'Inherently Dangerous Felony' - the Felony Murder Rule In California

"The felony-murder rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to human life." ( People v. Hansen (1994) 9 Cal. 4th 300, 308 [36 Cal. Rptr. 2d 609, 885 P.2d 1022]; see also People v. Satchell (1971) 6 Cal. 3d 28, 43 [98 Cal. Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383], overruled on another point in People v. Flood (1998) 18 Cal. 4th 470 [76 Cal. Rptr. 2d 180, 957 P.2d 869].) the rule is designed "to deter those engaged in felonies from killing negligently or accidentally" (People v. Satchell, supra, at p. 34), and to discourage acts "in which danger to human life is inherent" ( id. at p. 43). "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, 457-458, fn. 4 [47 Cal. Rptr. 7, 406 P.2d 647].) "An 'inherently dangerous felony' is an offense carrying 'a high probability' that death will result." ( People v. Patterson (1989) 49 Cal. 3d 615, 627 [262 Cal. Rptr. 195, 778 P.2d 549].) " 'High probability' " in this context does not mean a " 'greater than 50 percent' " chance. ( People v. James (1998) 62 Cal. App. 4th 244, 269 [74 Cal. Rptr. 2d 7]; see People v. Hansen, supra, 9 Cal. 4th at p. 329 (conc. & dis. opn. of Kennard, J.) [death need not result in a majority or great percentage of instances].) However, it must appear that the offense "by its very nature . . . cannot be committed without creating a substantial risk that someone will be killed." ( People v. Burroughs (1984) 35 Cal. 3d 824, 833 [201 Cal. Rptr. 319, 678 P.2d 894]; see People v. Hansen, supra, 9 Cal. 4th at p. 308 [citing Patterson and Burroughs]; People v. James, supra, at p. 259 [noting Hansen's treatment of Patterson and Burroughs's definitions as "equivalent and interchangeable"].) This determination is based on "the elements of the felony in the abstract, not the particular 'facts' of the case." ( People v. Williams, supra, 63 Cal. 2d at p. 458, fn. 5.) The issue has been addressed numerous times. (See 1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against the Person, 496-497, pp. 561-563, and cases cited.) Felonies which have been deemed inherently dangerous for purposes of the second degree felony-murder rule include: shooting at an inhabited dwelling ( 246; People v. Hansen, supra, 9 Cal. 4th at p. 304); shooting at an occupied vehicle ( 246; People v. Tabios (1998) 67 Cal. App. 4th 1, 9-11 [78 Cal. Rptr. 2d 753]); manufacturing methamphetamine (Health & Saf. Code, 11379.6, subd. (a); People v. James, supra, 62 Cal. App. 4th at p. 271); reckless driving to elude a peace officer (Veh. Code, 2800.2; People v. Johnson (1993) 15 Cal. App. 4th 169, 173-174 [18 Cal. Rptr. 2d 650]); and reckless possession of a bomb ( 12303.2; People v. Morse (1992) 2 Cal. App. 4th 620, 645-646 [3 Cal. Rptr. 2d 343]). Felonies which have been deemed not to be inherently dangerous for this purpose include: practice of medicine without a license (Bus. & Prof. Code, 2053; People v. Burroughs, supra, 35 Cal. 3d at pp. 828-833); false imprisonment ( 236, 237; People v. Henderson (1977) 19 Cal. 3d 86, 93-96 [137 Cal. Rptr. 1, 560 P.2d 1180], overruled on another point in People v. Flood, supra, 18 Cal. 4th 470); possession of a firearm by a felon ( 12021; People v. Satchell, supra, 6 Cal. 3d at pp. 40-41); extortion ( 518-520; People v. Smith (1998) 62 Cal. App. 4th 1233, 1235 [72 Cal. Rptr. 2d 918]); furnishing PCP (Health & Saf. Code, 11379.5; People v. Taylor (1992) 6 Cal. App. 4th 1084, 1099-1101 [8 Cal. Rptr. 2d 439]); and child abuse ( 273a, subd. (a); People v. Caffero (1989) 207 Cal. App. 3d 678, 682-684 [255 Cal. Rptr. 22]).