The Felony-Murder Rule and The "Inherently Dangerous" Requirement

The Supreme Court of California held last week in People v. Howard, S108353, that the crime of "driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer" is not an "inherently dangerous" crime for purposes of the felony-murder rule.  California determines whether a crime is inherently dangerous by looking at the elements in the abstract as opposed to how the crime was actually carried out in the case in question.  The Court noted:

"Felonies that have been held inherently dangerous to life include shooting at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311, 36 Cal.Rptr.2d 609, 885 P.2d 1022), poisoning with intent to injure (People v. Mattison (1971) 4 Cal.3d 177, 93 Cal.Rptr. 185, 481 P.2d 193), arson of a motor vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163, 89 Cal.Rptr. 721, 474 P.2d 673; but see People v. Henderson (1977) 19 Cal.3d 86, 96, 137 Cal.Rptr. 1, 560 P.2d 1180), grossly negligent discharge of a firearm (People v. Clem (2000) 78 Cal.App.4th 346, 353-354, 92 Cal.Rptr.2d 727; see also People v. Robertson, supra, 34 Cal.4th at pp. 168-169, 17 Cal.Rptr.3d 604, 95 P.3d 872 [quoting Clem with approval] ), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271, 74 Cal.Rptr.2d 7), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377, 68 Cal.Rptr.2d 61; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299, 280 Cal.Rptr. 584), and reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646, 3 Cal.Rptr.2d 343).  Felonies that have been held not inherently dangerous to life include practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death (People v. Burroughs, supra, 35 Cal.3d at p. 833, 201 Cal.Rptr. 319, 678 P.2d 894); false imprisonment by violence, menace, fraud, or deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96, 137 Cal.Rptr. 1, 560 P.2d 1180); possession of a concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28, 35-41, 98 Cal.Rptr. 33, 489 P.2d 1361); possession of a sawed-off shotgun (id. at pp. 41-43, 98 Cal.Rptr. 33, 489 P.2d 1361); escape (People v. Lopez (1971) 6 Cal.3d 45, 51-52, 98 Cal.Rptr. 44, 489 P.2d 1372); grand theft (People v. Phillips, supra, 64 Cal.2d at pp. 580-583, 51 Cal.Rptr. 225, 414 P.2d 353); conspiracy to possess methedrine (People v. Williams (1965) 63 Cal.2d 452, 458, 47 Cal.Rptr. 7, 406 P.2d 647); extortion (People v. Smith (1998) 62 Cal.App.4th 1233, 1236-1238, 72 Cal.Rptr.2d 918); furnishing phencyclidine (People v. Taylor (1992) 6 Cal.App.4th 1084, 1099, 8 Cal.Rptr.2d 439); and child endangerment or abuse (People v. Lee (1991) 234 Cal.App.3d 1214, 1229, 286 Cal.Rptr. 117)."

The ruling in Howard was based on the fact that California defines "driving with a willful or wanton disregard for the safety of persons or property," to include any flight from an officer during which the motorist commits three traffic violations that are assigned a "point count" under section 12810, or which results in "damage to property."  Violations that are assigned points under section 12810 and can be committed without endangering human life include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds.(e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)).  Since these violations are not inherently dangerous to human life, and since it is conceivable that someone could commit the crime in question by simply driving with a suspended license and failing to signal 100 feet before a stop sign, the crime in the abstract could not be considered inherently dangerous.  Thus, the felony-murder rule was inapplicable.  [Mark Godsey]