People v. Burroughs
35 Cal.3d 824, 201 Cal.Rptr. 319, 678 P.2d 894.
Dressler, pp. 296-300
Facts: The defendant was a “faith healer” type dude who tried to heal a guy who had leukemia. The guy died nastily. The healer dude was charged with felony practicing medicine without a license and felony second degree murder based on the “inherently dangerous felony” rule. The trial court instructed the jury that practicing medicine without a license is as a matter of law “inherently dangerous to human life”. The defendant was convicted on both counts. He appealed.
Issue: Is the unlicensed practice of medicine an “inherently dangerous felony” such that it will support a conviction of second degree murder?
Rule: To determine whether the
felony-murder rule should apply in
1. Does the primary element of the offense necessarily involve danger to human life?
2. Do the factors elevating the offense to a felony render that offense dangerous to human life?
Analysis: In the first step, the court finds that it is possible to practice medicine without a license without endangering human life. For example, you could treat someone with a very mild ailment in a very low-risk way and still technically be found guilty of practicing medicine without a license.
In the second step, the court interpreted the statute forbidding the unlicensed practice of medicine and found that death was only one felonious harm among several that was contemplated. The other harms considered in the statute are not necessarily life-threatening.
The court reasserts that they don’t like the felony-murder rule and they will strive to limit it as much as possible. They also say that it is unlikely that the defendant could have been deterred from doing what he did by the threat of prosecution for murder.
Conclusion: The defendant’s second degree murder conviction was reversed.
Notes and Questions
1. I like that this guys states a decent new rule even though there isn’t strictly any logical basis for it but only a moral basis for it.
2. Here are two alternative “inherently dangerous” standards: a felony is considered inherently dangerous if (1) it is “dangerous in the abstract” or (2) it is dangerous based on the facts of the case. The former seems sensible because there are some felonies that are dangerous and some that arguably are not. The latter standard doesn’t make sense because if the felony resulted in death, then, duh, of course it was dangerous.
3. First, it is not hard to conceive of a case where you can falsely imprison someone without any risk of killing them (lots and lots of Superglue maybe?). Second, the factors elevating false imprisonment to a felony are “violence, menace, fraud, or deceit”. If you tell someone, “Hey, step on this floor! It’s great!” but you’re really getting them to step on super-sticky Superglue in order to falsely imprison them, you’re not doing something inherently dangerous. So if we note the “or” above, we must find that false imprisonment under the statute cited is not inherently dangerous.
A. I think this is tough, especially if you are big on gun control. I think we need to focus on how much more dangerous it is for a convicted felon to carry a concealed firearm than it is for any normal schmoe to carry a concealed firearm. Imagine that someone committed securities fraud and was convicted of a felony. If they get out and start carrying around a concealed weapon, we might well think it’s not any more dangerous than any ordinary schmoe carrying a concealed weapon around. So I would say that this felony is not inherently dangerous in the abstract.
B. Here, you can imagine that someone could fire at a house in the correct belief that it is currently unoccupied. That wouldn’t be inherently dangerous if we want to read it narrowly for the purposes of avoiding the felony-murder rule.
5. The problem here is that the felony is not dangerous in the abstract because a seventeen-year-old probably could survive without oversight alone. On the other hand, and on the basis of these particular facts, leaving a baby, a newborn, without any one of those four things could very well cause the death of that baby. The outcome of the case would heavily depend on which standard you choose. The statute could have been constructed differently such that there was a different (stricter?) standard of care for children under three or two or one than for children above that age. Scalia would say that having caught the legislature with their pants down, it’s up to the legislature to pull their pants back up.