. 185, 481 P.2d 193.)
The rationale then for the felony of discharging a firearm at an inhabited dwelling is different than that which supports assaultive felonies. The whole point of the discharging of a firearm offense is that the act, however motivated or carried out for whatever purpose, makes so likely the unintended or accidental death of human beings that it should be declared a felony. Thus, even if the underlying intent in firing at a dwelling is to assault some [24 Cal.Rptr.2d 248] particular individual, the assault does not " integrate" with the underlying felony since the policy of the underlying felony is to deter firing into dwelling to protect all the occupants. It is meaningless, given the policy basis for the crime of discharging a firearm at an inhabited dwelling, that the actor fired to assault an intended victim. The point of the crime is that whatever the reason for the discharge of the firearm, the risk of unintended or accidental death is so great, the act, regardless of its intended consequences, will be treated as a felony.
The analytical core of Ireland is that application of the felony-murder rule in any given circumstance must rationally advance the function that the rule is designed to serve and must not simply be a device to make conviction more likely by eliminating the need to find malice aforethought.
Given the policy basis for the crime of discharging a firearm into an inhabited dwelling, it is rational to use that offense as a basis for conviction of murder based on the felony-murder rule. In Mattison the court stated: " By making it a felony to administer poison with the intent to cause any injury, the Legislature has evidenced its concern for the dangers involved in such conduct, and the invocation of the second degree felony-murder rule in such cases when unforeseen death results serves further to deter such dangerous conduct." (People v. Mattison, supra, 4 Cal.3d at p. 186, 93 Cal.Rptr. 185, 481 P.2d 193.) We conclude the same rationale applicable to the crime of discharging a firearm at an inhabited dwelling.
See footnote 1, ante.
The section 12022.5 enhancement as to the charge of murder is stricken, in all other respects the judgment is affirmed.
See footnote 1, ante.