Does the felony-murder rule apply to both first and second degree murder?

California, United States of America


The following excerpt is from People v. Tabios, 67 Cal.App.4th 1, 78 Cal.Rptr.2d 753 (Cal. App. 1998):

"The felony-murder rule applies to both first and second degree murder. Application of the first degree felony-murder rule is invoked by the perpetration of one of the felonies enumerated in section 189.... [T]he felonies that [can] support a conviction of second degree murder, based upon a felony-murder theory, [have been restricted] to those felonies that are 'inherently dangerous to human life.' We have explained that the justification for the imputation of implied malice under these circumstances is that, 'when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life....' " (People v. Hansen (1994) 9 [67 Cal.App.4th 8] Cal.4th 300, 307-308, 36 Cal.Rptr.2d 609, 885 P.2d 1022, italics in original.)

Page 757

Thus, the felony-murder doctrine "imputes the requisite malice for a murder conviction," or, put another way, "posit[s] the existence of that crucial mental state." (People v. Hansen, supra, 9 Cal.4th at p. 308, 36 Cal.Rptr.2d 609, 885 P.2d 1022.)

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