PEOPLE v. FARLEY
Filed 7/2/09 (reposted same date to correct participating concurring justices)
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendant and Appellant. ) Super. Ct. No. 123146
__________________________________ )
STORY CONTINUE FROM PART V.
Defendants second challenge to the felony-murder instruction is that the entry with the intent to assault Black merged with the six homicides committed inside ESLs facility. His theory finds its roots in People v. Ireland (1969) 70 Cal.2d 522, 539 (Ireland), in which the defendant was found guilty of the second degree murder of his wife, whom he fatally assaulted with a firearm. We concluded that the jury instructions may have been understood to direct the jury to find defendant guilty of second degree murder if it found only that the homicide was committed in the perpetration of the crime of assault with a deadly weapon (id. at p. 539), and we held that it was error to instruct the jury concerning felony murder in these circumstances. Our opinion in Ireland explained that use of the felony-murder rule in cases in which the defendant is charged with assaulting and killing the victim would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felonious assault a category which includes the great majority of all homicides. This kind of bootstrapping finds support neither in logic nor in law. (Ibid.)
In Wilson, supra, 1 Cal.3d 431, we extended Irelands merger doctrine to first degree felony murder based upon a burglary committed with the intent to assault the murder victim. The first degree felony-murder rule is set forth in section 189: All murder which is . . . committed in the perpetration of, or attempt to perpetrate, [certain enumerated felonies, including] burglary, . . . is murder of the first degree. In Wilson, the instructions authorized the jury to find the defendant guilty of first degree murder if he entered [his wifes] bathroom with an intent to commit an assault with a deadly weapon and thereby committed a burglary, in the course of which he killed his wife. (Id. at p. 439.) We observed that the only basis for finding a felonious entry is the intent to commit an assault with a deadly weapon, and concluded that, [w]hen, as here, the entry would be nonfelonious but for the intent to commit the assault, and the assault is an integral part of the homicide and is included in fact in the offense charged, utilization of the felony-murder rule extends that doctrine beyond any rational function that it is designed to serve. (Id. at p. 440.) Therefore, we held that an instruction on first degree felony murder is improper when the underlying felony is burglary based upon an intention to assault the victim of the homicide with a deadly weapon. (Id. at p. 442, italics added.)
Defendant proposes that the merger rule established in Wilson be extended further to prohibit application of the felony-murder rule when the burglary charge is based upon an intention to assault someone other than the victim of the homicide. Defendant relies upon People v. Sears (1970) 2 Cal.3d 180 (Sears), in which the defendant entered his estranged wifes home and assaulted her and her daughter, killing the daughter. The jury instructions, together with the trial courts answer to a question from the jury, could reasonably be understood to mean that if defendant entered with intent to assault his wife and stepdaughter he was guilty of burglary and that the first degree felony-murder rule was applicable. (Id. at p. 188, italics added (lead opn. of Peters, J.).) Therefore, under the principles enunciated in Ireland, supra, 70 Cal.2d 522, and Wilson, supra, 1 Cal.3d 431, Justice Peterss lead opinion, in which Chief Justice Traynor and Justice Tobriner concurred, held that the merger doctrine precluded reliance upon the felony-murder rule to find the defendant guilty of first degree murder. In his concurring opinion, in which Justices Burke and Sims (assigned) concurred, Justice Sullivan stated that he agree[d] generally . . . that the courts instructions on the first degree felony-murder rule in this case were erroneous . . . . However, I do not agree with, and do not join in, the additional views of the [lead opinion], relating to the felony-murder rule. (Id. at p. 191 (conc. opn. of Sullivan, J.).)[1]
Defendant relies upon the additional views of the lead opinion, to which Justice Sullivans concurring opinion referred. (Sears, supra, 2 Cal.3d at p. 191 (conc. opn. of Sullivan, J.).) Those additional views related to the Attorney Generals theory that the evidence also supported the conclusion that the defendant entered with the intent to assault his wife but not his stepdaughter, and that the felony-murder rule is applicable on the theory that the burglary based on the intent to assault the wife was independent of and collateral to the killing of the stepdaughter. (Id. at p. 188 (lead opn. of Peters, J.).) The lead opinion responded that the instructions given to the jury did not posit the applicability of the felony-murder rule upon any such theory. (Id. at p. 189.) Nonetheless, the lead opinion expressed the view that [i]t would be anomalous to place the person who intends to attack one person and in the course of the assault kills another inadvertently or in the heat of battle in a worse position than the person who from the outset intended to attack both persons and killed one or both. (Ibid.)
As our summary reflects, a majority of the justices in Sears agreed only that the actual instruction and the courts answer to a jury inquiry which reasonably could be understood to signify that if defendant entered with intent to assault his wife and stepdaughter he was guilty of burglary and . . . the first degree felony-murder rule was applicable (id. at p. 188 (lead opn. of Peters, J.), italics added) were inconsistent with the merger doctrine. (Ibid.) Furthermore, the additional views expressed in response to the Attorney Generals theory are dicta in the lead opinion itself. Thus, the lead opinion and the concurring opinion in Sears establish only that if the jury in the present case had been instructed that defendant entered ESLs facility with the intent to assault all of his homicide victims, the merger doctrine would have precluded reliance upon the felony-murder rule to find the defendant guilty of first degree murder.
Following our opinion in Sears, supra, 2 Cal.3d 180, we have assumed that the felony-murder rule applies to a burglary in which there was an intent to assault an individual other than the homicide victim. (See People v. Gutierrez (2002) 28 Cal.4th 1083 (Gutierrez.) In Gutierrez, the defendant forced his way into his estranged wifes home, and while his accomplice held a gun to the wife in the living room, the defendant forced his way into the bathroom and killed his wifes boyfriend. The jury was instructed on first degree felony murder based upon burglary committed by the defendant with the intent to commit five target felonies, including assault with a deadly weapon upon his wife. We upheld the defendants first degree murder conviction, observing: Notably, [the killing of the boyfriend] was not alleged as a target offense of the burglary . . . . Had the independent target offenses not been alleged in connection with the burglary charge, the merger doctrine might have applied. (See People v. Wilson (1969) 1 Cal.3d 431, 439-442.) (Gutierrez, supra, 28 Cal.4th at p. 1140, fn. 7.) Similarly, in the present case, the assaults upon victims other than Black were not alleged as target offenses of the burglary. Rather, only the target offenses of intent to assault Black and to vandalize were alleged in connection with the burglary charge. Therefore, the target offenses alleged by the prosecutor did not merge with the killings of the six individuals inside the M-5 building, and there was no error in the instruction on felony murder.[2]
Although our jurisprudence, including the decision in Wilson, supra, 1 Cal.3d 431, supports the conclusion that defendants entry with intent to assault Black did not merge with the six homicides committed within the ESL facility, we acknowledge that our past decisions applying the merger doctrine to first degree felony murder premised upon burglary have resulted in questionable distinctions. As illustrated by Sears, supra, 2 Cal.3d 180, whether a defendant may be convicted of felony murder may depend upon whether the prosecutor chooses to allege and prove that the defendant entered with the intent to assault only one victim, or also intended to assault another person, the homicide victim. As illustrated by Gutierrez, supra, 28 Cal.4th 1083, a defendant who enters with the intent only to assault the homicide victim may not be convicted of felony murder, but a defendant who also harbors an intent to commit a less serious felony may be found guilty of felony murder in connection with the intended assault.
In addition to these analytical anomalies, we note that our recent opinion in Chun, supra, 45 Cal.4th 1172, which analyzed the basis of the second degree felony-murder rule, has highlighted the difference between the sources of the second degree felony-murder rule the context in which the merger doctrine developed and the first degree felony-murder rule. In Chun, we recognized that the second degree felony-murder rule reflects a judicial interpretation of section 188s definition of implied malice. Consequently, the merger doctrine developed as a judicial interpretation of section 188. This clarification raises the question of whether Wilsons application of the merger doctrine in the context of first degree felony murder is an appropriate interpretation of section 189s definition of first degree felony murder. For the reasons set forth below, we conclude that Wilson, supra, 1 Cal.3d 431, erred in extending the merger doctrine to first degree felony murder.[3]
The [felony-murder] rule has two applications: first degree felony murder and second degree felony murder. . . . First degree felony murder is a killing during the course of a felony specified in section 189, such as rape, burglary, or robbery. Second degree felony murder is an unlawful killing in the course of the commission of a felony that is inherently dangerous to human life but is not included among the felonies enumerated in section 189 . . . . [Citation.] (Chun, supra, 45 Cal.4th at p. 1182.) The source of the second degree felony-murder rule has been questioned over the years, with some members of this court expressing concern that the rule lacked a statutory basis. (Id. at pp. 1182-1183.) We resolved the issue in Chun, in which we explained that the second degree felony-murder rule is simply another interpretation of section 188s abandoned and malignant heart language (id. at p. 1184) and, therefore, is based upon statute.[4] (Chun, at p. 1188.)
Chuns identification of the statutory basis of the second degree felony-murder rule focuses our inquiry upon the statutory basis of the first degree felony-murder rule. Section 189 provides in relevant part that [a]ll murder . . . which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, . . . is murder of the first degree. As we recently reiterated, It is the duty of this court in construing a statute to ascertain and give effect to the intent of the Legislature. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048.) We begin with the language of the statute, affording the words their ordinary and usual meaning and viewing them in their statutory context. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1216.)
We find no ambiguity in the language of section 189. It provides that a killing committed in the perpetration of or attempt to perpetrate the enumerated felonies, including burglary, is first degree murder. Burglary has been a delineated felony supporting first degree felony murder since section 189 was enacted in 1872,[5]and indeed since the crime of murder was divided into first and second degree in 1856. (Stats. 1856, ch. 139, 21, p. 219; see Chun, supra, 45 Cal.4th at p. 1185.) In enacting section 189, the Legislature did not limit the definition of burglary, or exclude burglaries based upon an intent to assault. Rather, section 189 applies the felony-murder rule to all burglaries. Under section 459, also enacted in 1872, burglary is committed when the defendant enters any [defined structure] with intent to commit grand or petit larceny or any felony, including assault. ( 459,[6]italics added; Peoplev. Seaton (2001) 26 Cal.4th 598, 646 [intent to unlawfully kill or to commit felonious assault will sustain a burglary conviction].) Thus, nothing in the language of section 189 supports the application of the merger doctrine to its terms.
We repeatedly have observed that the power to define crimes and fix penalties is vested exclusively in the legislative branch. (Keeler v. Superior Court [(1970)] 2 Cal.3d 619, 631; [citations].) (Chun, supra, 45 Cal.3d at p. 1183.) The courts may not expand the Legislatures definition of a crime (Keeler v. Superior Court, supra, 2 Cal.3d at p. 632), nor may they narrow a clear and specific definition. In the context of second degree felony murder, courts must interpret section 188s reference to an abandoned and malignant heart. (Chun, supra, 45 Cal.4th at p. 1181.) In the context of first degree felony murder, however, there is no need for interpretation of the Legislatures clear language. Thus, the differences between the statutory bases for first and second degree felony murder support the conclusion that although this court properly may limit the breadth of second degree felony murder in a manner consistent with its interpretation of the Legislatures intent, there is no room for interpretation when the Legislature has defined first degree felony murder to include any killing committed in the perpetration of, or attempt to perpetrate, . . . burglary. ( 189.)
Because the power to define crimes lies exclusively with the Legislature, our decision in Wilson, supra, 1 Cal.3d 431, erred in narrowing the Legislatures clear and specific definition of first degree murder. In Wilson, we expressed the view that [w]here a person enters a building with the intent to assault his victim with a deadly weapon, he is not deterred by the felony-murder rule. (Id. at p. 440.) Although we recognized that crimes committed inside structures entail greater risks to the occupants, we concluded that this rationale does not justify application of the felony-murder rule to the case at bar. Where the intended felony of the burglar is an assault with a deadly weapon, the likelihood of homicide from the lethal weapon is not significantly increased by the site of the assault. (Id. at pp. 440-441.) Finally, we concluded that the burglary statute includes within its definition numerous structures other than dwellings as to which there can be no conceivable basis for distinguishing between an assault with a deadly weapon outdoors and a burglary in which the felonious intent is solely to assault with a deadly weapon.[7] (Wilson, at p. 441, fn. omitted.)
We disagree with Wilsons view that applying the felony-murder rule to a killing committed in the course of a burglary, with an intent to assault, serves no purpose. First, a person who enters a building with the intent to assault, rather than to kill (in which case the felony-murder rule would be unnecessary), may be deterred by the circumstance that if the victim of the assault dies, the burglar will be deemed guilty of first degree murder. (People v. Burton (1971) 6 Cal.3d 375, 388.) Second, the circumstance that the degree to which the peril is heightened may vary, depending upon the particular structure in which the assault occurs, does not negate the purpose of deterring assaults and the heightened risks entailed by assaults that are committed within structures. Individuals within any type of structure are in greater peril from those entering the structure with the intent to commit an assault, than are individuals in a public location who are the target of an assault. (Miller, supra, 297 N.E.2d at p. 87.) Victims attacked in seclusion have fewer means to escape, and there is a diminished likelihood that the crimes committed against them will be observed or discovered. These risks are present regardless of whether the burglary and assault occur in a home, a tent, or a trailer coach. (See ante, fn. 27.) For these reasons, we reject Wilsons conclusion that no purpose is served by applying the felony-murder doctrine to a burglary premised upon an intent to assault.
Defendant contends, however, that the Legislatures failure to amend section 189 in response to Wilson, despite having amended the statute in other respects, demonstrates that this body is not troubled by this Courts merger jurisprudence. [W]e frequently have expressed reluctance to draw conclusions concerning legislative intent from legislative silence or inaction. (Peoplev. Cruz (1996) 13 Cal.4th 764, 784.) Here, although the Legislature has not affirmatively disapproved this courts analysis in Wilson, neither has defendant established that the Legislature has either expressly or impliedly endorsed it. (Peoplev. Escobar (1992) 3 Cal.4th 740, 751.) As we observed in Peoplev. King (1993) 5 Cal.4th 59, 77, when this court has created a rule, we can reexamine it. The circumstance that we have misconstrued the statutory scheme in the aftermath of our 1969 decision in Wilson does not justify continuing to ignore the Legislatures apparent intent in enacting section 189.
Defendant also contends that by applying the merger doctrine to second degree, but not first degree, murder, this court is sanctioning more severe punishment[] for less culpable conduct. As a preliminary matter, we reject defendants premise that the insidiousness of an entry committed with the intent to commit an assault does not merit more severe punishment than a simple assault. In any event, as explained above, it is for the Legislature, not this court, to determine penalty. This court has reiterated numerous times that The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. (People v. Washington (1965) 62 Cal.2d 777, 781.) The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof. (Burton, supra, 6 Cal.3d at p. 388.) Policy concerns regarding the inclusion of burglary in the first degree felony-murder statute remain within the Legislatures domain, and do not authorize this court to limit the plain language of the statute. Therefore, we overrule our decision in People v. Wilson, supra, 1 Cal.3d 431.
Because, due to ex post facto concerns, an unforeseeable judicial enlargement of a criminal statute may not be applied retroactively, our overruling of Wilson does not apply retroactively to defendants case. (People v.Blakeley (2000) 23 Cal.4th 82, 91-92 [conclusion, contrary to Court of Appeal opinions, that a killing in imperfect self-defense is voluntary, not involuntary, manslaughter, is prospective only, due to ex post facto concerns]; People v.Morante (1999) 20 Cal.4th 403, 430-432 [similar conclusion regarding an expansive reinterpretation of Penal Code section 182]; People v.Martinez, supra, 20 Cal.4th at pp. 238-241 [overruling of People v.Caudillo (1978) 21 Cal.3d 562 (regarding the asportation element of kidnapping) is prospective only, for similar reasons]; People v.Davis (1994) 7 Cal.4th 797, 811-812 [holding, contrary to Court of Appeal opinions, that viability of a fetus is not an element of fetal murder, is prospective only, for similar reasons]; People v.King, supra, 5 Cal.4th at pp. 79-80 [overruling of In re Culbreth (1976) 17 Cal.3d 330 regarding firearm use enhancement is prospective only, for similar reasons]; see also Rogers v. Tennessee (2001) 532 U.S. 451, 462; Bouie v. City of Columbia (1964) 378 U.S. 347, 353.) Wilson, supra, 1 Cal.3d 431, was decided in 1969. Defendant committed his crimes in 1988, at which time it was unforeseeable that we would overrule Wilson. Accordingly, todays overruling is prospective only. Of course, in light of the conclusion we reach under our jurisprudence governing at the time of the crimes that the burglary committed with the intent to assault Black did not merge with the homicides there was no error in instructing the jury concerning felony murder premised upon that burglary.
b. Instructions on reasonable doubt and circumstantial evidence
Defendant asserts that the trial courts instructions concerning reasonable doubt violated his rights under the Eighth and Fourteenth Amendments to the United States Constitution. The trial court instructed the jury in the language of former CALJIC 2.90.[8] The high court upheld the language of this instruction in Victor v. Nebraska (1994) 511 U.S. 1, 13, 15, 17, and we have held that it was not error to give the instruction. (People v. Freeman (1994) 8 Cal.4th 450, 503 (Freeman).) Defendant provides no persuasive reason to revisit these conclusions.
Defendant further contends that the instruction concerning reasonable doubt was improper when given in conjunction with the instruction that if one interpretation of [the] evidence appears to you to be reasonable, and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. A similar instruction was given with regard to the existence of required specific intent. We repeatedly have rejected claims that these instructions allow a finding of guilt based upon a degree of proof less than reasonable doubt, establish an impermissible mandatory presumption of guilt, or impose upon defendant a burden of proof. (Morgan, supra, 42 Cal.4th at p. 620; People v. Nakahara (2003) 30 Cal.4th 705, 713-714.) The plain meaning of these instructions merely informs the jury to reject unreasonable interpretations of the evidence and to give the defendant the benefit of any reasonable doubt. (People v. Jennings (1991) 53 Cal.3d 334, 386.)
c. Requested defense instructions
Defendant contends the trial courts denial of certain instructions he requested violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
Defendant requested the following instruction: If you find that a witness has testified falsely, this fact may afford an inference that the witness is concealing the truth, but it does not, by itself, warrant an inference that the truth is the direct opposite of the rejected testimony. This instruction was properly rejected as argumentative and duplicative of other given instructions.[9](Peoplev. Gurule (2002) 28 Cal.4th 557, 659 (Gurule).)
Defendant requested a modified instruction concerning reasonable doubt. We have cautioned against trial court experimentation with this instruction, and as noted earlier, we have upheld the validity of the instruction given by the court. (Freeman, supra, 8 Cal.4th at p. 504.) Defendants proposed instruction was duplicative of instructions that were given, and thus was properly refused. (Gurule, supra, 28 Cal.4th at p. 659.)
Defendant also requested an instruction providing: An abiding conviction is a belief with staying power. Even absolute positivism, if it wanes after some undetermined and undeterminable time, is insufficient. Therefore, not just any kind of conviction will dispel a reasonable doubt, it must be the abiding kind only. We previously have held that this language is not required. (Peoplev. Turner (1994) 8 Cal.4th 137, 203 (Turner), overruled on other grounds in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5.)
Defendant requested additional instructions defining deliberate and premeditate, and three instructions that elaborated on the concept of premeditation. The jury was instructed in the language of CALJIC No. 8.20. That was sufficient. (Peoplev. Moon (2005) 37 Cal.4th 1, 31-32; Gurule, supra, 28 Cal.4th at p. 659.)
4. Alleged cumulative error
Defendant asserts that even if the errors alleged above are not in themselves reversible, their cumulative effect requires reversal. We disagree. As explained above, defendant was not prejudiced by the exclusion of evidence intended to impeach Hirst, by the exclusion of defendants letters as evidence of his state of mind, or by any flaws in the felony-murder instructions. The few errors that may have occurred during defendants trial were harmless under any standard, whether considered individually or collectively. Defendant has merely shown that his trial was not perfect few are. (People v. Cooper (1991) 53 Cal.3d 771, 839.)
C. Penalty Phase Issues
1. Data concerning past employment
Defendant contends the trial court erred in denying him access to data concerning his past employment, and in prohibiting him from introducing evidence on that subject, in violation of the Eighth Amendment to the United States Constitution, and that the error mandates reversal of the penalty imposed.[10]
a. Factual background
During defendants guilt phase testimony, the trial court sustained several objections by the prosecution on the ground of relevancy. Defendant claims error with respect to four questions he was asked but was not allowed to answer.
TO BE CONTINUED AS PART VII.
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[1] Justice McComb summarily dissented. (Sears, supra, 2 Cal.3d at p. 191.)
[2] Although we conclude that both theories of felony murder were valid, we note that the record reflects the jury also must have concluded the homicides were willful, deliberate, and premeditated. The prosecution argued that if the jury found that when defendant went to ESL that day [he] had it in mind that he would kill anyone who even marginally became an obstacle during his mission[,] . . . [t]hat would be willful, deliberate and premeditated murder as to those persons he killed while he was on his mission. The prosecution made essentially the same argument in connection with the attempted murder counts if defendant went into that building intending to shoot everybody he could see, intending to kill everybody he could see, then that would be willful, deliberate and premeditated attempted murder on each of those persons that he went after. The jury specifically found that all five counts of attempted murder were willful, deliberate, and premeditated. Other than Black, for whom attempted murder was not charged, defendant knew none of the individuals he shot, and nothing in the record indicates that the circumstances of any of the murders were different from the circumstances of the attempted murders in any way that could affect whether the murders were willful, deliberate, and premeditated. Indeed, the murder of Ronald Doney and the attempted murder of Richard Townsley occurred at the same time. The jury also specifically found that the murder of Lawrence Kane, who was shot outside ESL, was willful, premeditated, and deliberate. Thus, there is no logical basis upon which to conclude that the jury could have found that the murder of Kane and the attempted murders of five other individuals were willful, deliberate, and premeditated, but that the other homicides were not. Therefore, even if the jury had been improperly instructed regarding felony murder, other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary for premeditated murder, and hence any error was harmless beyond a reasonable doubt. (People v. Chun (2009) 45 Cal.4th 1172, 1205 (Chun); see Hedgpeth v. Pulido (2008) 555 U.S. ___ [129 S.Ct. 530] (per curiam) [when the jury was instructed on both a valid and an invalid theory of guilt, the conviction will not be set aside if the invalid instruction was harmless].)
Similarly, although our conclusion defeats defendants challenge to the burglary-murder special circumstance, we note that there is no reasonable possibility that the jurys findings on the burglary-murder special circumstance affected the penalty determination. (Peoplev. Morgan (2007) 42 Cal.4th 593, 628 (Morgan); see Brown v. Sanders (2006) 546 U.S. 212, 223-224.) The jury would have heard the same evidence regarding the killings, in proof of the prosecutors theory of premeditated murder and the multiple-murder special circumstance, as it heard regarding the burglary-murder special circumstance. (Peoplev. Bonilla (2007) 41 Cal.4th 313, 334 [second special circumstance was superfluous for purposes of death eligibility and did not alter the universe of facts and circumstances to which the jury could accord . . . weight].)
[3] Our holding in Wilson, supra, 1 Cal.3d at p. 440, was rejected by New York (Peoplev. Miller (N.Y. 1973) 297 N.E.2d 85, 87, fn. 3 (Miller)), and subsequently was rejected by numerous other jurisdictions, rendering it a minority rule. (See Peoplev. Lewis (Colo. Ct. App. 1989) 791 P. 2d 1152, 1153 [court observed a majority of jurisdictions hold that a burglary charge premised on an underlying crime of assault may sustain a finding of felony murder, and expressly declined to follow Wilson]; Blango v. United States (D.C. 1977) 373 A.2d 885, 888-889 [court expressly agreed with Millers reasoning, and rejected the holding of Wilson]; State v. Foy (Kan. 1978) 582 P.2d 281, 289 [court expressly concluded Millers reasoning is persuasive, rejected Wilson, and held that the merger doctrine does not apply in felony-murder cases where an aggravated burglary is based upon an aggravated assault]; Finke v. State (Md. Ct. Spec. App. 1983) 468 A.2d 353, 369 [rejecting Wilson on the ground that Maryland felony-murder statute expressly includes murder committed in the perpetration of daytime housebreaking, and such burglary includes breaking a dwelling house with intent to commit murder or felony therein ]; Commonwealth v. Claudio (Mass. 1994) 634 N.E.2d 902, 905-907 [court observed that Wilson was the minority view, and concluded that Miller and other cases following the majority view were better reasoned]; Smith v. State (Miss. 1986) 499 So.2d 750, 753-754 [court declined to adopt the merger doctrine after discussing Wilson and observing that Miller aptly states this Courts view regarding the application of our felony-murder statute]; State v. Contreras (Nev. 2002) 46 P.3d 661, 662-664 [court discussed Wilson and Miller, and held the merger doctrine did not apply to felony murder when the underlying felony is burglary, regardless of the intent of the burglary]; State v. Reams (Or. 1981) 636 P.2d 913, 919-920 [court discussed Miller and Wilson, and expressly rejected Wilsons logic as applied to Oregons felony-murder and burglary statutes].
[4] Section 188 states that malice, which is an element of murder ( 187), is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
[5] The Penal Code enacted in 1872 was not published as part of the Statutes of 1871-1872, and was not given a chapter number. (Kleps, The Revision and Codification of Cal. Statutes 1849-1953 (1954) 42 Cal. L.Rev. 766, 775.)
[6] As enacted in 1872, section 459 provided: Every person who, in the night-time, forcibly breaks and enters, or without force enters through any open door, window, or other aperture, any house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car, with intent to commit grand or petit larceny, or any felony, is guilty of burglary.
[7]Wilson noted that the burglary statute includes any shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, railroad car, trailer coach . . . , vehicle . . . , aircraft . . . , mine or any underground portion thereof . . . . (Pen. Code, 459.) (Wilson, supra, 1 Cal.3d at p. 441, fn. 3.) As noted above, the statute included a broad array of structures when it was enacted in 1872. (See ante, fn. 26.)
[8] The jury was instructed: Reasonable doubt is defined as follows: It is not a mere possible doubt, because everything relating to human affairs and depending on moral evidence is open to some possible or imaginary doubt. It is that state of the case which after the entire comparison and consideration of all the evidence leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.
[9] The jury was instructed in the language of CALJIC No. 2.21.2, which provides: A witness, who is willfully false in one material part of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.
[10] Defendant also filed a motion for new trial raising this issue.
