People v. Smith

Supreme Court of California, 1984.

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 California, the felony murder rule is “inapplicable to felonies that are an integral part of…the homicide”.  In such cases, the latter felony must be “merged” into the homicide and murder must be proven by one of the other three types of “malice”.


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.


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