People
v. Smith
Supreme
Court of
35
Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886.
Dressler,
pp. 301-304
Facts: The defendant violently
disciplined her daughter and she died.
She was convicted of second degree murder and felony child abuse. The defendant appealed.
Issue: Was the offense of child
abuse such an integral part of the homicide that it merged into the homicide?
Rule: In
Analysis: In order to be found guilty
of felony child abuse, the defendant’s conduct must be willful and it must be
committed under circumstances where great bodily harm or death is likely to
result. The homicide was the result of
child abuse. The court finds that the
child abuse was an “integral part of” the homicide.
Conclusion: The court applies the
merger rule and reverses the conviction of second degree murder.
Notes
and Questions
1. The rationale
in Hansen applies to assault in particular. It is suggested that the point of the merger
rule is to avoid having any assault resulting in death being murder without any
other considerations. On the other hand,
Smith suggests that the idea of the merger rule is to keep out the felony-murder
rule when it shouldn’t apply. It should
only apply when you can give felons an incentive to commit their felonies more
safely. If the whole point of the felony
was to gravely hurt someone or kill them, there is no possible incentive in the
felony-murder rule, and it can only serve to make it unjustifiably easier to
convict someone of murder.
2. Okay, if a
state uses both rules, there is sort of a “ceiling” and a “floor”. Felonies that aren’t inherently dangerous can’t
get a felony-murder conviction, but felonies that are, in a sense, too
dangerous won’t support a felony-murder conviction either because they will
merge. The only type of felony that
remains is one where it was something inherently dangerous, yet it wasn’t
integral to the homicide. It’s hard to
see how a felony that cannot possibly be done “safely” wouldn’t fall under “depraved
heart”. I was trying to construct a
situation like firing a gun into the air and having the bullet hit somebody,
but I guess you could construct an argument that this is not necessarily
inherently dangerous in the abstract.
3. That’s what I
was thinking when I read the case. On
the other hand, maybe I peeked at these notes and then read again and notice
this oversight on the part of the People.
I guess you could discipline a child in a felonious way without the purpose
of killing them, but again, wouldn’t this fall under “depraved heart”?
4. It depends on
what the statute says. What must you
intend to do inside once you break in?
Is it “any felony”? Or is it larceny? If it’s larceny, then there’s a deterrence
aspect to applying the felony-murder rule: “Steal, but be careful not to kill
while you’re doing so.” If it’s just
anything, then it doesn’t make sense anymore: “Kill, but be sure not to kill
while you’re killing.” If you’re only
assaulting someone so you can make your getaway, that’s a separate felony, and
it shouldn’t be merged. If you break in
explicitly to beat someone up and you kill them, I think that should be
merged. That seems to produce a funny
result though: it’s easier in a sense to convict the first person (who didn’t
intend to kill) of murder than the second person who was out to hurt or kill
the whole time.
5. It makes sense
here why the two crimes shouldn’t merge.
The assault was not the purpose of the defendant’s conduct, and neither
were the deaths that resulted. Hold up,
I think I’m not understanding this merger business right. Couldn’t we also get this guy on depraved
heart? So on the other hand, it would be
weird to say that this driver killed while “in the commission of” a
felony. The felony was the
felony. I think that would provide a
rationale for merger if merger had been available in that jurisdiction. I wonder if the defendant could have argued
for merger as a new thing.