Is a factually insufficient crime used to bootstrap felony murder?

This concern is more acute where the factually insufficient crime is used to bootstrap felony murder. As was said by the court in People v. Dillon, supra, 34 Cal.3d 441, at pages 462-463, 194 Cal.Rptr. 390, 668 P.2d 697, "We have repeatedly stated that felony murder is a 'highly artificial concept' which 'deserves no extension beyond its required application.' [Citations.] And we have recognized that the rule is much censured 'because it anachronistically resurrects from a bygone age a "barbaric" concept that has been discarded in the place of its origin' [citation] and because 'in almost all cases in which it is applied it is unnecessary' and 'it erodes the relation between criminal liability and moral culpability' [citation]." Under the circumstances, we hold the prosecution should not have been allowed to rely on the twice dismissed robbery charge in support of its felony murder theory, and the trial court should have refused to give instructions on robbery. Since the special findings of the jury indicate the sole basis for defendant's first degree murder conviction was felony murder, based on the crime of robbery, defendant's murder conviction must be reversed.

Defendant further contends the judgment must be reversed because his statements made after his arrest were improperly admitted at trial. The crime occurred after the passage of Proposition 8; hence, the question arises whether state or federal law is applicable to determine the admissibility of defendant's statements. Defendant claims a violation of his privilege against self-incrimination under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, as to his post-arrest statements on August 2, 1982. The holding in Ramona R. v. Superior Court (1985) 37 Cal.3d 802, 210 Cal.Rptr. 204, 693 P.2d 789 is that Proposition 8's exception for statutory rules of evidence relating to privilege includes the California constitutional privilege against self-incrimination (Cal. Const., art. I, 15) as included within Evidence Code section 940. Following what we perceive to be the implications of that decision, we apply California law to the resolution of this question. (See People

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