NCJ Number
6935
Journal
California Law Review Volume: 60 Issue: 3 Dated: (MAY 1972) Pages: 865-870
Date Published
1972
Length
6 pages
Annotation
FELONY MURDER INSTRUCTION IS IMPROPER IN CALIFORNIA UNLESS THE UNDERLYING FELONY, WHEN VIEWED IN THE ABSTRACT, IS INHERENTLY DANGEROUS TO HUMAN LIFE.
Abstract
SINCE 1964 THE CALIFORNIA SUPREME COURT HAS CONSISTENTLY REQUIRED THAT BEFORE A SECOND-DEGREE FELONY MURDER INSTRUCTION CAN BE GIVEN, THE UNDERLYING FELONY MUST BE ONE THAT IS INHERENTLY DANGEROUS TO HUMAN LIFE. IN 1965 THE COURT REJECTED AN EARLY TEST EMPLOYED TO DETERMINE WHETHER A FELONY WAS INHERENTLY DANGEROUS AND ADOPTED A NEW TEST WHICH PROVIDED THAT A FELONY BE VIEWED NOT WITH REGARD TO THE PARTICULAR FACTS OF THE CASE, AS THE PREVIOUS TEST PRESCRIBED, BUT IN THE ABSTRACT. THE CALIFORNIA SUPREME COURT IN A RECENT CASE CONSIDERED THE PROPRIETY OF A FELONY MURDER INSTRUCTION BASED UPON SECTION 12020 OF THE PENAL CODE WHICH PROVIDES THAT ANY PERSON IN POSSESSION OF CERTAIN WEAPONS IS GUILTY OF A FELONY. THE COURT, AFFIRMING AND APPLYING THE 1965 INHERENT DANGER TEST, CONCLUDED THAT VIOLATIONS OF SECTION 12020, WHEN ABSTRACTLY VIEWED, ARE NOT FELONIES INHERENTLY DANGEROUS TO HUMAN LIFE.