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People v. Clem2/17/2000
CERTIFIED FOR PUBLICATION
In this appeal we hold that grossly negligent discharge of a firearm in violation of Penal Code section 246.3 is an offense "inherently dangerous to human life" which will support a conviction of second degree felony murder.
I.
On May 18, 1997, appellant James Clem fired a rifle out of the window of his second story apartment and the bullet struck and killed a man standing in the street below. Appellant testified that he had been assaulted by the victim earlier that day, and only intended to frighten the victim when he fired the fatal shot. Appellant was convicted by a jury of second degree murder and other offenses, and was sentenced to a total of 24 years to life in state prison. The jury was instructed that it could consider several theories of second degree murder, including second degree felony murder based on a violation of Penal Code section 246.3. The sole issue on appeal is whether this felony murder instruction was proper.
II.
"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; see also People v. Satchell (1971) 6 Cal.3d 28, 43, overruled on another point in People v. Flood (1998) 18 Cal.4th 470.) 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, fn. 4.)
"An `inherently dangerous felony' is an offense carrying `a high probability' that death will result." (People v. Patterson (1989) 49 Cal.3d 615, 627.) `"High probability'" in this context does not mean a "`greater than 50 percent'" chance. (People v. James (1998) 62 Cal.App.4th 244, 269; see People v. Hansen, supra 9 Cal.4th at p. 329 (conc. and 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; 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' 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 Witkin & Epstein, Cal. Criminal Law (2nd ed. 1988) §§ 496-497 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); 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); and reckless possession of a bomb (§ 12303.2; People v. Morse (1992) 2 Cal.App.4th 620, 645-646).
Felonies which have been deemed
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