According to a November 2020 Report generated by the Council on Criminal Justice, homicide rates spiked dramatically across 21 U.S. cities during the pandemic. In 2020, the average city homicide rate was 32% higher during the pandemic (March to October 2020), 42% higher during the summer (June to August 2020), and 34% higher during the fall (September and October 2020) than it was in 2019. Year-to-date (January to October 2020), the average city homicide rate was 29% higher in 2020 than it was in 2019. 

Fatal shootings by on-duty police officers in the U.S. also increased during 2020. According to the Washington Post’s Police Shootings Database, 1,021 people were shot and killed by police in 2020 as compared to the 999 people killed by police in 2019. With the exception of a slight decrease in 2016, fatal police shootings by on-duty officers in the U.S. have been steadily increasing since 2015. And while African-Americans account for only 13% of the U.S. population, they are killed by police at more than twice the rate of White Americans. 

Although it does not yet contain homicide data for 2020, The Federal Bureau of Investigation reports in its Crime Data Explorer that in 2019 there were 14,185 homicides. Of those victims, 78% were male, whereas only 21% were female. The overwhelming number of killers were also male (63%), with females making up only 8% of killers and offenders with unreported sex making up 27%. Regarding victim race, African-Americans comprised 54% of victims and White Amercans made up 42%. Finally, 42% of homicides were committed by people who knew the victim, whereas only 10% of homicides were committed by strangers (48% of relationships were unknown). 

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.2

(1980), 13–16.

1.  Common-Law Background. At common law, murder was defined as the unlawful killing of another human being with “malice aforethought.” Whatever the original meaning of that phrase, over time it became an “arbitrary symbol” used by judges to signify any of a number of mental states deemed sufficient to support liability for murder. Successive generations added new content to “malice aforethought” until it encompassed a variety of mental attitudes bearing no predictable relation to the ordinary sense of the two words. Even today, judges find in the elasticity of this ancient formula a convenient vehicle for announcing new departures in the law of homicide.

Various authorities have given different summaries of the several meanings of “malice aforethought.” Generally, these definitions converge on four constituent states of mind. First and foremost, there was intent to kill. Common-law authorities included in the notion of intent to kill awareness that the death of another would result from one’s actions, even if the actor had no particular desire to achieve such a consequence. Thus, intentional or knowing homicide was murder unless the actor killed in the heat of passion engendered by adequate provocation, in which case the crime was manslaughter. A second species of murder involved intent to cause grievous bodily harm. Again, knowledge that conduct would cause serious bodily injury was generally assimilated to intent and was deemed sufficient for murder if death of another actually resulted. A third category of murder was sometimes called depraved-heart murder. This label derived from decisions and statutes condemning as murder unintentional homicide under circumstances evincing a “depraved mind” or an “abandoned and malignant heart.” Older authorities may have described such circumstances as giving rise to an “implied” or “presumed” intent to kill or injure, but the essential concept was one of extreme recklessness regarding homicidal risk. Thus, a person might be liable for murder absent any actual intent to kill or injure if he caused the death of another in a manner exhibiting a “wanton and wilful disregard of an unreasonable human risk” or, in confusing elaboration, a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty.” The fourth kind of murder was based on intent to commit a felony. This is the origin of the felony-murder rule, which assigns strict liability for homicides committed during the commission of a felony. These four states of mind exhausted the meaning of “malice aforethought”; the phrase had no residual content.

2.     Antecedent Statutory Variations. Prior to the recodification effort begun by the Model Penal Code, most American jurisdictions maintained a law of murder built around these common-law classifications. The most significant departure was the division of murder into degrees, a change initiated by the Pennsylvania legislation of 1794. That statute provided that “all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate [and] premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree.” The thrust of this reform was to confine the death penalty, which was then mandatory on conviction of any common-law murder, to homicides judged to be particularly heinous. Other states followed the Pennsylvania practice until at one time the vast majority of American jurisdictions differentiated degrees of murder and the term “first-degree murder” passed into common parlance.

Leaving the question of felony-murder aside, the extent to which the common law had been modified in other ways prior to the drafting of the Model Penal Code varied considerably from jurisdiction to jurisdiction.

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.3

(1980), 44–46.

1.     Common-Law Background. Initially, the common law did not distinguish murder from manslaughter. Early statutes, however, sought to differentiate among criminal homicides for the purpose of withdrawing benefit of clergy from the more heinous killings. This initiative led to the division of criminal homicides into murder, which retained its status as a capital crime, and the lesser offense of manslaughter. The courts defined murder in terms of the evolving concept of “malice aforethought” and treated manslaughter as a residual category for all other criminal homicides. Thus, in its classic formulation, manslaughter consisted of homicide without malice aforethought on the one hand and without justification or excuse on the other.

Traditional statements of the English law as it further evolved divided the offense into two types. First, homicide, even if intentional, was said to be without malice and therefore was considered manslaughter if committed in the heat of passion upon adequate provocation. Second, homicide was also manslaughter if it resulted from an act that was regarded as unduly dangerous to life or limb or from an act that was otherwise unlawful. This category thus encompassed conduct that was insufficiently reckless or negligent to constitute “depraved-heart” murder but at the same time exhibited culpability greater than needed for ordinary conceptions of civil negligence. It also included cases where the actor caused the death of another in the commission of an unlawful act, sometimes described as the misdemeanor-manslaughter analogue to the felony-murder rule. Courts commonly referred to the first category as voluntary manslaughter and the second as involuntary manslaughter, although the distinction had no grading significance at common law.

2.      Antecedent Statutory Variations. Virtually every state recognized the crime of manslaughter at the time the Model Penal Code was drafted. The majority of states, however, offered no explicit definition of the offense and hence determined its content by reference to the common law. 

An article in the Baltimore Law Review examines the classifications of common law homicide in detail. In relevant part, the article notes that: 

Common law homicide was classified as justifiable, excusable or felonious. Justifiable homicide included the execution of a lawful death sentence and the slaying of an outlaw resisting capture. Excusable homicide included killings that were accidental, prompted by self-defense or perpetrated by an infant or person of unsound mind. Although criminal, excusable homicide was deserving of a pardon from the king. The third class of homicide, felonious homicide, was divided into two main categories, murder and all other forms of homicide without justification or excuse. 

Although the penalty for felonious homicide was death, anyone who could read was entitled to a commutation of the death sentence under the device known as “the benefit of clergy.” Because of the obvious inadequacy of reading ability as the sole criterion for determining the degree of punishment, the benefit of clergy was abolished by a series of statutes for those homicides committed with malice aforethought. The device was retained, however, for other types of felonious homicides. Thus, the presence or absence of malice aforethought became the criterion for distinguishing murder, or nonclergyable felonious homicide, punishable by death, from felonious homicide subject to the benefit of clergy, later termed manslaughter. The remaining development of common law murder revolves in large part around the evolution of the various meanings of the term “malice aforethought.” 

There were also a few states, typified by Florida, that carried forward the substance of the common-law offense by defining manslaughter as “the killing of a human being by the act, procurement or culpable negligence of another where such killing shall not be justifiable or excusable homicide nor murder.” A more common variation was reflected in the federal manslaughter provision:

Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

Statutes that followed this pattern typically departed from the common law by providing a grading differential between voluntary and involuntary manslaughter.

CA Penal Code § 187

(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.

(2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law

CA Penal Code § 188

Such malice may be express or implied. Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. Malice is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from the intentional completion of an act with express or implied malice, as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

CA Penal Code § 189

All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that 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, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

As used in this section, "destructive device" means any destructive device as defined in Section 16460, and “explosive" means any explosive as defined in Section 12000 of the Health and Safety Code.

As used in this section, "weapon of mass destruction" means any item defined in Section 11417.

To prove the killing was "deliberate and premeditated," it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

CA Penal Code § 189.5

(a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.

(b) Nothing in this section shall apply to or affect any proceeding under Section 190.3 or 190.4.

CA Penal Code § 190

(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.

(b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.

(c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true:

(1) The defendant specifically intended to kill the peace officer.

(2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer.

(3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022.

(4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5.

(d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.

(e) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of a sentence imposed pursuant to this section. A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section.

CA Penal Code § 190.03

(a) A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole.

(b) The term authorized by subdivision (a) shall not apply unless the allegation is charged in the accusatory pleading and admitted by the defendant or found true by the trier of fact. The court shall not strike the allegation, except in the interest of justice, in which case the court shall state its reasons in writing for striking the allegation.

(c) For the purpose of this section, "hate crime" has the same meaning as in Section 422.55.

(d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.

CA Penal Code § 190.05

(a) The penalty for a defendant found guilty of murder in the second degree, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life. For purposes of this section, a prior prison term for murder of the first or second degree is that time period in which a defendant has spent actually incarcerated for his or her offense prior to release on parole.

(b) A prior prison term for murder for purposes of this section includes either of the following:

(1) A prison term served in any state prison or federal penal institution, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of confinement, as punishment for the commission of an offense which includes all of the elements of murder in the first or second degree as defined under California law.

(2) Incarceration at a facility operated by the Youth Authority for murder of the first or second degree when the person was subject to the custody, control, and discipline of the Director of Corrections.

(c) The fact of a prior prison term for murder in the first or second degree shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by the court sitting without a jury.

(d) In case of a reasonable doubt as to whether the defendant served a prior prison term for murder in the first or second degree, the defendant is entitled to a finding that the allegation is not true.

(e) If the trier of fact finds that the defendant has served a prior prison term for murder in the first or second degree, there shall be a separate penalty hearing before the same trier of fact, except as provided in subdivision (f).

(f) If the defendant was convicted by the court sitting without a jury, the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty or nolo contendere, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If the new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in the state prison for a term of 15 years to life.

(g) Evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026, shall be considered at any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

(h) In the proceeding on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition, and physical condition.

However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

Except for evidence in proof of the offense or the prior prison term for murder of the first or second degree which subjects a defendant to the punishment of life without the possibility of parole, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(1) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of the prior prison term for murder.

(2) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(3) The presence or absence of any prior felony conviction.

(4) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(5) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(6) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his or her conduct.

(7) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.

(8) Whether or not at the time of the offense the ability of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.

(9) The age of the defendant at the time of the crime.

(10) Whether or not the defendant was an accomplice to the offense and his or her participation in the commission of the offense was relatively minor.

(11) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of life without the possibility of parole if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances, the trier of fact shall impose a sentence of confinement in the state prison for 15 years to life.

(i) Nothing in this section shall be construed to prohibit the charging of finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

CA Penal Code § 190.1

A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows:

(a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.

(b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance.

(c) If the defendant is found guilty of first degree murder and one or more special circumstances as enumerated in Section 190.2 has been charged and found to be true, his sanity on any plea of not guilty by reason of insanity under Section 1026 shall be determined as provided in Section 190.4. If he is found to be sane, there shall thereupon be further proceedings on the question of the penalty to be imposed. Such proceedings shall be conducted in accordance with the provisions of Section 190.3 and 190.4.

CA Penal Code § 190.2 

(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:

(1) The murder was intentional and carried out for financial gain.

(2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.

(3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.

(4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

(5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.

(6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

(7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or  reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace

officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties.

(8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties.

(9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties.

(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, "juvenile proceeding" means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code.

(11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor's office in this or any other state, or of a federal prosecutor's office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily torturous to the victim.

(15) The defendant intentionally killed the victim by means of lying in wait.

(16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.

(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:

(A) Robbery in violation of Section 211 or 212.5.

(B) Kidnapping in violation of Section 207, 209, or 209.5.

(C) Rape in violation of Section 261.

(D) Sodomy in violation of Section 286.

(E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.

(F) Oral copulation in violation of Section 288a.

(G) Burglary in the first or second degree in violation of Section 460.

(H) Arson in violation of subdivision (b) of Section 451.

(I) Train wrecking in violation of Section 219.

(J) Mayhem in violation of Section 203.

(K) Rape by instrument in violation of Section 289.

(L) Carjacking, as defined in Section 215.

(M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.

(18) The murder was intentional and involved the infliction of torture.

(19) The defendant intentionally killed the victim by the administration of poison.

(20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, "motor vehicle" means any vehicle as defined in Section 415 of the Vehicle Code.

(22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.

(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.

(c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.

(d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.

The penalty shall be determined as provided in this section and Sections 190.1, 190.3, 190.4, and 190.5.

CA Penal Code § 190.25

(a) The penalty for a defendant found guilty of murder in the first degree shall be confinement in state prison for a term of life without the possibility of parole in any case in which any of the following special circumstances has been charged and specially found under Section 190.4, to be true: the victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or the victim was a station agent or ticket agent for the entity providing such transportation, who, while engaged in the course of the performance of his or her duties was intentionally killed, and such defendant knew or reasonably should have known that such victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended
in the air, used for the transportation of persons for hire, or was a station agent or ticket agent for the entity providing such transportation, engaged in the performance of his or her duties.

(b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.

(c) Nothing in this section shall be construed to prohibit the charging or finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

CA Penal Code § 190.3

If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition.

However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California.

In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.

(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.

(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.

(i) The age of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.

CA Penal Code § 190.4

(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.

In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.

If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people.

If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.

In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by an unanimous verdict of the previous jury to be untrue. If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court's discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.

(b) If defendant was convicted by the court sitting without a jury the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.

(c) If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes.

(d) In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered an any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

(e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances  referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.

The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant's automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People's appeal pursuant to paragraph (6).

CA Penal Code § 190.41

Notwithstanding Section 190.4 or any other provision of law, the corpus delicti of a felony-based special circumstance enumerated in paragraph (17) of subdivision (a) of Section 190.2 need not be proved independently of a defendant's extrajudicial statement.

CA Penal Code § 190.5

(a) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who is under the age of 18 at the time of the commission of the crime. The burden of proof as to the age of such person shall be upon the defendant.

(b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.

(c) The trier of fact shall determine the existence of any special circumstance pursuant to the procedure set forth in Section 190.4.

CA Penal Code § 190.6

(a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously.

(b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council.

(c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition.

(d) The failure of the parties or the Supreme Court to meet or comply with the time limit provided by this section shall not be a ground for granting relief from a judgment of conviction or sentence of death.

CA Penal Code § 190.7

(a) The "entire record" referred to in Section 190.6 includes, but is not limited to, the following:

(1) The normal and additional record prescribed in the rules adopted by the Judicial Council pertaining to an appeal taken by the defendant from a judgment of conviction.

(2) A copy of any other paper or record on file or lodged with the superior or municipal court and a transcript of any other oral proceeding reported in the superior or municipal court pertaining to the trial of the cause.

(b) Notwithstanding this section, the Judicial Council may adopt rules, not inconsistent with the purpose of Section 190.6, specifically pertaining to the content, preparation and certification of the record on appeal when a judgment of death has been pronounced.

CA Penal Code § 190.8

(a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified in two stages, the first for completeness and the second for accuracy, as provided by this section. The trial court may use all reasonable means to ensure compliance with all applicable statutes and rules of court pertaining to record certification in capital appeals, including, but not limited to, the imposition of sanctions.

(b) Within 30 days of the imposition of the death sentence, the clerk of the superior court shall provide to trial counsel copies of the clerk's transcript and shall deliver the transcript as provided by the court reporter. Trial counsel shall promptly notify the court if he or she has not received the transcript within 30 days.

(c) During the course of a trial in which the death penalty is being sought, trial counsel shall alert the court's attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the ordinary course of trial preparation. The court shall periodically request that trial counsel provide a list of errors in the trial transcript during the course of trial and may hold hearings in connection therewith.

Corrections to the record shall not be required to include immaterial typographical errors that cannot conceivably cause confusion.

(d) The trial court shall certify the record for completeness and for incorporation of all corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition of the death sentence unless good cause is shown. However, this time period may be extended for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of court adopted by the Judicial Council.

(e) Following the imposition of the death sentence and prior to the deadline set forth in subdivision (d), the trial court shall hold one or more hearings for trial counsel to address the completeness of the record and any outstanding errors that have come to their attention and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported and that have occurred in the course of the case in any court, as well as all documents required by this code and the rules adopted by the Judicial Council.

(f) The clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel when the clerk receives notice of counsel's appointment or retention, or when the record is certified for completeness under subdivision (d), whichever is later.

(g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council.

(h) The Supreme Court shall identify in writing to the Judicial Council any case that has not met the time limit for certification of the record for completeness under subdivision (d) or for accuracy under subdivision (g), and shall identify those cases, and its reasons, for which it has granted an extension of time. The Judicial Council shall include this information in its annual report to the Legislature.

(i) As used in this section, "trial counsel" means both the prosecution and the defense counsel in the trial in which the sentence of death has been imposed.

(j) This section shall be implemented pursuant to rules of court adopted by the Judicial Council.

(k) This section shall only apply to those proceedings in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997.

CA Penal Code § 190.9

(a) (1) In any case in which a death sentence may be imposed, all proceedings conducted in the superior court, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present. The court reporter shall prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing. Proceedings prior to the preliminary hearing shall be reported but need not be transcribed until the court receives notice as prescribed in paragraph (2).

(2) Upon receiving notification from the prosecution that the death penalty is being sought, the clerk shall order the transcription and preparation of the record of all proceedings prior to and including the preliminary hearing in the manner prescribed by the Judicial Council in the rules of court. The record of all proceedings prior to and including the preliminary hearing shall be certified by the court no later than 120 days following notification unless the time is extended pursuant to rules of court adopted by the Judicial Council. Upon certification, the record of all proceedings is incorporated into the superior court record.

(b) (1) The court shall assign a court reporter who uses computer-aided transcription equipment to report all proceedings under this section.

(2) Failure to comply with the requirements of this section relating to the assignment of court reporters who use computer-aided transcription equipment is not a ground for reversal.

(c) Any computer-readable transcript produced by court reporters pursuant to this section shall conform to the requirements of Section 271 of the Code of Civil Procedure.

CA Penal Code § 191

The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this Chapter.

CA Penal Code §191.5

(a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.   

(2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

(d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life.

Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision.

(e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

(f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(g) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.

CA Penal Code § 192 

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary--upon a sudden quarrel or heat of passion.

(b) Involuntary--in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular--

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

(2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision does not prevent prosecution of a defendant for the crime of murder.

(d) This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(e) "Gross negligence," as used in this section, does not prohibit or preclude a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) 30 Cal. 3d 290.

CA Penal Code § 192.5 

Vehicular manslaughter pursuant to subdivision (b) of Section 191.5 and subdivision (c) of Section 192 is the unlawful killing of a human being without malice aforethought, and includes:

(a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(e) A person who flees the scene of the crime after committing a violation of subdivision (a), (b), or (c), upon conviction, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision.

CA Penal Code § 193

(a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years. 

(b) Involuntary manslaughter is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(c) Vehicular manslaughter is punishable as follows:

(1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.

(2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year.

(3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.

Enactment. Chapter 25 was added December 6, 1972, P.L.1482, No.334, effective in six months.

Cross References. Chapter 25 is referred to in sections 911, 2602 of this title; section 5432 of Title 20 (Decedents, Estates and Fiduciaries); sections 2511, 5329, 6344 of Title 23 (Domestic Relations); sections 5985.1, 6302 of Title 42 (Judiciary and Judicial Procedure).

§ 2501. Criminal homicide.

(a) Offense defined.--A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.

(b) Classification.--Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.

Cross References. Section 2501 is referred to in section 5708 of this title; section 4503 of Title 42 (Judiciary and Judicial Procedure).

§ 2502. Murder.

(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

(c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.

(d) Definitions.--As used in this section the following words and phrases shall have the meanings given to them in this subsection:

"Fireman." Includes any employee or member of a municipal fire department or volunteer fire company.

"Hijacking." Any unlawful or unauthorized seizure or exercise of control, by force or violence or threat of force or violence.

"Intentional killing." Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

"Perpetration of a felony." The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

"Principal." A person who is the actor or perpetrator of the crime.

(Mar. 26, 1974, P.L.213, No.46, eff. imd.; Apr. 28, 1978, P.L.84, No.39, eff. 60 days)

Cross References. Section 2502 is referred to in sections 2507, 2602, 5708, 6105 of this title; section 3304 of Title 5 (Athletics and Sports); section 5329 of Title 23 (Domestic Relations); sections 1515, 5551, 9711.1, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 6124, 7122 of Title 61 (Prisons and Parole).

§ 2503. Voluntary manslaughter.

(a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

(b) Unreasonable belief killing justifiable.--A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

(c) Grading.--Voluntary manslaughter is a felony of the first degree.

(Nov. 17, 1995, 1st Sp.Sess., P.L.1144, No.36, eff. 60 days)1995 Amendment. Act 36, 1st Sp.Sess., amended subsec. (c).

Cross References. Section 2503 is referred to in sections 5708, 6105 of this title; sections 1515, 9711, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 7122 of Title 61 (Prisons and Parole).

§ 2504. Involuntary manslaughter.

(a) General rule.--A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

(b) Grading.--Involuntary manslaughter is a misdemeanor of the first degree. Where the victim is under 12 years of age and is in the care, custody or control of the person who caused the death, involuntary manslaughter is a felony of the second degree.

(July 6, 1995, P.L.251, No.31, eff. 60 days) Cross References. Section 2504 is referred to in sections 2711, 6105 of this title; section 1611 of Title 75 (Vehicles).

§ 2505. Causing or aiding suicide.

(a) Causing suicide as criminal homicide.--A person may be convicted of criminal homicide for causing another to commit suicide only if he intentionally causes such suicide by force, duress or deception.

(b) Aiding or soliciting suicide as an independent offense.--A person who intentionally aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree.

§ 2506. Drug delivery resulting in death.

(a) Offense defined.--A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.

(b) Penalty.--A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.

(c) Proof of sentencing.--(Deleted by amendment).

(d) Authority of court in sentencing.--(Deleted by amendment).

(e) Appeal by Commonwealth.--(Deleted by amendment).

(f) Forfeiture.--Assets against which a forfeiture petition has been filed and is pending or against which the Commonwealth has indicated an intention to file a forfeiture petition shall not be subject to a fine. Nothing in this section shall prevent a fine from being imposed on assets which have been subject to an unsuccessful forfeiture petition.

(Dec. 22, 1989, P.L.773, No.109, eff. imd.; Feb. 18, 1998, P.L.102, No.19, eff. 60 days; July 7, 2011, P.L.220, No.40, eff. 60 days)

Cross References. Section 2506 is referred to in section 3308 of this title; section 9714 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103 of Title 61 (Prisons and Parole).

§ 2507. Criminal homicide of law enforcement officer.

(a) Murder of a law enforcement officer of the first degree.--A person commits murder of a law enforcement officer of the first degree who intentionally kills a law enforcement officer while in the performance of duty knowing the victim is a law enforcement officer.

(b) Murder of a law enforcement officer of the second degree.--A person commits murder of a law enforcement officer of the second degree who engages as a principal or an accomplice in the perpetration of a felony during which a law enforcement officer is killed while in the performance of duty.

(c) Manslaughter of a law enforcement officer in the first degree.--A person commits a felony in the first degree who does any of the following:

(1) Without lawful justification kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing:

(i) the person is acting under a sudden and intense passion resulting from serious provocation by the victim killed; or

(ii) the person is acting under a sudden and intense passion resulting from serious provocation by another individual whom the actor endeavors to kill, but the person negligently or accidentally causes the death of the victim.

(2) Intentionally or knowingly kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing the person believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 (relating to general principles of justification), but his belief is unreasonable.

(d) Manslaughter of a law enforcement officer in the second degree.--A person commits a felony of the second degree who, as a direct result of the doing of an unlawful or lawful act in a reckless or grossly negligent manner, causes the death of a law enforcement officer while in the performance of duty and the person knew or should have known the victim was a law enforcement officer.

(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Law enforcement officer." This term shall have the same meaning as the term "peace officer" is given under section 501 (relating to definitions).

"Perpetration of a felony." As defined under section 2502(d) (relating to murder).

(Oct. 17, 2008, P.L.1628, No.131, eff. 60 days)

2008 Amendment. Act 131 added section 2507.

Cross References. Section 2507 is referred to in section 9714 of Title 42 (Judiciary and Judicial Procedure).

§ 125.00 Homicide defined.

Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.

§ 125.05 Homicide, abortion and related offenses; definitions of terms.

The following definitions are applicable to this article.

1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive.

2. "Abortional act" means an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female.

3. "Justifiable abortional act." An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy. A pregnant female's commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.

§ 125.10 Criminally negligent homicide.

A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.

Criminally negligent homicide is a class E felony.

§ 125.11 Aggravated criminally negligent homicide.

A person is guilty of aggravated criminally negligent homicide when, with criminal negligence, he or she causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.

Aggravated criminally negligent homicide is a class C felony.

§ 125.12 Vehicular manslaughter in the second degree.

A person is guilty of vehicular manslaughter in the second degree when he or she causes the death of another person, and either:

(1) operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law or operates a vessel or public vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of the navigation law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle, vessel or public vessel in a manner that causes the death of such other person, or

(2) operates a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radioactive materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, and such flammable gas, radioactive materials or explosives is the cause of such death, and as a result of such impairment by the use of alcohol, operates such motor vehicle in a manner that causes the death of such other person, or

(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of subdivision one of section 25.24 of the parks, recreation and historic preservation law or operates an all terrain vehicle as defined in paragraph (a) of subdivision one of section twenty-two hundred eighty-one of the vehicle and traffic law in violation of subdivision two, three, four, or four-a of section eleven hundred ninety-two of the vehicle and traffic law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such snowmobile or all terrain vehicle in a manner that causes the death of such other person. If it is established that the person operating such motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle caused such death while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such death, as required by this section.

Vehicular manslaughter in the second degree is a class D felony.

§ 125.13 Vehicular manslaughter in the first degree.

A person is guilty of vehicular manslaughter in the first degree when  he or she commits the crime of vehicular manslaughter in the second  degree as defined in section 125.12 of this article, and either:

(1) commits such crime while operating a motor vehicle while such  person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood,  breath, urine or saliva made pursuant to the provisions of section  eleven hundred ninety-four of the vehicle and traffic law;

(2) commits such crime while knowing or having reason to know that:

(a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in the state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;

(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;

(4) causes the death of more than one other person;

(5) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or

(6) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child. If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by  the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the  use of alcohol or a drug, or by the combined influence of drugs or of  alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.

Vehicular manslaughter in the first degree is a class C felony.

§ 125.14 Aggravated vehicular homicide.

A person is guilty of aggravated vehicular homicide when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 of this article, and either:

(1) commits such crimes while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law;

(2) commits such crimes while knowing or having reason to know that:

(a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in this state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;

(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;

(4) causes the death of more than one other person;

(5) causes the death of one person and the serious physical injury of At least one other person;

(6) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or

(7) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child.

If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.

Aggravated vehicular homicide is a class B felony.

§ 125.15 Manslaughter in the second degree.

A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person; or
2. He commits upon a female an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or
3. He intentionally causes or aids another person to commit suicide.

Manslaughter in the second degree is a class C felony.

§ 125.20 Manslaughter in the first degree.

A person is guilty of manslaughter in the first degree when:

1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; or

3. He commits upon a female pregnant for more than twenty-four weeks an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or

4. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person.

Manslaughter in the first degree is a class B felony.

§ 125.21 Aggravated manslaughter in the second degree.

A person is guilty of aggravated manslaughter in the second degree when he or she recklessly causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.

Aggravated manslaughter in the second degree is a class C felony.

§ 125.22 Aggravated manslaughter in the first degree.

A person is guilty of aggravated manslaughter in the first degree when:

1. with intent to cause serious physical injury to a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or a peace officer, he or she causes the death of such officer or another police officer or peace officer; or

2. with intent to cause the death of a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer, he or she causes the death of such officer or another police officer or peace officer under circumstances which do not constitute murder because he or she acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to aggravated manslaughter in the first degree or manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.

Aggravated manslaughter in the first degree is a class B felony.

§ 125.25 Murder in the second degree.

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; or

(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime; or

2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person; or

3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or

4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person; or

5. Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person.

Murder in the second degree is a class A-I felony.

§ 125.26 Aggravated murder.

A person is guilty of aggravated murder when:

1. With intent to cause the death of another person, he or she causes the death of such person, or of a third person who was a person described in subparagraph (i), (ii) or (iii) of paragraph (a) of this subdivision engaged at the time of the killing in the course of performing his or her official duties; and

(a) Either:

(i) the intended victim was a police officer as defined in subdivision thirty-four of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was a police officer; or

(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or

(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was an employee of a state correctional institution or a local correctional facility; and (b) The defendant was more than eighteen years old at the time of the commission of the crime; or

2. (a) With intent to cause the death of a person less than fourteen years old, he or she causes the death of such person, and the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subdivision, "torture" means the intentional and depraved infliction of extreme physical pain that is separate and apart from the pain which otherwise would have been associated with such cause of death; and

(b) The defendant was more than eighteen years old at the time of the commission of the crime.

3. In any prosecution under subdivision one or two of this section, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the first degree, manslaughter in the first degree or any other crime except murder in the second degree; or

(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the second degree, manslaughter in the second degree or any other crime except murder in the second degree.

Aggravated murder is a class A-I felony.

§ 125.27 Murder in the first degree.

A person is guilty of murder in the first degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; and

(a) Either:

(i) the intended victim was a police officer as defined in subdivision 34 of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was a police officer; or

(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or

(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was an employee of a state correctional institution or a local correctional facility; or

(iv) at the time of the commission of the killing, the defendant was confined in a state correctional institution or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the killing, the defendant had escaped from such confinement or custody while serving such a sentence and had not yet been returned to such confinement or custody; or

(v) the intended victim was a witness to a crime committed on a prior occasion and the death was caused for the purpose of preventing the intended victim's testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced, or the intended victim had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution for such prior testimony, or the intended victim was an immediate family member of a witness to a crime committed on a prior occasion and the killing was committed for the purpose of preventing or influencing the testimony of such witness, or the intended victim was an immediate family member of a witness who had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution upon such witness for such prior testimony. As used in this subparagraph "immediate family member" means a husband, wife, father, mother, daughter, son, brother, sister, stepparent, grandparent, stepchild or grandchild; or

(vi) the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement; or

(vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree, or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime or in the course of and furtherance of immediate flight after attempting to commit the crime of murder in the second degree; provided however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant's criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant's criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter; or

(viii) as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction; or

(ix) prior to committing the killing, the defendant had been convicted of murder as defined in this section or section 125.25 of this article, or had been convicted in another jurisdiction of an offense which, if committed in this state, would constitute a violation of either of such sections; or

(x) the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subparagraph, "torture" means the intentional and depraved infliction of extreme physical pain; "depraved" means the defendant relished the infliction of extreme physical pain upon the victim evidencing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain; or

(xi) the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan; or

(xii) the intended victim was a judge as defined in subdivision twenty-three of section 1.20 of the criminal procedure law and the defendant killed such victim because such victim was, at the time of the killing, a judge; or

(xiii) the victim was killed in furtherance of an act of terrorism, as defined in paragraph (b) of subdivision one of section 490.05 of this chapter; and

(b) The defendant was more than eighteen years old at the time of the commission of the crime.

2. In any prosecution under subdivision one, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree; or

(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime except murder in the second degree.

Murder in the first degree is a class A-I felony.

§ 125.40 Abortion in the second degree.

A person is guilty of abortion in the second degree when he commits an abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

Abortion in the second degree is a class E felony.

§ 125.55 Self-abortion in the first degree.

A female is guilty of self-abortion in the first degree when, being pregnant for more than twenty-four weeks, she commits or submits to an abortional act upon herself which causes her miscarriage, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

Self-abortion in the first degree is a class A misdemeanor.

§ 125.60 Issuing abortional articles.

A person is guilty of issuing abortional articles when he manufactures, sells or delivers any instrument, article, medicine, drug or substance with intent that the same be used in unlawfully procuring the miscarriage of a female.

Issuing abortional articles is a class B misdemeanor.

Model Penal Code Article 210 B

§ 210.1. Criminal Homicide.

(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.

(2) Criminal homicide is murder, manslaughter or negligent homicide.

§ 210.2. Murder.

(1) Except as provided in Section 210.3(1 )(b), criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.

(2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6].

§ 210.3. Manslaughter.

(1) Criminal homicide constitutes manslaughter when:

(a) it is committed recklessly; or

(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.

(2) Manslaughter is a felony of the second degree.

§ 210.4. Negligent Homicide.

(1) Criminal homicide constitutes negligent homicide when it is committed negligently.

(2) Negligent homicide is a felony of the third degree

1. Compare the Mens Rea element in the MPC’s murder statute with the Mens Rea elements in California and New York murder statutes. What is the closest equivalent to the MPC’s “knowingly” in California or New York? What degree of homicide applies to such killings in those jurisdictions? Were you to design a homicide statute, would you punish “intentional” killings more harshly than those committed “knowingly”? Why or why not? Are intentional killings more dangerous than knowing killings? Are they more blameworthy? Are they less deterrable?

Supreme Court of Appeals of West Virginia

State v. Guthrie

194 W. Va. 657, 461 S.E.2d 163

No. 22710

1995-07-19

STATE of West Virginia, Plaintiff Below, Appellee,

v.

Dale Edward GUTHRIE, Defendant Below, Appellant.

No. 22710.

Supreme Court of Appeals of West Virginia.

Submitted May 10, 1995.

Decided July 19, 1995.

Concurring Opinion of Justice Workman, July 21, 1995.

[171] Mary Beth Kershner, Asst. Pros. Atty., Charleston, for appellee.

Stephen D. Warner, Deputy Public Defender, Charleston, for appellant. [164] [165] [166] [167] [168] [169]

[170] CLECKLEY, Justice:

The defendant, Dale Edward Guthrie, appeals the January, 1994, jury verdict of the Circuit Court of Kanawha County finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. 

The defendant cites as error several instructions given to the jury and improper questions and comments made by the prosecutor. Cumulative error is asserted. He also contends there is insufficient evidence to support the verdict.

I. FACTS AND PROCEDURAL BACKGROUND

It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his co-worker, Steven Todd Farley, in the neck and killed him. The two men worked together as dishwashers at Danny's Rib House in Nitro and got along well together before this incident. On the night of the killing, the victim, his brother, Tracy Farley, and James Gibson were joking around while working in the kitchen of the restaurant. The victim was poking fun at the defendant who appeared to be in a bad mood. He told the defendant to "lighten up" and snapped him with a dishtowel several times. Apparently, the victim had no idea he was upsetting the defendant very much. The dishtowel flipped the defendant on the nose and he became enraged.

The defendant removed his gloves and started toward the victim. Mr. Farley, still teasing, said: "Ooo, he's taking his gloves off." The defendant then pulled a knife from his pocket and stabbed the victim in the neck. He also stabbed Mr. Farley in the arm as he fell to the floor. Mr. Farley looked up and cried: "Man, I was just kidding around." The defendant responded: "Well, man, you should have never hit me in my face." 

The police arrived at the restaurant and arrested the defendant. He was given his Miranda rights. The defendant made a statement at the police station and confessed to the killing.^[1] The police officers [172] described him as calm and willing to cooperate.

It is also undisputed that the defendant suffers from a host of psychiatric problems. He experiences up to two panic attacks daily and had received treatment for them at the Veterans Administration Hospital in Huntington for more than a year preceding the killing. He suffers from chronic depression (dysthymic disorder), an obsession with his nose (body dysmorphic disorder), and borderline personality disorder. The defendant's father shed some light on his nose fixation. He stated that dozens of times a day the defendant stared in the mirror and turned his head back and forth to look at his nose. His father estimated that 50 percent of the time he observed his son he was looking at his nose. The defendant repeatedly asked for assurances that his nose was not too big. This obsession began when he was approximately seventeen years old. The defendant was twenty-nine years old at the time of trial.

The defendant testified he suffered a panic attack immediately preceding the stabbing. He described the attack as "intense"; he felt a lot of pressure and his heart beat rapidly. In contrast to the boisterous atmosphere in the kitchen that evening, the defendant was quiet and kept to himself. He stated that Mr. Farley kept irritating him that night. The defendant could not understand why Mr. Farley was picking on him because he had never done that before. Even at trial, the defendant did not comprehend his utter overreaction to the situation. In hindsight, the defendant believed the better decision would have been to punch out on his time card and quit over the incident. However, all the witnesses related that the defendant was in no way attacked, as he perceived it, but that Mr. Farley was playing around. The defendant could not bring himself to tell the other workers to leave him alone or inform them about his panic attacks.

In contrast to his written statement, the defendant testified he was unable to recall stabbing the victim. After he was struck in the nose, he stated that he "lost it" and, when he came to himself, he was holding the knife in his hand and Mr. Farley was sinking to the floor.

A psychiatrist, Dr. Sidney Lerfald, testified on behalf of the defendant. He diagnosed the various disorders discussed above. Dr. Lerfald felt the defendant's diagnoses "may have affected his perception somewhat." Nevertheless, it was his opinion the defendant was sane at the time of the offense because he was able to distinguish between right and wrong and could have conformed his actions accordingly.

It was the State's position that the facts supported a first degree murder conviction. At the close of the State's case-in-chief, the defense moved for a directed verdict contending the State failed to present evidence of malice and premeditation. This motion was denied. The defense argued the facts of the case supported voluntary manslaughter or, at worse, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.

II. DISCUSSION

In his appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in giving instructions covering first degree murder; (3) whether the trial court erred in refusing to give defendant's instruction on circumstantial evidence; (4) whether the trial court erred in permitting the prosecution to argue the penalties of each lesser-included offense; (5) whether the trial court erred in permitting the prosecution to inject irrelevant evidence of racial, gender, and political prejudices in the case; and (6) whether reversal is required under the cumulative error rule. At the outset, we find some of the errors asserted by the defendant are without merit. Therefore, our review of this case will be limited to the three areas discussed below. [173]

A. Sufficiency of the Evidence

First, the defendant strives to persuade us that the record in this case does not support the verdict of guilty of first degree murder beyond a reasonable doubt. Because this exhortation challenges the sufficiency of evidence to support a jury's verdict, our authority to review is limited.

We have not addressed the criminal standard of review concerning the sufficiency of evidence since 1978. Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), states our rule with respect to such a claim:

"In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done."

A year after Starkey was decided, the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979),^[2] articulated, at least linguistically, a different standard of review under the United States Constitution.^[3] In a sufficiency of the evidence claim under Jackson, an appellate court, while reviewing the record in the light most favorable to the prosecution, must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. (Emphasis in original).

After contrasting Starkey and its progeny with the standard of review announced in Jackson, we believe it is desirable to reconcile our differences and to adopt the federal standard of review both as to Jackson generally and as to the standard of review in circumstantial evidence cases.^[4] By doing so, however, we continue a highly deferential approach: Appellate courts can reverse only if no rational jury could have found the defendant guilty beyond a reasonable doubt.^[5] This standard is a strict one; a [174] defendant must meet a heavy burden to gain reversal because a jury verdict will not be overturned lightly.

Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.

In adopting Jackson, we necessarily overturn our long established rule that when the State relies upon circumstantial evidence, in whole or in part, for a court to sustain the verdict all other reasonable hypotheses need be excluded by the prosecution save that of guilt. In State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 829-30 (1976), we stated:

"[C]ircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction."

State v. Robinette, 181 W.Va. 400, 383 S.E.2d 32 (1989); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). In State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), however, we recognized the application of this rule is limited to cases where the State relied wholly upon circumstantial evidence. See Syl. pt. 3, State v. McHenry, 93 W.Va. 396, 117 S.E. 143 (1923).

However, under Jackson, the mere existence of other reasonable hypotheses is not enough to reverse a jury verdict. This new circumstantial evidence rule that we adopt today originated in Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 137-38, 99 L.Ed. 150, 166 (1954), where the United States Supreme Court stated:

"The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other that that of guilt. There is some support for this type of instruction in the lower court decisions,... but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect....

"Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some case point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more." (Citations omitted).

The circumstantial evidence rule of Holland was reaffirmed in Jackson:

"Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past.... We decline to adopt it today." 443 U.S. at 326, 99 S.Ct. at 2792-2793, 61 L.Ed.2d at 578. (Citation omitted).

Facing the same dilemma, the Supreme Court of Ohio also abandoned the requirement that in circumstantial evidence cases the prosecution's evidence need exclude all other reasonable hypotheses of innocence. In State v. Jenks, 61 Ohio St.3d 259, 272, 574 [175] N.E.2d 492, 502 (1991),^[6] relying on the language in Holland, the Ohio court stated:

"Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. We agree with those courts that have held that an additional instruction on the sufficiency of circumstantial evidence invites confusion and is unwarranted. Since circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder."

These precedents illuminate our path. We find the logic and analysis of Holland and Jenks to be forceful. Therefore, we hold there should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. We start along this route by acknowledging that there is no qualitative difference between direct and circumstantial evidence.^[7] Thus, it follows a fortiori that once a proper instruction is given advising the jury as to the State's heavy burden under the guilt beyond a reasonable doubt standard, an additional instruction on circumstantial evidence is no longer required even if the State relies wholly on circumstantial evidence.^[8]

In summary, a criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. As we have cautioned before, appellate review is not a device for this Court to replace a jury's finding with our own conclusion. On review, we will not weigh evidence or determine credibility.^[9] Credibility determinations are for a jury and not an appellate court. On appeal, we will not disturb a verdict in a criminal case unless we find that reasonable minds could not have reached the same conclusion. Finally, a jury verdict should be set aside only when the record contains no evidence, [176] regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent with our decision announced today, they are expressly overruled. With the scope of our review thus defined, we move to the defendant's claims.

We begin by emphasizing that our review is conducted from a cold appellate transcript and record. For that reason, we must assume that the jury credited all witnesses whose testimony supports the verdict. The essential facts of this case—those that the jury was unquestionably entitled to find—are rather simple: The defendant became irritated with the "horseplay" of the victim; when the victim in jest hit the defendant with a wet dishtowel on his nose, the defendant became angry and drew a four-inch-long lock blade knife from his pocket and stabbed the victim fatally in the neck. After the defendant was confronted with his deed, he made a statement that could be interpreted to mean he was not remorseful but, to the contrary, was unconcerned about the welfare of the victim.^[10] In addition to the jury hearing testimony from eyewitnesses to the killing, the defendant confessed.

There is no doubt what inferences and findings of fact the jury had to draw in order to convict the defendant of first degree murder. The jury must have believed that: (1) The "horseplay" provocation was not sufficient to justify a deadly attack; (2) the defendant was under no real fear of his own from being attacked; (3) the stabbing was intentional; and (4) the time it took the defendant to open his knife and inflict the mortal wound was sufficient to establish premeditation.^[11]

The difficult factual question must have been the mental state of the defendant at the time of the stabbing. The evidence was somewhat conflicting on this point. While the evidence offered by the defendant is not impossible to believe, some of his explanations seem unlikely. Guilt beyond a reasonable doubt cannot be premised on pure conjecture. However, a conjecture consistent with the evidence becomes less and less conjecture and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely. The beyond a reasonable doubt standard does not require the exclusion of every other hypothesis or, for that matter, every other reasonable hypothesis. It is enough if, after considering all the evidence, direct and circumstantial, a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt.

After reviewing the record, this Court has some doubt as to whether this is a first degree murder case; but, at this point, Jackson's own objective standard turns against the defendant. It makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have thought there was some reasonable doubt. To the contrary, the question posed by Jackson is whether any rational jury could on the evidence presented think the defendant premeditated and intentionally killed the victim. We do not find the evidence so weak as to render the verdict irrational. A rational jury may well have found the defendant guilty of some lesser-included crime without violating its oath; but, drawing all favorable inferences in favor of the prosecution, a rational jury could also convict. We end by suggesting that variations [177] in human experience suggest it is not unexpected to see a considerable range of reasonable verdicts or estimates about what is likely or unlikely. Thus, we find the evidence sufficient under either the Jackson or the Starkey standard.

B. Jury Instructions 

The principal question before us under this assignment of error is whether our instructions on murder when given together deprive a criminal defendant of due process or are otherwise wrong and confusing. 

Because the instructions given in this case conform to what we have already approved in this area, the essence of what the defendant asks us to decide is whether our previously approved instructions in first degree murder cases are legally correct. In concluding his presentation, the defendant asks us "to write an opinion which clearly and specifically defines (1) the term wilful, (2) the term deliberate, and (3) the term premeditated."

The jury was charged in this case on the offenses of first and second degree murder and the lesser-included offenses of voluntary and involuntary manslaughter. These instructions were consistent with the law developed in past decisions. The defendant virtually concedes there is no available affirmative defense, other than an argument for the lesser-included offense of voluntary manslaughter. Because of the unavailability of self-defense or insanity, the defendant contends "the precise definitions of these terms is [sic] critical." We will review the various arguments of the defendant in turn.

1. Standard of Review

The extent of the grounds for defense counsel's objection to the challenged instructions is not entirely clear from the record. The objection could be construed as a challenge to the trial court's inclusion of certain instructions as a matter of law. Alternatively, the objection could be read as a challenge merely to the confusing nature of the instructions. The basis of the objection determines the appropriate standard of review.^[12] Giving the defendant the benefit of the doubt, we will consider the issue first as a review of the legal propriety of the instructions. In this light, if an objection to a jury instruction is a challenge to a trial court's statement of the legal standard, this Court will exercise de novo review.^[13] More recently, we stated in State v. Bradshaw, 193 W.Va. 519, 543, 457 S.E.2d 456, 480 (1995):

"The court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to the [trial] court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion." 

Under Bradshaw, when an objection to a jury instruction involves the trial court's expression and formulation of the jury charge, this Court will review under an abuse of discretion standard. Therefore, we review jury instructions to determine whether, taken [178] as a whole and in light of the evidence, they mislead the jury or state the law incorrectly to the prejudice of the objecting party.^[14] So long as they do not, we review the formulation of the instructions and the choice of language for an abuse of discretion. We will reverse only if the instructions are incorrect as a matter of law or capable of confusing and thereby misleading the jury.

2. Adequacy of Jury Instructions as to the Elements of First Degree Murder 

The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. As we said in note 20 of State v. Miller, 194 W.Va. at 16, 459 S.E.2d at 127 (1995) "Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts."^[15] This is, in essence, what the defendant argues in this case, i.e., the instructions were inadequate and failed to inform the jury of the difference between first and second degree murder.^[16] More precisely, the defendant asserts the trial court's instructions regarding the elements of first degree murder were improper because the terms wilful, deliberate, and premeditated were equated with a mere intent to kill.^[17]

The jury was instructed that in order to find the defendant guilty of murder it had to find five elements beyond a reasonable doubt: "The Court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately and premeditatedly[.]"^[18] In its effort to define these terms, the trial court gave three instructions.^[19

State's Instruction No. 8 commonly referred to as the Clifford instruction, stated:

"The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing, or at any time previously."

See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). State's Instruction No. 10 stated:

[179] "The Court instructs the jury that in order to constitute a ‘premeditated’ murder an intent to kill need exist only for an instant." State's Instruction No. 12 stated: "The Court instructs the jury that what is meant by the language willful, deliberate and premeditated is that the killing be intentional." State's Instruction Nos. 10 and 12 are commonly referred to as Schroder instructions. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982).

The linchpin of the problems that flow from these instructions is the failure to adequately  inform the jury of the difference between first and second degree murder. Of particular concern is the lack of guidance to the jury as to what constitutes premeditation and the manner in which the instructions infuse premeditation with the intent to kill.

At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." Because the common law definition of "malice aforethought" was extremely flexible, "it became over time an ‘arbitrary symbol’ used by trial judges to signify any of the number of mental states deemed sufficient to support liability for murder." John S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, Jr., Hall's Criminal Law 268-69 (5th ed. 1993). Nevertheless, most American jurisdictions maintained a law of murder built around common law classifications. Pertinent to this case, the most significant departure from the common law came on April 22, 1794, when the Pennsylvania Legislature enacted a statute dividing murder into degrees.^[20] It decreed that the death penalty would be inflicted only for first degree murder. West Virginia, like most other states, followed the Pennsylvania practice. Indeed, the 1794 Pennsylvania statute is nearly identical to W.Va.Code, 61-2-1 (1991), our murder statute. [21]

The West Virginia Legislature chose not to define the term "premeditated" in W.Va. Code, 61-2-1. As a result, this Court consistently has resorted to the common law. See State v. Clifford, supra. See also State v. Belcher, 161 W.Va. 660, 245 S.E .2d 161 (1978); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950); State v. Porter, 98 W.Va. 390, 127 S.E. 386 (1925); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924).

In addition to Clifford, there are several cases that have made specific attempts to further define premeditation. In State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903), we said:

"The next ingredient of the crime is that it must be deliberate. To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation within the meaning of the statute. The last requisite is that the killing must be premeditated. To premeditate is to think of a matter before it is executed. The word, premeditated, would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction." (Emphasis added to last sentence).

In State v. Hatfield, 169 W.Va. 191, 286 S.E .2d 402 (1982), we made an effort to distinguish the degrees of murder by indicating that the elements that separate first degree murder and second degree murder are deliberation and premeditation in addition to [180] the formation of the specific intent to kill. Deliberation and premeditation mean to reflect upon the intent to kill and make a deliberate choice to carry it out. Although no particular amount of time is required, there must be at least a sufficient period to permit the accused to actually consider in his or her mind the plan to kill. In this sense, murder in the first degree is a calculated killing as opposed to a spontaneous event. After noting the above language in Dodds, Justice Miller stated in Hatfield:

"The terms 'deliberate' and 'premeditated' have not often been defined in our cases but do carry a certain degree of definitional overlap. This point is made in LaFave & Scott, Criminal Law § 73, at 563 (1972 ed.):

"To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words "premeditate" and "deliberate" as they are used in connection with first degree murder. Perhaps the best that can be said of "deliberation" is that it requires a cool mind that is capable of reflection, and of "premeditation" that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.” (Footnotes omitted)

"But, as LaFave & Scott also point out: 'The intention may be finally formed only as a conclusion of prior premeditation and deliberation.' Id." 169 W.Va. at 200-01, 286 S.E.2d at 409.

Although we approved the jury instruction from Clifford that "it is only necessary that the intention to kill should have come into existence for the first time at the time of the killing" in Hatfield, Justice Miller explained this instruction was merely intended to convey the notion that it is possible for deliberation and premeditation to precede the formation of the actual intent to kill. Justice Miller further stated:

"Here, the Clifford instruction refers primarily to the intention to kill not existing for any particular time and arising at the moment of the killing. This means the specific intent to kill and is to be distinguished from the elements of deliberation and premeditation which are the state of mind conveying the characteristics of reflection." 169 W.Va. at 201, 286 S.E.2d at 409.

This is the meaning of the so-called Clifford instruction and, when it is given, its significance should be explained to the jury.

The source of the problem in the present case stems from language in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982). While this Court elaborated on the meaning of premeditation, we gave it a different definition than that approved in Hatfield and Dodds. In Schrader, we stated:

"Hence, when the West Virginia Legislature adopted the Virginia murder statute in 1868, the meaning of ‘premeditated’ as used in the statute was essentially ‘knowing’ and ‘intentional.’ Since then, courts have consistently recognized that the mental process necessary to constitute ‘willful, deliberate and premeditated’ murder can be accomplished very quickly or even in the proverbial ‘twinkling of an eye.’ ... The achievement of a mental state contemplated in a statute such as ours can immediately precede the act of killing. Hence, what is really meant by the language ‘willful, deliberate and premeditated’ in W.Va. Code, 61-2-1 [1923] is that the killing be intentional 172 W.Va. at 6, 302 S.E.2d at 75.” (Emphasis added).

The language emphasized above supplied the legal authority and basis for State's Instruction Nos. 10 and 12.

While many jurisdictions do not favor the distinction between first and second degree murder,^[22] given the doctrine of separation of [181] powers, we do not have the judicial prerogative to abolish the distinction between first and second degree murder and rewrite the law of homicide for West Virginia; unless, of course, we were to declare this classification a violation of due process and force the Legislature to rewrite the law—a bold stroke that we refuse to do. On the other hand, we believe within the parameters of our current homicide statutes the Schroder definition of premeditation and deliberation is confusing, if not meaningless. To allow the State to prove premeditation and deliberation by only showing that the intention came "into existence for the first time at the time of such killing" completely eliminates the distinction between the two degrees of murder. Hence, we feel compelled in this case to attempt to make the dichotomy meaningful by making some modifications to our homicide common law.

Premeditation and deliberation should be defined in a more careful, but still general way to give juries both guidance and reasonable discretion. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. As suggested by the dissenting opinion in Green v. State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970): "True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist." This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Although an elaborate plan or scheme to take life is not required, our Schroder's notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder. 

In Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941), cert. denied, 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507 (1942), the court discussed the need to have some appreciable time elapse between the intent to kill and the killing:

"To speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, is a contradiction in terms. It deprives the statutory requirement of all meaning and destroys the statutory distinction between first and second degree murder. At common law there were no degrees of murder. If the accused had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection. Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. The quoted part of the charge was therefore erroneous."

Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to establish premeditation and deliberation under our first degree murder statute.[23] This is what [182] is meant by a ruthless, cold-blooded, calculating killing. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.[24]

We are asked to overrule the language appearing in Schrader, as reflected in State's Instruction No. 8 and, particularly, the language of State's Instruction Nos. 10 and 12, so that there might be some clarity and coherence to the law of homicide. We naturally are reluctant to overrule prior decisions of this Court. No court likes to acknowledge a mistake, and adherence to precedent is based on deeper reasons than amour propre; rather, it is in fact a cornerstone of Anglo-American adjudication. Additionally, the more recent a precedent, the more authoritative it is because there is less likelihood of significantly changed circumstances that would provide a "special justification" for reassessing the soundness of the precedent. Nevertheless, the circumstances of this case are different, and we agree with the defendant that the language in our opinion in Schrader virtually eliminates the distinction in this State between first and second degree murder, equating as it does premeditation with the formation of the intent to kill. We have tried to clarify the difference between the degrees of murder in the preceding paragraphs. We find that Schrader wrongly equated premeditation with intent to kill and in so doing undermined the more meaningful language of Hatfield and Dodds. To the extent that the Schrader opinion is inconsistent with our holding today, it is overruled.

In overruling Schrader, we do not take lightly the policy underlying stare decisis. However, we believe:

"Remaining true to an 'intrinsically sounder' doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation 'special justification' exists to depart from the recently decided case." Adarand Constr., Inc. v. Pena, ___ U.S. ___, ___, 115 S.Ct. 2097, 2115, 132 L.Ed.2d 158, 185 (1995).

Overturning precedent with a long standing in the law that has become an integrated fabric in the law is different. Therefore, we leave in tact the Clifford rule as amplified by Hatfield. So by refusing to follow Schroder but continuing Clifford and Hatfield, "we do not depart from the fabric of the law; we restore it." Adarand Constructors, Inc. v. Pena, ___ U.S. at ___, 115 S.Ct. at 2116, 132 L.Ed.2d at ___.

Finally, we feel obligated to discuss what instruction defining premeditation is now acceptable. What came about as a mere suggestion in Hatfield, we now approve as a proper instruction under today's decision. Note 7 of Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410, states:

"A more appropriate instruction for first degree murder, paraphrased from 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214, is:

" 'The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he [183] intended, is sufficient to support a conviction for first degree murder.' "

Having approved a new instruction in the area of homicide law, we do not believe today's decision should be applied retroactively. Applying the test articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a "new rule" should not be given retroactive effect. More precisely, the rules we announce are "not dictated by precedent existing at the time" of our opinion. Gilmore v. Taylor, ___ U.S. ___, ___, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306, 316 (1993), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. (Emphasis in original). Nevertheless, we need not apply the "new rule" to the defendant's case on this appeal because this case is being reversed on other grounds. The defendant is entitled, however, to the benefit of this decision on remand.

As a more general matter, the failure to follow precisely what we are now prescribing could, under certain circumstances, be harmless error. We note that the trial court continuously reinforced the notions that the burden of proof in a criminal case is always upon the prosecution; that the defendant is protected by a presumption of innocence; and that, unless he is proven guilty beyond a reasonable doubt, the defendant must be acquitted. In addition, the trial court instructed the jury to consider the charge as whole rather than singling out any one instruction. These actions reinforce our belief that it is unlikely the defendant was prejudiced to the point of reversible error.

C. Misconduct of the Prosecuting Attorney

We turn next to the defendant's argument that the prosecutor prejudiced his right to a fair trial when he was permitted to argue the penalties of the different offenses and to cross-examine the defendant's father on the defendant's racial and gender biases and his political beliefs. Because we conclude the prosecutor's remarks and his cross-examination were improper, we also will go on to weigh the error under our harmless error standard. We look at each of the defendant's contentions separately because our review for harmless error is fact specific.^[25]See McDougal v. McCammon, 193 W.Va. 229, 239, 455 S.E .2d 788, 798 (1995).

1. Disclosing the Possible Penalties

During the rebuttal portion of closing arguments, the prosecuting attorney informed the jury that the punishment for second degree murder is five to eighteen years imprisonment; a voluntary manslaughter conviction carries a punishment of one to five years in the penitentiary; and involuntary manslaughter could lead to imprisonment for up to a year. He also told the jury that should the defendant be convicted of first degree murder, he would be eligible for parole in ten years, but he would not necessarily receive parole at that time. Defense counsel's timely objection to these comments was overruled.

The defendant asserts that such practice rises to the level of constitutional error because the jury may have determined the degree of homicide by what it believed the appropriate punishment to be. The State contends the prosecuting attorney may inform the jury of the applicable penalties for the possible convictions as long as a correct statement of the law is made.

Both parties to this appeal seem to acknowledge that our cases are not entirely [184] consistent in reference to the relevance of penalty evidence and penalty comment during closing arguments. We believe our prior rulings can be placed into two broad categories. The first category concerns cases involving a recommendation of mercy. We have said, for example, in first degree murder cases, it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to such verdict and to explain to the jury the legal implications of such a recommendation. To this extent, a prosecuting attorney is permitted to comment on the significance of this recommendation and to make appropriate argument against such a recommendation. However, even here, we limit the scope of the permissible argument: The prosecuting attorney cannot argue that a recommendation of mercy would enable the defendant to receive parole in ten years. State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977). Nor have we authorized the prosecutor to argue beyond the first degree murder penalties. Of course, in the case sub judice, the prosecuting attorney did not violate this rule in that he stated the defendant may be eligible for parole in ten years should he be convicted of first degree murder with a recommendation of mercy. In fact, the jury was properly instructed by State's Instruction No. 11 that stated, in part:

"[F]irst degree [murder] is punishable by confinement in the penitentiary of this state for life and the accused shall not be eligible for parole except and unless the jury shall add its recommendation of mercy in their verdict and if such recommendation is added to their verdict, such person shall then be eligible for consideration for parole after serving a minimum of ten years of such sentence, such eligibility in no way guaranteeing immediate release."

The second category concerns the mentioning of penalties in cases other than those involving recommendations of mercy. The issue we must address is whether the prosecuting attorney may inform the jury of the appropriate penalties for convictions when, as in this case, the jury must choose between varying degrees of an offense. Our cases generally hold that such penalty information is irrelevant. Directly addressing the issue in State v. Parks, 161 W.Va. 511, 516, 243 S.E.2d 848, 852 (1978), we stated that placing sentencing matters before the jury is "an issue prejudicial to the fact-finding function of the jury." The right to fix punishment rests exclusively within the discretion of the trial court, and neither party has the right outside of "capital" cases to have the jury informed of the possible penalties. See generally State v. Massey, 178 W.Va. 427, 432 n. 2, 359 S.E.2d 865, 870 n. 2 (1987). This is so because a jury is not permitted to concern itself with sentencing matters outside of a recommendation of mercy. See State v. Lindsey, supra (jury should not concern itself with irrelevant matters such as parole); State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). Therefore, we hold that outside the context of cases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.^[26]See U.S. v. Meredith, 824 F.2d 1418, 1429 (4th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987) and 485 U.S. 991, 108 S.Ct. 1297, 99 L.Ed.2d 507 (1988).

The universal rule is that punishment is the trial court's role and is not a proper matter for the jury. The jury's sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. See Chambers v. State, 337 Md. 44, 650 A.2d 727 (1994). The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment the defendant could receive if convicted is not a proper matter for closing argument. See Rowe v. Indiana, 250 Ind. 547, 237 N.E.2d 576 (1968).^[27]

[185] Both parties cite State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976), where we stated it was not error for the prosecuting attorney to say the defendant could be eligible for parole after five years if convicted of second degree murder. The State relies heavily upon Myers, at least to the extent that it creates a vacillation in our decisions. We do not find that Myers is persuasive authority to support the arguments of the State.^[28]

We believe that any substantial reliance on Myers is misplaced. First, it appears that the language used in Myers was nothing but a means of distinguishing between what the Court considered the least offensive as opposed to the more egregious remark:

"In view of the fact that this Court finds no error in an instruction which embodies in statutory language the penalties which will be imposed by law for the various offenses of which a defendant may be found guilty, such ruling by the trial court was probably technically correct.The same cannot be said with reference to the court's treatment of the Prosecutor's remark:

" 'When they talk about keeping somebody in Weston Hospital or even at the V.A., we know they get out right and left.' "

159 W.Va. at 362, 222 S.E.2d at 306. 

The bottom line is that the conviction in Myers was reversed because the prosecuting attorney argued matters to the jury that were irrelevant for its consideration.^[29] In short, we believe that the Court's discussion on this point in Myers was purely an anomaly. It is doubtful the Court would have reached this same conclusion had that issue alone been its focus, and we refuse to do so here.

Likewise, Standard 3-5.8(d) of the American Bar Association Standards for Criminal Justice (2nd ed. 1980) explains: "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." Standard 3-5.9 further advises: "It is unprofessional conduct for the prosecutor to intentionally to refer to or argue on the basis of facts outside the record."

It is quite obvious that the prosecution improperly injected "issues broader than the guilt or innocence" of the defendant and argued "facts outside the record." To do either is improper and, to the extent the decision in Myers is inconsistent with our holding, it is expressly overruled. To rule otherwise would permit a jury to base its finding as to the degree of guilt on irrelevant factors.

2. Questions Relating to the Defendant's Prejudices

During the cross-examination of the defendant's father, the prosecuting attorney inquired about prejudicial statements allegedly made by the defendant. Bobby Lee Guthrie was asked if the defendant told him that men were better than women and women should stay at home, that whites were better than blacks, and whether the two of them discussed the Ku Klux Klan. Defense counsel objected to this line of questioning because of its highly prejudicial effect, particularly with [186] the women on the jury and the one African-American juror.

The State asserted it was proper cross-examination because the defense opened the door when it portrayed the defendant as a good, quiet, Bible-reading man when, in fact, he had made some bigoted comments to the State's psychiatrist, Dr. Ralph Smith.^[30] The State also argues the defendant was not prejudiced by these few questions concerning his views because Dr. Smith was not called as a witness and this issue was not raised further.^[31] Nevertheless, a curative instruction was not requested by either party and none was given.

Although most rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard, see McDougal v. McCammon, supra, an appellate court reviews de novo the legal analysis underlying a trial court's decision. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir.1995). A trial court's discretion is not unbounded, and the scope of the trial court's discretion varies according to the issue before it. In considering the admissibility [187] of impeachment evidence, we apply the same standards of relevance that we apply to other questions of admissibility.

Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. See Miller v. N.C., 583 F.2d 701 (4th Cir.1978); Weddington v. State, 545 A.2d 607 (Del.Sup. 1988). In State v. Bennett, 181 W.Va. 269, 274, 382 S.E.2d 322, 327 (1989), this Court condemned the practice of attorneys making unnecessary racial remarks in the presence of the jury:

"Although Mr. Perrill referred to Dr. Arrieta as 'the colored lady' only once, it should not have been said for the obvious reason that it may be construed as an appeal to prejudice. 'To raise the issue of race is to draw the jury's attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.' McFarland v. Smith, 611 F.2d 414, 417 (2d Cir.1979)."

The same rationale applies to the prosecuting attorney drawing the jury's attention to racial, gender, and political comments made by the defendant which in no way relate to the crime.^[32]

Under the first step of our inquiry, we must determine whether the evidence is relevant to an issue of consequence. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979). Normally, in order to be probative, evidence must be "relevant" under Rule 401, that is, it must tend to make an issue in the case more or less likely than would be so without the evidence. Other factors that bear on the probative value are the importance of the issue and the force of the evidence. 22 C. Wright & K. Graham, Federal Practice and Procedure § 5214 (1978). In this case, the State's most difficult problem throughout this appeal is explaining how this evidence is relevant to an issue of consequence in the case.

The prosecution argues that such evidence is relevant as impeachment evidence in light of the father's comments on direct examination when he portrayed the defendant as a good, quiet, Bible-reading man. In analyzing the contentions of the parties, we first observe that only the evidence of the defendant's quiet and peaceful character was admissible under Rule 404(a)(1) of the West Virginia Rules of Evidence.^[33] Quite clearly, evidence that the defendant was a "Bible-reading man" and his religious beliefs are not admissible under the same rule because they simply do not concern a pertinent character trait. See State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989) (defendant's reputation for not selling drugs is inadmissible). See also W.Va.R.Evid. 610.^[34] This issue is in this case only because [188] the prosecution chose not to object to the inadmissible evidence.^[35] Thus, we must decide whether the prosecution should have been permitted to rebut this evidence under our curative admissibility rule. We hold the prosecution evidence was barred under the doctrine of curative admissibility and Rule 403.

The doctrine of curative admissibility is to be evaluated under our relevancy rules. To some extent, this rule is a restatement of the general rule that when a party opens up a subject, there can be no objection if the opposing party introduces evidence on the same subject. The most significant feature of the curative admissibility rule, however, is that it allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has "opened the door" by introducing similarly inadmissible evidence on the same point. Perhaps, the clearest statement of curative admissibility came in Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.App.1984), where the Minnesota court, quoting from Busch v. Busch Construction, Inc.,262 N.W.2d 377, 387 (Minn.1977), stated:

"In order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) the original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence."^[36] (Footnote omitted).

We believe the prosecution faces two hurdles in this case. First, was the evidence offered by the defendant prejudicial? This case was not one in which Bible reading had any relevancy. The defendant confessed to the killing and there were eyewitnesses. The only issue that the jury seriously had to consider was the degree of guilt. Certainly, whether the defendant read the Bible could have little impact on the degree of homicide. Second, the prosecution sought to go far beyond the evidence originally offered by the defendant. The fact that the defendant read the Bible and walked through the woods is hardly related to his affinity for Adolph Hitler, his dislike of African-Americans, and his chauvinistic feelings toward women.

The second inquiry under Rule 403 is whether the probity of the objected to evidence was substantially outweighed by its prejudice. In this regard, the defendant argues that even if the evidence had some probative value, it is clearly inadmissible under Rule 403. In State v. Derr, 192 W.Va. 165, 178, 451 S.E.2d 731, 744 (1994), we stated "that although Rules 401 and 402 strongly encourage the admission of as much evidence as possible, Rule 403 restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence." Rule 403 calls upon the trial court to weigh the probative evidence against the harm that it may cause—unfair prejudice, confusion, misleading the jury, delay, or repetition—and to exclude the evidence if the probative value is "substantially outweighed" by the harm.

Thus, to perform the Rule 403 balance, we must assess the degree of probity of the evidence, which, in turn, depends on its relation to the evidence and strategy presented at trial in general. The mission of Rule 403 is to eliminate the obvious instance [189] in which a jury will convict because its passions are aroused rather than motivated by the persuasive force of the probative evidence. Stated another way, the concern is with any pronounced tendency of evidence to lead the jury, often for emotional reasons, to desire to convict a defendant for reasons other than the defendant's guilt. In United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993), the court stated:

"We have defined undue prejudice as " 'a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.' "...

"... When evidence of a defendant's involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors' disdain or their belief that the defendant's prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion." (Citations omitted).

The prejudice that the trial court must assess is the prejudice that "lies in the danger of jury misuse of the evidence." U.S. v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973). (Emphasis in original).^[37]

Prejudice is not the only threat. There is also a potential for confusing and misleading the jury. Quite apart from prejudice, there is a risk that undue emphasis on the defendant's racial, gender, and/or political views could direct the jury's attention from whether the defendant inflicted the fatal wound because of the "horseplay" or whether the defendant believed the victim was a threat to the defendant's philosophy or way of life. This deflection might seem like a minor matter easy to guard against in the instructions so far as confusion is concerned, but, when coupled with its potential for unfair prejudice, this evidence becomes overwhelmingly dangerous. Even if we concede that this evidence had some relevance on the impeachment issue, the risk of undue prejudice and the risk of confusion are alone enough to justify setting aside this verdict.

Our discussion thus far has not touched on the prosecution's need for this evidence and the closely related question of alternatives available. In note 15 of Derr, 192 W.Va. at 178, 451 S.E.2d at 744, we stated that "[o]ne important factor under Rule 403 is the prosecutor's need for the proffered evidence." Here, as discussed above, the evidence of the defendant's prejudices was not only unnecessary, but was not very helpful from a probative value standpoint. In applying Rule 403, it is pertinent whether a litigant has some alternative way to deal with the evidence that it claims the need to rebut that would involve a lesser risk of prejudice and confusion. 22 Wright & Graham, supra, § 5214 (citing cases). Obviously, we do not know what other means the prosecution had to prove the defendant was not a Bible reader or a person of peaceful character. What is important to us, however, is that the trial court failed to ascertain alternatives to this evidence before permitting the prosecution to use it. What we do know is that this issue arose because the prosecution did not object to some clearly irrelevant evidence. Nor did the trial court consider an instruction to the jury advising it to disregard all evidence of the defendant that the prosecution claimed needed rebutting. These failures strengthen our determination to declare error in this case.

To achieve substantial justice in our courts, a trial judge must not permit a jury's finding to be affected or decided on account of racial or gender bias and whether one holds an unpopular political belief or opinion. If Rule 403 is ever to have a significant and effective role in our trial courts, it must be used to bar the admission of this highly prejudicial evidence. See, e.g., U.S. v. [190] Kallin, 50 F.3d 689 (9th Cir.1995) (reversible error under Rule 403 to allow witness to testify to defendant's dislike for Mexicans). While due process does not confer upon a criminal defendant a right to an error-free trial, see U.S. v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983),^[38] it unquestionably guarantees a fundamental right to a fair trial. See Lutwak v. U.S.,344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). We emphasize that it is a fundamental guarantee under the Due Process Clause of Section 10 of Article III of the West Virginia Constitution that these factors—race, religion, gender, political ideology—when prohibited by our laws shall not play any role in our system of criminal justice.

3. Harmless Error Standard

Prosecutorial misconduct does not always warrant the granting of a mistrial or a new trial. The rule in West Virginia since time immemorial has been that a conviction will not be set aside because of improper remarks and conduct of the prosecution in the presence of a jury which do not clearly prejudice a defendant or result in manifest injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983); State v. Buck, 170 W.Va. 428, 294 S.E .2d 281 (1982). Similarly, the United States Supreme Court has acknowledged that given "the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial." U.S. v. Hasting, 461 U.S. at 508-09, 103 S.Ct. at 1980, 76 L.Ed.2d at 106. Thus, the Supreme Court has held that an appellate court should not exercise its "[s]upervisory power to reverse a conviction... when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error." Hasting, 461 U.S. at 506, 103 S.Ct. at 1979, 76 L.Ed.2d at 104.

The harmless error doctrine requires this Court to consider the error in light of the record as a whole, but the standard of review in determining whether an error is harmless depends on whether the error was constitutional or nonconstitutional. It is also necessary for us to distinguish between an error resulting from the admission of evidence and other trial error. As to error not involving the erroneous admission of evidence, we have held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987) (prosecutor's remarks although improper must be sufficiently prejudicial to warrant reversal); State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). On the other hand, when dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness articulated by this Court^[39] is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.

In determining prejudice, we consider the scope of the objectionable comments and their relationship to the entire proceedings, the ameliorative effect of any curative instruction given or that could have been given but was not asked for, and the strength of the evidence supporting the defendant's conviction. See McDougal v. McCammon, supra. As the United States Supreme Court explained "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments [or conduct] standing alone, for the statements or conduct must be viewed in context[.]" U.S. v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1, 9-10, on remand, 758 F.2d 514, on reconsideration, 767 F.2d 737 (1985) (finding harmless error where the prosecutor made an [191] improper statement that the defendant was guilty and urged the jury to "do its job").

Notwithstanding the above discussion, this Court is obligated to see that the guarantee of a fair trial under our Constitution is honored. Thus, only where there is a high probability that an error did not contribute to the criminal conviction will we affirm. "High probability" requires that this Court possess a "sure conviction that the error did not prejudice the defendant." U.S. v. Jannotti,729 F.2d 213, 220 n. 2 (3rd Cir.), cert. denied, 469 U.S. 880, 105 S.Ct. 243, 83 L.Ed.2d 182 (1984). Indeed, the United States Supreme Court recently stated that where there is "`grave doubt' regarding the harmlessness of errors affecting substantial rights," reversal is required. O'Neal v. McAninch, ___ U.S. ___, ___, 115 S.Ct. 992, 997, 130 L.Ed.2d 947, 956 (1995) ("grave doubt" about harmlessness of the error to be resolved in favor of the defendant).^[40] Therefore, we will reverse if we conclude that the prosecutor's conduct and remarks, taken in the context of the trial as a whole, prejudiced the defendant.

In this case, we have "grave doubt" as to whether the errors can be considered harmless. The primary issue in this case was not one of guilt or innocence, but was the degree of homicide for which the defendant would ultimately be convicted. To influence the jury's evaluation and decision, the prosecution was permitted to suggest that any conviction less than first degree murder would permit the defendant to be released in five years and the defendant was a racist, a sexist, a Nazi, and a KKK sympathizer.^[41] These errors in combination compel setting aside the verdict, and we do not hesitate to do so on these grounds alone. In fact, it is difficult to imagine any evidence that would have a more powerful impact upon a jury or which would be more likely to deter it from fairly finding the defendant guilty of a lesser offense.

However, there is more. On cross-examination, the prosecuting attorney asked the defendant if he, upon learning of the victim's death, replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" Defense counsel objected because the alleged statement was not disclosed during discovery. Furthermore, the prosecuting attorney offered no factual basis for the question at trial.^[42] The defendant [192] argues the State's nondisclosure of this statement, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, was prejudicial because it hampered the preparation and presentation of his case. Syllabus Point 3 of State v. Weaver, 181 W.Va. 274, 382 S.E.2d 327 (1989), states:

" 'When a trial court grants a pretrial discovery motion requiring the prosecution to disclose evidence in its possession, nondisclosure by the prosecution is fatal to its case where such nondisclosure is prejudicial. The nondisclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.' Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980)."

See State v. Myers, supra. The defendant contends the issue of malice was critical at trial and the alleged statement was very damaging in proving a "heart regardless of social duty," as the jury was instructed on malice. We agree with the defendant.^[43] We conclude that this line of questioning was extremely inappropriate. There seems to have been little, if any, justification for this line of questioning other than to inflame the jury through insinuation. Although we would be hesitant to reverse on this error alone, when coupled with the other errors discussed above, our decision to reverse is fortified. Syllabus Point 5 of State v. Walker, 188 W.Va. 661, 425 S.E .2d 616 (1992), states:

" 'Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)."

 III. CONCLUSION

In this case, our voyage is complete. "Having navigated the waters" of burden of proof, standards of review, new guidance for instruction in homicide cases, prosecutorial misconduct, and harmless error, "we now steer this case into the port of judgment and unload the cargo we have hauled."^[44] For the foregoing reasons, we are compelled to hold the admission of the evidence discussed above and the prosecution's failure to disclose the alleged oral statement of the defendant before cross-examination violated the defendant's constitutional right to a fair trial. In so doing, we merely apply settled principles of law to the facts of this case.^[45]

Based on the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and this case is remanded for a new trial.

Reversed and remanded.

[193] BROTHERTON and RECHT, JJ., did not participate.

MILLER, Retired Justice, and FOX, Judge, sitting by temporary assignment.

WORKMAN, J., concurs and reserves the right to file a concurring opinion.

WORKMAN, Justice, concurring:

I concur with the holding of the majority, but write this separate opinion to reiterate that the duration of the time period required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from our past decisions in State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (as amplified by the majority opinion), nor the new instruction approved in the majority opinion^[1] affix any specific amount of time which must pass between the formation of the intent to kill and the actual killing for first degree murder cases. Given the majority's recognition that these concepts are necessarily incapable of being reduced formulaically, I am concerned that some of the language in the opinion may indirectly suggest that some appreciable length of time must pass before premeditation can occur.

I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority's suggested basis for defining premeditation and deliberation in terms of requiring some "appreciable time elapse between the intent to kill and the killing" and "some period between the formation of the intent to kill and the actual killing which indicates that the killing is by prior calculation and design" may create confusion in suggesting that premeditation must be the deeply thoughtful enterprise typically associated with the words reflection^[2] and contemplation.^[3] The majority's interpretation may create ambiguity, if not clarified, by adding arguably contradictory factors to the law enunciated by the majority in the approved instruction, as well as the language in the Hatfield and Dodds cases that the majority upholds. See Hatfield,169 W.Va. at 202, 286 S.E.2d at 410 n. 7; see also State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903).

For instance, nowhere in Hatfield, which upholds the Clifford instruction, is the notion that an "appreciable" amount of time must lapse in order for premeditation to occur. Neither is such a suggestion evident from the majority's new instruction, derived from Hatfield:

"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."

169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing...."

Accordingly, it is necessary to make abundantly clear that premeditation is sufficiently demonstrated as long as "[a]ny interval of time[, no matter how short that interval is, [194] lapses] between the forming of the intent to kill and the execution of that intent[.]" See Hatfield,169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214).

[1] The confession, which was read to the jury, stated, in part:

"I arrived at work, at 4:00 o'clock, and was looking forward to another evening of work, I was looking forward to it, because I do enjoy working at Danny's Rib House. Upon my arrival at work I immediately observed the verbal and physical aggression of Mr. Farley. During the evening of work I heard him calling certain employee's 'Boy' and during the evening he referred to me as 'Boy' many times, I did and said nothing, continuing my work, letting it pass. He was really loud, and obnoxious, as I'm sure many employee's noticed. As the evening was coming to a close Mr. Farley walked very close by me and said 'that I had an "attitude problem." It was verbal, I let it pass, continuing my work. After bringing some dishes to the cook, I walked back to the dishwasher to begin drying off some dishes, Mr. Farley approached me and made a sarcastic comment about me being a quiet person, he walked ever closer, to me until he was in my face, as I was trying to carry out my responsibilities. After all these things were said, and even though he was exhibiting physical aggression by coming up to my face, and putting forth what I interpreted to be a challenge, again I did nothing, continuing to carry out my responsibilities. Standing a few inches from my face he took his wet dishrag and hit me once, on the forearm, I did nothing continuing my work. Standing in the same area, he hit me again on the forearm, obviously wanting a confrontation, I gave him none, continuing my work. Standing in the same place he hit me, hard, two times in the face, it really hurt, it was soaking wet, and it stung, as he brought it to bear upon my face, at that moment I thought he was going to go further and hit me, so I reached in my right pants pocket, and retrieved my lock blade knife, that I use for skinning rabbits and squirrells [sic] during hunting season. I swung at Mr. Farley with my right hand in which was my knife, he backed up, so I didn't swing twice, he slowly sunk to [the] floor, I ran to the front of the restaurant and yelled out, call the ambulance. All I came to work for, was to work, and carry out my obligations, having ill will toward no one, and I still have none, but I feel I had the right to respond, finally, to this act of aggression that was perpetrated against me, I do not exhibit aggressive, violent behavior but I felt I had no alternative, or recourse."

[2] Rehearing denied by 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).

[3] There is some question as to whether Jackson reflects the current thinking of the United States Supreme Court. In the practical context, Jackson was a five-to-three decision; every member of the majority is gone from the Supreme Court; and the concurring trio. Justice Stevens joined by Chief Justice Burger and Justice Rehnquist, argued for a standard that asked whether there was some evidence to support the disputed finding. Since both opinions in Jackson held the evidence was adequate to convict, the choice between the two calibrations of the standard did not matter in that case. Also, neither of the two sequels to Jackson is illuminating. Herrera v. Collins,___ U.S. ___, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (the majority opinion by Chief Justice Rehnquist capsulized Jackson solely in order to distinguish it); Wright v. West, 505 U.S. 277, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (involved a fractured Supreme Court with no majority opinion).

While we are not certain as to how the United States Supreme Court will ultimately resolve this issue, the majority position in Jackson represents the pole most favorable to the defendant, and this stated position of the majority of justices has never been overruled. Accordingly, we proceed to consider whether on the record made in the trial court any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.

[4] The reconciliation that we choose to do is consistent with a similar approach we took in State v. Kopa, 173 W.Va. 43, 49, 311 S.E.2d 412, 418 (1983), where we observed that adopting a different standard in criminal cases might "create the problem of sustaining convictions in the state court with predictable release through habeas corpus in the federal court." Although the two standards would not necessarily lead to different results, we believe it is unnecessary to have a criminal defendant subjected to different standards of review should the case ultimately end up in federal court. See York v. Tate, 858 F.2d 322 (6th Cir.1988), cert. denied, 490 U.S. 1049, 109 S.Ct. 1960, 104 L.Ed.2d 428 (1989).

[5] While the language in Jackson seems to support a de novo review, see 443 U.S. at 324-26, 99 S.Ct. at 2792-93, 61 L.Ed.2d at 577-78, the review is only de novo as to decisions made by the trial court. As to the jury's verdict, we are required to review all inferences in favor of the verdict, thus making deferential review appropriate.

[6] Rehearing denied by 62 Ohio St.3d 1410, 577 N.E.2d 362 (1991).

[7] See State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).

[8] Our conviction that the Holland rule is the better rule is not weakened by the fact that there is substantial conflict among the states as to whether the standard announced in Noe is preferable to that of Holland. According to our rough count, for states following the Noe rule, see Ex parte Williams, 468 So.2d 99 (Ala. 1985); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), cert. denied, ___ U.S. ___, 113 S.Ct. 1331, 122 L.Ed.2d 716 (1993); Murdix v. State, 250 Ga. 272, 297 S.E.2d 265 (1982); State v. Lilly, 468 So.2d 1154 (La. 1985); State v. Andrews, 388 N.W.2d 723 (Minn. 1986); State v. Easley, 662 S.W.2d 248 (Mo.1983); State v. Williams, 657 S.W.2d 405 (Tenn.1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429, 79 L.Ed.2d 753 (1984); State v. John, 586 P.2d 410 (Utah 1978); State v. Wyss, 124 Wis.2d 681, 370 N.W.2d 745 (1985). For states rejecting the Noe rule, see Des Jardins v. State, 551 P.2d 181 (Alaska 1976); State v. Harvitt, 106 Ariz. 386, 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del. 1972); State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70 (1981); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); State v. Cowperthwaite, 354 A.2d 173 (Me. 1976); Finke v. State, 56 Md.App. 450, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (Md.1984), cert. denied sub num. Finke v. Maryland, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984); People v. Johnson,146 Mich.App. 429, 381 N.W.2d 740 (1985); State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981); State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981); State v. Stokes, 299 S.C. 483, 386 S.E.2d 241 (1989).

[9] An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact. State v. Bailey, supra. It is for the jury to decide which witnesses to believe or disbelieve. Once the jury has spoken, this Court may not review the credibility of the witnesses.

[10] On cross-examination, the prosecuting attorney asked the defendant if, upon learning of the victim's death, he replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" This Court does not suggest this evidence should have been admitted. However, when reviewing a sufficiency of the evidence claim, an appellate court is entitled to review all the evidence that was actually admitted rightly or wrongly. See Lockhart v. Nelson, 488 U.S. 33, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).

[11] The evidence shows the victim's actions were irritating to the defendant well before the stabbing took place. His anger was building with each comment and flip of the towel. Furthermore, witnesses testified the defendant attempted to stab the victim a second time as he fell to the ground. The evidence shows the victim was slashed in the arm during this attempt. Finally, the defendant's statement that he "had the right to respond, finally, to this act of aggression that was perpetrated against [him]" is considered probative evidence of premeditation and deliberation.

[12] Generally, we review a trial court's refusal to give or the actual giving of a certain instruction under an abuse of discretion standard. Where, however, the question is whether the jury instructions failed to state the proper legal standard, this Court's review is plenary. "Whether jury instructions were properly [legally] given is a question of law[.]" U.S. v. Morrison, 991 F.2d 112, 116 (4th Cir.1993).

[13] In connection with a review of the legal sufficiency of the instructions, if we were to determine, as the State urges, that the defendant did not object to one or more of the trial court's instructions regarding the legal standard, we would review its legal propriety under a "plain error" standard. See State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In Miller, we suggested that where a party does not make a clear, specific objection at trial to the charge that he challenges as erroneous, he forfeits his right to appeal unless the issue is so fundamental and prejudicial as to constitute "plain error."

[14] In Syllabus Point 8 of State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982), we stated:

" 'When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict.' Syllabus Point 6, State v. Milam 159 W.Va. 691, 226 S.E.2d 433 (1976)."

[15] Furthermore, we have stated on different occasions that "[t]he jury is the trier of the facts and 'there is no presumption that they are familiar with the law.' " State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 739 (1977), quoting State v. Loveless, 139 W.Va. 454, 469, 80 S.E.2d 442, 450 (1954).

[16] The defendant raises several other assignments of error regarding the jury instructions, but we find his arguments without merit.

[17] A form of this argument was made to this Court before when similar instructions were challenged and we found the contention to be without merit. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982); State v. Riser, 170 W.Va. 473, 294 S.E.2d 461 (1982); State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978). Actually only Schrader deals with the exact issue raised sub judice. For purposes of convenience, we will refer to instructions regarding the length of time necessary to form an intent to kill as the Clifford instruction, see State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906), and those equating the intent to kill with premediation as the Schrader instruction.

[18] As to the other offenses, the jury instruction stated:

"[M]urder in the second degree is when one person kills another person unlawfully and maliciously, but not deliberately or premeditatedly; that voluntary manslaughter is the intentional, unlawful and felonious but not deliberate or malicious taking of human life under sudden excitement and heat of passion; that involuntary manslaughter is where one person while engaged in an unlawful act, unintentionally causes the death of another person, or when engaged in a lawful act unlawfully causes the death of another person."

[19] We note that defense counsel did not object to State's Instruction No. 8, and, under our standard of review, the instruction would ordinarily be reviewed only for "plain error."

[20] The 1794 Pennsylvania statute provided that "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree[.]" 1794 Pa.Laws, Ch. 1766, § 2, quoted in Commonwealth v. Jones, 457 Pa. 563, 570-71, 319 A.2d 142, 147 (1974).

[21] W.Va.Code, 61-2-1, states, in part:

"Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody ... is murder of the first degree. All other murder is murder of the second degree."

The Model Penal Code and many of the modern state criminal codes abolish the first and second degree murder distinction in favor of classifications based on more meaningful criteria. Interestingly, defining premeditation in such a way that the formation of the intent to kill and the killing can result from successive impulses, see Schrader, supra (intent equals premeditation formula), grants the jury complete discretion to find more ruthless killers guilty of first degree murder regardless of actual premeditation. History teaches that such unbridled discretion is not always carefully and thoughtfully employed, and this case may be an example. In 1994, the Legislature raised the penalty for second degree murder to ten-to-forty years (from five-to-eighteen years), making it less important to give juries the unguided discretion to find the aggravated form of murder in the case of more ruthless killings, irrespective of actual premeditation. The penalties are now comparable.

[23] In the absence of statements by the accused which indicate the killing was by prior calculation and design, a jury must consider the circumstances in which the killing occurred to determine whether it fits into the first degree category. Relevant factors include the relationship of the accused and the victim and its condition at the time of the homicide; whether plan or preparation existed either in terms of the type of weapon utilized or the place where the killing occurred; and the presence of a reason or motive to deliberately take life. No one factor is controlling. Any one or all taken together may indicate actual reflection on the decision to kill. This is what our statute means by "willful, deliberate and premeditated killing."

[24] As examples of what type of evidence supports a finding of first degree murder, we identify three categories: (1) "planning" activity—facts regarding the defendant's behavior prior to the killing which might indicate a design to take life; (2) facts about the defendant's prior relationship or behavior with the victim which might indicate a motive to kill; and (3) evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to a preconceived design. The California courts evidently require evidence of all three categories or at least extremely strong evidence of planning activity or evidence of category (2) in conjunction with either (1) or (3). See People v. Anderson. 70 Cal.2d 15, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). These examples are illustrative only and are not intended to be exhaustive.

[25] The inquiry focuses on the fairness of the trial and not the culpability of the prosecutor because allegations of prosecutorial misconduct are based on notions of due process. In determining whether a statement made or evidence introduced by the prosecution represents an instance of misconduct, we first look at the statement or evidence in isolation and decide if it is improper. If it is, we then evaluate whether the improper statement or evidence rendered the trial unfair. Several factors are relevant to this evaluation, among them are: (1) The nature and seriousness of the misconduct; (2) the extent to which the statement or evidence was invited by the defense; (3) whether the statement or evidence was isolated or extensive; (4) the extent to which any prejudice was ameliorated by jury instructions; (5) the defense's opportunity to counter the prejudice; (6) whether the statement or evidence was deliberately placed before the jury to divert attention to irrelevant and improper matters; and (7) the sufficiency of the evidence supporting the conviction. See generally Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986); State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).

[26] We note the defendant is likewise prohibited from informing the jury of the possible sentences he may face if convicted. See generally U.S. v. Chandler, 996 F.2d 1073 (11th Cir.1993); Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993).

[27] A proper closing argument in a criminal case involves the summation of evidence, any reasonable inferences from the evidence, responses to the opposing party's argument, and pleas for law enforcement generally. See Coleman v. State, 881 S.W.2d 344 (Tex.Cr.App.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 763, 130 L.Ed.2d 660 (1995).

[28] Precedent does not cease to be authoritative merely because counsel in a later case advances a new argument. See generally Matter of Penn Central Transp. Co., 553 F.2d 12 (3rd Cir.1977). But, as a practical matter, a precedent-creating opinion that contains no extensive analysis of an important issue is more vulnerable to being overruled than an opinion which demonstrates that the court was aware of conflicting decisions and gave at least some persuasive discussion as to why the old law must be changed.

[29] It appears the Court in Myers was under the assumption that a trial court had authority to instruct generally on the penalties in criminal cases. No authority is cited for that proposition, and we know of none to support such a sweeping statement.

[30] The transcript reveals the following exchange between the prosecuting attorney and the defendant's father:

"Q. When you all would have these discussions, political, all kinds of discussions, did he ever tell you that women should be in the home and that men were better than women?

"A. No.

"Q. You never heard him say that, never heard him comment on that?

"A. No.

"Q. Did you ever hear him comment that whites are better than blacks?

"MR. CLINE: Objection, Your Honor. Move to approach the bench.

"A. No, he did not.

"THE COURT: Just a moment. Let's not get into those areas. I don't think they're needed. I don't recall any blacks being involved in this case.

* * * * * *

"(Conference at the bench)

"MR. BROWN: This is the psychological report.

"THE COURT: Is this Smith's report?

"MR. BROWN: Yes. Here's the quote right here (indicating). This is where they talked about all kinds of things and where he alluded to the blacks and the KKK and—

"THE COURT: Well, I agree; but don't get into it. I agree that they talked about Hitler and blacks and things of that nature. I don't want that crap in here.

* * * * * *

"MR. BROWN: Let me explain. They're portraying this guy as a nice, calm, Bible reading man, takes long walks in the woods, a nice young man. And that's not what we really have here. What we have is a bigoted, prejudiced individual. And I've got witnesses who will testify to that. We've got a witness up here now who's trying to say he's a nice guy, quiet, and they're very serious people.

"THE COURT: I'll let you get it in through Smith.

* * * * * *

"... You can ask him if he ever talked about blacks, talked about—Knock it off there.

* * * * * *

"... Yes, you can bring back Smith and Gibson.

"MR. CLINE: Note our objection and exception for the record.

"MR. WARNER: Judge, before he brings it up we want to be heard at the bench or out of the hearing of the jury specifically on that issue, just what they've got, which are statements someone told to him, nothing to do with this crime. It has nothing to do with this crime, and it's highly prejudicial because it's—

* * * * * *

"(In open court)

"Q. Did you and your son ever have discussions about the Klu [sic] Klux Klan?

"A. Not discussions, no.

"Q. Did you ever hear him express views on the Klu [sic] Klux Klan?

"A. From the news that he has heard on TV.

"Q. Did you ever hear him express any opinion about Hitler?

"A. No."

[31] We consider the purpose of the prosecution's cross-examination was to impeach the witness by confronting him with information about his son that was inconsistent with the witness's testimony on direct examination. We note the prosecution made no effort to introduce the testimony of Dr. Smith. In this connection, however, it is well settled that a party may not present extrinsic evidence of specific instances of conduct to impeach a witness on a collateral matter. See W.Va.R.Evid. 608(b). A matter is considered noncollateral if "the matter is itself relevant in the litigation to establish a fact of consequence[.]" 1 McCormick On Evidence § 49 at 167 (4th ed. 1992). See also Michael on Behalf of Estate of Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).

[32] There is a plethora of authority supporting the notion that matters such as race, religion, and nationality should be kept from a jury's consideration. See Peck v. Bez, 129 W.Va. 247, 40 S.E.2d 1 (1946), where counsel for the plaintiff made reference to the defendant's religion and foreign nationality. This Court reversed stating "[t]hese matters, of course, were not pertinent to the matters in issue and had no place in the argument." 129 W.Va. at 263, 40 S.E.2d at 10. With uniform regularity, we have held that counsel should not be permitted to appeal to the jury's passions or prejudices. See generally Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); State v. Summerville, 112 W.Va. 398, 164 S.E. 508 (1932); Hendricks v. Monongahela West Penn Public Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932); State v. Hively, 108 W.Va. 230, 150 S.E. 729 (1929).

[33] The prosecution chose not to rebut evidence of the defendant being quiet or peaceful, which was permitted under Rule 404(a)(1), Rule 404(a)(2), and/or Rule 405.

[34] Rule 610 states: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."

[35] Although we recognize that the scope and extent of cross-examination lie within the discretion of the trial court, we believe it is important to underscore the principle of evidentiary law that no party has a right on cross-examination to offer irrelevant and incompetent evidence. See Doe v. U.S., 666 F.2d 43 (4th Cir.1981). The United States Supreme Court has noted that even the right to cross-examine witnesses may, in an appropriate case, "bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 309 (1973). We believe Rule 403 is one of those "other legitimate interests."

[36] Professor McCormick addressed the question as to how the curative admissibility rule is triggered: "If the [irrelevant] evidence ... is so prejudice-arousing that an objection or motion to strike cannot have erased the harm, then it seems that the adversary should be entitled to answer it as of right." McCormick on Evidence § 57 at 84 (4th ed. 1992). Certainly, any prejudice flowing from the father's testimony could have been cured by a motion to strike and by an instruction to disregard.

[37] Evidence is unfairly prejudicial if it has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Note, Fed.R.Evid. 403. Succinctly stated, evidence is unfairly prejudicial if it "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 403[03] at 403-15 to 403-17 (1978).

[38] Cert. denied sub nom. Hasting v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Williams v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Anderson v. U.S., 469 U.S. 1218, 105 S.Ct. 1199, 84 L.Ed.2d 343 (1985); Stewart v. U.S., 469 U.S. 1218, 105 S.Ct. 1200, 84 L.Ed.2d 343 (1985).

[39] See State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

[40] In O'Neal, the Supreme Court quoted with approval the following test of harmless error from the earlier case of Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557, 1566-67 (1946):

"If, when all is said and done, the [court] ... is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand[.] ... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."

[41] The only purpose this evidence could serve would be to prejudice the jury against the defendant. The defendant advises that at least one of the jurors was an African-American.

"It does not take much imagination to understand how such grossly biased comments would be viewed by the jury. We need not know the racial composition of the jury, for nearly all citizens find themselves repelled by such blatantly racist remarks and resentful of the person claimed to have uttered them." U.S. v. Ebens, 800 F.2d 1422, 1434 (6th Cir. 1986).

[42] A recess was held at the close of the defendant's cross-examination. Out of the presence of the jury, defense counsel moved for a mistrial:

"MR. WARNER: Your Honor, first of all, right before we closed, the Prosecutor cross examined my client on an alleged prior statement that he had made while sitting in the back of the police cruiser, immediately following the time that he apparently knew the person had died. The Prosecutor cross examined him, 'Didn't you say something to the effect, "Isn't that too bad",' or that type of statement.

"THE COURT: I think he said, 'Isn't that too bad. Do you think it will snow', or something like that.

* * * * * *

"MR. WARNER: Now that my thoughts are more clear, that statement was never, ever disclosed to us. I don't know if there is any foundation in fact for that statement at all. And I think it was terribly prejudicial at the same time. If I'm wrong on any of those points, the Prosecutor can correct me. And I would move for a mistrial based on that.

"MR. MORRIS: Judge, as I understood, that question was more or less a rebuttal question. He denied it. We are not able to prove by extraneous evidence anything he denies. That's pretty much—

"THE COURT: I think it was proper cross examination. The record will reflect what is in the transcript. Motion for a directed verdict [mistrial] is denied. I'll note your objection and exception."

Trial courts should preclude questions for which the questioner cannot show a factual and good faith basis. See generally State v. Banjoman, 178 W.Va. 311, 359 S.E.2d 331 (1987). Manifestly, mere inquiries by the prosecutor as to rumors may be highly prejudicial even though answered in the negative.

[43] Actually, this is not a real case of late disclosure; it is a case of no meaningful disclosure. From reading the record, it appears the first time this statement was disclosed was during cross-examination. At the very least, the prosecution should have approached the bench and revealed the existence of the statement before using it in the cross-examination of the defendant.

[44] E.E.O.C. v. Steamship Clerks Union Local 1066, 48 F.3d 594, 610 (1st Cir. 1995).

[45] "This is as it should be. Such ... will serve to justify trust in the prosecutor as 'the representative... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.' " Kyles v. Whitley, ___ U.S. ___, ___, 115 S.Ct. 1555, 1568, 131 L.Ed.2d 490, 509 (1995), quoting Berger v. U.S., 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935).

[1] The new instruction is essentially an adoption of the instruction previously offered by the Court in note 7 of Hatfield. See 169 W.Va. at 202, 286 S.E.2d at 410 n. 7.

[2] The word "reflect" is defined by Webster's as "to think quietly and calmly."

[3] The word "contemplate" is defined by Webster's as "to view or consider with continued attention."

Notes and Questions

1.    The Case and its Aftermath. Following Guthrie’s second trial, he was again convicted of first degree murder and sentenced to life in prison with the possibility of parole. He then made a subsequent appeal in 1997, which was denied by the Court. For information on the procedural history of Guthrie, please see this website. 

Guthrie has been denied parole three times (2003, 2006, and 2009) since becoming eligible. The National Organization of Parents of Murdered Children, Inc. has been involved in Guthrie’s parole denial. This organization strives to “give survivors a sense of control, as well as a positive outlet for the anger, frustration and disillusionment with the criminal justice system.” According to its website, the organization allows parents of homicide victims “to participate in the parole process by attempting to keep murderers behind bars for their minimum sentence, thus protecting society from potential repeat offenders.”

2.    Changing the Facts. Consider the elements required for both first and second degree murder. Based on the facts of this case, which degree of homicide do you think Guthrie was guilty of? Would your answer change if the facts instead indicated that Guthrie did not remove his gloves prior to stabbing the victim? 

3.   Changing the Law. Recall California’s homicide statutes. Based on the facts of this case, which degree of homicide do you think Guthrie would be guilty of in California? What statutory language in the California Penal Code did you find most helpful in making this assessment?

4.     Mental Health and the Criminal Justice System. As you read in the Guthrie case, the defendant suffered “from a host of psychiatric problems,” including panic attacks, chronic depression, body dysmorphic disorder, and borderline personality disorder. According to the National Alliance on Mental Illness, nearly 15% of men and 30% of women booked into jails live with serious mental illness. Despite these large numbers, the vast majority of these individuals are booked on nonviolent crimes. Once in jail, many individuals are denied proper mental health treatment and end up getting worse, instead of better. Considering that people experiencing a mental health crisis are more likely to encounter police than receive medical help, how do you think the criminal justice system could change to better care for people experiencing mental health crises?

One article offers the solution of “mental health courts, [which are] a form of collaborative court based on the highly successful drug court model that provides services and treatments to participants while emphasizing collaborative problem solving between all parties.” While not a perfect solution, it paves the way for a conversation amongst future lawyers regarding how to create a better system. 

5.    Supplemental Reading. For those interested in a deeper dive into the implications of incarcerating individuals with mental health disorders in facilities that are improperly trained to handle inmates with mental health needs, the article “Mentally Ill Individuals in Jails and Prisons” offers a helpful background and proposes interesting solutions. See Edward P. Mulvey and Carol A. Schubert. Mentally Ill Individuals in Jails and Prisons, 46 Crime & Just. 231 (2016). 

6.    Mental Illness and the Death Penalty. For information on mental illness and the death penalty, see also Herbert Richardson’s Background and Clemency Petition. 

Ronnie MIDGETT, Sr. v. STATE of Arkansas

CR 86-215

729 S.W.2d 410

Supreme Court of Arkansas

Opinion delivered May 25, 1987

[Supplemental Opinion on Denial of Rehearing June 29, 1987.*]

Edward T. Barry, for appellant.

Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.

*

Hickman, Hays and Glaze, JJ., would grant rehearing.

David Newbern, Justice.

This child abuse case resulted in the appellant’s conviction of first degree murder. The sole issue on appeal is whether the state’s evidence was sufficient to sustain the conviction. We hold there was no evidence of the “. . . premeditated and deliberated purpose of causing the death of another person . . .” required for conviction of first degree murder by Ark. Stat. Ann. § 41-1502(l)(b) (Repl. 1977). However, we find the evidence was sufficient to sustain a conviction of second degree murder, described in Ark. Stat. Ann. § 41-1503(l)(c) (Repl. 1977), as the appellant was shown to have caused his son’s death by delivering a blow to his abdomen or chest “. . . with the purpose of causing serious physical injury. . . .” The conviction is thus modified from one of first degree murder to one of second degree murder and affirmed.

The facts of this case are as heart-rending as any we are likely to see. The appellant is six feet two inches tall and weighs 300 pounds. His son, Ronnie Midgett, Jr., was eight years old and weighed between thirty-eight and forty-five pounds. The evidence showed that Ronnie Jr. had been abused by brutal beating over a substantial period of time. Typically, as in other child abuse cases, the bruises had been noticed by school personnel, and a school counselor as well as a SCAN worker had gone to the Midgett home to inquire. Ronnie Jr. would not say how he had obtained the bruises or why he was so lethargic at school except to blame it all, vaguely, on a rough playing little brother. He did not even complain to his siblings about the treatment he was receiving from the appellant. His mother, the wife of the appellant, was not living in the home. The other children apparently were not being physically abused by the appellant.

Ronnie Jr.’s sister, Sherry, aged ten, testified that on the Saturday preceding the Wednesday of Ronnie Jr.’s death their father, the appellant, was drinking whiskey (two to three quarts that day) and beating on Ronnie Jr. She testified that the appellant would “bundle up his fist” and hit Ronnie Jr. in the stomach and in the back. On direct examination she said that she had not previously seen the appellant beat Ronnie Jr., but she had seen the appellant choke him for no particular reason on Sunday nights after she and Ronnie Jr. returned from church. On cross-examination, Sherry testified that Ronnie Jr. had lied and her father was, on that Saturday, trying to get him to tell the truth. She said the bruises on Ronnie Jr.’s body noticed over the preceding six months had been caused by the appellant. She said the beating administered on the Saturday in question consisted of four blows, two to the stomach and two to the back.

On the Wednesday Ronnie Jr. died, the appellant appeared at a hospital carrying the body. He told hospital personnel something was wrong with the child. An autopsy was performed, and it showed Ronnie Jr. was a very poorly nourished and underdeveloped eight-year-old. There were recently caused bruises on the lips, center of the chest plate, and forehead as well as on the back part of the lateral chest wall, the soft tissue near the spine, and the buttocks. There was discoloration of the abdominal wall and prominent bruising on the palms of the hands. Older bruises were found on the right temple, under the chin, and on the left mandible. Recent as well as older, healed, rib fractures were found.

The conclusion of the medical examiner who performed the autopsy was that Ronnie Jr. died as the result of intra-abdominal hemorrhage caused by a blunt force trauma consistent with having been delivered by a human fist. The appellant argues that in spite of all this evidence of child abuse, there is no evidence that he killed Ronnie Jr. having premeditated and deliberated causing his death. We must agree.

It is true that premeditation and deliberation may be found on the basis of circumstantial evidence. That was the holding in House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959), where the evidence showed a twenty-four-year-old man killed a nineteen-year-old woman with whom he was attempting to have sexual intercourse. The evidence showed a protracted fight after which the appellant dumped the body in a water-filled ditch not knowing, according to House’s testimony, whether she was dead or alive. Although it is not spelled out, presumably the rationale of the opinion was that Hoiise had time to premeditate during the fight and there was substantial evidence he intended the death of the victim when he left her in the water. Our only citation of authority on the point of showing premeditation and deliberation by circumstantial evidence in that case was Weldon v. State, 168 Ark. 534, 270 S.W. 968 (1925), where we said:

The very manner in which the deadly weapons were used was sufficient to justify the jury in finding that whoever killed Jones used the weapons with a deliberate purpose to kill. Jones’ body was perforated three times through the center with bullets from a pistol or rifle, and was also horribly mutilated with a knife. The manner, therefore, in which these deadly weapons were used tended to show that the death of Jones was the result of premeditation and deliberation.

While a fist may be a deadly weapon, the evidence of the use of the fist in this case is not comparable to the evidence in House v. State, supra, and Weldon v. State, supra, where there was some substantial evidence consisting of other circumstances that the appellant who dumped the apparently immobile body in the water and walked away and the appellant who wielded the deadly weapons intended and premeditated that death occur. Nor do we have in this case evidence of any remark made or other demonstration that the appellant was abusing his son in the hope that he eventually would die.

The annotation at 89 A.L.R. 2d 396 (1963) deals with the subject of crimes resulting from excessive punishment of children. While some of the cases cited are ones in which a parent or step-parent flew into a one-time rage and killed the child, others are plain child abuse syndrome cases like the one before us now. None of them, with one exception, resulted in affirmance of a first degree murder conviction. Several were decisions in which first degree murder convictions were set aside for lack of evidence of premeditation and deliberation. See, e.g., People v. Ingraham, 232 N.Y. 245, 133 N.E. 575 (1921); Pannill v. Commonwealth, 185 Va. 244, 38 S.W.2d 457 (1946). The case cited in the annotation in which a first degree murder conviction was affirmed is Morris v. State, 270 Ind. 245, 384 N.E.2d 1022 (1979). There the appellant was left alone for about fifteen minutes with his five-month-old baby. When the child’s mother returned to their home she found the baby had been burned severely on one side. About a month later, the appellant and his wife were engaged in an argument when the baby began to whine. The appellant laid the baby on the floor, began hitting the baby in the face and then hit the baby’s head on the floor, causing the baby’s death. At the time of the offense, the Indiana law required malice, purpose, and premeditation to convict of first degree murder. In discussing the premeditation requirement, the court said only:

Premeditation which also may be inferred from the facts and circumstances surrounding the killing, need not long be deliberated upon, but may occur merely an instant before the act. [Citation omitted.] It is clear from the facts adduced at trial regarding the burning and beating of the child that the jury could well have inferred that his killing was perpetrated purposely and with premeditated malice. [384 N.E.2d at 1024]

No explanation is given for the quantum leap from “the facts,” horrible as they were, to the inference of premeditation. We made the same error in Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985), another child abuse case in which the facts were particularly repugnant, where we said:

Premeditation, deliberation and intent may be inferred from the circumstances of the case, such as the weapon used and the nature, extent and location of the wounds inflicted . . . . [T]he weapon used was a fist which struck the abdomen with such force as to rupture the colon. The child sustained fingernail scratches, four broken ribs, and other internal damage, as well as numerous bruises due to blows with a fist all over his body. The required mental state for first degree murder can be inferred from the evidence of abuse, which is substantial. [287 Ark. at 162-163, 697 S.W.2d at 98]

The problem with these cases is that they give no reason, like the reasons found in House v. State, supra, and Weldon v. State, supra, to make the inference of premeditation and deliberation.

In Simmons v. State, 227 Ark. 1109, 305 S.W.2d 119 (1957), the appellant was antagonized more than once by his victims. After the first time he went home and got his shotgun to use, he said, for hunting squirrels. We modified the conviction from first degree murder to second degree murder, noting that the appellant had opportunities to kill the victims after he had obtained his weapon but before he shot them. His having let those opportunities pass negated premeditation and deliberation. We said:

There is no testimony of any witness, aside from the testimony of appellant in open court and his written confession, from which the jury could have found the existence of premeditation and deliberation. Neither do we find any circumstance which amounts to substantial evidence upon which a finding of premeditation and deliberation could be based. Consequently we are led to conclude that the jury must have resorted to speculation rather than substantial evidence in arriving at a verdict of murder in the first degree. [227 Ark. at 110-111, 305 S.W.2d at 120]

The appellant argues, and we must agree, that in a case of child abuse of long duration the jury could well infer that the perpetrator comes not to expect death of the child from his action, but rather that the child will live so that the abuse may be administered again and again. Had the appellant planned his son’s death, he could have accomplished it in a previous beating.

In this case the evidence might possibly support the inference that the blows which proved fatal to Ronnie Jr. could have been struck with the intent to cause his death developed in a drunken, misguided, and overheated attempt at disciplining him for not having told the truth. Even if we were to conclude there was substantial evidence from which the jury could fairly have found the appellant intended to cause Ronnie Jr.’s death in a drunken disciplinary beating on that Saturday, there would still be no evidence whatever of a premeditated and deliberated killing.

In Ford v. State, 276 Ark. 98, 633 S.W.2d 3, cert. den. 459 U.S. 1022 (1980), we held that to show the appellant acted with a premeditated and deliberated purpose, the state must prove that he (1) had the conscious object to cause death, (2) formed that intention before acting, and (3) weighed in his mind the consequences of a course of conduct, as distinguished from acting upon sudden impulse without the exercise of reasoning power. Viewing the evidence most favorable to the appellee, the circumstances of this case are not substantial evidence the appellant did (2) and (3), as opposed to acting on impulse or with no conscious object of causing death. The jury was thus forced to resort to speculation on these important elements.

A clear exposition of the premeditation and deliberation requirement which separates first degree from second degree murder is found in 2 W. LaFave and A. Scott, Jr., Substantive Criminal Law § 7.7 (1986):

Almost all American jurisdictions which divide murder into degrees include the following two murder situations in the category of first degree murder: (1) intent-to-kill murder where there exists (in addition to the intent to kill) the elements of premeditation and deliberation, and (2) felony murder where the felony in question is one of five or six listed felonies, generally including rape, robbery, kidnapping, arson and burglary. Some states instead or in addition have other kinds of first degree murder.

(a) Premeditated, Deliberate, Intentional Killing. To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words “premeditate” and “deliberate” as they are used in connection with first degree murder. Perhaps the best that can be said of “deliberation” is that it requires a cool mind that is capable of reflection, and of “premeditation” that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.

It is often said that premeditation and deliberation require only a “brief moment of thought” or a “matter of seconds,” and convictions for first degree murder have frequently been affirmed where such short periods of time were involved. The better view, however, is that to “speak of premeditation and deliberation which are instantaneous, or which take no appreciable time,. . . destroys the statutory distinction between first and second degree murder,” and (in much the same fashion that the felony-murder rule is being increasingly limited) this view is growing in popularity. This is not to say, however, that premeditation and deliberation cannot exist when the act of killing follows immediately after the formation of the intent. The intention may be finally formed only as a conclusion of prior premeditation and deliberation, while in other cases the intention may be formed without prior thought so that premeditation and deliberation occurs only with the passage of additional time for “further thought, and a turning over in the mind.” [Footnotes omitted.]

The evidence in this case supports only the conclusion that the appellant intended not to kill his son but to further abuse him or that his intent, if it was to kill the child, was developed in a drunken, heated, rage while disciplining the child. Neither of those supports a finding of premeditation or deliberation.

Perhaps because they wish to punish more severely child abusers who kill their children, other states’ legislatures have created laws permitting them to go beyond second degree murder. For example, Illinois has made aggravated battery one of the felonies qualifying for “felony murder,” and a child abuser can be convicted of murder if the child dies as a result of aggravated battery. See People v. Ray, 399 N.E.2d 977 (Ill. App. 1979). Georgia makes “cruelty to children” a felony, and homicide in the course of cruelty to children is “felony murder.” See Bethea v. State, 304 S.E. 2d 713 (Ga. 1983). Idaho has made murder by torture a first degree offense, regardless of intent of the perpetrator to kill the victim, and the offense is punishable by the death penalty. See State v. Stuart, 715 P.2d 833 (Idaho 1985). California has also adopted a murder by torture statute making the offense murder in the first degree without regard to the intent to kill. See People v. Demond, 59 Cal. App. 3d 574, 130 Cal.Rptr. 590 (1976). Cf People v. Steger, 128 Cal. Rptr. 161, 546 P.2d 665 (1976), in which the California Supreme Court held that the person accused of torture murder in the first degree must be shown to have had a premeditated intent to inflict extreme and prolonged pain in order to be convicted.

All of this goes to show that there remains a difference between first and second degree murder, not only under our statute, but generally. Unless our law is changed to permit conviction of first degree murder for something like child abuse or torture resulting in death, our duty is to give those accused of first degree murder the benefit of the requirement that they be shown by substantial evidence to have premeditated and deliberated the killing, no matter how heinous the facts may otherwise be. We understand and appreciate the state’s citation of Burnett v. State, supra, but, to the extent it is inconsistent with this opinion, we must overrule it. The dissenting opinion begins by stating the majority concludes that one who starves and beats a child to death cannot be convicted of murder. That is not so, as we are affirming the conviction of murder; we are, however, reducing it to second degree murder.

The dissenting opinion’s conclusion that the appellant starved Ronnie Jr., must be based solely on the child’s underdeveloped condition which could, presumably, have been caused by any number of physical malfunctions. There is no evidence the appellant starved the child. The dissenting opinion says it is for the jury to determine the degree of murder of which the appellant is guilty. That is true so long as there is substantial evidence to support the jury’s choice. The point of this opinion is to note that there was no evidence of premeditation or deliberation which are required elements of the crime of first degree murder. The dissenting opinion cites two child abuse cases in which first degree murder convictions have been affirmed. One is Morris v. State, supra, with which we dealt earlier in this opinion. The other, is Lindsey v. State, 501 S.W.2d 647 (Tex. Crim. App. 1973), in which the opinion does not say the conviction was for first degree murder. In fact, the issue there was whether the killing occurred with “intent and malice” which are obviously not the same as premeditation and deliberation.

In this case we have no difficulty with reducing the sentence to the maximum for second degree murder. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). The jury gave the appellant a sentence of forty years imprisonment which was the maximum for first degree murder, and we reduce that to twenty years which is the maximum imprisonment for second degree murder. Just as walking away from the victim in the water-filled ditch in House v. State, supra, after a protracted fight, and the “overkill” and mutilation of the body in Weldon v. State, supra, were circumstances creating substantial evidence of premeditation and deliberation, the obvious effect the beatings were having on Ronnie Jr. and his emaciated condition when the final beating occurred are circumstances constituting substantial evidence that the appellant’s purpose was to cause serious physical injury, and that he caused his death in the process. That is second degree murder, § 41-1503(l)(c). Therefore, we reduce the appellant’s sentence to imprisonment for twenty years.

Affirmed as modified.

Hickman, Hays, and Glaze, JJ., dissent.

Darrell Hickman, Justice, dissenting. 

Simply put, if a parent deliberately starves and beats a child to death, he cannot be convicted of the child’s murder. In reaching this decision, the majority overrules a previous unanimous decision and substitutes its judgment for that of the jury. The majority has decided it cannot come to grips with the question of the battered child who dies as a result of deliberate, methodical, intentional and severe abuse. A death caused by such acts is murder by any legal standard, and that fact cannot be changed—not even by the majority. The degree of murder committed is for the jury to decide—not us.

Convictions for murder resulting from child abuse have become more common in our courts. That is probably because such cases are being reported more often and prosecutors are more apt to seek retribution.

The decision of what charge to file in a homicide case rests with the prosecuting attorney. He has the duty to prove the charge. The decision of whether the state has proved the crime rests with the jury. Our role is only to determine if substantial evidence exists to support the verdict.

Sometimes the facts may warrant a charge of second degree murder. We have affirmed convictions for second degree murder in two such cases. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984); Limber v. State, 264 Ark. 479, 572 S.W.2d 402 (1978).

Whether the particular acts of child abuse amount to first degree murder depend on the particular facts and circumstances in each case. Just as in any other murder case, the state must prove each element of the crime. For a first degree murder conviction, the state must prove premeditation and deliberation.

We have never held motive relevant to murder, nor do we even try to look into the warped minds that commit murder to make their acts rational. Parker v. State, 290 Ark. 158, 717 S.W.2d 800 (1986). Consequently, circumstantial evidence usually plays a strong part in determining intent in any murder case.

In this case the majority, with clairvoyance, decides that this parent did not intend to kill his child, but rather to keep him alive for further abuse. This is not a child neglect case. The state proved Midgett starved the boy, choked him, and struck him several times in the stomach and back. The jury could easily conclude that such repeated treatment was intended to kill the child.

In Burnett v. State, supra, the state chose to seek a first degree murder conviction. The child was killed in an extremely horrible way. He was malnourished and dehydrated, bruises on his face and upper and lower extremities, four broken ribs, a ruptured colon, and abrasions. His life was made intolerable and insufferable until at last a blow killed him. The parents, who could not have been unaware or innocent, were found guilty of killing him, which they did. We unanimously upheld that jury verdict. It was no “quantum leap” on our part (whatever that means), just a decision based on the facts and the law. The majority unanimously joined in the Burnett decision.

The facts in this case are substantial to support a first degree murder conviction. The defendant was in charge of three small children. The victim was eight years old and had been starved; he weighed only 38 pounds at the time of his death. He had multiple bruises and abrasions. The cause of death was an internal hemorrhage due to blunt force trauma. His body was black and blue from repeated blows. The victim’s sister testified she saw the defendant, a 30 year old man, 6’2” tall, weighing 300 pounds, repeatedly strike the victim in the stomach and back with his fist. One time he choked the child.

The majority is saying that as a matter of law a parent cannot be guilty of intentionally killing a child by such deliberate acts. Why not? Is it because it is inconceivable to rational people that a parent would intend to kill his own child? Evidently, this is the majority’s conclusion, because they hold the intention of Midgett was to keep him alive for further abuse, not kill him. How does the majority know that? How do we ever know the actual or subliminal intent of a defendant? “If the act appellant intended was criminal, then the law holds him accountable, even though such result was not intended.” Hankins v. State, 206 Ark. 881, 178 S.W.2d 56 (1944); see also Black v. State, 215 Ark. 618, 222 S.W.2d 816 (1949). There is no difference so far as the law is concerned in this case than in any other murder case. It is simply a question of proof. This parent killed his own child, and the majority cannot accept the fact that he intended to do just that.

Undoubtedly, the majority could accept it if the child were murdered with a bullet or a knife; but they cannot accept the fact, and it is a fact, that this defendant beat and starved his own child to death. His course of conduct could not have been negligent or unintentional.

Other states have not hesitated to uphold a conviction for first degree murder in such cases. Morris v. State, 384 N.E.2d 1022 (Ind. 1979); Lindsey v. State, 501 S.W.2d 647 (Tex. 1973). The fact that some states (California and Idaho) have passed a murder by torture statute is irrelevant. Those statutes may make it easier to prosecute child murderers, but they do not replace or intend to replace the law of murder. Whether murder exists is a question of the facts—not the method. The majority spends a good deal of effort laboring over the words “premeditation and deliberation,” ignoring what the defendant did. Oliver Wendell Holmes said: “We must think things not words . . .” Holmes, “Law in Science and Science in Law,” Collected Legal Papers, p. 238 (1921). If what Midgett did was deliberate and intentional, and that is not disputed, and he killed the child, a jury can find first degree murder.

I cannot fathom how this father could have done what he did; but it is not my place to sit in judgment of his mental state, nor allow my human feelings to color my judgment of his accountability to the law. The law has an objective standard of accountability for all who take human life. If one does certain acts and the result is murder, one must pay. The jury found Midgett guilty and, according to the law, there is substantial evidence to support that verdict. That should end the matter for us. He is guilty of first degree murder in the eyes of the law. His moral crime as a father is another matter, and it is not for us to speculate why he did it.

I would affirm the judgment.

Hays and Glaze, JJ., join in the dissent.

Supplemental Opinion on Denial of Rehearing

June 29, 1987

731 S.W.2d 774

1. Appeal & error — no basis for granting rehearing. — Where appellant only reargues a question raised on appeal he presents no basis for granting rehearing. [Ark. Sup. Ct. R. 20(g).]

2. Criminal law — first degree murder. — Ark. Stat. Ann. § 41-1502(3) (Supp. 1985) provides that first degree murder is a class Y felony, and a person convicted of a class Y felony may be sentenced to a term of not less than ten years and not more than forty years, or life.

3. Appeal & error — insufficient proof to support jury’s VERDICT OF A HIGHER OFFENSE — APPELLATE COURT MAY REDUCE sentence. — If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter and the appellate court, in its discretion, may reduce the sentence to that prescribed for the lesser offense.

Petition for Rehearing; denied.

David Newbern, Justice.

The appellant only reargues the question whether there was evidence of premeditation and deliberation and thus presents no basis for granting rehearing. Arkansas Supreme Court and Court of Appeals Rule 20(g). However, both parties have pointed out an error of law in our opinion. We stated that the maximum sentence for first degree murder is forty years imprisonment. We should have said the maximum term of years is forty. The statute provides first degree murder is a class Y felony, Ark. Stat. Ann. § 41-1502(3) (Supp. 1985), and a person convicted of a class Y felony may be sentenced to a term of not less than ten years and not more than forty years, or life. The jury thus sentenced the appellant to the maximum determinate sentence for first degree murder, although it was not the ultimate maximum sentence, i.e., life imprisonment.

The appellant argues, in his response to the appellee’s request for rehearing, that we should grant a new trial so that a jury may set the sentence for second degree murder. We decline to do so, as we regard the maximum sentence to be supported by the evidence in the record, and as we said in Collins v. State, 261

Ark. 195, 548 S.W.2d 106 (1977):

If the evidence proves insufficient to support a jury’s verdict of a higher offense, the trial court may sentence the defendant for a lesser included offense where the evidence clearly shows the commission of the latter (and this court, in its discretion, may reduce the sentence to that prescribed for the lesser offense). Caton v. State, 252 Ark. 420, 479 S.W.2d 537 [1972]. This rule applies in murder cases as well as for other felonies. Simpson v. State, 56 Ark. 8, 19 S.W. 99 [1892]. [261 Ark. at 209, 548 S.W.2d at 114.]

The sentence has been reduced to one within the range prescribed for second degree murder, and we find that sentence to be justified by the evidence in the record.

Rehearing denied.

Hickman, Hays, and Glaze, JJ., would grant.

Notes and Questions

1.  In the Aftermath of the Case. After Midgett was decided, the Arkansas Attorney General’s office drafted a bill with the intention of “broadening the scope of first degree murder to include cases of child abuse resulting in death.” The Arkansas legislature subsequently amended their law to provide that   “[a] person commits murder in the first degree if … [u]nder circumstances manifesting cruel and malicious indifference to the value of human life, he knowingly causes the death of a person fourteen years of age or younger.” Paul H. Taylor, Criminal Law—Child Abuse Resulting in Death—Arkansas Amends Its First Degree Murder Statute, 10 U. ARK. LITTLE ROCK L. REV. 785 (1988).

Would this amendment have changed the outcome in Midgett? Why or why not?

2.  Changing the Facts. Assume the facts of Midgett, except that on the night of Ronnie Jr.’s death, Ronnie Jr. broke a vase in the family home. Before beating Ronnie Jr., Ronnie Jr.’s sister recalled hearing the defendant tell Ronnie Jr. “I’m going to kill you for that!” If you were Midgett’s defense counsel, how might you argue that Midgett’s actions were not premeditated or deliberate?

3.   Comparing Two Crimes. After reading both Guthrie and Midgett, does the crime committed in the Guthrie case seem worse than the one in Midgett? Is the problem with the statute or the application of it? Do you think the problem has been remedied by the statutory amendment in Note 1?

4.    Child Abuse at Common Law. For more information on the history of child abuse and whether parents could be charged with killing their children at common law, please see Stephen J. Pfohl’s Article: The “Discovery” of Child Abuse. 

5.     Secondary Trauma. The facts in Midgett, as with much of the material in this class, is tough to read. Some of you may be experiencing what is known as “secondary trauma”--the mental toll exacted by working with, reading about, or witnessing acts of violence. Some of you may find this reading helpful in managing the distress that comes from reading some of the materials found in this casebook. 

6.  The role of masculinity. Most violent crimes are committed by men. Why? One current theory is that men face pressure not to express emotions that make them appear weak.  

Support for this theory comes from an Impact Justice survey of men who were convicted of violent crimes and sentenced to lengthy prison terms. These men experienced many different kinds of trauma at rates much greater than those in the general population. Read the results (in an interactive format) here: The Things They Carry: Understanding Trauma, Men and Cycles of Violence.

Based on this reading, what might you imagine Midgett's childhood was like? Was he born violent, or was he made violent? Which seems more likely to you? How might this change our approach to preventing crime and our approach to responding to it (ie, rehabilitative versus retributive strategies)--or does it not change anything for you?

STATE OF NORTH CAROLINA v. JOHN FORREST

321 N.C. 186

No. 705A86

(Filed 2 December 1987)

1. Homicide § 24.1— shooting terminally ill parent — instructions on malice

In a murder prosecution where defendant had shot and killed his incurably and terminally ill father, the trial court did not err by instructing the jury that it could infer from the use of a deadly weapon that the killing was unlawful and committed with malice, and did not instruct the jury that malice should be presumed.

2. Homicide § 27.1— shooting of terminally ill parent — instructions—heat of passion doctrine

In a murder prosecution arising from defendant’s shooting of his terminally ill father, the trial court’s instruction on malice was not incomplete in that it failed to define “just cause, excuse, or justification.” The “heat of passion” doctrine is meant to reduce murder to manslaughter where defendant kills without premeditation and deliberation and without malice, but under the heat of passion suddenly aroused which makes the mind temporarily incapable of reflection. This defendant, though clearly upset by his father’s condition, indicated by his actions and his statements that his crime was premeditated and deliberate.

3. Homicide § 23.1— instructions — definition of malice

The trial judge did not err in its instruction on malice in a first degree murder prosecution by failing to explicitly and specifically qualify the particular definition of malice as “that condition of mind that prompts a person to take the life of another intentionally” with the phrase “without just cause, excuse or justification.” The instruction given was consistent with the N.C. Pattern Jury Instructions, has been approved by the Supreme Court on numerous occasions, and is in essence the same as that which defendant argues.

4. Homicide § 18.1— killing of terminally ill parent — evidence of premeditation and deliberation — sufficient

There was sufficient evidence of premeditation and deliberation to submit a first degree murder charge to the jury where it was clear that the seriously ill deceased did nothing to provoke defendant’s action; the deceased was lying helpless in a hospital bed when defendant shot him four separate times; defendant’s revolver was a five-shot single-action gun which had to be cocked each time before it could be fired; although defendant testified that he always carried the gun in his job as a truck driver, he was not working on the day in question; and defendant stated after the incident that he had thought about putting his father out of his misery because he knew he was suffering, that he had promised his father that he would not let him suffer, and that he could not stand to see his father suffer any more.

5. Criminal Law § 122.2— divided jury — inquiry into division — additional instructions — no error

The trial court did not err in a murder prosecution by inquiring into the numerical division of the jury or in its instructions to the jury about deliberating toward a verdict where the inquiry and instructions were not coercive when viewed in the totality of the circumstances.

Chief Justice Exum dissenting.

BEFORE Cornelius, J., and a jury at the 30 June 1986 Special Criminal Session of Superior Court, MOORE County, defendant was convicted of first-degree murder. From that conviction and the subsequent imposition of a sentence of life imprisonment entered by Judge Cornelius, defendant appeals as of right pursuant to N.C.G.S. § 7A-27(a). Heard in the Supreme Court 13 October 1987.

Lacy H. Thornburg, Attorney General, by William P. Hart, Assistant Attorney General, for the State.

Van Camp, Gill, Bryan & Webb, P.A., by James R. Van Camp, for defendant-appellant.

MEYER, Justice.

Defendant was convicted of the first-degree murder of his father, Clyde Forrest. The State having stipulated before trial to the absence of any statutory aggravating factors under N.C.G.S. § 15A-2000, the case was tried as a noncapital case, and defendant was sentenced accordingly to life imprisonment. In his appeal to this Court, defendant brings forward three assignments of error relative to the guilt-innocence phase of his trial. Having considered the entire record and each of these assignments in turn, we find no error in defendant’s trial. We therefore leave undisturbed defendant’s conviction and life sentence.

The facts of this case are essentially uncontested, and the evidence presented at trial tended to show the following series of events. On 22 December 1985, defendant John Forrest admitted his critically ill father, Clyde Forrest, Sr., to Moore Memorial Hospital. Defendant’s father, who had previously been hospitalized, was suffering from numerous serious ailments, including severe heart disease, hypertension, a thoracic aneurysm, numerous pulmonary emboli, and a peptic ulcer. By the morning of 23 December 1985, his medical condition was determined to be unbeatable and terminal. Accordingly, he was classified as “No Code,” meaning that no extraordinary measures would be used to save his life, and he was moved to a more comfortable room.

On 24 December 1985, defendant went to the hospital to visit his ailing father. No other family members were present in his father’s room when he arrived. While one of the nurse’s assistants was tending to his father, defendant told her, “There is no need in doing that. He’s dying.” She responded, “Well, I think he’s better.” The nurse’s assistant noticed that defendant was sniffing as though crying and that he kept his hand in his pocket during their conversation. She subsequently went to get the nurse.

When the nurse’s assistant returned with the nurse, defendant once again stated his belief that his father was dying. The nurse tried to comfort defendant, telling him, “I don’t think your father is as sick as you think he is.” Defendant, very upset, responded, “Go to hell. I’ve been taking care of him for years. I’ll take care of him.” Defendant was then left alone in the room with his father.

Alone at his father’s bedside, defendant began to cry and to tell his father how much he loved him. His father began to cough, emitting a gurgling and rattling noise. Extremely upset, defendant pulled a small pistol from his pants pocket, put it to his father’s temple, and fired. He subsequently fired three more times and walked out into the hospital corridor, dropping the gun to the floor just outside his father’s room.

Following the shooting, defendant, who was crying and upset, neither ran nor threatened anyone. Moreover, he never denied shooting his father and talked openly with law enforcement officials. Specifically, defendant made the following oral statements: “You can’t do anything to him now. He’s out of his suffering.” “I killed my daddy.” “He won’t have to suffer anymore.” “I know they can burn me for it, but my dad will not have to suffer anymore.” “I know the doctors couldn’t do it, but I could.” “I promised my dad I wouldn’t let him suffer.”

Defendant’s father was found in his hospital bed, with several raised spots and blood on the right side of his head. Blood and brain tissue were found on the bed, the floor, and the wall. Though defendant’s father had been near death as a result of his medical condition, the exact cause of the deceased’s death was determined to be the four point-blank bullet wounds to his head. Defendant’s pistol was a single-action .22-calibre five-shot revolver. The weapon, which had to be cocked each time it was fired, contained four empty shells and one live round.

At the close of the evidence, defendant’s case was submitted to the jury for one of four possible verdicts: first-degree murder, second-degree murder, voluntary manslaughter, or not guilty. After a lengthy deliberation, the jury found defendant guilty of first-degree murder. Judge Cornelius accordingly sentenced defendant to the mandatory life term.

Defendant assigns three specific errors relative to his conviction at trial: first, that the trial court committed reversible error in its instruction to the jury concerning the issue of malice; second, that the trial court committed reversible error in its submission of the first-degree murder charge to the jury because there was insufficient evidence of premeditation and deliberation; third and finally, that the trial court committed reversible error when, during jury deliberation, it inquired into the jury’s numerical division and subsequently instructed the jury about deliberating toward a verdict. We deal with each assignment of error in turn.

I.

[1] In his first assignment of error, defendant asserts that the trial court committed reversible error in its instruction to the jury concerning the issue of malice. Defendant makes three specific arguments in support of his position on this assignment of error. First, states defendant, the instruction permitting an inference of malice from the use of a deadly weapon on these particular facts constituted an impermissible shift of the burden of persuasion on the issue of malice to defendant. Second, continues defendant, the trial court erred in giving incomplete instructions on the element of malice and in thereby improperly suggesting that the mitigating evidence presented at trial neither negated malice nor showed heat of passion. Third, concludes defendant, the trial court erred more generally in giving instructions on malice which were simply erroneous and misleading. We find each of defendant’s arguments unpersuasive, and we therefore overrule this assignment of error.

On the issue of malice, the trial court consistently instructed the jury as follows:

Malice means not only hatred, ill-will or spite, as it is ordinarily understood; to be sure that’s malice. But it also means that condition of the mind that prompts a person to take the life of another intentionally, or to intentionally inflict serious bodily harm which proximately results in his death without just cause, excuse or justification.

If the State proves beyond a reasonable doubt that the defendant killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximatley [sic] caused the victim’s death you may infer, first, that the killing was unlawful. Second, that it was done with malice. But you are not compelled to do so. You may consider this, along with all other facts and circumstances in determining whether the killing was unlawful and whether it was done with malice.

I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death. But you may consider such belief in determining whether the killing was done with malice.

It is this instruction to which defendant now assigns error.

Defendant first argues that, on the particular facts of this case, the trial court’s instruction permitting an inference of malice from the use of a deadly weapon improperly shifted the burden of persuasion on the issue of malice to defendant. Here, claims defendant, where the facts presented tended to show a distraught son who wanted merely to end his father’s suffering, the evidence in fact negated the element of malice. According to defendant, there was no rational connection here between the fact proved (intentional use of a dangerous weapon) and the fact inferred (malice). Therefore, concludes defendant, use of an inference under these circumstances was tantamount to shifting the burden of persuasion to defendant, because first, the jury was encouraged to draw the inference regardless of any other evidence presented, and second, it was told, in effect, that the inference could not be overcome — that the direct evidence was not a “legal defense.” We cannot agree.

The instruction employed by the trial court is in accord with the North Carolina Pattern Jury Instructions and with extensive North Carolina case law. See State v. Reynolds, 307 N.C. 184, 297 S.E. 2d 532 (1983); State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604 (1979). Significantly, the trial court did not instruct the jury that malice should be presumed. On the contrary, the trial court instructed the jury that it “may infer” that the killing was unlawful and committed with malice, but that it was not compelled to do so. The trial court properly instructed the jury that it should consider this permissive inference along with all the other facts and circumstances, including defendant’s belief that his father was terminally ill or in danger of immediate death, in deciding whether the State had proven malice beyond a reasonable doubt. Defendant’s first argument therefore lacks merit.

[2] Defendant argues second that the trial court erred in giving incomplete instructions on the issue of malice, thereby improperly suggesting that any mitigating evidence presented did not negate malice or show heat of passion. While conceding that the instruction here was technically correct, defendant claims that it was nevertheless inadequate and misleading in that it failed to define what was meant by the phrase “just cause, excuse or justification.” According to defendant, there is abundant evidence in the record that, upon seeing his father at the hospital, he was overwhelmed by the futile, horrible suffering before him and that, in a highly emotional state, he killed to bring relief to the man he deeply loved. The jury instruction employed by the trial court, concludes defendant, because it did not instruct on heat of passion, for all intents and purposes precluded the jury from considering these critical facts in mitigation of the offense. We do not agree with defendant, and we hold that a heat of passion jury instruction on facts such as those of the case at bar is improper.

In essence, defendant asks this Court to hold that his extreme distress over his father’s suffering was adequate provocation, as in the “heat of passion” doctrine, to negate the malice element required for a murder conviction. Our Court has held on numerous occasions that, under certain circumstances, one who kills another human being in the “heat of passion,” produced by adequate provocation sufficient to negate malice, is guilty of manslaughter rather than murder. State v. Robbins, 309 N.C. 771, 309 S.E. 2d 188 (1983); State v. Jones, 299 N.C. 103, 261 S.E. 2d 1(1979). A killing in the “heat of passion” on sudden and adequate provocation means a killing without premeditation under the influence of a sudden passion which renders the mind incapable of cool reflection. State v. Jones, 299 N.C. 103, 261 S.E. 2d 1; State v. Jennings, 276 N.C. 157, 171 S.E. 2d 447 (1970).

Significantly, our Court has narrowly construed the requirement under the “heat of passion” doctrine that provocation be adequate and reasonable. We have held, for example, that mere words or insulting language, no matter how abusive, can never be adequate provocation and can never reduce murder to manslaughter under the “heat of passion” doctrine. State v. McCray, 312 N.C. 519, 324 S.E. 2d 606 (1985); State v. Montague, 298 N.C. 752, 259 S.E. 2d 899 (1979). We have held as adequate provocation an assault or threatened assault, State v. Montague, 298 N.C. 752, 259 S.E. 2d 899; State v. Williams, 296 N.C. 693, 252 S.E. 2d 739 (1979), and the discovery of the deceased spouse and a paramour in the act of intercourse, State v. Ward, 286 N.C. 304, 210 S.E. 2d 407, vacated in part 428 U.S. 903, 49 L.Ed. 2d 1207 (1974).

We are unwilling to hold that, as in the case at bar, where defendant kills a loved one in order to end the deceased’s suffering, adequate provocation to negate malice is necessarily present. The “heat of passion” doctrine is meant to reduce murder to manslaughter when defendant kills without premeditation and deliberation and without malice, but rather under the influence of the heat of passion suddenly aroused which renders the mind temporarily incapable of cool reflection. State v. Jones, 299 N.C. 103, 261 S.E. 2d 1. Here, irrefutable proof of premeditation and deliberation is clearly present. This defendant, though clearly upset by his father’s condition, indicated by his actions and his statements that his crime was premeditated and deliberate.

The instruction employed by the trial court was correct, and we reject this second of defendant’s arguments that the jury instructions constitute reversible error.

[3] Defendant argues third that the trial court committed reversible error in giving instructions on the issue of malice which were erroneous and generally misleading. Defendant’s objection here is essentially a grammatical one and is directed at that portion of the jury instruction which reads as follows:

[Malice] also means that condition of the mind that prompts a person to take the life of another intentionally, . . . without just cause, excuse or justification.

The trial court, argues defendant, failed to explicitly and specifically qualify the particular definition of malice as “that condition of the mind that prompts a person to take the life of another intentionally” with the important phrase “without just cause, excuse or justification.” This, claims defendant, almost certainly led the jury to conclude that the intentional shooting alone required them to find malice, despite any evidence to the contrary. The trial court, adds defendant, should have defined malice in its instruction as follows:

That condition of the mind which prompts a person, without just cause, excuse or justification to take the life of another intentionally

or

to intentionally inflict serious bodily harm which proximately results in his death.

We do not agree, and we therefore decline defendant’s invitation to adopt a new jury instruction concerning the issue of malice. The instruction employed by the trial court is consistent with the North Carolina Pattern Jury Instructions and is the very instruction we have previously expressly approved on numerous occasions. State v. Reynolds, 307 N.C. 184, 297 S.E. 2d 532; State v. Patterson, 297 N.C. 247, 254 S.E. 2d 604. Moreover, the instruction used at trial is, on its face, in essence the same as that for which defendant argues. Defendant’s third argument in support of this assignment of error is without merit, and the assignment as a whole is hereby overruled.

II.

[4] In his second assignment of error, defendant asserts that the trial court committed reversible error in denying his motion for directed verdict as to the first-degree murder charge. Specifically, defendant argues that the trial court’s submission of the first-degree murder charge was improper because there was insufficient evidence of premeditation and deliberation presented at trial. We do not agree, and we therefore overrule defendant’s assignment of error.

We recently addressed this very issue in the case of State v. Jackson, 317 N.C. 1, 343 S.E. 2d 814 (1986). Our analysis of the relevant law in that case is instructive in the case at bar:

Before the issue of a defendant’s guilt may be submitted to the jury, the trial court must be satisfied that substantial evidence has been introduced tending to prove each essential element of the offense charged and that the defendant was the perpetrator. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837 (1984); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114(1980). Substantial evidence must be existing and real, but need not exclude every reasonable hypothesis of innocence. State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 177, reh’g denied, 464 U.S. 1004, 78 L.Ed. 2d 704 (1983). In considering a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and inference to be drawn therefrom. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837; State v. Bright, 301 N.C. 243, 271 S.E. 2d 368 (1980). Contradictions and discrepancies in the evidence are for the jury to resolve and do not warrant dismissal. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808 (1985); State v. Powell, 299 N.C. 95, 261 S.E. 2d 114.

First-degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. State v. Fleming, 296 N.C. 559, 251 S.E. 2d 430 (1979); N.C.G.S. § 14-17 (1981 and Cum. Supp. 1985). Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808; State v. Myers, 299 N.C. 671, 263 S.E. 2d 768 (1980). Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. State v. Hamlet, 312 N.C. 162, 321 S.E. 2d 837; State v. Bush, 307 N.C. 152, 297 S.E. 2d 563 (1982). The phrase “cool state of blood” means that the defendant’s anger or emotion must not have been such as to overcome his reason. State v. Myers, 299 N.C. 671, 263 S.E. 2d 768.

Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead, they usually must be proved by circumstantial evidence. State v. Buchanan, 287 N.C. 408, 215 S.E. 2d 80 (1975). Among other circumstances to be considered in determining whether a killing was with premeditation and deliberation are: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the *196 defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner. State v. Brown, 315 N.C. 40, 337 S.E. 2d 808; State v. Williams, 308 N.C. 47, 301 S.E. 2d 335, cert. denied, 464 U.S. 865, 78 L.Ed. 2d 117, reh’g denied, 464 U.S. 1004, 78 L.Ed. 2d 704.  We have also held that the nature and number of the victim’s wounds is a circumstance from which premeditation and deliberation can be inferred. State v. Bullard, 312 N.C. 129, 322 S.E. 2d 370 (1984); State v. Brown, 306 N.C. 151, 293 S.E. 2d 569, cert. denied, 459 U.S. 1080, 74 L.Ed. 2d 642(1982).

Jackson, 317 N.C. at 22-23, 343 S.E. 2d at 827.

As in Jackson, we hold in the present case that there was substantial evidence that the killing was premeditated and deliberate and that the trial court did not err in submitting to the jury the question of defendant’s guilt of first-degree murder based upon premeditation and deliberation. Here, many of the circumstances that we have held to establish a factual basis for a finding of premeditation and deliberation are present. It is clear, for example, that the seriously ill deceased did nothing to provoke defendant’s action. Moreover, the deceased was lying helpless in a hospital bed when defendant shot him four separate times. In addition, defendant’s revolver was a five-shot single-action gun which had to be cocked each time before it could be fired. Interestingly, although defendant testified that he always carried the gun in his job as a truck driver, he was not working on the day in question but carried the gun to the hospital nonetheless.

Most persuasive of all on the issue of premeditation and deliberation, however, are defendant’s own statements following the incident. Among other things, defendant stated that he had thought about putting his father out of his misery because he knew he was suffering. He stated further that he had promised his father that he would not let him suffer and that, though he did not think he could do it, he just could not stand to see his father suffer any more. These statements, together with the other circumstances mentioned above, make it clear that the trial court did not err in submitting to the jury the issue of first-degree murder based upon premeditation and deliberation. Accordingly, defendant’s second assignment of error is overruled.

III.

[5] In his third assignment of error, defendant asserts that the trial court committed reversible error when it inquired into the numerical division of the deliberating jury and when it subsequently instructed the jury about deliberating toward a verdict. Defendant claims that the trial court’s actions taken in context were sufficiently coercive of the jury as to deny him a fair trial. We have recently addressed this very issue in a similar case, and we simply do not agree.

During its deliberation at trial, the jury returned to the courtroom on several occasions with a specific question. On one such occasion, the exchange between the trial court and the jury proceeded as follows:

[COURT]: Mrs. Kelly, as Foreperson of the jury, you have submitted a question to the Court. You have indicated that you are unable at this time to come to a unanimous decision. You would like the Court to advise you. Is that your question?

Foreperson: Yes, sir.

COURT: Listen very carefully to what I ask you. I’m going to ask you the numerical division. I don’t want you to tell me which way; just tell me the division numberwise the way the jury is now constituted.

FOREPERSON: You mean in numbers?

COURT: Yes, ma’m [sic].

FOREPERSON: Eleven to one.

COURT: And has that number remained the same throughout the proceedings, or has it shifted from time to time?

FOREPERSON: No, sir. It has been constant.

COURT: Members of the jury, your Foreperson has indicated that you’ve been unable to reach a verdict at this particular point. The Court wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict in this matter. You should reason the matter over together as reasonable men and women and to reconcile your differences if you can without the surrendering of your conscientious convictions. But no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of a fellow juror, or for the mere purpose of returning a verdict. The Court will now let you return to the jury room to continue with your deliberations, and when you’ve reached a unanimous verdict — please see if you can reach a unanimous verdict. If you can please knock on the door.

It was this inquiry and instruction by the trial court to which defendant now assigns error.

The disposition of defendant’s assignment of error is controlled by our recent decision in the very similar case of State v. Bussey, 321 N.C. 92, 361 S.E. 2d 564 (1987). There, as here, defendant challenged the trial court’s inquiry into the numerical division of the deliberating jury and its instruction concerning deliberating further toward a verdict. In Bussey, we reaffirmed our holding in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389 (1984), that such cases are to be decided by employing a totality of the circumstances test. Bussey, 321 N.C. 92, 361 S.E. 2d 564. Therefore, the proper analysis here is whether, upon consideration of the totality of the circumstances, the inquiry and instruction of the trial court were unduly coercive.

As in Bussey, we hold here that, when viewed in the totality of the circumstances, the challenged inquiry and instruction were not coercive of the jury’s verdict. Our exact analysis in Bussey is appropriate in the case at bar as well:

The record shows that the presiding judge made it perfectly clear from the outset that he did not wish to be told whether the majority favored guilt or innocence. He was at all times respectful of the jury, never impugning its efforts or threatening it with being held for unreasonable periods of time to accomplish a unanimous verdict. The judge was confronted with a report of deadlock .... He properly exercised his discretion to hold the jurors to their duty to deliberate thoroughly together before concluding that they were indeed unable to agree. The judge’s additional instructions in response to the first inquiry of the jury hew closely to the language of N.C.G.S. § 15A-1235. They are notable for the balance he achieved between recalling the jurors to their duty to deliberate fully and reminding them that their duty also required them to stand fast for their convictions after full reflection. Nor is there the slightest reference in his remarks to burdens on the administration of justice, to wasted court resources, or to the necessity of empanelling another jury in the event of a mistrial. The trial judge’s instructions and remarks were well within the rules established in State v. Fowler, 312 N.C. 304, 322 S.E. 2d 389, and State v. Alston, 294 N.C. 577, 243 S.E. 2d 354 (1978).

Id. at 97, 361 S.E. 2d at 567.

In oral argument, defendant placed particular emphasis upon the final two sentences of the trial court’s instruction to the jury, claiming that this amounted to pleading by the court that the jury reach a verdict. Specifically, the court concluded its instruction to the jury as follows:

The Court will now let you return to the jury room to continue with your deliberations, and when you’ve reached a unanimous verdict — please see if you can reach a unanimous verdict. If you can please knock on the door.

Assuming, arguendo, as defendant argues, that these two sentences, if taken out of context, might be considered of questionable propriety, we find that, in the context of the court’s total instruction and, in particular, of its admonishment to the jury that no juror should surrender any conscientious convictions, this passage is not coercive and does not constitute error in the court’s instructions.

In conclusion, having reviewed the record and each of defendant’s assignments of error, we find that defendant had a fair trial, free of prejudicial error. Accordingly, we leave undisturbed defendant’s conviction of the first-degree murder of Clyde Forrest and his sentence of life imprisonment.

No error.

Chief Justice Exum Dissenting.

Almost all would agree that someone who kills because of a desire to end a loved one’s physical suffering caused by an illness which is both terminal and incurable should not be deemed in law as culpable and deserving of the same punishment as one who kills because of unmitigated spite, hatred or ill will. Yet the Court’s decision in this case essentially says there is no legal distinction between the two kinds of killing. Our law of homicide should not be so roughly hewn as to be incapable of recognizing the difference. I believe there are legal principles which, when properly applied, draw the desirable distinction and that both the trial court and this Court have failed to recognize and apply them.

The difference, legally, between the two kinds of killings hinges on the element of malice, the former being without, and the latter with, malice. The absence of malice, however, does not mean the killing is justified or excused so as not to be unlawful; it means simply that the killing is mitigated so as not to be murder but manslaughter. Our cases have traditionally recognized the distinction between mitigation and excuse in the law of homicide. State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), and cases therein cited and discussed.

The error in the trial court’s instructions stems from the failure to recognize this difference between mitigation and excuse. The trial court instructed that malice was “that condition of mind that prompts a person to take the life of another intentionally .. . without just cause, excuse or justification.” This instruction, correct insofar as it goes, is incomplete. The trial court should have added “and without mitigation.”

Failure to include circumstances in mitigation as capable of rebutting malice, in effect, precluded the jury from considering at all defendant’s reasons for killing his father on the issue of whether he acted with malice. The instructions were that only matters which excused the killing altogether were sufficient to rebut the element of malice! The trial court then told the jury that defendant’s reasons for killing his father would not excuse the killing, saying,

I charge that it is not a legal defense to the offense of murder if the defendant, John Forrest, at the time of the shooting believed his father, Clyde Forrest, to be terminally ill or in danger of immediate death.

Although the trial court followed this immediately with, “But you may consider such belief in determining whether the killing was done with malice,” he gave the jury no theory by which the circumstances might in law rebut the inference of malice which arose from the intentional killing with a deadly weapon. In essence this instruction was superfluous because the jury had already been told that only legal defenses, as opposed to circumstances in mitigation, could be considered on the issue of malice. At best the instructions were conflicting on the crucial element in the case. Ordinarily this kind of error calls for a new trial. State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969).

The jury’s confusion concerning the malice instructions is revealed by their three requests that the trial court repeat them and the trial court’s finally submitting them to the jury in writing.

For this error in the trial court’s instructions, I vote to give defendant a new trial.

Notes and Questions

1.  Forrest and its aftermath. State v. Forrest is the first case in which the North Carolina Supreme Court addressed the issue of “mercy killing.” According to a North Carolina Law Review article, defendants in mercy killing cases are rarely convicted of murder because their stories are often sympathetic to juries. What role, if any, did motive play in the court’s ruling in Forrest? Do you think motive should matter in assessing blameworthiness? 

2.    Comparing Two Cases. Do you find Mr. Forrest less blameworthy than Mr. Midgett? Is your answer based on a legal principle, and, if so, how would you articulate that principle? If it isn’t, and it is simply based on your moral intuitions, then what does that say about the objectivity and consistency of law? Does justice simply depend on the state actors' sensibilities in any given case? 

3.  The Homicide Trio. Forrest, Guthrie, and Midgett are three cases designed to work together to achieve the particular ends of showing that moral culpability or blameworthiness does not always map onto legal culpability and punishment. Guthrie provides the groundwork for premeditation, exposing the limited utility of premeditation both as a legal construct and also as a metric for identifying the most heinous killings. With this in mind, consider the outcomes in Forrest and Midgett.

Does Forrest shows a “wrong” result, i.e. a defendant is found guilty of murder because of premeditation evidence, in spite of the lack of malice, as least in the colloquial sense of the word? Do you agree that Midgett showcases a “wrong” result in the opposite direction -- a heinous killing that might merit our harshest punishment is nonetheless deemed only second-degree due to (what the Court deems) a lack of premeditation? 

Think about these cases as you reflect on the relationship between morality and the law. Do these cases demonstrate that punishment is based more on the satisfaction of the elements of a statute than blameworthiness?

4.    Benevolent Murder. The aphorism “the road to hell is paved with good intentions” is particularly relevant to this case because while Forrest intended to put his father out of his misery, he still committed murder. Should benevolent intent be a factor when considering how to charge the perpetrator of a crime?

Herbert Lee Richardson Background

Herbert Lee Richardson Clemency Petition

321 Md. 532 (1991)

583 A.2d 718

STEVEN SAUNDERS GIROUARD

v.

STATE OF MARYLAND.

No. 65, September Term, 1989.

Court of Appeals of Maryland.

January 8, 1991.

COLE, Judge.

In this case we are asked to reconsider whether the types of provocation sufficient to mitigate the crime of murder to manslaughter should be limited to the categories we have heretofore recognized, or whether the sufficiency of the provocation should be decided by the factfinder on a case-by-case basis. Specifically, we must determine whether words alone are provocation adequate to justify a conviction of manslaughter rather than one of second degree murder.

The Petitioner, Steven S. Girouard, and the deceased, Joyce M. Girouard, had been married for about two months on October 28, 1987, the night of Joyce's death. Both parties, who met while working in the same building, were in the army. They married after having known each other for approximately three months. The evidence at trial indicated that the marriage was often tense and strained, and there was some evidence that after marrying Steven, Joyce had resumed a relationship with her old boyfriend, Wayne.

On the night of Joyce's death, Steven overheard her talking on the telephone to her friend, whereupon she told the friend that she had asked her first sergeant for a hardship discharge because her husband did not love her anymore. Steven went into the living room where Joyce was on the phone and asked her what she meant by her comments; she responded, "nothing." Angered by her lack of response, Steven kicked away the plate of food Joyce had in front of her. He then went to lie down in the bedroom….

[Steven testified that Joyce followed him into the bedroom, and their fight escalated. Joyce repeatedly insulted him and told him that “the marriage had been a mistake.”] 

[Steven] left the bedroom with his pillow in his arms and proceeded to the kitchen where he procured a long handled kitchen knife. He returned to Joyce in the bedroom with the knife behind the pillow. He testified that he was enraged and that he kept waiting for Joyce to say she was kidding, but Joyce continued talking.… Joyce reiterated that the marriage was a big mistake, that she did not love him and that the divorce would be better for her….

[Steven then] lunged at her with the kitchen knife he had hidden behind the pillow and stabbed her 19 times. Realizing what he had done, he dropped the knife and went to the bathroom to shower off Joyce's blood. Feeling like he wanted to die, Steven went back to the kitchen and found two steak knives with which he slit his own wrists. He lay down on the bed waiting to die, but when he realized that he would not die from his self-inflicted wounds, he got up and called the police, telling the dispatcher that he had just murdered his wife.

When the police arrived they found Steven wandering around outside his apartment building. Steven was despondent and tearful and seemed detached, according to police officers who had been at the scene. He was unconcerned about his own wounds, talking only about how much he loved his wife and how he could not believe what he had done. Joyce Girouard was pronounced dead at the scene….

Steven Girouard was convicted, at a court trial in the Circuit Court for Montgomery County, of second degree murder and was sentenced to 22 years incarceration, 10 of which were suspended…. We granted certiorari to determine whether the circumstances of the case presented provocation adequate to mitigate the second degree murder charge to manslaughter.

Petitioner relies primarily on out of state cases to provide support for his argument that the provocation to mitigate murder to manslaughter should not be limited only to the traditional circumstances of: extreme assault or battery upon the defendant; mutual combat; defendant's illegal arrest; injury or serious abuse of a close relative of the defendant's; or the sudden discovery of a spouse's adultery. Petitioner argues that manslaughter is a catchall for homicides which are criminal but that lack the malice essential for a conviction of murder. [Petitioner] argues that the trial judge did find provocation (although he held it inadequate to mitigate murder) and that the categories of provocation adequate to mitigate should be broadened to include factual situations such as this one.

The State counters by stating that although there is no finite list of legally adequate provocations, the common law has developed to a point at which it may be said there are some concededly provocative acts that society is not prepared to recognize as reasonable. Words spoken by the victim, no matter how abusive or taunting, fall into a category society should not accept as adequate provocation. According to the State, if abusive words alone could mitigate murder to manslaughter, nearly every domestic argument ending in the death of one party could be mitigated to manslaughter. This, the State avers, is not an acceptable outcome. Thus, the State argues that the courts below were correct in holding that the taunting words by Joyce Girouard were not provocation adequate to reduce Steven's second degree murder charge to voluntary manslaughter.

Initially, we note that the difference between murder and manslaughter is the presence or absence of malice. Voluntary manslaughter has been defined as "an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool." 

There are certain facts that may mitigate what would normally be murder to manslaughter. For example, we have recognized as falling into that group: (1) discovering one's spouse in the act of sexual intercourse with another; (2) mutual combat; (3) assault and battery. There is also authority recognizing injury to one of the defendant's relatives or to a third party, and death resulting from resistance of an illegal arrest as adequate provocation for mitigation to manslaughter. Those acts mitigate homicide to manslaughter because they create passion in the defendant and are not considered the product of free will. 

In order to determine whether murder should be mitigated to manslaughter we look to the circumstances surrounding the homicide and try to discover if it was provoked by the victim. Over the facts of the case we lay the template of the so-called "Rule of Provocation." The courts of this State have repeatedly set forth the requirements of the Rule of Provocation:

1. There must have been adequate provocation;
2. The killing must have been in the heat of passion;
3. It must have been a sudden heat of passion — that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool;
4. There must have been a causal connection between the provocation, the passion, and the fatal act.

We shall assume without deciding that the second, third, and fourth of the criteria listed above were met in this case. We focus our attention on an examination of the ultimate issue in this case, that is, whether the provocation of Steven by Joyce was enough in the eyes of the law so that the murder charge against Steven should have been mitigated to voluntary manslaughter. For provocation to be "adequate," it must be "calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason." The issue we must resolve, then, is whether the taunting words uttered by Joyce were enough to inflame the passion of a reasonable man so that that man would be sufficiently infuriated so as to strike out in hot-blooded blind passion to kill her. Although we agree with the trial judge that there was needless provocation by Joyce, we also agree with him that the provocation was not adequate to mitigate second degree murder to voluntary manslaughter.

Although there are few Maryland cases discussing the issue at bar, those that do hold that words alone are not adequate provocation. ….[W]ords can constitute adequate provocation if they are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm. …

Other jurisdictions overwhelmingly agree with our cases and hold that words alone are not adequate provocation. …

Thus, with no reservation, we hold that the provocation in this case was not enough to cause a reasonable man to stab his provoker 19 times. … The standard is one of reasonableness; it does not and should not focus on the peculiar frailties of mind of the Petitioner. That standard of reasonableness has not been met here. We cannot in good conscience countenance holding that a verbal domestic argument ending in the death of one spouse can result in a conviction of manslaughter. We agree with the trial judge that social necessity dictates our holding. Domestic arguments easily escalate into furious fights. We perceive no reason for a holding in favor of those who find the easiest way to end a domestic dispute is by killing the offending spouse.

We will leave to another day the possibility of expansion of the categories of adequate provocation to mitigate murder to manslaughter. The facts of this case do not warrant the broadening of the categories recognized thus far.

JUDGMENT AFFIRMED WITH COSTS.

Notes and Questions

1.    Biases of the Reasonable Man. In California, the standard for adequate provocation "is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion […] to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” People v. Beltran, 56 Cal. 4th 935, 948 (2013), (citing People v. Logan,  175 Cal. 45, 49 (1917)). Do you see any inherent bias in the way such a standard is worded? Would an "ordinary man" react differently in a provocative situation than an "ordinary woman"? At common law, witnessing one's spouse in the act of adultery was grounds to mitigate murder to manslaughter. Consider that adultery was once viewed as the “'highest invasion of [a husband’s] property,” and that  “a ‘reasonable man’ might be provoked to kill his adulterous wife, but not his adulterous fiancée or common-law wife.” Brief for San Francisco Domestic Violence Consortium et al. as Amici Curiae Supporting the People of the State of California, People v. Beltran, 56 Cal. 4th 935 (2013) (No. S192644.), 2012 WL 1859371 at 7-8. Can courts now use this justification to mitigate a husband’s killing of his adulterous wife from murder to manslaughter? Could the same justification be used to defend a wife who killed her adulterous husband?  

2.    Are Words Ever Enough? Do you believe that there is ever a circumstance in which words could constitute adequate provocation? Suppose that P is a person of color who hears a rumor that X, Y, and Z murdered somebody in a hate crime. He is walking home alone when all of a sudde, he is surrounded by several people wearing Swastikas. He recognizes X, Y, and Z in the group. They yell racial slurs at him and promise to hurt him and his family. If P kills one of them and asserts a provocation defense, will he succeed under Girouard? Would it make a difference if he had personally witnessed the prior hate-crime murder? In Girouard, the court ruled that “words alone are not adequate provocation,” reasoning that Joyce’s words were not “accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm.” But what if the words constitute real threats? Is there a substantive difference between the weight of the words used by X, Y, and Z (racial slurs and threats) and words agreeing to commit a criminal conspiracy? For more on the intersection between race and criminal law, see Cynthia Lee’s Article: Race and the Criminal Law Curriculum.

3.    Further Thinking. “Under the common law, the doctrine of provocation developed along the lines of fixed categories of conduct by the victim, paradigms of misbehavior, which the law recognized as sufficiently provocative to mitigate what would otherwise be malicious conduct by the defendant." Brown v. United States, 584 A.2d 537 (D.C. App. 1990). As cited in Girouard, examples of the categorical acts that constitute adequate provocation to mitigate murder to manslaughter include "discovering one’s spouse in the act of sexual intercourse with another; mutual combat; assault and battery […] injury to one of the defendant’s relatives or to a third party, and death resulting from resistance of an illegal arrest."  

However, the modern trend in many states, including California, "move[s] away from specified categories of provocation to a more generalized standard based on the concept of an ordinary person of average disposition, leaving for the jury whether the given facts show adequate provocation." People v. Beltran, 56 Cal. 4th 935, 947 (2013).

What problems do you see with the common law provocation doctrine limiting provocation to explicitly stated behaviors? What does the common law assume about an objective, “reasonable man”? Are the flaws in these assumptions remedied by inviting the jury to decide what an “ordinary person of average disposition” is? Is the absence of objective evidence to support such inferences a fatal flaw, or is it actually consistent with the jury's role throughout the US criminal legal system? 

4.    How Much Evidence. Typically, it is left to the jury to decide what constitutes a "reasonable opportunity for the passion to cool." How should we determine what is a "reasonable opportunity for the passion to cool?" Does this standard necessarily bar evidence of provocative conduct that occurred long before the killing?

Imagine that student A is deathly allergic to peanuts. Even their scent causes A to suffer anaphylaxis, which of course induces great fear in A. B, knowing of A's situation, purposefully brings a bag of peanuts to class and opens them next to A. A goes into anaphylactic shock and is hospitalized overnight. The next day, A returns to class and kills B. What result under Girouard? What result under Maher v. People, 10 Mich. 212 (1862) (stating “the principle involved in the question [of what constitutes adequate provocation] would seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment” (emphasis added))? What result under the common law provocation rule’s objective examples? What result under California law? 

Now imagine that for years, M has been bullied by T. One day, M finally snaps in direct response to one of T's abusive episodes and kills T. Should evidence illustrating M and T's earlier interactions be taken into consideration when deciding whether M has a provocation defense or should the jury only consider the event immediately preceding M's killing of T? What result under Girouard? What result under Maher? If the jury used Beltran (note 3, above) could they decide whether the time it takes to react to bullying is a part of what constitutes the reaction of an ordinary person of average disposition? If so, should the defense and prosecution be allowed to present evidence of what “most people” would do? What result under the common law provocation rule’s objective examples?

5.    Excuse and Justification. Are these examples excuses--things that we do not punish as harshly because “most people act that way”--or justifications--circumstances that justify the act? What about the common law provocation doctrine involving a wife’s infidelity? (See Note 1, above) How might this be complicated by gender (see note 8, below)?

6.    Another Hypothetical. Suppose a woman, D, hears that her son has been hit by a blue SUV and is severely injured. A witness with faulty memory recites the license plate. After several hours, D identifies what she believes is the car involved in the accident and confronts the driver of the car, V. In reality, V had nothing to do with the accident. However, blinded by her rage, D ends up killing V. What result under Girouard? Under the MPC? 

7.    Taunting Between Strangers. Suppose a fight between strangers at a bar ensues. One patron begins taunting another and yells, “if you have a pistol, take it out and use it!” The other patron walks outside of the bar to his car, retrieves his gun, and returns to the bar. He shoots the victim several times, killing him. Arguing as the prosecution and then as the defense, does this taunting constitute adequate provocation in a Girouard jurisdiction? What about under California law? See People v. Manriquez, 37 Cal. 4th 547, 584, 123 P.3d 614 (2005).

8.    Traditional Common Law Approach. Common law held that a “reasonable man” must be judged by a wholly objective test, completely eliminating a defendant's physical condition and characteristics. If, as in Girouard, the words-alone rule were abandoned, would you change the common law’s view on a “reasonable man”? What if the defendant was only 4 feet 5 inches tall, and the victim 6 feet--should the court be permitted to consider the defendant’s physical stature in deciding whether there was adequate provocation? What language indicates that physical characteristics/size differences came into play in Girouard? What result if Joyce had advanced combat training and Steven had not? 

9.     Gender and the Reasonable Man. Consider the common law’s “reasonable man” standard as you read through these statistics.

•         “Of the [homicide] offenders for whom gender was known, 90.3 percent were males.” U.S. Department of Justice Federal Bureau of Investiagtion, Uniform Crime Report: Crime in the United States (2010)
•         “Females are generally murdered by people they know. In 64% of female homicide cases in 2007, females were killed by a family member or intimate partner.” Bureau of Justice Statistics, Victims of Violence (2009)
•         Over half of female homicides are products of intimate partner violence. Center of Disease Control. Petrosky E., et al. Racial and Ethnic Differences in Homicides of Adult Women and the Role of Intimate Partner Violence, MMWR Morb mortal Wkly Rep 2017; 66: 741-746 (2003-2014)

Often, adequate provocation reflects a traditional male view of self control, mostly because homicide statistics are largely male dominated. Should jurors consider gender when deciding whether the accused falls under a “reasonable man” standard? How should jurors judge the accused if she identifies as a woman and claims she was adequately provoked - by the reasonable man standard, or something else? 

If men are statistically more likely to be violent, does that mean that the law should regard women who kill as less reasonable when they respond with violence to provocation?  What is the ongoing utility for the provocation defense, in the face of gender and other disparities? (i.e. does it help safeguard values such as fairness or blameworthiness?).    

Finally, it may be that norms about traditional masculinity themselves actually contribute to violence. "Masculine ideals, such as the restriction of emotional expression and the pressure to conform to expectations of dominance and aggression, may heighten the potential for boys to engage in general acts of violence including, but not limited to, bullying, assault, and/or physical and verbal aggression." If true, this means that a solution may lie in recognizing "gender-related social norms and seek[ing] to change the way men view and express themselves...."

11.    A True Hypothetical. Consider the case of Commonwealth v. Carr, 398 Pa. Super. 306, 580 A.2d 1362 (1990). Sarah was on a hike when she stopped to have a snack. She pulled out a sandwich and sat on a nearby rock. When she put her backpack down, a knife fell out of her pocket, landing next to her foot. John, a man who grew up afraid of knives, spotted Sarah. He saw the knife and became enraged. John pulled out his gun, shooting Sarah five times and killing her. John defended himself stating that he shot Sarah in the heat of passion, caused by serious provocation of seeing the knife, which reminded him of an abusive childhood. He presented evidence that his step-father used to threaten John with knives.

The court concluded that evidence of John’s fears was inadmissible: “It is not adequate provocation to reduce an unlawful killing from murder to voluntary manslaughter. It is not an event which is sufficient to cause a reasonable person to become so impassioned as to be incapable of cool reflection.” Id. The court continued, arguing that John’s past did not establish adequate provocation.

Imagine you are John’s defense counsel. What statutes, legal standards, or case langage from the above materials would be most helpful in arguing that John’s childhood background should mitigate the murder charge to manslaughter? 

Now imagine you are prosecuting John for the death of Sarah. What statutes, legal standards, or case language would be most helpful in arguing that John’s childhood is irrelevant? 

Would your analysis of adequate provocation change if Sarah hypothetically yelled, “Stop staring at me, freak!” If so, why? What part of the provocation doctrine would that fall under?

11.    Examining Beltran. The Beltran case involved a man in a long-term abusive relationship with the victim, his former girlfriend. (There was a history of restraining orders and multiple 911 calls). He killed her after a violent argument, during which she told him “I killed your bastard. I got an abortion.” Beltran sought, but was denied, an instruction on provocation. He was convicted of second degree murder. 

Do you believe that there is ever a circumstance in which words could constitute adequate provocation? 

12.    Prison Hypothetical. Suppose a prisoner becomes upset at how a guard is treating him. In particular, the guard accuses the prisoner of wearing something not allowed in prison, and the guard tries to remove the article of clothing from the prisoner. The prisoner extricates himself from the situation, goes back to his cell, grabs a shiv, and then returns to stab the guard. What would be the result of pleading extreme emotional distress per the Model Penal Code? What about “heat of passion” per the common law (Girouard) approach? Does the stressful environment of prison, combined with abuse from the prison guards, justify stabbing a guard when the guard attempts to forcibly take something from the prisoner that the prisoner sees as valuable? For more, see Johnson v. State, 2016 Ark. 156, 489 S.W.3d 668 (2016).

13.    Extreme Emotional Disturbance. The MPC states that a criminal homicide constitutes manslaughter when “a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.”  States such as Oregon also use language of “extreme emotional disturbance” in their manslaughter statutes. When reading the next case, consider whether the MPC approach solves any problems you may have identified with adequate provocation, and/or whether it introduces any new problems. 

686 P.2d 1001 (1984)

297 Or. 375

STATE of Oregon, Respondent On Review,

v.

Calvin Roy OTT, Petitioner On Review.

No. TC 80-522-C, CA A23254, SC 29428.

Supreme Court of Oregon, In Banc.

Argued and Submitted August 2, 1983.

Decided July 10, 1984.

LENT, Justice.

The primary issue is how a jury is to be instructed on "extreme emotional disturbance" for the purpose of determining whether a criminal homicide is murder or manslaughter. The defendant was charged with murder for killing his wife in April, 1980. It is undisputed that the defendant killed her intentionally; the dispute is whether he was under the influence of extreme emotional disturbance. If he was, he would be guilty of manslaughter rather than murder.

At that time ORS 163.115 provided:

(1) * * * [C]riminal homicide constitutes murder when:

(a) It is committed intentionally by a person who is not under the influence of an extreme emotional disturbance.

* * *

(2) For the purposes of paragraph (a) of subsection (1) of this section, a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be.

…

The defendant was convicted of murdering his wife. At trial he did not contest the accusation that he killed her intentionally. Instead, he adduced evidence to mitigate the charge of murder to that of manslaughter by showing that he was under the influence of an extreme emotional disturbance during the killing.

The Evidence

A description of the evidence and the facts which could be found therefrom as perceived by the defendant is relevant to the question of whether he could have been found by the jury to be under the influence of extreme emotional disturbance when he committed the criminal homicide, thereby necessitating an instruction on extreme emotional disturbance. There was evidence of the following:

The defendant exhibited instability after his discharge from the Air Force in 1972. He "drifted in various parts of the United States" and put "very little order to his life." In 1975 he returned to his mother's home in Grants Pass and stayed there intermittently.

At some point after his return to Grants Pass, he began to cohabit with a woman who had three children. This lasted for a little over a year. The woman then asked the defendant to move out because of his drinking and unannounced disappearances. She was three months' pregnant by him at the time.

The defendant then enrolled at Rogue Community College at Grants Pass. There he met the now deceased Stephanie Elaine Brinkley, whom he married three weeks after their initial meeting. Some months after their marriage, they had a fight over "money matters" and separated. ...

Defendant attempted to return to his wife; however, she had begun seeing someone else. Defendant attempted to fight Stephanie's new lover. Stephanie intervened, sent her new lover away and promised that her conduct would not be repeated.

There were other separations, and the defendant, upon his return from each separation and his learning of more infidelities, became progressively more upset. This was especially so after the birth of their first child. …

He had been warned by the "authorities" to stay away from Stephanie. She apparently caused him to be placed under a judicial restraining order; however, despite her obtaining the order, Stephanie telephoned him regarding their divorce. They engaged in an apparently protracted series of arguments on the telephone over child custody, which eventuated in the defendant's arrest and jailing for harassment. Even though they engaged in arguments and fights, they continued to associate. Defendant could not stay away from Stephanie and Stephanie did not always discourage his attentions.

In 1980 Stephanie began to live with another man. This conduct affected the defendant, as before, with tension and "stress." The defendant's reaction was even more intense than before, and he threatened to kill Stephanie on several occasions.

In early April, 1980, Stephanie's son, Jonathan (defendant's stepson), broke his arm and was in the hospital. The defendant and Stephanie met each other at the hospital in order to visit with the child on three occasions. It was arranged that on the third occasion the defendant was to drive Stephanie home after hospital visiting hours were over. Defendant had the impression from their first two meetings at the hospital that the relationship was improving. He was thus angered and disappointed when his wife's new lover appeared at the hospital on their third meeting to take her home. Defendant left the hospital in a state of agitation. He retrieved a .22 rifle that he had stored at the home of a friend, caught up with his wife and her lover, ran their truck off the road and shot his wife three times. ...

History of Mitigating Factor

Before addressing how a jury should be charged in a case where the influence of extreme emotional disturbance may reduce an intentional criminal homicide from murder to manslaughter, we pause to examine the history of the mitigating factor.

The defense of extreme emotional disturbance is a modification of the defense of provocation or heat of passion. The provocation defense is very old. The distinction between a slaying in cold blood and one in the heat of passion existed in Anglo-Saxon criminal law and survived the Norman conquest of 1066. The "Doctrine of Provocation" became firmly established in the law in 1628 when Coke adopted the distinction between homicide committed after deliberation and homicide committed in the course of a sudden quarrel… Then, as now, manslaughter … depended on the presence of heat of passion caused by adequate provocation. …

In the mid-nineteenth century, the judgment as to whether a provocation was adequate for the heat of passion defense was made by the judge as a determination of law; however, judges gradually began to leave borderline cases to the jury. The reasonable man standard of review for provocation was devised as a manner of instructing the jury on marginal cases. It was also a device for enabling the jury to serve as community conscience or standard of measure for reasonable behavior. …

This has been said to be an objective test, meaning that neither the mental nor physical peculiarities of the accused are evaluated in determining whether his loss of self-control was reasonable. …

The common law heat of passion or provocation defense placed the jury in the conceptually awkward (to put it kindly) position of having to determine when it is reasonable for a reasonable man to act unreasonably. (Granville Williams, Provocation and the Reasonable Man, 1954 Crim.L.Rev. 740, 742).

Another writer comments that: "Abandonment of the reasonable man standard would simplify the jury's task because the inquiry into the accused's own mental state is more concretely grounded in reality than are conjectures about a mythical reasonable man."

The Model Penal Code [adopted by Oregon in 1970]

The drafters of the Model Penal Code were aware of the anomaly and pointed out that harsh and unjust results were obtained from applying the objective test for provocation. They cited State v. Gounagias, 88 Wash. 304, 153 P. 9 (1915), as a model of an unjust result achieved through application of the objective test for provocation. …

[That case involved a defendant who, humiliated after being raped by a man in his community, asked him not to tell others about the incident. The assailant persisted in spreading the story, which resulted in defendant’s being shamed and isolated from his community. After an angry confrontation with the assailant, defendant went home, got a gun and returned to kill the assailant. The court denied defendant’s request for mitigation from murder to manslaughter, finding Gounagias has waited too long after the original incident for provocation to be invoked.]

The drafters of the Model Penal Code found it "shocking" to disregard that the passage of time served only to increase rather than diminish Gounagias' outrage as the story became known. Model Penal Code Tentative draft No. 9 § 201.3 at 48. They said:

"…in such a situation as Gounagias, where lapse of time increased rather than diminished the extent of the outrage perpetrated on the actor, as he became aware that his disgrace was known, it was shocking in our view to hold this vital fact to be irrelevant. …"

[in 1971, Oregon revised its homicide law along the lines of the Model Penal Code, to provide: "a homicide which would otherwise be murder is committed under the influence of extreme emotional disturbance when such disturbance is not the result of the person's own intentional, knowing, reckless or criminally negligent act, and for which disturbance there is a reasonable explanation. The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor's situation under the circumstances as the actor reasonably believes them to be." (italics added)]

The Trial Court's Instruction

[At the close of the trial, the court instructed the jury using the above statutory language. As is common practice, it provided additional instructions, which included the following]:

"I instruct you that the concept of extreme emotional disturbance involves several issues, all of which must be considered by you. One, the homicidal act must have been committed under the influence of an extreme emotional disturbance, and two, the extreme emotional disturbance must not be the result of the Defendant's own intentional, knowing, reckless or criminally negligent act. Thus, a person may not form an intent to commit murder and later because of that intent become extremely emotionally disturbed, and three, the extreme disturbance must be an extreme emotional disturbance. You are instructed that there are varying degrees of emotional disturbance. Not every disturbance is an extreme emotional disturbance in the law. In determining what the term extreme means with reference to extreme emotional disturbance I instruct you that the term means the outermost or furthest, most remote in any direction, final or last, and four, there must be a reasonable explanation to the extreme emotional disturbance and its resulting homicidal act.” [italics added]

Both in the trial court and on appeal the defendant has argued that the term "extreme emotional disturbance" is made up of words of ordinary meaning, not given any special definition by the legislature and, therefore, there is no reason or need for a trial court to enlarge upon them for the benefit of the jury. …

We agree with the defendant that the jury should be instructed on the meaning of the whole term rather than singling out the word "extreme" for amplification. The point of the extreme emotional disturbance defense is to provide a basis for mitigation that differs from a finding of mental defect or disease to such an extent as altogether to preclude criminal responsibility.

… The notion of "extreme" provided for the jury … is consonant with an understanding of emotional disturbance that might preclude criminal responsibility. The words "outermost or furthest, most remote in any direction, final or last," as used by the court to define "extreme," would seem to require a state of mind so far from the norm as to be characteristic of a mental illness. The defense was meant to be understood in more relative terms as referring to a loss of self-control due to intense feelings.

…

We have still to determine how a jury is to determine whether there was a reasonable explanation for the emotional disturbance. This is a sensitive task because the Oregon statute requires that the "reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person," ORS 163.135(1). On the other hand, the statute requires that the reasonableness of the interpretation must be judged from the standpoint of "the actor's situation under the circumstances as the actor reasonably believes them to be." The juxtaposition of these two requirements for determining the adequacy of the explanation prevents the adequacy from being determined on either wholly objective or subjective grounds. The words "ordinary person" and "reasonableness of the explanation" recall the reasonable man standard of the heat of passion defense, which is an objective test, while the requirement of taking into account the actor's situation suggests a more subjective analysis…

Donovan and Wildman in their article, Is the Reasonable Man Obsolete? A Critical Perspective on Self-Defense and Provocation, hypothesize the following example:

An Asian-American man, Harold Sato, who had been interned in a detention camp for Japanese during World War II, faces repeated racial prejudice at his job. One day after repeated racial slurs from a co-worker he kills the co-worker. 14 Loyola L.Rev. 435, 438 (1981). 

The authors observe:

The anomaly of a purely objective standard of provocation is underlined by Mr. Sato's case. * * * A reasonable man, viewed in the abstract, is not likely to be roused to the heat of passion by a verbal insult. However, an Asian-American who had been interned in a concentration camp is likely to be roused to the heat of passion by racial slurs. To the extent that a jury is not allowed to consider Mr. Sato's racial background and previous experience of racial discrimination in determining his moral culpability, Mr. Sato is more likely to be convicted of murder * * * than of voluntary manslaughter. Id at 449.

By requiring the factfinder to focus on a person in the defendant's "situation," the drafters of the Model Penal Code sought to work change. One writer, relying upon the Model Penal Code commentary, has put it:

[I]t makes the test more, although not entirely, subjective, by requiring the jury to test the reasonableness of the actor's conduct, ‘from the viewpoint of a person in the actor's situation.’ Thus, the actor's sex, sexual preference, pregnancy, physical deformities, and similar characteristics are apt to be taken into consideration in evaluating the reasonableness of the defendant's behavior. (Footnotes omitted.) Dressler, Rethinking Heat of Passion: A Defense in Search of a Rationale, 73 Journal of Criminal Law and Criminology 421, 431 (1982).

…

Conclusion

Given the hybrid approach adopted by the legislature to the weight to be accorded to subjective and objective factors in the calculus involved in this kind of case, we do not believe that any court can state a suggested jury instruction that is completely impervious to criticism of its logic. We must leave the trial courts and juries where the statute places them. Making the best of this situation, we conclude that a trial court's charge must be constructed for any particular case along the following general lines.

First, the jury's attention must be drawn to the relevant statutory text.

Second, the jury must be instructed as to the burden of persuasion on the issue.

Third, the jury should be asked to consider whether the homicide was committed under the influence of extreme emotional disturbance. It was if the defendant was under the influence of an emotional disturbance to the extent that he lost the capacity to control himself and forego the homicide. The jury should be instructed that if it finds that the homicide was not committed under the influence of extreme emotional disturbance, the jury need not further consider the issue of mitigation of murder to manslaughter. If the jury finds that the homicide was committed under the influence of extreme emotional disturbance, it must then consider other issues.

Fourth, the jury must determine whether the extreme emotional disturbance was the result of the defendant's intentional, knowing, reckless or criminally negligent act, and the meaning of those adjectives must be explained. If the jury finds that this causal relationship existed, it need not further consider the mitigation issue. If the jury finds this causal relationship not to exist, it must then consider the reasonableness of the explanation for the disturbance.

Fifth, the jury must determine what was the defendant's situation in the circumstances which the defendant reasonably believed to exist. The jury must then determine whether an ordinary person in that situation and those circumstances would have experienced extreme emotional disturbance.

In the case at bar, the trial court erred in instructing the jury …. The error went to the heart of the case. The error was not harmless. Defendant is entitled to a new trial.

Reversed and remanded for a new trial.

Notes and Questions

1.    Elements of Extreme Emotional Distress. The defendant must prove by a preponderance of the evidence that (a) the emotional disturbance is not a mental disease or defect equivalent to insanity, (b) the defendant experienced a particularly overwhelming situation, and (c) the defendant had an extreme emotional reaction to it, resulting in a loss of self-control, which was overcome by powerful emotions, such as passion, anger, or fear.  See State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979).

Per Model Penal Code Section 210.3:

(1) Criminal homicide constitutes manslaughter when: 

(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

Why must a defendant prove his burden by only a preponderance of the evidence? Does this change make a mitigation to provocation more or less likely? How would you characterize the burden of proof in Girouard--who has to prove adequate provocation (the burden of proof) and by what standard of proof (beyond a reasonable doubt, clear and convincing evidence, a preponderance of the evidence, etc.)? 

2.    Another Hypothetical. A man from Kentucky by the name of Bob is the father of a seventeen year-old daughter, Annamae. He has never shown any propensity towards violence, nor does he generally look at acts of violence favorably. Bob holds a belief, however, that Californians are infected with a certain parasite that can kill Kentuckians with whom they are in physical contact. Bob sees Annamae talking with Chad, her friend from California. Bob also sees her touching his hand. Bob becomes fearful for Annamae’s life and tells Chad to let go of her hand. Chad lets go, looks at Bob in bewilderment, and says, “Dude, you gotta chill, what is going on?” This only makes Bob more furious because of Chad’s apparent lack of concern for Annamae’s safety, at which point Bob pulls out his revolver and shoots and kills Chad. In view of Ott, how should this case be analyzed? 

3.    Passion’s Progress. Can a more subjective analysis mitigate homicides? Many intimate partner homicides occur after “departure claims,” where the decedent announces in deeds, such as moving furniture out, or words, such as filing for divorce or stating future plans, that he/she is leaving the relationship. Professor Victoria Nourse, who compared cases that apply the MPC’s “extreme mental or emotional disturbance” standard to cases that use common law standards, found that 26% of MPC claims that reached juries involved “departure” claims, whereas none of these claims reached juries in jurisdictions using the common law approach. Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1353 (1997). Essentially, when cases were able to reach juries, there was a question of fact that needed answering, which allowed for more evidence to be submitted. In many cases, the victim was killed when he/she moved furniture out, announced his/her departure, or filed for divorce. Professor Nourse further discovered that when a defendant in a criminal homicide case alleged infidelity after the relationship had ended, the case would reach the jury 88% of the time in MPC states versus 39% of the time in common law jurisdictions. Id. at 1362. With these results in mind, Professor Nourse concluded that the MPC produced “illiberal and often perverse” results. Id. at 1332. 

Based on these facts, should we specify statutory language to cover these sets of facts? What would an abolitionist approach to this problem look like? Could we avoid the harm entirely with more adequate support systems or affordable housing?  

For more on the nexus between housing insecurity and domestic violence, see John Pavao, Jennifer Alvarez, Nikki Baumrind, Marta Induni, and Rachel Kimerling’s Study: Intimate Partner Violence and Housing Instability. 

4.    Objective and Subjective. Recall the Oregon statute. What language in the Oregon statute suggests an objective standard of extreme emotional disturbance? What language suggests a subjective standard? If you were a prosecutor, which standard (objective or subjective) would you want to take precedence over the other? How would you make this argument? 

What about if you were practicing as a defense attorney? Is there a benefit to this hybrid approach? Is it confusing or flexible?

5.    Gender and the Law. Voluntary manslaughter has been said to “ha[ve] never been a female-friendly doctrine.” Emily L. Miller, (Wo)manslaughter: Voluntary Manslaughter, Gender, and the Model Penal Code, 50 Emory L.J. 665, 667 (2001). Some scholars have even called for the abolition of the heat-of-passion factor, and the argument is summarized as follows:

Provocation is a male-centered and male-dominated defense. Although the defense is supposedly founded on compassion for ordinary human infirmity, it is really a legal disguise to partially excuse male aggression by treating men “as natural aggressors, and in particular women's natural aggressors.” Men who are provoked desire to inflict retaliatory suffering on those who have attacked their self-worth. More often than not, the self-worth “attackers'' are women. In studies of battered women, for example, violence is prompted by male possessiveness and sexual jealousy; a male's feelings of self-worth require “absolute possession of a woman's sexual fidelity, of her labour, and of (on demand) her presence, love, and attention in general.” In reality, therefore, the defense simply reinforces precisely what the law should seek to eradicate, namely, “men's violence against women, and their violence in general.” Joshua Dressler, Why Keep the Provocation Defense?: Some Reflections on A Difficult Subject, 86 Minn. L. Rev. 959, 975-976 (2002). 

Professor Nourse is in favor of keeping the provocation defense, but making it available in fewer circumstances, because “the defendant’s claim to our compassion must put him in a position of normative equality vis-a-vis his victim.” She further comments that this only exists when society “shares” the defendant’s rage, such that the provoker’s conduct would result in criminal punishment. Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1396 (1997). Because adultery is no longer a crime in almost all jurisdictions, this would lead to a revocation of a provocation defense when a defendant kills in the heat of passion that stems from the victim’s infidelity. Thus, without any other defenses or mitigating factors available, the defendant would be guilty of murder.

Regarding viewpoints on keeping versus abolishing the defense, which of these do you find more persuasive? Would it be better to abolish provocation as a defense? Or do you think it would be better to retain the defense, and if so, do you prefer the common law heat-of-passion doctrine or the MPC’s “extreme mental or emotional disturbance” provision? 

6.      Abolition. If we were to abolish provocation as a mitigating factor, how might we replace it? Should it be replaced, or should it be removed entirely? The United Kingdom replaced provocation as a mitigating factor with the statutory partial defense called “loss of control” as codified in the Coroners and Justice Act (2009):

1. Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if-

   a. D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control, 

   b. the loss of self-control had a qualifying trigger, and 

   c. a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. 

2. For the purpose of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
3. In subsection (1)(c), the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.

Under this Act, a “qualifying trigger” for D’s loss of self-control is one attributable to:

1. D’s fear of serious violence from V against D or “another identified person”; or
2. a thing or things done or said (or both) which-

   a. constituted circumstances of an extremely grave character, and 

   b. caused D to have a justifiable sense of being seriously wronged; or

3. a combination of the matters mentioned [above].

The only major traditional category of adequate provocation that does not involve an actual or threatened physical assault, adultery is often referred to as “the paradigm example of provocation adequate to mitigate murder to voluntary manslaughter.” Applying social science data and feminist theory regarding domestic violence, Donna K. Coker reexamines the connection between heat of passion and adultery law in her article, Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. Cal. Rev. L. & Women’s Stud. 71 (1992). For a disturbing, compelling analysis of the ways in which courts have used the modernized "extreme emotional disturbance" standard to reduce murder to manslaughter in cases involving women killed by their partners after attempting to exit the relationship, see Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331-1448 (1997).

Why Domestic Violence Victims Don't Leave (Ted Talk)

A Week Without Violence (with Alejandra Castillo and Rosie Hildago) (podcast)

The Things They Carry Understanding Trauma, Men and Cycles of Violence

[No. S134543. May 31, 2007.]

THE PEOPLE, Plaintiff and Appellant, v. MARJORIE KNOLLER, Defendant and Appellant.

Counsel

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Amy Haddix, Deputy Attorneys General, for Plaintiff and Appellant.

Dennis Patrick Riordan, under appointment by the Supreme Court, Riordan & Morgan, Donald M. Morgan and Dylan Schaffer for Defendant and Appellant.

Opinion

KENNARD, J.

On January 26, 2001, two dogs owned by defendant Marjorie Knoller and her husband, codefendant Robert Noel, attacked and killed Diane Whipple in the hallway of an apartment building in San Francisco. Defendant Knoller was charged with second degree murder (Pen. Code, § 189)1 and involuntary manslaughter (§ 192, subd. (b)); codefendant Noel, who was not present at the time of the attack on Whipple, was charged with involuntary manslaughter but not murder. Both were also charged with owning a mischievous animal that caused the death of a human being, in violation of section 399.

After a change of venue to Los Angeles County, a jury convicted defendants on all counts. Both moved for a new trial. (See § 1181, subd. 6 [a trial court may grant a new trial when “the verdict or finding is contrary to law or evidence”].) The trial court denied Noel’s motion. It granted Knoller’s motion in part, giving her a new trial on the second degree murder charge, but denying her motion for a new trial on the other two crimes of which she was convicted (involuntary manslaughter and possession of a mischievous animal that causes death).

With respect to Knoller, whose conviction of second degree murder was based on a theory of implied malice, the trial court took the position that, to be guilty of that crime, Knoller must have known that her conduct involved a high probability of resulting in the death of another. Finding such awareness lacking, the trial court granted Knoller’s motion for a new trial on the second degree murder conviction.

The trial court sentenced both defendants to four years’ imprisonment, the maximum term for involuntary manslaughter (§ 193, subd. (b)), staying the sentences for the section 399 violations. Defendants appealed from their convictions, and the People appealed from the order granting Knoller a new trial on the murder count. The Court of Appeal consolidated the appeals.

The Court of Appeal reversed the trial court’s order granting Knoller a new trial on the second degree murder charge. It remanded the case to the trial court for reconsideration of the new trial motion in light of the Court of Appeal’s holding that implied malice can be based simply on a defendant’s conscious disregard of the risk of serious bodily injury to another. In all other respects, the Court of Appeal affirmed the convictions of both defendants.

Both defendants petitioned this court for review. We granted only Knoller’s petition, limiting review to two questions: “(1) Whether the mental state required for implied malice includes only conscious disregard for human life or can it be satisfied by an awareness that the act is likely to result in great bodily injury,”2 and “(2) Whether the trial court abused its discretion in granting Knoller’s motion for new trial under Penal Code section 1181 [, subdivision 6].”

With respect to the first issue, we reaffirm the test of implied malice we set out in People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353] and, as mentioned on page 152, post, reiterated in many later cases: Malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” (People v. Phillips, supra, at p. 587.) In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.

Measured against that test, it becomes apparent that the Court of Appeal set the bar too low, permitting a conviction of second degree murder, based on a theory of implied malice, if the defendant knew his or her conduct risked causing death or serious bodily injury. But the trial court set the bar too high, ruling that implied malice requires a defendant’s awareness that his or her conduct had a high probability of resulting in death, and that granting defendant Knoller a new trial was justified because the prosecution did not charge codefendant Noel with murder. Because the trial court used an incorrect test of implied malice, and based its decision in part on an impermissible consideration, we conclude that it abused its discretion in granting Knoller a new trial on the second degree murder count. It is uncertain whether the court would have granted the new trial had it used correct legal standards. We therefore remand the matter to the Court of Appeal, and direct it to return the case to the trial court with directions to reconsider defendant Knoller’s new trial motion in light of the views set out in this opinion.

I. Facts and Proceedings

In 1998, Pelican Bay State Prison inmates Paul Schneider and Dale Bretches, both members of the Aryan Brotherhood prison gang, sought to engage in a business of buying, raising, and breeding Presa Canario dogs. This breed of dog tends to be very large, weighing over 100 pounds, and reaching over five feet tall when standing on its hind legs. A document found in defendants’ apartment describes the Presa Canario as “a gripping dog . . . [f] . . . always used and bred for combat and guard . . . [and] used extensively for fighting . . . .”

Prisoners Schneider and Bretches relied on outside contacts, including Brenda Storey and Janet Coumbs, to carry out their Presa Canario business. Schneider told Coumbs that she should raise the dogs.

As of May 1990, Coumbs possessed four such dogs, named Bane, Isis, Hera, and Fury. Hera and Fury broke out of their fenced yard and attacked Coumbs’s sheep. Hera killed at least one of the sheep and also a cat belonging to Coumbs’s daughter. Coumbs acknowledged that Bane ate his doghouse and may have joined Fury in killing a sheep.

Defendants Knoller and Noel, who were attorneys representing a prison guard at Pelican Bay State Prison, met inmate Schneider at the prison sometime in 1999. In October 1999, defendants filed a lawsuit on behalf of Brenda Storey against Coumbs over the ownership and custody of the four dogs. Coumbs decided not to contest the lawsuit and to turn the dogs over to defendants. Coumbs warned Knoller that the dogs had killed Coumbs’s sheep, but Knoller did not seem to care.

Defendant Knoller thereafter contacted Dr. Donald Martin, a veterinarian for 49 years, and on March 26, 2000, he examined and vaccinated the dogs. With his bill to Knoller, Dr. Martin included a letter, which said in part: “I would be professionally amiss [sic] if I did not mention the following, so that you can be prepared. These dogs are huge, approximately weighing in the neighborhood of 100 pounds each. They have had no training or discipline of any sort. They were a problem to even get to, let alone to vaccinate. You mentioned having a professional hauler gather them up and taking them. . . . Usually this would be done in crates, but I doubt one could get them into anything short of a livestock trailer, and if let loose they would have a battle, [f] To add to this, these animals would be a liability in any household, reminding me of the recent attack in Tehama County to a boy by large dogs. He lost his aim and disfigured his face. The historic romance of the warrior dog, the personal guard dog, the gaming dog, etc. may sound good but hardly fits into life today.” Knoller thanked Dr. Martin for the information and said she would pass it on to her client.

On April 1, 2000, both defendants and a professional dog handler took custody of the dogs from Coumbs. Bane then weighed 150 pounds and Hera 130 pounds. Coumbs told both defendants that she was worried about the dogs, that Hera and Fury should be shot, and that she was also concerned about Bane and Isis.

Hera remained for a short time at a kennel in San Mateo County while Bane was sent to a facility in Los Angeles County. Both defendants soon became concerned for the health of the two dogs. On April 30, 2000, defendants brought Hera to their sixth-floor apartment at 2398 Pacific Avenue in San Francisco. Bane arrived in September 2000. Codefendant Noel purchased dog licenses, registering himself and Knoller as the dogs’ owners.

A later search of defendants’ apartment showed that they frequently exchanged letters with Pelican Bay inmates Schneider and Bretches. Over 100 letters were sent and received between March and December 2000, apparently under the guise of attorney-client correspondence.3 In the letters, defendants discussed a commercial breeding operation, considering various names such as GuerraHund Kennels, Wardog, and finally settling on Dog-O-War. Prisoners Schneider and Bretches’s notes on a Web site for the business described Bane as “Wardog,” and “Bringer of Death: Ruin: Destruction.”

Between the time defendants Noel and Knoller brought the dogs to their sixth-floor apartment in San Francisco and the date of the fatal mauling of Diane Whipple on January 26, 2001, there were about 30 incidents of the two dogs being out of control or threatening humans and other dogs. Neighbors mentioned seeing the two dogs unattended on the sixth floor and running down the hall. Codefendant Noel’s letters to prisoner Schneider confirmed this, mentioning one incident when defendant Knoller had to let go of the two dogs as they broke from her grasp and ran to the end of the hall. Noel described how the dogs even pushed past him and “took off side by side down the hall toward the elevator in a celebratory stampede!! 240 lbs. of Presa wall to wall moving at top speed!!!” In a letter to inmate Schneider, defendant Knoller admitted not having the upper body strength to handle Bane and having trouble controlling Hera.

When neighbors complained to defendants Noel and Knoller about the two dogs, defendants responded callously, if at all. In one incident, neighbors Stephen and Aimee West were walking their dog in a nearby park when Hera attacked their dog and “latched on” to the dog’s snout. Noel was unable to separate the dogs, but Aimee threw her keys at Hera, startling Hera and causing Hera to release her grip on the Wests’ dog. On another day, Stephen West was walking his dog when he encountered Noel with Bane. Bane lunged toward West’s dog, but Noel managed to pull Bane back. When Stephen West next saw Noel, West suggested that Noel muzzle the dogs and talk to dog trainer Mario Montepeque about training them; Noel replied there was no need to do so. Defendants Knoller and Noel later encountered Montepeque, who advised defendants to have their dogs trained and to use a choke collar. Defendants disregarded this advice. On still another occasion, when dog walker Lynn Gaines was walking a dog, Gaines told Noel that he should put a muzzle on Bane; Noel called her a “bitch” and said the dog Gaines was walking was the problem.

There were also instances when defendants’ two dogs attacked or threatened people. David Moser, a fellow resident in the apartment building, slipped by defendants Knoller and Noel in the hallway only to have their dog Hera bite him on the “rear end.” When he exclaimed, “Your dog just bit me,” Noel replied, “Um, interesting.” Neither defendant apologized to Moser or reprimanded the dog. Another resident, Jill Cowen Davis, was eight months pregnant when one of the dogs, in the presence of both Knoller and Noel, suddenly growled and lunged toward her stomach with its mouth open and teeth bared. Noel jerked the dog by the leash, but he did not apologize to Davis. Postal carrier John Watanabe testified that both dogs, unleashed, had charged him. He said the dogs were in a “snarling frenzy” and he was “terrified for [his] life.” When he stepped behind his mail cart, the dogs went back to Knoller and Noel. On still another occasion, the two dogs lunged at a six-year-old boy walking to school; they were stopped less than a foot from him.

One time, codefendant Noel himself suffered a severe injury to his finger when Bane bit him during a fight with another dog. The wound required surgery, and Noel had to wear a splint on his arm and have two steel pins placed in his hand for eight to 10 weeks.

Mauling victim Diane Whipple and her partner Sharon Smith lived in a sixth-floor apartment across a lobby from defendants. Smith encountered defendants’ two dogs as often as once a week. In early December 2000, Whipple called Smith at work to say, with some panic in her voice, that one of the dogs had bitten her. Whipple had come upon codefendant Noel in the lobby with one of the dogs, which lunged at her and bit her in the hand. Whipple did not seek medical treatment for three deep, red indentations on one hand. Whipple made every effort to avoid defendants’ dogs, checking the hallway before she went out and becoming anxious while waiting for the elevator for fear the dogs would be inside. She and Smith did not complain to apartment management because they wanted nothing to do with defendants Knoller and Noel.

On January 26, 2001, Whipple telephoned Smith to say she was going home early. At 4:00 p.m., Esther Birkmaier, a neighbor who lived across the hall from Whipple, heard dogs barking and a woman’s “panic-stricken” voice calling, “Help me, help me.” Looking through the peephole in her front door, Birkmaier saw Whipple lying facedown on the floor just over the threshold of her apartment with what appeared to be a dog on top of her. Birkmaier saw no one else in the hallway. Afraid to open the door, Birkmaier called 911, the emergency telephone number, and at the same time heard a voice yelling, “No, no, no” and “Get off.” When Birkmaier again approached her door, she could hear barking and growling directly outside and a banging against a door. She heard a voice yell, “Get off, get off, no, no, stop, stop.” She chained her door and again looked through the peephole. Whipple’s body was gone and groceries were strewn about the hallway. Birkmaier called 911 a second time.

At 4:12 p.m., San Francisco Police Officers Sidney Laws and Leslie Forrestal arrived in response to Birkmaier’s telephone calls. They saw Whipple’s body in the hallway; her clothing had been completely ripped off, her entire body was covered with wounds, and she was bleeding profusely. Defendant Knoller and the two dogs were not in sight.

The officers called for an ambulance. Shortly thereafter, defendant Knoller emerged from her apartment. She did not ask about Whipple’s condition but merely told the officers she was looking for her keys, which she found just inside the door to Whipple’s apartment.

An emergency medical technician administered first aid to Whipple, who had a large, profusely bleeding wound to her neck. The wound was too large to halt the bleeding, and Whipple’s pulse and breathing stopped as paramedics arrived. She was revived but died shortly after reaching the hospital.

An autopsy revealed over 77 discrete injuries covering Whipple’s body “from head to toe.” The most significant were lacerations damaging her jugular vein and her carotid artery and crushing her larynx, injuries typically inflicted by predatory animals to kill their prey. The medical examiner stated that although earlier medical attention would have increased Whipple’s chances of survival, she might ultimately have died anyway because she had lost one-third or more of her blood at the scene. Plaster molds of the two dogs’ teeth showed that the bite injuries to Whipple’s neck were consistent with Bane’s teeth.

Animal control officer Andrea Runge asked defendant Knoller to sign over custody of the dogs for euthanasia. Knoller, whom Runge described as “oddly calm,” agreed to sign over Bane, but she refused to sign over Hera for euthanasia and she refused to help the animal control officers with the animals, saying she was “unable to handle the dogs.” When tranquilizer darts malfunctioned and failed to quiet Bane, “come-along” poles were used by animal control officers backed up by officers with guns drawn. Hera too was controlled by officers with “come-along” poles.

On February 8, 2001, both defendants appeared on the television show Good Morning America and basically blamed mauling victim Whipple for her own death. Defendant Knoller claimed that Whipple had already opened her apartment door when something about her interested Bane. He broke away, pulled Knoller across the lobby, and jumped up on Whipple, putting his paws on either side of her. Knoller said she pushed Whipple into Whipple’s apartment, fell on top of Whipple, and then tried to shield Whipple with her own body. But Whipple’s struggles must have been misinterpreted by the dog, and when Whipple struck Knoller with her fist, the dog began to bite Whipple. Knoller claimed that Whipple had ample opportunity to just slam the door of her apartment or stay still on the floor.

Codefendant Noel did not testify, but he presented evidence of positive encounters between the two dogs and veterinarians, friends, and neighbors. Defendant Knoller did testify in her own defense. She referred to herself, her husband, and Pelican Bay prisoner Schneider as the “triad,” and she spoke of Schneider as her “son.” The two dogs had become a focal point in the relationship. She denied reading literature in the apartment referring to the vicious nature of the dogs. She thought the dogs had no personality problems requiring a professional trainer. She denied receiving or otherwise discounted any warnings about the two dogs’ behavior and she maintained that virtually all the witnesses testifying to incidents with the dogs were lying. She said she never walked both dogs together. Ordinarily, she would walk Hera and codefendant Noel would walk Bane, because she had insufficient body strength to control Bane. But after Noel was injured while breaking up a fight between Bane and another dog, Knoller would sometimes walk Bane, always on a leash. She said she had just returned from walking Bane on the roof of the apartment building, and had opened the door to her apartment while holding Bane’s leash, when Bane dragged her back across the lobby toward Whipple, who had just opened the door to her own apartment. The other dog, Hera, left defendants’ apartment and joined Bane, who attacked Whipple. Knoller said she threw herself on Whipple to save her. She denied that Hera participated in the attack. She acknowledged not calling 911 to get help for Whipple.

Asked whether she denied responsibility for the attack on Whipple, Knoller gave this reply: “I said in an interview that I wasn’t responsible but it wasn’t for the—it wasn’t in regard to what Bane had done, it was in regard to knowing whether he would do that or not. And I had no idea that he would ever do anything like that to anybody. How can you anticipate something like that? It’s a totally bizarre event. I mean how could you anticipate that a dog that you know that is gentle and loving and affectionate would do something so horrible and brutal and disgusting and gruesome to anybody? How could you imagine that happening?”

In rebuttal, the prosecution presented evidence that the minor character of defendant Knoller’s injuries—principally bruising to the hands—indicated that she had not been as involved in trying to protect mauling victim Whipple as she had claimed. Dr. Randall Lockwood, the prosecution’s expert on dog behavior, testified that good behavior by a dog on some occasions does not preclude aggressive and violent behavior on other occasions, and he mentioned the importance of training dogs such as Bane and Hera not to fight.

The jury found Knoller guilty of second degree murder; it also found both Knoller and Noel guilty of involuntary manslaughter and owning a mischievous animal that caused the death of a human being. Both defendants moved for a new trial. The trial court denied Noel’s motion. We quote below the pertinent statements by the trial court in granting Knoller’s motion for a new trial on the second degree murder count.

The trial court observed: “The law requires that there be a subjective understanding on the part of the person that on the day in question—and I do not read that as being January 26th, 2001 because by this time, with all of the information that had come out dealing with the dogs, the defendants were fully on notice that they had a couple of wild, uncontrollable and dangerous dogs that were likely going to do something bad. [f] Is the ‘something bad’ death? That is the ultimate question in the case. There is no question but that the something bad was going to be that somebody was going to be badly hurt. I defy either defendant to stand up and tell me they had no idea that those dogs were going to hurt somebody one day. But can they stand up and say that they knew subjectively—not objectively and that’s an important distinction—that these dogs were going to stand up and kill somebody?” (Italics added.)

The trial court continued: “I am guided by a variety of principles. One of them is that public emotion, public outcry, feeling, passion, sympathy do not play a role in the application of the law. The other is that I am required to review all of the evidence and determine independently rather than as a jury what the evidence showed. I have laid out most of the evidence as it harms the defendants in this case. Their conduct from the time that they got the dogs to the time—to the weeks after Diane Whipple’s death was despicable. . . .

“There was one time on the stand, Ms. Knoller, when I truly believed what you said. You broke down in the middle of a totally scripted answer and you actually, instead of crying, you actually got mad and you said you had no idea that this dog could do what he did and pounded the table. I believed you. That was the only time, but I did believe you.” The court then described the definition of second degree murder as requiring that one “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being.” (Italics added.)

The trial court went on: “What we have in this case as it relates to Ms. Knoller is the decision to take the dog outside, into the hallway, up to the roof, go to the bathroom, bring it back down and put it in the apartment. There was no question but that taking the dog out into the hallway by that very act exposed other people in the apartment, whether they are residents there or guests, invitees to what might happen with the dog. When you take everything as a totality, the question is whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability that day, or on the day before on the day after,—I reject totally the argument of the defendants that she had to know when she walked out the door—she was going to kill somebody that morning. The Court finds that the evidence does not support it.” (Italics added.)

The trial court concluded it had “no choice, . . . taking the Legislature’s scheme, the evidence that was received, as despicable as it is, but to determine not that [defendant Knoller] is acquitted of second degree murder but to find that on the state of the evidence, I cannot say as a matter of law that she subjectively knew on January 26th that her conduct was such that a human being was likely to die.” (Italics added.)

The trial court mentioned another consideration: “The Court also notes a great troubling feature of this case that Mr. Noel was never charged [with murder] as Ms. Knoller was. In the Court’s view, given the evidence, Mr. Noel is more culpable than she. Mr. Noel personally knew that she could not control those dogs. He could not control those dogs. Mr. Noel was substantially haughtier than she was. In brushing off all of the incidents that happened out in the street, Mr. Noel knew as a theological certainty that that dog, which had recently been operated on, was taking medication that had given it diarrhea, was going to go out into the hallway or out into the street possibly, at the hands of Ms. Knoller. He . . . left her there to do that. . . . And yet Mr. Noel was not charged [with murder]. Equality of sentencing and the equal administration of justice is an important feature in any criminal court. That played a role as well.” The trial court then granted defendant Knoller’s motion for a new trial on the second degree murder count.

As noted earlier, both defendants as well as the prosecution appealed. The Court of Appeal reversed the trial court’s order granting Knoller’s motion for a new trial on the second degree murder count. It disagreed with the trial court that a second degree murder conviction, based on a theory of implied malice, required that Knoller recognized “her conduct was such that a human being was likely to die.” The Court of Appeal held that a second degree murder conviction can be based simply on a defendant’s “subjective appreciation and conscious disregard of a likely risk of . . . serious bodily injury.” In all other respects, the Court of Appeal affirmed both defendants’ convictions.

II. The Elements of Implied Malice

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) At issue here is the definition of “implied malice.”

Defendant Knoller was convicted of second degree murder as a result of the killing of Diane Whipple by defendant’s dog, Bane. Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. (See §§ 187, subd. (a), 189.) Section 188 provides: “[Malice may be either express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

The statutory definition of implied malice, a killing by one with an “abandoned and malignant heart” (§ 188), is far from clear in its meaning. Indeed, an instruction in the statutory language could be misleading, for it “could lead the jury to equate the malignant heart with an evil disposition or a despicable character” (People v. Phillips, supra, 64 Cal.2d at p. 587) instead of focusing on a defendant’s awareness of the risk created by his or her behavior. “Two lines of decisions developed, reflecting judicial attempts ‘to translate this amorphous anatomical characterization of implied malice into a tangible standard a jury can apply.’” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103 [13 Cal.Rptr.2d 864, 840 P.2d 969], quoting People v. Protopappas (1988) 201 Cal.App.3d 152, 162-163 [246 Cal.Rptr. 915].) Under both lines of decisions, implied malice requires a defendant’s awareness of the risk of death to another.

The earlier of these two lines of decisions, as this court observed in People v. Nieto Benitez, supra, 4 Cal.4th at pages 103-104, originated in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1], which stated that malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (We here refer to this as the Thomas test.) The later line dates from this court’s 1966 decision in People v. Phillips, supra, 64 Cal.2d at page 587: Malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” (The Phillips test.)

In People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279], we held that these two definitions of implied malice in essence articulated the same standard. Concerned, however, that juries might have difficulty understanding the Thomas test’s concept of “wanton disregard for human life,” we later emphasized that the “better practice in the future is to charge juries solely in the straightforward language of the ‘conscious disregard for human life’ definition of implied malice,” the definition articulated in the Phillips test. (People v. Dellinger (1989) 49 Cal.3d 1212, 1221 [264 Cal.Rptr. 841, 783 P.2d 200].) The standard jury instructions thereafter did so. (See CALJIC No. 8.11; Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 520.) Since 1989, our decisions have articulated the standard we set out in Dellinger and in CALJIC No. 8.11. (See, e.g., People v. Randle (2005) 35 Cal.4th 987, 994 [28 Cal.Rptr.3d 725, 111 P.3d 987]; People v. Taylor (2004) 32 Cal.4th 863, 867-868 [11 Cal.Rptr.3d 510, 86 P.3d 881]; People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666]; People v. Hansen (1994) 9 Cal.4th 300, 308 [36 Cal.Rptr.2d 609, 885 P.2d 1022]; People v. Whitfield (1994) 7 Cal.4th 437, 450 [27 Cal.Rptr.2d 858, 868 P.2d 272]; People v. Nieto Benitez, supra, 4 Cal.4th at pp. 104, 111.) The trial court here instructed the jury in the language of CALJIC No. 8.11.

III. The Court of Appeal’s Test for Implied Malice

As discussed in the preceding part, the great majority of this court’s decisions establish that a killer acts with implied malice only when acting with an awareness of endangering human life. This principle has been well settled for many years, and it is embodied in the standard jury instruction given in murder cases, including this one. The Court of Appeal here, however, held that a second degree murder conviction, based on a theory of implied malice, can be based simply on a defendant’s awareness of the risk of causing serious bodily injury to another.

In support of that view, the Court of Appeal pointed to three decisions of this court: People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911] (Conley), People v. Poddar (1974) 10 Cal.3d 750 [111 Cal.Rptr. 910, 518 P.2d 342] (Poddar), and People v. Coddington (2000) 23 Cal.4th 529 [97 Cal.Rptr.2d 528, 2 P.3d 1081] (Coddington). We discuss each case below.

In Conley, supra, 64 Cal.2d 310, the defendant, after consuming copious quantities of alcohol, went to the home of his former lover and her husband, where he shot and killed both of them. He was convicted of two counts of first degree murder. The issue on appeal was whether the trial court should have instructed the jury on diminished mental capacity caused by intoxication. This court held that it should have so instructed because “[a]n awareness of the obligation to act within the general body of laws regulating society . . . is included in the statutory definition of implied malice in terms of the abandoned and malignant heart . . . .” (Id. at p. 322.) In explaining that holding, Conley stated that a person who carefully weighs the course of action he is about to take and chooses to kill his victim, after considering the reasons for and against it, “is normally capable also of comprehending the duty society places on all persons to act within the law.” (Ibid.) Conley continued: “If, despite such awareness, he does an act that is likely to cause serious injury or death to another, he exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought.” (Ibid., italics added.)4 It is this sentence from Conley on which the Court of Appear relied. But that language from Conley described the defendant’s act (the objective component of implied malice), not the defendant’s mental state (the subjective component of implied malice); it is therefore irrelevant to the issue here, which concerns the subjective component—whether the defendant must be aware of the risk of death or only a risk of serious bodily injury.

Conley, supra, 64 Cal.2d 310, did not discuss whether implied malice could be based merely on a defendant’s awareness of the risk of serious bodily injury to another but not the risk of death resulting from the defendant’s actions. That issue, presented here, did not arise in Conley, because there the defendant, who said he was going to kill the victims and did so, could not claim he was aware only of the risk of causing serious bodily injury.

In cases decided shortly before and after Conley, we reiterated the established definition of implied malice as requiring an awareness of the risk that the defendant’s conduct will result in the death of another. One year before Conley was filed, we stated in People v. Washington (1965) 62 Cal.2d 777, 780, 782 [44 Cal.Rptr. 442, 402 P.2d 130], that implied malice required a “conscious disregard for life.” Conley did not at all suggest that it intended to depart from the view expressed in Washington. And two months after Conley, this court in People v. Phillips, supra, 64 Cal.2d at page 582, endorsed its earlier statement in Washington that implied malice requires a “conscious disregard for life." (Italics added.)

We now turn to Poddar, supra, 10 Cal.3d 750, the second of the three decisions that the Court of Appeal cited. In that case, the defendant went to the home of a woman he had dated casually, shot her with a pellet gun, and then killed her with a knife. He was convicted of second degree murder. This court held that the trial court’s jury instruction on second degree murder was defective because it did not explain the concept of diminished capacity as set out in Conley, supra, 64 Cal.2d 310. (Poddar, supra, 10 Cal.3d at pp. 757-759.) In its discussion of diminished capacity, Poddar stated that to prove implied malice, “it must be shown that the accused was both aware of his duty to act within the law and acted in a manner likely to cause death or serious bodily injury despite such awareness.” (Id. at p. 758, italics added.) As in Conley, Poddar referred to serious bodily injury in describing the defendant’s act, the objective component of implied malice. Poddar did not say that the defendant’s mental state, the subjective component of implied malice, at issue here, could be satisfied by proof that the defendant acted with an awareness that his conduct could cause serious bodily injury. Indeed, the defendant in Poddar never claimed that he was unaware that his acts could cause death.

Even if the above discussed language from Conley, supra, 64 Cal.2d at page 322, and from Poddar, supra, 10 Cal.3d at page 758, could be viewed as implying that a second degree murder conviction, on a theory of implied malice, could be based simply on a defendant’s awareness of the risk of causing serious bodily injury, rather than death, that language would lack authoritative force. “ ‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’ ” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [36 Cal.Rptr.3d 495, 123 P.3d 931], quoting Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [81 Cal.Rptr.2d 521, 969 P.2d 613].) “An appellate decision is not authority for everything said in the court’s opinion but only ‘for the points actually involved and actually decided.’ ” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [71 Cal.Rptr.2d 830, 951 P.2d 399].) Because the facts and issues in Conley, supra, 64 Cal.2d 310, and in Poddar, supra, 10 Cal.3d 750, did not encompass the question whether implied malice could be based on a defendant’s awareness of the risk of serious bodily injury alone, the language the Court of Appeal cited from Conley and Poddar lacks authoritative force.

This brings us to Coddington, supra, 23 Cal.4th 529, the last in the trio of decisions relied on by the Court of Appeal. In that case, the defendant lured teenage girls to his mobilehome by telling them they would star in an antidrug video, and then raped them and committed other sexual offenses. He killed two older women who had accompanied the girls as chaperones. The defendant was convicted of two counts of first degree murder with special circumstances, as well as various other offenses, and he was sentenced to death.

Among the many issues the defendant in Coddington raised on appeal was a claim that the trial court had erred in not instructing the jury on second degree murder based on implied malice. Responding to that claim, the Attorney General argued in Coddington that such an instruction was not needed because there was no evidence that the defendant’s offense was less than first degree murder, and that the defendant’s conduct proved that he “acted with actual or presumptive knowledge that serious bodily injury was likely to occur.” (Coddington, supra, 23 Cal.4th at p. 592, italics added.) This court rejected the Attorney General’s argument, explaining that such a mental state (actual or presumptive knowledge that serious bodily injury is likely to occur) “permits an inference of implied malice . . . and does not support a conclusion that no instruction on second degree murder on a theory of implied malice was necessary.” (Ibid.)

Notwithstanding Coddington’s offhand comment that knowledge of the risk of serious bodily injury permits an inference of implied malice, Coddington reiterated the established rule that a trial court must instruct on second degree murder based on implied malice whenever there is evidence “from which the jury could have inferred that appellant acted without intent to kill even though his conduct posed a high risk of death.” (Coddington, supra, 23 Cal.4th at p. 593, italics added.) Thus, Coddington’s offhand comment cannot be viewed as implicitly overruling the decisions of this court discussed earlier (see, ante, at p. 152) declaring that implied malice requires an awareness of the risk of death.

In sum, the three decisions on which the Court of Appeal relied lack persuasive force. Neither Conley, supra, 64 Cal.2d 310, nor Poddar, supra, 10 Cal.3d 750, addressed the issue presented here: whether implied malice can be based on a defendant’s awareness of the risk of great bodily injury but not death resulting from the defendant’s actions. With respect to the comment in Coddington, supra, 23 Cal.4th at page 592, suggesting that knowledge of the likelihood of serious bodily injury permits an inference of implied malice, it is inconsistent not only with the holding in that case but also with the views expressed in other decisions of this court. (See, ante, at p. 152.) We conclude that a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life. In holding that a defendant’s conscious disregard of the risk of serious bodily injury suffices to sustain such a conviction, the Court of Appeal erred.

IV. The Trial Court’s Grant of a New Trial on the Second Degree Murder Charge

We now turn to the second issue raised by the petition for review—whether the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge. Such an abuse of discretion arises if the trial court based its decision on impermissible factors (see People v. Carmody (2004) 33 Cal.4th 367, 378 [14 Cal.Rtpr.3d 880, 92 P.3d 369]) or on an incorrect legal standard (see Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435—436 [97 Cal.Rptr.2d 179, 2 P.3d 27]; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [146 Cal.Rptr. 623, 579 P.2d 514]).

In granting Knoller a new trial, the trial court properly viewed implied malice as requiring a defendant’s awareness of the danger that his or her conduct will result in another’s death and not merely in serious bodily injury. (See, ante, at pp. 149-151.) But the court’s ruling was legally flawed in other respects. As we explain below, the trial court based its ruling on an inaccurate definition of implied malice, and it inappropriately relied on the prosecutor’s failure to charge codefendant Noel with murder.

As discussed earlier in part II, this court before its decision in People v. Dellinger, supra, 49 Cal.3d 1212, had defined implied malice in two similar but somewhat different ways. Under the Thomas test, malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.); see also Poddar, supra, 10 Cal.3d at pp. 756-757.) Under the Phillips test (People v. Phillips, supra, 64 Cal.2d at p. 587), malice is implied when the killing is proximately caused by “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.’ ” In People v. Dellinger, supra, 49 Cal.3d 1212, we observed that although these two tests “articulated one and the same standard” (id. at p. 1219), the Thomas test contained “obscure phraseology” and had “become a superfluous charge,” so that the “better practice in the future” would be for trial courts to instruct juries in the “straightforward language” of the Phillips test (Dellinger, at p. 1221).5

Here, the trial court properly instructed the jury in accordance with the Phillips test. But when the court evaluated defendant Knoller’s new trial motion, it relied on language from the Thomas test, and as explained below, its description of that test was inaccurate. The court stated that a killer acts with implied malice when the killer “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being” and thus the issue in this case was “whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability” that her conduct would result in someone’s death. (Italics added.) But “high probability of death” is the objective, not the subjective, component of the Thomas test, which asks whether the defendant’s act or conduct “involves a high degree of probability that it will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.).) The subjective component of the Thomas test is whether the defendant acted with “a base, antisocial motive and with wanton disregard for human life.” (Ibid.) Nor does the Phillips test require a defendant’s awareness that his or her conduct has a high probability of causing death. Rather, it requires only that a defendant acted with a “ ‘conscious disregard for human life’ ” (People v. Dellinger, supra, 49 Cal.3d at p. 1221; see People v. Phillips, supra, 64 Cal.2d at p. 587).

As just shown, in treating the objective component of the Thomas test as the subjective component of that test, the trial court applied an erroneous definition of implied malice in granting defendant Knoller a new trial on the second degree murder charge.

In ruling on Knoller’s motion for a new trial, the trial court also commented that, in its view, codefendant Noel was more culpable than defendant Knoller, and that the district attorney’s failure to charge Noel with murder was a “troubling feature of this case” that “played a role as well” in the court’s decision to grant Knoller a new trial on the second degree murder charge. Dissimilar charging of codefendants, however, is not among the grounds for a new trial in section 1181. Although section 1181 states that a defendant’s new trial motion may be granted only on the grounds stated in that section, several courts have held that new trials may nonetheless be granted on grounds not enumerated in the statute when necessary to protect a defendant’s constitutional right to a fair trial. (See, e.g., People v. Oliver (1975) 46 Cal.App.3d 747, 751 [120 Cal.Rptr. 368] [judicial misconduct]; People v. Davis (1973) 31 Cal.App.3d 106, 109 [106 Cal.Rptr. 897] [unexpected absence of witness].) No published decision, however, has ever approved granting a new trial based on differential treatment of defendants. (See generally People v. Belmontes (1988) 45 Cal.3d 744, 810-813 [248 Cal.Rptr. 126, 755 P.2d 310] [disposition of codefendant’s case is irrelevant to jury’s determination at penalty phase of capital case].)

We specifically do not address whether a new trial could be granted on such a ground, an issue that would involve significant separation of powers considerations. Even assuming a new trial could be granted on such a ground, it is not justified here. Defendant Knoller and codefendant Noel were not similarly situated with regard to their dog Bane’s fatal mauling of Whipple in the hallway of the apartment building where they all lived. The immediate cause of Whipple’s death was Knoller’s own conscious decision to take the dog Bane unmuzzled through the apartment building, where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him. Bringing a more serious charge against the person immediately responsible for the victim’s death was a permissible exercise of prosecutorial discretion, not grounds for a new trial.

V. Conclusion and Disposition

In sum, the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge. That court erroneously concluded both that Knoller could not be guilty of murder, based on a theory of implied malice, unless she appreciated that her conduct created a high probability of someone’s death, and that a new trial was justified because the prosecution did not charge codefendant Noel with murder. It is uncertain whether the trial court would have reached the same result using correct legal standards. Moreover, the Court of Appeal, in reversing the trial court’s order, also erred, mistakenly reasoning that implied malice required only a showing that the defendant appreciated the risk of serious bodily injury. Under these circumstances, we conclude that the matter should be returned to the trial court to reconsider its new trial order in light of the views set out in this opinion.

The Court of Appeal’s judgment is reversed and the matter is remanded to that court, with directions to return the case to the trial court for reconsideration of defendant Knoller’s new trial motion in accord with the views expressed in this opinion.

George, C. J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.

The petition of appellant The People for a rehearing was denied July 18, 2007.

1

All further statutory citations are to the Penal Code.

2

Our order limiting the issues referred to “great bodily injury,” but the Court of Appeal decision referred to “serious bodily injury.” The two terms are “‘essentially equivalent’” (People v. Burroughs (1984) 35 Cal.3d 824, 831 [201 Cal.Rptr. 319, 678 P.2d 894]), and although there are some differences in the statutory definitions (compare § 243, subd. (f)(4) [defining “serious bodily injury”] with § 12022.7, subd. (f) [defining “great bodily injury”]), those differences are immaterial here.

3

The trial court ruled that letters written by or addressed to codefendant Noel were admissible against defendant Knoller, and vice versa, on a theory that raising the Presa Canario dogs was a joint enterprise. The Court of Appeal rejected defendants’ challenge to this ruling. Both defendants raised the issue in their respective petitions for review. We denied Noel’s petition, and in granting Knoller’s petition we limited review to other issues.

4

In People v. Flannel (1979) 25 Cal.3d 668, 679 [160 Cal.Rptr. 84, 603 P.2d 1], we quoted that passage from Conley, supra, 64 Cal.2d 310 at page 322, in summarizing the doctrine of diminished capacity; we then explained how imperfect self-defense—the issue in Flannel— differed from diminished capacity. Not at issue in Flannel was the distinction between a defendant’s awareness of the risk of serious bodily injury and awareness of the risk of death.

5

For trial courts too, the better practice in the future would be to use the Phillips test, rather than the Thomas test, in ruling on motions for a new trial as well as other matters in which the definition of implied malice is in issue.

 Notes and Questions

1.    Aftermath. In 2019, Marjorie Knoller became eligible for parole and was subsequently denied. The parole board will decide on her parole status again in 2022. Knoller’s husband, Robert Noel, served four years for involuntary manslaughter and died in June 2018 in a La Jolla nursing home according to this article from the Mercury News.

For further reading on the aftermath of People v. Knoller please see this Rolling Stone Article and the Memorial of Diane Alexis Whipple.  

2.    Test Your Thinking. Based on the law set out in the case, applied to the facts of the case, should Knoller be convicted of 2nd degree murder or should the conviction be mitigated to a lesser offense? Explain your reasoning.

3.    Implied Malice. In its discussion, the court attempts to clarify implied malice—defined as “abandoned and malignant heart” in the applicable California statute—by emphasizing that the defendant must act with an awareness that the act endangers human life and must have a conscious disregard for life. Should depraved heart killings necessarily be considered less culpable than intentional killings? See if you can come up with your own hypothetical. Does your hypothetical disprove the rule or merely suggest that the rule has limitations? 

4.    Professional Responsibility. Recall that Knoller was more than just a layperson: she was an attorney. Should she bear any heightened responsibility for her actions?

In California (Knoller's state), attorneys are subject to the California Rules of Professional Conduct, adopted by the State Bar of California and approved by the Supreme Court of California in order to promote the administration of justice, protect the public, and uphold the integrity of the legal system. Rule 1.0 of the California Rules of Professional Conduct establishes standards of professional conduct for lawyers that, when violated, act as a basis for formal discipline.

Lawyers are also bound by applicable law. In California, these include the State Bar Act (Business and Professions Code section 6000 et seq.); opinions of California courts; and the opinions of professional ethics committees (see Rule 1.0 of the California Rules of Professional Conduct). As such, when an attorney commits a criminal act, they may be in violation of an applicable Penal Code section and subject to punishment under criminal law, and they may also be in violation of Rule 8.4(b) of the California Rules of Professional Conduct and subject to discipline under applicable Business and Professions Code sections. 

Moreover, a conviction of a felony or misdemeanor involving moral turpitude—and in fact any act involving moral turpitude—constitutes cause for disbarment or suspension (Cal. Bus. & Prof. Code §§ 6101 and 6106) and by the California Supreme Court (Cal. Bus. & Prof. Code §§ 6100 and 6102), which typically accords great weight to the recommendation of discipline by the California State Bar. Toll v. State Bar of Cal., 12 Cal. 3d 824, 831 (1974). Moral turpitude has been defined as an act of “baseness, vileness or depravity in the private and social duties which a [person] owes to...society” and as an act “contrary to justice, honesty, modesty, or good morals.” In re Disbarment of Craig, 12 Cal. 2d 93, 97 (1938). Unsurprisingly, murder constitutes an act of moral turpitude. In re Kirschke, 16 Cal. 3d 902 (1976). However, it is important to recognize that other misconduct, even that not involving moral turpitude, may lead to discipline. For example, one attorney was placed on disciplinary probation for three years after being convicted on two occasions of driving under the influence (under Vehicle Code section 23152). In re Kelley, 52 Cal. 3d 487 (1990).

To get an idea of other misconduct and the disciplinary measures taken, see the discipline summaries, based on orders listed on the California State Bar website.

If you were in charge of disbarment, would you seek to disbar Knoller for an act of moral turpitude? Would your decision on disbarment employ a different evidentiary standard from that needed to prove guilt on the charge of murder? How would you characterize the purpose of disbarment: is it a punishment? deterrence? protection for the integrity of the legal profession? something else?

5.    LGBT Rights and Wrongful Death. Reckless action such as Knoller’s can lead not only to criminal charges, but to recovery for the victim’s spouse via the tort of “wrongful death.”

Sharon Smith, Diane Whipple’s partner, became an activist for the LGBT community. Along with the National Center for Lesbian Rights and attorney Michael Cardoza, Smith paved the way for same-sex partners to be able to sue for wrongful death. For more information, please see the Memorial of Diane Alexis Whipple. 

6.    Noting the Difference. What is the difference between People v. Thomas and People v. Phillips, the two lines of decisions that interpret the “depraved heart”/ “implied malice” standard under California law? Which one does the court adopt in Knoller? Would the case have come out differently if the court had applied a different legal standard? How does it compare to the MPC? 

7.    Changing the Facts. If you would find Knoller guilty of second-degree murder, would your verdict change (and, if so, why) in light of one or more of the following changed circumstances:

a. The dog, Bane, had never shown signs of aggression before, nor had Knoller ever witnessed the dog act aggressively, so she genuinely believed that the veterinarian’s concerns were exaggerated.

b. Although everything prior to the homicide occurred as described in the case, it turns out that at the moment of attack Knoller was home and, hearing the cries of Diane Whipple, she made a heroic but unsuccessful effort to pull Bane away. Knoller then contacted 911 quickly, and expressed deep remorse to the paramedics and police thereafter.

8.    Connecting the Cases. Recall the Midgett case. Applying the test set out in Knoller, (assuming the case arose in CA after Knoller was decided), should Midgett be found guilty of implied malice murder? Why/why not?

9.    A Hypothetical. Mr. Moore was upset after having been burglarized. He got in his Nissan Pathfinder and sped along Hill Ave at an estimated 80 mph--well in excess of the 35mph speed limit. He passed another car, crossing over a solid double-yellow line into on-coming traffic and causing cars to swerve. As he approached the intersection of Hill Ave and Washington Blvd, he checked his speedometer and saw he was going 80 mph. He saw a red light ahead, and saw a Toyota Corolla (smaller car) crossing the intersection. Because he was going too fast, he did not try to stop, but instead ran the intersection, striking the Toyota, breaking the driver’s arm and causing it to strike a third car, which had been waiting to turn left. The driver in the third car was instantly killed. Moore did not get out of his car to check on the victims, but instead continued to drive north on Hill Ave. 

When police finally stopped and arrested Moore, he said he did not intend to kill anyone, but that he believed he was going too fast to stop. Asked why he didn’t stop, he said, “Yeah man. I cut them in half, dude. It’s a wonder I survived.” He added, “Leaving the scene wasn’t really the problem…they were dead,” and said he’d planned, after the accident, to “go clean up, probably have a beer, sit down and watch television.” People v. Moore, 187 Cal.App.4th 937 (2010).

What’s the highest homicide charge the state of California could realistically bring against Moore? What are the best/worst facts for the state? How would the state’s charges and arguments shift if this case arose under the MPC?

[S.F. No. 24996. Nov. 10, 1988.]

LAURIE GROUARD WALKER, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.

Counsel

Scofield & Volk, Thomas A. Volk and Robert G. Scofield for Petitioner.

Warren Christopher, Robert C. Vanderet, Robert M. Schwartz, O’Melveny & Myers, Margaret Crosby, Alan Schlosser, Edward Chen, Paul L. Hoffman, Carol A. Sobel, Mark Rosenbaum, Mary Ann Yurkonis, David E. Mackenroth and Mackenroth, Seley & Anwyl as Amici Curiae on behalf of Petitioner.

No appearance for Respondent.

John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, John H. Sugiyama, Assistant Attorney General, David D. Salmon and Clifford K. Thompson, Jr., Deputy Attorneys General, for Real Party in Interest.

Hassard, Bonnington, Rogers & Huber, David E. Willett and Catherine I. Hanson as Amici Curiae on behalf of Real Party in Interest.

Opinion

MOSK, J.

We consider in this case whether a prosecution for involuntary manslaughter (Pen. Code, § 192, subd. (b)) and felony child endangerment (id., § 273a, subd. (1)) can be maintained against the mother of a child who died of meningitis after receiving treatment by prayer in lieu of medical attention. We conclude that the prosecution is permitted by statute as well as the free exercise and due process clauses of the state and federal Constitutions.

Defendant Laurie Grouard Walker is a member of the Church of Christ, Scientist (hereafter the Church). Her four-year-old daughter, Shauntay, fell ill with flu-like symptoms on February 21, 1984, and four days later developed a stiff neck. Consistent with the tenets of her religion, defendant chose to treat the child’s illness with prayer rather than medical care.1 Defendant contacted an accredited Christian Science prayer practitioner who thereafter prayed for Shauntay and visited the child on two occasions. Defendant also engaged a Christian Science nurse who attended Shauntay on February 27 and again on March 6 and 8.2 Shauntay nevertheless lost weight, grew disoriented and irritable during the last week of her illness, and died on March 9 of acute purulent meningitis after a period of heavy and irregular breathing. During the 17 days she lay ill, the child received no medical treatment.

The People charged defendant with involuntary manslaughter and felony child endangerment based on allegations that her criminal negligence proximately caused Shauntay’s death. Defendant moved to dismiss the prosecution (Pen. Code, § 995) on the grounds that (1) her conduct was specifically protected by law, and (2) the statutes under which she had been charged failed to provide fair notice that her conduct was criminal. The court denied her motion.

Defendant petitioned the Court of Appeal for a writ of prohibition and a stay. (Pen. Code, § 999a.) The petition and stay request were summarily denied, and defendant petitioned for review in this court. We granted the petition and transferred the matter to the Court of Appeal with directions to issue an alternative writ of prohibition. After further briefing and oral argument, the Court of Appeal again denied defendant’s petition. She thereafter filed a second petition for review in this court, which we also granted. Defendant and amici curiae offer a variety of statutory and constitutional arguments in support of their claim that the prosecution of defendant under Penal Code section 192, subdivision (b) (hereafter section 192(b)), and section 273a, subdivision (1) (hereafter section 273a(l)), is barred as a matter of law. For the reasons set forth below, we reject their contentions and conclude that defendant can be prosecuted as charged.

I. Statutory Contentions

A. Section 270 as a complete defense to prosecution

Defendant first contends that the provisions of Penal Code section 270 (hereafter section 270) provide a complete defense to any prosecution based on her treatment of Shauntay’s illness with prayer rather than medical care. Section 270 enumerates certain necessities that parents must furnish their children and imposes misdemeanor liability for the failure to do so. As enacted in 1872, the statute provided that “Every parent of any child who willfully omits, without lawful excuse, to perform any duty imposed upon him by law, to furnish necessary food, clothing, shelter, or medical attendance for such child, is guilty of a misdemeanor.” (Pen. Code (1st ed. 1872) § 270.) The Legislature amended the provision in 1925 by inserting the phrase “or other remedial care” after “medical attendance.” (Stats. 1925, ch. 325, § 1, p. 544.) The statute was again amended in 1976 to specify that “treatment by spiritual means through prayer alone” constitutes “other remedial care.” (Stats. 1976, ch. 673, § 1, p. 1661.)3

1.

As a threshold consideration we must ascertain whether prayer treatment constitutes an acceptable substitute for medical care under the terms of section 270, as defendant contends. If it does not, then a fortiori the statute provides no defense to prosecutions under separate manslaughter and child endangerment provisions for the use of prayer in lieu of medicine. This determination hinges on whether “other remedial care,” defined in section 270 to include prayer, represents an alternative to “medical attendance” or rather identifies a distinct and additional necessity that parents must provide their children.

In People v. Arnold (1967) 66 Cal.2d 438, 452 [58 Cal.Rptr. 115, 426 P.2d 515], we considered the contention that section 270 allows parents to provide children with “an accepted alternative to medical attendance: ‘other remedial care,’ namely enemas, compresses, and prayer.” The case involved the appeal of a mother convicted of misdemeanor-manslaughter after unsuccessfully treating her child’s illness with prayer. Although reversing on unrelated grounds, the Arnold court summarily rejected in dictum the defendant’s interpretation of section 270, reasoning that “The phrase ‘other remedial care’ . . . does not sanction unorthodox substitutes for ‘medical attendance’; it indicates one of the multiple necessities which the parent must provide.” (Ibid.)

While the Arnold decision predates the 1976 amendment specifying that “other remedial care” includes prayer, the court’s reasoning remains fatal to a defense based on treatment by spiritual means: regardless of its content, “other remedial care” constitutes “one of the multiple necessities” under Arnold, thus operating in addition to rather than in lieu of the responsibility to furnish medical attendance. Because the 1976 amendment “did not address the contention [in Arnold] that other remedial care could not act as a substitute to standard medical treatment,” the Court of Appeal in the case at bar concluded that defendant’s provision of prayer did not supplant her separate responsibility to furnish medical care under section 270.

Well-settled principles guide our review of the statutory analysis set forth in Arnold and embraced by the decision below. “ ‘ “The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.]” ’ In determining such intent, the court turns first to the words of the statute. ‘[W]here . . . the language is clear, there can be no room for interpretation.’ ” (Regents of University of California v. Public Employment Relations Bd. (1986) 41 Cal.3d 601, 607 [224 Cal.Rptr. 631, 715 P.2d 590], citations omitted.)

Section 270 requires that parents “furnish necessary clothing, food, shelter or medical attendance, or other remedial care . . . .” In our view, this language is sufficiently clear to reject the dictum in Arnold and conclude that the Legislature intended “other remedial care” to constitute a substitute for “medical attendance.” We begin by noting the repetition of “or” to introduce both “medical attendance” and “other remedial care.” The first use of the word, preceding “medical attendance,” denotes that clothing, food, shelter, and medical attendance represent distinct necessities each of which must be provided a child; it would be superfluous if the succeeding phrase, “or other remedial care,” introduced yet another necessity into the statutory scheme. We have often observed that courts should give significance to every word, phrase, and sentence of an act, and that any construction rendering certain words surplusage should be avoided. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified School Dist. (1978) 21 Cal.3d 650, 659 [147 Cal.Rptr. 359, 580 P.2d 1155].) To give significance to the initial use of the word “or,” its second use must be taken to mean that “other remedial care” operates as an alternative to the immediately preceding phrase rather than as an additional necessity appended to the entire sentence in the manner of an afterthought.

The definition of certain pivotal words in the statute bolsters this interpretation. “Remedial” is defined as “affording a remedy: intended for a remedy or for the removal or abatement of a disease or of an evil.” (Webster’s New Internat. Diet. (3d ed. 1961) p. 1920.) “Remedy,” in turn, is defined as “something that relieves or cures a disease: a medicine or application that serves or helps to terminate disease and restore health.” (Ibid.) Finally, “other” is defined as “not the same: different.” (Id. at p. 1598.) When these definitions are substituted for the words of the statute, the provision penalizes parents who fail to provide “clothing, food, shelter or medical attendance, or [different] care [intended to relieve or cure a disease].” It thus is apparent that the Legislature intended “other remedial care” to represent an alternative to medical attendance under the terms of section 270.

Any doubt regarding this interpretation cannot survive examination of the legislative history of the 1976 amendment defining “other remedial care” to include prayer. When the members of the Assembly considered the amendment, contained in Assembly Bill No. 3843, 1975-1976 Regular Session, they had before them the third reading analysis of the legislation prepared by the Assembly Office of Research. The analysis stated: “Under this bill, the parents may not be liable for failing to provide for the health of the child because they choose treatment by prayer rather than common medical treatment . . . .” (Assem. Office of Research, 3d reading analysis of Assem. Bill No. 3843 (1975-1976 Reg. Sess.).) Similarly, the members of the Senate received an analysis of the legislation prepared by either the Republican or Democratic Caucus. Both caucus analyses stated that the amendment would shield from liability those parents who provide prayer in lieu of medical care for their children. (Sen. Democratic Caucus, 3d reading analysis of Assem. Bill No. 3843 (1975-1976 Reg. Sess.); Sen. Republican Caucus, 3d reading analysis of Assem. Bill No. 3843 (1975-1976 Reg. Sess.).) While these materials are not dispositive evidence of legislative intent (Shippen v. Department of Motor Vehicles (1984) 161 Cal.App.3d 1119, 1126 [208 Cal.Rptr. 13]), they are significant insofar as their contents do not contradict the plain language of the statute. (Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 219 [185 Cal.Rptr. 270, 649 P.2d 912].) We accordingly conclude that section 270 exempts parents who utilize prayer treatment from the statutory requirement to furnish medical care, and overrule People v. Arnold, supra, 66 Cal.2d 438, 452, to the extent it concludes to the contrary.

2.

We next consider whether section 270 bars the prosecution of defendant under the manslaughter and child endangerment statutes. (§§ 192(b), 273a(l).) Again we turn to its plain language for initial guidance. Citing the statutory provision that “treatment by spiritual means through prayer alone . . . shall constitute ‘other remedial care’, as used in this section ” (italics added), the Court of Appeal concluded that section 270 expressly precludes any extension of its religious exemption to other statutes. This analysis confuses the statutory limitation on the definition. 

Following the rule of the last antecedent, the phrase “as used in this section” must modify “other remedial care.” (See People v. Baker (1968) 69 Cal.2d 44, 46 [69 Cal.Rptr. 595, 442 P.2d 675].) The language therefore either (1) qualifies the five earlier references to “other remedial care” in the statute, none of which mentions “treatment by spiritual means through prayer alone,” or (2) distinguishes the definition of the phrase in section 270 from its use in numerous other statutes, most of which make no reference to treatment by spiritual means. (See, e.g., Code Civ. Proc., § 1209.5; Welf. & Inst. Code, §§ 305, subd. (c), 369, subds. (a)-(g), 625, subd. (c), 739, subds. (a)-(g), 11452, subd. (6), 14059; see also Stats. 1987, chs. 1353, 1485.) Neither of these qualifications on the statutory language bears on whether the defense implied by the definition of “other remedial care,” as used in section 270, should apply to the charges against defendant under sections 192(b) an 273a(l).

Defendant conversely asserts that the plain language of section 270 requires the extension of its religious exemption to her prosecution. She focuses on the reference in the statute to the provision of “necessary clothing, food, shelter or medical attendance, or other remedial care . . . .” (Italics added.) Observing that “necessary” is defined, inter alia, as “absolutely required: essential, indispensable” (Webster’s New Internat. Diet. (3d ed. 1961) p. 1511), she contends that there can be no circumstance involving the illness of a child in which the use of prayer in lieu of medicine is unlawful.

It is true that the statute recognizes “other remedial care” as an acceptable substitute for “medical attendance” when care is “necessary”; however, this conclusion does not address the question whether compliance with the terms of section 270 absolves defendant of liability under all other provisions of the Penal Code. "When used in a statute words must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear . . . .” (People v. Black (1982) 32 Cal.3d 1, 5 [184 Cal.Rptr. 454, 648 P.2d 104]; People v. Alday (1973) 10 Cal.3d 392, 395 [110 Cal.Rptr. 617, 515 P.2d 1169].) Conduct that is legal in one statutory context thus may be actionable under separate statutes created for different legislative purposes. It follows that the legality of defendant’s conduct under the terms of section 270 cannot be read to create a parallel exemption from prosecution under sections 192(b) and 273a(l) unless the statutes reflect some shared legislative objective.4 (Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 835 [196 Cal.Rptr. 38, 670 P.2d 1121]; see also People v. Caudillo (1978) 21 Cal.3d 562, 585 [146 Cal.Rptr. 859, 580 P.2d 274]; Pen. Code, § 4.) We turn to the purpose of section 270.

“Rather than punishment of the neglectful parents, the principal statutory objectives [of section 270] are to secure support of the child and to protect the public from the burden of supporting a child who has a parent able to support him.” (People v. Sorensen (1968) 68 Cal.2d 280, 287 [66 Cal.Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093].) The provision is “designed to supplement civil statutes for effective enforcement of child support obligations.” (Note, Criminal Nonsupport and a Proposal for an Effective Felony-Misdemeanor Distinction (1986) 37 Hastings L.J. 1075, 1079; County of Ventura v. George (1983) 149 Cal.App.3d 1012, 1015 [197 Cal.Rptr. 245].) A parent thus may comply with the requirements of the statute simply by providing financial assistance to another individual with physical custody of the child. (Lyons v. Municipal Court (1977) 75 Cal.App.3d 829, 843 [142 Cal.Rptr. 449].) A parent who is financially incapable of furnishing support, without fault, is likewise excused from compliance. (People v. Sorensen, supra, 68 Cal.2d at p. 287.) Indeed, the dispositional section of the statutory scheme explicitly contemplates protection of the fisc by stipulating that “If the children are receiving public assistance, all fines, penalties or forfeitures imposed and all funds collected from the defendant [for violations of section 270 or section 270a] shall be paid to the county department. Money so paid shall be applied first to support . . . and any balance remaining shall be applied to future needs, or be treated as reimbursement for past support furnished from public assistance funds.” (Pen. Code, § 270d; see People v. Sorensen, supra, 68 Cal.2d at p.287.)

Disputing this settled understanding of section 270 as a fiscal support provision, defendant asserts that the objective of the statute is to protect children from serious injury rather than to secure certain routine necessities at parental expense.5 She argues that her interpretation is supported by the notes of the Code Commission of 1870-1872. We will consider the code commissioners’ notes when they do not conflict with other persuasive evidence of legislative intent and particularly “ ‘where the commission’s comment is brief, because in such a situation there is ordinarily strong reason to believe that the legislators’ votes were based in large measure upon the explanation of the commission proposing the bill.” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 630 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420], quoting Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 249-250 [66 Cal.Rptr. 20, 437 P.2d 508].) The explanatory note for section 270 reads: “Consult the Civil Code for the provisions reported defining the duty of parental support. As to the criminality of a willful omission to perform this duty.—See Reg. vs. Chandler [(1855) 6 Cox Crim. Cas. 519], Reg. vs. Gray [(1857) 7 Cox Crim. Cas. 326], Reg. vs. S_ [(1851) 5 Cox Crim. Cas. 279], Reg. vs. Philpot[t] [(1853) 6 Cox Crim. Cas. 140].” (Code comrs. note, Pen. Code (1st ed. 1872) p. 117.) Because the note says nothing regarding the purpose of the statute, any construction of legislative intent resting on its contents requires the implausible assumption that the legislators sought out and read the four English common law cases cited therein and then conformed their understanding of the statute to the reasoning of those opinions.

Yet even if we were to so assume, the cases fail to substantiate defendant’s interpretation. She emphasizes that each involved allegations of a child suffering physical injury as a result of a parent’s failure to provide basic necessities, and asserts that child endangerment was thus the harm to be averted by imposition of criminal liability. To the contrary, the first case cited in the code commission note held that a mother could not be found guilty of neglecting to feed her child when she had lacked the financial means to do so, even though public assistance had been available to otherwise provide for the starving child. “It is admitted in the case that there was no evidence of her having the means; that being admitted, it is no answer to say that she might have procured the means by applying to the relieving officer.” (Reg. v. Chandler, supra, 6 Cox Crim. Cas. at p. 520.) This disposition suggests that failure to provide financial support, rather than injury per se, was the gravamen of the common law crime. Indeed, the continued existence under section 270 of a complete defense for parents who lack without fault the means of support significantly distinguishes the misdemeanor provision from sections 192(b) and 273a(l), which recognize no insolvency exception to felony charges stemming from severe neglect.

We thus reaffirm our determination in Sorensen, supra, 68 Cal.2d 280, that section 270 requires able parents to furnish certain routine necessities for their children so that the public need not unnecessarily assume that obligation. (See also Davis v. Stroud (1942) 52 Cal.App.2d 308, 315 [126 P.2d 409].) While certainly reflecting concern for the general welfare of children, the fiscal objectives of this support provision are so manifestly distinguishable from the specific purposes of the involuntary manslaughter and felony child-endangerment statutes—designed to protect citizens from immediate and grievous bodily harm—that section 270 cannot be read to create express exemptions from prosecution under those separate provisions as a matter of parallel construction.

The Legislature has determined that the provision of prayer is sufficient to avert misdemeanor liability for neglecting one’s financial responsibility to furnish routine child support. This hardly compels the conclusion that in so doing the Legislature intended to create an unqualified defense to felony manslaughter and child endangerment charges for those parents who continue to furnish prayer alone in the rare instance when a gravely ill child lies dying for want of medical attention. 6

In the absence of support from the plain language and purpose of section 270, defendant points to the legislative history of certain amendments to the statute as evidence of an intent to exempt prayer treatment from the reach of sections 192(b) and 273a(l). She specifically contends that the 1925 and 1976 amendments to section 270 were enacted to bar manslaughter prosecutions against Christian Scientists. With respect to the 1925 amendment, which added the phrase “or other remedial care” to the statute, defendant rests her account of its legislative history on certain descriptive passages contained in the 1920 and 1925 annual reports of the Christian Science Committee on Publication for Southern California. She is not well served by these materials. First, the documents are so removed from the legislative process that any construction of the statute based on their contents would be patently unreliable. Second, even if we were to consider the reports, they provide virtually no support for her contention.7

Defendant next contends that the 1976 amendment identifying prayer treatment as a form of “other remedial care” was similarly intended to shield Christian Scientists from manslaughter prosecutions. She observes that the amendment was sponsored by the Church in response to our dictum in Arnold, a case involving a misdemeanor-manslaughter prosecution. While legislative materials demonstrate that the amendment was indeed sponsored by the Church in response to Arnold, there is no evidence that the Legislature intended the modification to affect manslaughter, as opposed to misdemeanor, liability. (See Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3843 (1975-1976 Reg. Sess.); Sen. Republican Caucus, 3d reading analysis of Assem. Bill No. 3843, supra.) The portion of the Arnold opinion cited in the legislative materials as inspiring the amendment focused exclusively on the underlying misdemeanor liability of the parent; none of the documents mentions the relationship between the discussion of section 270 in Arnold and the manslaughter charge elsewhere involved in the case. (Ibid.) While the ensuing amendment necessarily precluded misdemeanor-manslaughter prosecutions based on violations of section 270 by eliminating misdemeanor liability under that statute, the Legislature left untouched the possibility of an involuntary manslaughter prosecution based as here on allegations of criminal negligence in the “commission of a lawful act which might produce death, in an unlawful manner . . . (§ 192 (b).)

8

The historical materials documenting the enactment of Assembly Bill No. 3843 demonstrate that the members of the Legislature were well aware the legislation left open the possibility of manslaughter and child endangerment prosecutions, but simply declined to extend their amendatory efforts beyond section 270. A staff analysis prepared for the Assembly Committee on Criminal Justice observed that “The bill appears unclear in two respects. First, Section 273a makes it a wobbler (10 year top) for any person to permit a minor under his care or custody to suffer any physical harm or injury. Thus, though the parents may not be hable for failing to provide for the health of the child because they choose treatment by prayer rather than common medical treatment, they would be liable if the child suffered any physiological harm. Second, no exception is made under the manslaughter statutes for parental liability should the child die. If treatment by prayer is to be recognized in part, the parents should not be liable for the results of using a permitted mode of healing.” (Assem. Com. on Criminal Justice, Analysis of Assem. Bill No. 3843 (1975-1976 Reg. Sess.).) Despite the opinion offered in the final sentence of the staff analysis, no amendments were made to eliminate potential liability under sections 192(b) and 273a(l). The committee passed the bill on April 29, 1976.

When the full Assembly considered the legislation on May 6, 1976, its members had before them the third reading analysis of the bill prepared by the Assembly Office of Research. This analysis incorporated, nearly verbatim, the observations regarding manslaughter and child endangerment liability contained in the earlier analysis prepared for the Criminal Justice Committee. (Assem. Office of Research, 3d reading analysis of Assem. Bill No. 3843, supra.) Again, no amendments were offered in response to the observations. The bill passed and moved to the Senate.

The Senate Committee on Judiciary received a four-page analysis of the legislation. Under the heading “Comment” and entirely capitalized, unlike any other portion of the document, were the following questions: “Do the provisions of this bill conflict with section 273a of the Penal Code which makes it a crime for any person to willfully cause or permit a minor under his care or custody to suffer any physical harm or injury? Might a parent be immune from liability for failure to provide for the health of the child because they choose treatment by prayer rather than common medical treatment, but incur liability if the child suffers any harm?” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3843, supra, capitalization omitted.) As in the Assembly, the Senate committee members chose to disregard the issues raised so prominently in their staff analysis and passed the measure to the full Senate without addressing manslaughter and child endangerment liability. No other reference to sections 192(b) and 273a(l) appears in the historical materials documenting the enactment of Assembly Bill No. 3843.

The ineluctable conclusion we must draw from these materials is that the members of the Legislature were fully conscious of the potential liability remaining under sections 192(b) and 273a(l) for conduct they had legalized with respect to section 270, but simply chose to leave the matter unaddressed. Needless to say, considered silence is an insufficient basis to infer that the Legislature, by amending a misdemeanor support provision, actually exempted from felony liability all parents who offer prayer alone to a dying child. “The failure of the Legislature to change the law in a particular respect when the subject is generally before it and changes in other respects are made is indicative of an intent to leave the law as it stands in the aspects not amended.” (Cole v. Rush (1955) 45 Cal.2d 345, 355 [289 P.2d 450, 54 A.L.R.2d 1137], disapproved on another point in Vesely v. Sager (1971) 5 Cal.3d 153, 167 [95 Cal.Rptr. 623, 486 P.2d 151].) The plain language, purpose, and legislative history of section 270 thus fail to establish a discernible legislative intent to exempt prayer treatment, as a matter of law, from the reach of the manslaughter and felony child-endangerment statutes. (Accord, Note, California's Prayer Healing Dilemma (1987) 14 Hastings Const.L.Q. 395, 401-404.)

B. Expressions of legislative intent in related statutes

Defendant next contends that an intent to exempt prayer treatment from conduct within the reach of sections 192(b) and 273a(l) is implied by a number of other civil and criminal measures relating to the provision of prayer in lieu of medical care to children. She first cites a plethora of statutes exempting prayer practitioners and their facilities from medical licensure requirements9 or variously accommodating individuals who choose to rely on such treatment for their own care.10 These accommodative provisions, however, evince no legislative sanction of prayer for the treatment of children in life-threatening circumstances.

More useful are statutes dealing with the definition of neglected or abused children for purposes of the state’s child welfare services program (Welf. & Inst. Code, § 16500 et seq.), the activities of the Office of Child Abuse Prevention (id. § 18950 et seq.), and a criminal provision requiring certain individuals to report instances of suspected child abuse (Pen. Code, § 11165 et seq.). Utilizing substantially similar language, each of these three statutes provides that children receiving treatment by prayer shall not “for that reason alone” be considered abused or neglected for its purposes. (Welf. & Inst. Code, §§ 16509.1 (hereafter W&I section 16509.1) and 18950.5 (hereafter W&I section 18950.5); Pen. Code, § 11165.2 (hereafter section 11165.2).)

Defendant cites these provisions as evidence that the Legislature does not consider prayer treatment to be a threat to the health of children, and thus that the imposition of criminal liability for the results of its use is inconsistent with legislative intent.

The Attorney General urges a different construction of the statutory language. He contends that the phrase “for that reason alone ” (italics added) denotes that a child receiving prayer treatment can still fall within the reach of the statutory definitions if the provision of such treatment, coupled with a grave medical condition, combine to pose a serious threat to the physical well-being of the child. 11 While defendant contends the phrase merely indicates that a child receiving prayer treatment can come within the purview of the statutes for other reasons, her construction renders the use of the word “alone” surplusage and thus must be rejected under the rule that “every word, phrase and provision employed in a statute is intended to have meaning and to perform a useful function.” (White v. County of Sacramento (1982) 31 Cal.3d 676, 681 [183 Cal.Rptr. 520, 646 P.2d 191], quoting Clements v. T R. Bechtel Co. (1954) 43 Cal.2d 227, 233 [273 P.2d 5].)

The code section immediately preceding W&I section 16509.1 in the child welfare services chapter strongly corroborates the interpretation offered by the Attorney General. That section reads: “Cultural and religious child-rearing practices and beliefs which differ from general community standards shall not in themselves create a need for child welfare services unless the practices present a specific danger to the physical or emotional safety of the child.” (Welf. & Inst. Code, § 16509 (hereafter W&I section 16509).) It is fundamental that “the language of a particular code section must be construed in light of and with reference to the language of other sections accompanying it and related to it with a view to harmonizing the several provisions and giving effect to all of them.” (Johnson v. Superior Court (1984) 159 Cal.App.3d 573, 582 [205 Cal.Rptr. 605].) The provision of prayer treatment in lieu of medical care to a gravely ill child doubtless constitutes a religious child-rearing practice “which differ[s] from general community standards . . . .” Nor is there any question that W&I sections 16509 and 16509.1 are related and intended to express a unified statutory objective. To harmonize their provisions accordingly, the use of the word “alone” in W&I section 16509.1 must be construed to signify that treatment by prayer will not constitute neglect for purposes of the child welfare services chapter except in those instances when such treatment, coupled with a sufficiently grave health condition, presents “a specific danger to the physical .. . safety of the child.”12 While section 11165.2 and W&I section 18950.5 lack similar companion provisions, there are persuasive reasons why we should interpret them in the same manner. First, each employs the words “for that reason alone” in a context identical to the use of the phrase in W&I section 16509.1. Identical language appearing in separate provisions dealing with the same subject matter should be accorded the same interpretation. (Ford Dealers Assn. v. Department of Motor Vehicles (1982) 32 Cal.3d 347, 359 [185 Cal.Rptr. 453, 650 P.2d 328].) Because each statute deals with the relationship of prayer treatment to the definition of child neglect or abuse, we are obliged to construe their shared language in a consistent fashion. (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 356 [220 Cal.Rptr. 602].) Second, both section 11165.2 and W&I section 18950.5 explicitly refer to the language of W&I section 16509.1 to define the conduct excepted from their definitions of neglect and abuse.13 This fact further suggests that the Legislature intended the several statutes to share a common meaning.

Finally, the most telling indication that the statutes should be construed together in the manner urged by the Attorney General is their mutual interrelation with the child dependency provisions of Welfare and Institutions Code section 300 (hereafter W&I section 300). Furnishing the state with its most powerful tool to intercede on behalf of children threatened at the hands of their parents, W&I section 300 delineates the circumstances under which a child can be removed from parental custody and declared a dependent of the court. Section 11165.2 and W&I sections 16509.1 and 18950.5 are each components of separate acts connected in some significant fashion to the child dependency proceedings outlined in W&I section 300. In sum, the three acts (1) require that suspected instances of child abuse or neglect be reported to the agency responsible for initiating child dependency proceedings under W&I section 300 (Pen. Code, § 11166, subds. (a), (b), & (g)); (2) provide services to neglected or abused children identified through dependency proceedings (Welf. & Inst. Code, §§ 16506, subd. (a), 16507, 16508, subd. (a)); and (3) fund child-abuse prevention projects in cooperation with local welfare agencies responsible for supervising dependency proceedings (Welf. & Inst. Code, § 18964, subd. (f)(3)). This intimate interrelation of statutory objectives, revolving around the identification and enforcement provisions of W&I section 300, counsels us to interpret the language of the related acts with reference to the provisions of the dependency statute to “achieve a uniform and consistent legislative purpose.” (Isobe v. Unemployment Insurance Appeals Bd. (1974) 12 Cal.3d 584, 591 [116 Cal.Rptr. 376, 526 P.2d 528]; People v. Caudillo, supra, 21 Cal.3d 562, 585.)

On September 30, 1987, the Governor signed into law Senate Bill No. 243, 1987-1988 Regular Session, which revised W&I section 300 in its entirety. (Stats. 1987, ch. 1485, § 4 [No. 5 Deering’s Adv. Legis. Service, pp. 5779-5780].) Although the legislation will not take effect until January 1, 1989, its provisions dealing with the relationship of prayer treatment to dependency proceedings are critically significant to our interpretive task insofar as they represent the Legislature’s most recent and detailed articulation of the protection to be assured seriously ill children receiving such care.

Newly amended W&I section 300 provides in pertinent part: “Any minor who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court. . . . (b) The minor has suffered, or there is substantial risk that the minor will suffer, serious physical harm or illness, ... by the willful or negligent failure of the parent... to provide the minor with adequate food, clothing, shelter, or medical treatment. . . . Whenever it is alleged that a minor comes within the jurisdiction of the court on the basis of the parent’s . . . willful failure to provide adequate medical treatment or specific decision to provide spiritual treatment through prayer, the court shall give deference to the parent’s . . . medical treatment, nontreatment, or spiritual treatment through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination by an accredited practitioner thereof and shall not assume jurisdiction unless necessary to protect the minor from suffering serious physical harm or illness." (Italics added.)

Thus in any circumstance involving the threat of “serious physical harm or illness,” the Legislature has empowered the juvenile court to intercede and assume custody for the express purpose of assuring medical care for a child whose parent is furnishing spiritual treatment by prayer alone. The expression of legislative intent is clear: when a child’s health is seriously jeopardized, the right of a parent to rely exclusively on prayer must yield. This intent is implicit in the enumeration of necessities a parent must furnish to avert a dependency proceeding under W&I section 300; conspicuously absent from the list is any substitute for adequate medical treatment. It follows that the only tenable construction of the related provisions defining the relationship of prayer treatment to child neglect or abuse is the analysis offered by the Attorney General.

While dependency proceedings are civil rather than criminal, their relevance to our inquiry is plain. Parents possess a profound interest in the custody of their children. (In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal.Rptr. 623, 579 P.2d 514]; Holt v. Superior Court (1960) 186 Cal.App.2d 524, 526-527 [9 Cal.Rptr. 353].) “Custody embraces the sum of parental rights with respect to the rearing of a child, including its care. It includes . . . the right to direct his activities and make decisions regarding his care and control, education, health, and religion.” (Burge v. City & County of San Francisco (1953) 41 Cal.2d 608, 617 [262 P.2d 6].) The United States Supreme Court has termed this constellation of parental interests “essential” (Meyers v. Nebraska (1923) 262 U.S. 390, 399 [67 L.Ed. 1042, 1045, 43 S.Ct. 625, 29 A.L.R. 1446]), among the “basic civil rights of man” (Skinner v. Oklahoma (1942) 316 U.S. 535, 541 [86 L.Ed. 1655, 1660, 62 S.Ct. 1110]), and “[r]ights far more precious . . . than property rights” (May v. Anderson (1953) 345 U.S. 528, 533 [97 L.Ed. 1221, 1226, 73 S.Ct. 840]). Consistent with the gravity of the prerogative at stake, parents involved in W&I section 300 proceedings are assured notice and a due process hearing (In re Robert P. (1976) 61 Cal.App.3d 310, 318 [132 Cal.Rptr. 5]) while those who are indigent receive appointed counsel (In re Christina H. (1986) 182 Cal.App.3d 47, 49 [227 Cal.Rptr. 41]; Cal. Rules of Court, rules 1334(c), 1363(c)). The Legislature’s willingness to intrude on a parental interest of such magnitude to assure that children receiving prayer treatment are spared serious physical harm certainly evinces no contrary intent with respect to the application of the penal laws, which in significant respects constitute a less intrusive method of advancing the state’s paramount interest in the protection of its children.

Defendant’s argument by analogy to civil neglect and dependency provisions therefore corroborates rather than refutes our previous determination that the Legislature has created no exemption under sections 192(b) and 273a(l) for parents who are charged with having killed or endangered the lives of their seriously ill children by providing prayer alone in lieu of medical care. The legislative design appears consistent: prayer treatment will be accommodated as an acceptable means of attending to the needs of a child only insofar as serious physical harm or illness is not at risk. When a child’s life is placed in danger, we discern no intent to shield parents from the chastening prospect of felony liability.

C. Defendant’s conduct and the standard for criminal culpability

Taking a wholly different tack, defendant next contends that she cannot be convicted under either the manslaughter or felony child-endangerment statutes regardless of the availability of a religious exemption. She rests this contention on a claim that the People will be unable to prove the degree of culpability necessary to convict her under either provision, both of which require criminal negligence in the commission of an offending act. (People v. Penny (1955) 44 Cal.2d 861, 879 [285 P.2d 926]; People v. Peabody (1975) 46 Cal.App.3d 43, 47 [119 Cal.Rptr. 780].) We have defined criminal negligence as “aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences. . . [Such negligence] is ordinarily to be determined pursuant to the general principles of negligence, the fundamental of which is knowledge, actual or imputed, that the act of the slayer tended to endanger life." (People v. Penny, supra, 44 Cal.2d at pp. 879-880.) Defendant makes two arguments for the claim that her conduct cannot, as a matter of law, constitute such negligence.

She first contends that the defenses recognized at English common law are available to her under Civil Code section 22.2, which reads: “The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.” She cites two English cases from the 19th century in support of the proposition that the common law recognized treatment by prayer in lieu of medicine as legally insufficient to constitute criminal negligence.14 While we note that common law defenses, with limited exceptions, are unavailable in California (Keeler v. Superior Court, supra, 2 Cal.3d at pp. 631-632), we need look no further than the cases themselves to dispose of defendant’s contention.

The opinion of the court in Regina v. Wagstaffe (Cen.Crim.Ct. 1868) 10 Cox. Crim. Cas. 530, consists of a vaguely worded jury charge. The court instructed the jury that criminal negligence “was a very wide question. . . . At different times people had come to different conclusions as to what might be done with a sick person. . . . [A] man might be convicted of manslaughter because he lived in a place where all the community was of a contrary opinion, and in another he might be acquitted because they were all of his opinion. . . .” (Id. at p. 532.) The court asked rhetorically whether it was “intended by God Almighty that persons should content themselves by praying for His assistance, without helping themselves, or resorting to such means as were within their reach for that purpose?” (ibid.), and concluded with the observation that the defendants appeared sincere and affectionate. Although the defendants were subsequently acquitted, the fact that the jury itself resolved the question of criminal negligence negates the claim that the court in Wagstqffe recognized a legal defense to the charge. Furthermore, its jury instructions merely restated the principle that criminal negligence is a question of fact to be determined in light of contemporary community standards, which at the time made the particular question a close one.

The second case cited by defendant makes this point quite clearly. In Regina v. Hines (1874) 80 Cent. Crim. Ct. 309, the court dismissed an indictment for manslaughter against a parent who had exclusively prayed for an ill child.15 Although the court ruled that the conduct was not criminally negligent as a matter of law, to state the holding is to refute its application 114 years later: the court considered and rejected the proposition that a parent who treated a child by spiritual care “instead of calling in a doctor to apply blisters, leeches, and calomel,” was guilty of criminal negligence. (Id. at p. 312.) Were blisters, leeches and calomel the medical alternative to prayer today, quite likely defendant’s reliance on Hines would more fully resonate with this court. Medical science has advanced dramatically, however, and we may fairly presume that the community standard for criminal negligence has changed accordingly. Nineteenth-century English common law thus fails to establish a defense, as a matter of law, to charges arising today for criminal negligence in the death of a child treated by prayer alone.16

Defendant next contends that her actions are legally insufficient to constitute criminal negligence under the definition of that conduct established in the decisions of this court.

Emphasizing her sincere concern and good faith in treating Shauntay with prayer, she claims that her conduct is incompatible with the required degree of culpability. Defendant does not dispute, however, that criminal negligence must be evaluated objectively. (People v. Watson (1981) 30 Cal.3d 290, 296-297 [17 Cal.Rptr. 43, 637 P.2d 279]; People v. Penny, supra, 44 Cal.2d 861, 880.) The question is whether “a reasonable person in defendant’s position would have been aware of the risk involved . . .” (People v. Watson, supra, 30 Cal.3d at p. 296.) If so, “defendant is presumed to have had such an awareness." (Ibid.)

The significance of this principle was well illustrated in People v. Burroughs (1984) 35 Cal.3d 824 [201 Cal.Rptr. 319, 678 P.2d 894], a case involving a “self-styled ‘healer’ ” who provided “ ‘deep’ abdominal massages” to a leukemic who thereafter died of a massive abdominal hemorrhage. (Id. at pp. 826, 828.) We observed that “There is no allegation made, nor was there any evidence adduced at trial, that [the defendant] at any time harbored any intent even to harm [the victim] in the slightest fashion.” (Id. at p. 834.) “Indeed, nowhere is it claimed that defendant attempted to perform any action with respect to [the victim] other than to heal him. . .” (Id. at p. 833.) Nonetheless, we determined that the defendant could be charged with criminally negligent involuntary manslaughter. (Id. at p. 836.) The relevant inquiry, then, turns not on defendant’s subjective intent to heal her daughter but on the objective reasonableness of her course of conduct. 17

In view of this standard, we must reject defendant’s assertion that no reasonable jury could characterize her conduct as criminally negligent for purposes of sections 192(b) and 273a(l). As the court in People v. Atkins (1975) 53 Cal.App.3d 348 [125 Cal.Rptr. 855], observed in affirming the involuntary manslaughter and felony child-endangerment conviction of a parent whose child died for want of medical care, criminal negligence “could have been found to have consisted of the [mother’s] failure to seek prompt medical attention for [her son], rather than waiting several days. There is evidence she knew, or should have known, that [her son] was seriously injured. . . Viewing [the evidence] in the light most favorable to the prosecution, there is substantial evidence here of involuntary manslaughter based on the lack of due caution and circumspection in omitting to take the child to a doctor.” (Id. at p. 360.) When divorced of her subjective intent, the alleged conduct of defendant here is essentially indistinguishable.

Defendant’s arguments to the contrary are not persuasive. She first asserts that the various statutory exemptions enacted for Christian Scientists demonstrate a legislative acceptance of the reasonableness of their spiritual care that is incompatible with a finding of “gross, culpable, or reckless” negligence. As discussed at length above, however, California’s statutory scheme reflects not an endorsement of the efficacy or reasonableness of prayer treatment for children battling life-threatening diseases but rather a willingness to accommodate religious practice when children do not face serious physical harm. Indeed, the relevant statute suggest that prayer treatment for gravely ill children is sufficiently unreasonable to justify the state in taking the draconian step of depriving parents of their rights of custody. (Ante, at pp. 132-134.)

The two cases cited by defendant in support of her claim are clearly distinguishable. In People v. Rodriguez (1960) 186 Cal.App.2d 433 [8 Cal.Rptr. 863], the court reversed the involuntary manslaughter conviction of a mother who had left her children alone at home where one died in a fire. The court ruled that the mother’s conduct did not reflect a course of conduct sufficiently reckless to justify a finding of criminal negligence. (Id. at pp. 440-441.) In terms of unreasonableness, however, the failure of defendant to seek medical attention for a child who sickened and died over a 17-day period is plainly more egregious than the decision of Mrs. Rodriguez to leave her children alone at home for an afternoon. In Somers v. Superior Court (1973) 32 Cal.App.3d 961 [108 Cal.Rptr. 630], the court granted a writ of prohibition barring the manslaughter prosecution of a police officer who had shot a fleeing youth whom the officer mistook for a felon. The court observed that the situation was “tense and menacing” because of earlier reports of robberies in the vicinity, that the victim matched the description of a suspect and appeared to be carrying a shotgun, and that the victim continued to flee after the officer had shouted “Stop, police.” (Id. at pp. 965, 968-970.) Again, the objective unreasonableness of defendant’s course of conduct, compared with the officer’s actions in Somers, is of an evidently greater magnitude.

In sum, we reject the proposition that the provision of prayer alone to a seriously ill child cannot constitute criminal negligence as a matter of law. Whether this defendant’s particular conduct was sufficiently culpable to justify conviction of involuntary manslaughter and felony child endangerment remains a question in the exclusive province of the jury.

II. Constitutional Defenses

A. Free exercise under the First Amendment

In the absence of a statutory basis to bar defendant’s prosecution, we necessarily reach her constitutional claims. Defendant and the Church first contend that her conduct is absolutely protected from criminal liability by the First Amendment to the United States Constitution and article I, section 4, of the California Constitution. We do not agree.

The First Amendment bars government from “prohibiting the free exercise” of religion. Although the clause absolutely protects religious belief, religiously motivated conduct “remains subject to regulation for the protection of society.” (Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304 [84 L.Ed. 1213, 1218, 60 S.Ct. 900, 128 A.L.R. 1352].) To determine whether governmental regulation of religious conduct is violative of the First Amendment, the gravity of the state’s interest must be balanced against the severity of the religious imposition. (Wisconsin v. Yoder (1972) 406 U.S. 205, 221 [32 L.Ed.2d 15, 28, 92 S.Ct. 1526].) If the regulation is justified in view of the balanced interests at stake, the free exercise clause requires that the policy additionally represent the least restrictive alternative available to adequately advance the state’s objectives. (Thomas v. Review Bd, Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 718 [67 L.Ed.2d 624, 634, 101 S.Ct. 1425].)

Defendant does not dispute the gravity of the governmental interest involved in this case, as well she should not. Imposition of felony liability for endangering or killing an ill child by failing to provide medical care furthers an interest of unparalleled significance: the protection of the very lives of California’s children, upon whose “healthy, well-rounded growth . . . into full maturity as citizens” our “democratic society rests, for its continuance . . . .” (Prince v. Massachusetts (1944) 321 U.S. 158, 168 [88 L.Ed. 645, 653, 64 S.Ct. 438].) Balanced against this interest is a religious infringement of significant dimensions. Defendant unquestionably relied on prayer treatment as an article of genuine faith, the restriction of which would seriously impinge on the practice of her religion. We note, however, that resort to medicine does not constitute “sin” for a Christian Scientist (Schneider, Christian Science and the Law: Room for Compromise?, supra, 1 Colum. J.L. & Soc. Probs. at pp. 87-88), does not subject a church member to stigmatization (Talbot, The Position of the Christian Science Church, supra, 26 N.E. Med. J. at p. 1642), does not result in divine retribution (Schneider, op. cit. supra, at pp. 87-88), and, according to the Church’s amicus curiae brief, is not a matter of church compulsion.

Regardless of the severity of the religious imposition, the governmental interest is plainly adequate to justify its restrictive effect. As the United States Supreme Court stated in Prince v. Massachusetts, supra, 321 U.S. at page 170 [88 L.Ed. at p. 654], “Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full legal discretion when they can make that choice for themselves.” The court in Prince considered a free-exercise claim asserted by parents whose religious beliefs required that their children sell religious tracts in violation of child labor laws. If parents are not at liberty to “martyr” children by taking their labor, it follows a fortiori that they are not at liberty to martyr children by taking their very lives. As the court explained, “The right to practice religion freely does not include liberty to expose the community or child to communicable disease or the latter to ill health or death.” (Id. at pp. 166-167 [88 L.Ed. at p. 653]; accord, Wisconsin v. Yoder, supra, 406 U.S. at pp. 233-234 [32 L.Ed.2d at p. 35].)

In an attempt to avoid this inexorable conclusion, the Church argues at length over the purportedly pivotal distinction between the governmental compulsion of a religiously objectionable act and the governmental prohibition of a religiously motivated act. Accepting arguendo the force of the distinction, we find that it has no relevance in a case involving an interest of this magnitude. As the court in Prince recognized, parents have no right to free exercise of religion at the price of a child’s life, regardless of the prohibitive or compulsive nature of the governmental infringement. Furthermore, the United States Supreme Court has specifically sustained the compulsion of religiously prohibited conduct for interests no more compelling than here implicated. In Jacobson v. Massachusetts (1905) 197 U.S. 11, 39 [49 L.Ed. 643, 655, 25 S.Ct. 358], the court upheld a law compelling the vaccination of children for communicable diseases in the face of parental religious objections. In United States v. Lee (1982) 455 U.S. 252, 261 [71 L.Ed.2d 127, 135, 102 S.Ct. 1051], the court upheld a law requiring that the Amish violate the tenets of their faith by participating in the Social Security system. And in Gillette v. United States (1971) 401 U.S. 437, 462 [28 L. Ed.2d 168, 188, 91 S. Ct. 828], the court upheld the government’s right to compel certain conscientious objectors to make war despite the religious character of their objections. We see no basis in these precedents for the conclusion that parents may constitutionally insulate themselves from state compulsion so long as their life-threatening religious conduct takes the form of an omission rather than an act.

The imposition of felony liability for failure to seek medical care for a seriously ill child is thus justified by a compelling state interest. To survive a First Amendment challenge, however, the policy must also represent the least restrictive alternative available to the state. Defendant and the Church argue that civil dependency proceedings advance the governmental interest in a far less intrusive manner. This is not evident. First, we have already observed the profoundly intrusive nature of such proceedings; it is not clear that parents would prefer to lose custody of their children pursuant to a disruptive and invasive judicial inquiry than to face privately the prospect of criminal liability. Second, child dependency proceedings advance the governmental interest only when the state learns of a child’s illness in time to take protective measures, which quite likely will be the exception rather than the rule: “Under ordinary circumstances,. . . the case of a true believer in faith healing will not even come to the attention of the authorities, unless and until someone dies.” (Comment, Religious Beliefs and the Criminal Justice System: Some Problems of the Faith Healer, supra, 8 Loyola L. A. L.Rev. at pp. 403-404.) Finally, the imposition of criminal liability is reserved for the actual loss or endangerment of a child’s life and thus is narrowly tailored to those instances when governmental intrusion is absolutely compelled.

We conclude that an adequately effective and less restrictive alternative is not available to further the state’s compelling interest in assuring the provision of medical care to gravely ill children whose parents refuse such treatment on religious grounds. Accordingly, the First Amendment and its California equivalent do not bar defendant’s criminal prosecution. (Accord, Craig v. State (1959) 220 Md. 590 [155 A.2d 684, 690]; People v. Pierson (1903) 176 N.Y. 201 [68 N.E. 243, 245]; Owens v. State (1911) 6 Okla.Crim. 110 [116 P. 345, 347-348]; Commonwealth v. Barnhart (1985) 345 Pa.Super. 10 [497 A.2d 616, 623-624]; Note, California’s Prayer Healing Dilemma, supra, 14 Hastings Const.L.Q. at pp. 412.)

B. Due process right to fair notice of illegal conduct

Article I, section 7, of the California Constitution and the Fourteenth Amendment to the United States Constitution both assure that no person shall be deprived of “life, liberty, or property without due process of law.” Among the implications of this constitutional command is that the state must give its citizenry fair notice of potentially criminal conduct. This requirement has two components: “due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269 [198 Cal.Rptr. 145, 673 P.2d 732], cert. den. 466 U.S. 967 [80 L.Ed.2d 812, 104 S.Ct. 2337]; see also Kolender v. Lawson (1983) 461 U.S. 352, 357-358 [75 L.Ed.2d 903, 908-909, 103 S.Ct. 1855].) Defendant contends that sections 192(b) and 273a(l), when read together with section 270, violate this constitutional dictate.

We initially observe that these statutes do not invite standardless law enforcement. Unlike typical due process challenges involving an ambiguously worded statute applied in an arbitrary and unforeseeable manner (see, e.g., Lanzetta v. New Jersey (1939) 306 U.S. 451 [83 L.Ed. 888, 59 S.Ct. 618]), we consider here three separate provisions that clearly identify their respective proscriptions. (People v. Harris (1966) 239 Cal.App.2d 393, 395-397 [48 Cal.Rptr. 677] [upholding the validity of § 273a on fair notice grounds]; People v. Wilson (1947) 78 Cal.App.2d 108, 114 [177 P.2d 567] [same, § 192(b)]; People v. Yates (1931) 114 Cal.App.Supp. 782, 789 [298 P. 961] [same, § 270].) Even if we accept arguendo defendant’s contention that the intersection of the statutes creates uncertainty on the part of law enforcement officials regarding the legality of prayer treatment when a child’s life is endangered or lost, the officials are nevertheless required to make only one discretionary judgment: whether or not to prosecute conduct otherwise within the reach of the felony statutes in view of the provisions of section 270. This discretion certainly is not “of such a standardless sweep [that it] allows policemen, prosecutors, and juries to pursue their personal predilections.” (Smith v. Goguen (1974) 415 U.S. 566, 575 [39 L.Ed.2d 605, 613, 94 S.Ct. 1242].)

With respect to the remaining component of the due process analysis, defendant makes two arguments why the statutory scheme fails to provide fair notice. She first contends that sections 192(b) and 273a(1) provide no notice of the point at which lawful prayer treatment becomes unlawful, thus requiring her “at peril of life, liberty or property to speculate as to the meaning of penal statutes.” (Lanzetta v. New Jersey, supra, 306 U.S. at p. 453 [83 L.Ed. at p. 890].) She frames her argument in the form of a rhetorical question: “Is it lawful for a parent to rely solely on treatment by spiritual means through prayer for the care of his/her ill child during the first few days of sickness but not for the fourth or fifth day?” Justice Holmes correctly answers: “[T]he law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. . . . ‘An act causing death may be murder, manslaughter, or misadventure, according to the degree of danger attending it’ by common experience in the circumstances known to the actor.” (Nash v. United States (1913) 229 U.S. 373, 377 [57 L.Ed. 1232, 1235, 33 S.Ct. 780]; see also Coates v. City of Cincinnati (1971) 402 U.S. 611, 614 [29 L.Ed.2d 214, 217, 91 S.Ct. 1686].) The “matter of degree” that persons relying on prayer treatment must estimate rightly is the point at which their course of conduct becomes criminally negligent. In terms of notice, due process requires no more. (Burg v. Municipal Court, supra, 35 Cal.3d at p. 270.)

Defendant contends in conclusion that the statutory scheme violates her right to fair notice by allowing punishment under sections 192(b) and 273a(l) for the same conduct that is assertedly accommodated under section 270. She argues in essence that the statutes issue “inexplicably contradictory commands” (Raley v. Ohio (1959) 360 U.S. 423, 438 [3 L.Ed.2d 1344, 1356, 79 S.Ct. 1257]) and thus violate due process by precluding “an ordinary person [from] intelligently choosflng], in advance, what course it is lawful for him to pursue.” (Connally v. General Construction Co. (1926) 269 U.S. 385, 393 [70 L.Ed. 322, 329, 46 S.Ct. 126].)18

In considering whether a legislative proscription is sufficiently clear to satisfy the requirements of fair notice, “we look first to the language of the statute, then to its legislative history, and finally, to California decisions construing the statutory language.” (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 246 [158 Cal.Rptr. 330, 599 P.2d 636]; People v. Mirmirani (1981) 30 Cal.3d 375, 383 [178 Cal.Rptr. 792, 636 P.2d 1130].) We thus require citizens to apprise themselves not only of statutory language but also of legislative history, subsequent judicial construction, and underlying legislative purposes (People v. Grubb (1965) 63 Cal.2d 614, 620 [47 Cal.Rptr. 772, 408 P.2d 100]). (See generally Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court (1960) 109 U. Pa. L.Rev. 67.) These principles express the strong presumption that legislative enactments “must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears. [Citations.] A statute should be sufficiently certain so that a person may know what is prohibited thereby and what may be done without violating its provisions, but it cannot be held void for uncertainty if any reasonable and practical construction can be given to its language.” (Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481, 484 [171 P.2d 21, 166 A.L.R. 701], citations omitted.)

As we have discussed at length above, the purposes of the statutes here at issue are evidently distinguishable: sections 192(b) and 273a(l) protect against grievous and immediate physical harm while section 270 assures the routine provision of child support at parental expense. (Ante, at pp. 124-126.) In light of these distinguishable objectives, it cannot be said that the legality of defendant’s conduct under section 270 constitutes an “inexplicably contradictory command” with respect to the separate requirements of sections 192(b) and 273a(l). Indeed, the legislative history of section 270 specifically demonstrates the Legislature’s unwillingness to extend the statute’s religious exemption to the felony provisions. (Ante, at pp. 127-129.) Sections 270, 192(b), and 273a(l) thus provided constitutionally sufficient notice to defendant that the provision of prayer alone to her daughter would be accommodated only insofar as the child was not threatened with serious physical harm or illness.19

III. Disposition

We conclude that the prosecution of defendant for involuntary manslaughter and felony child endangerment violates neither statutory law nor the California or federal Constitution. The judgment of the Court of Appeal is affirmed.

Lucas, C. J., Panelli, J., Arguelles, J., Eagleson, J., and Kaufman, J., concurred.

1

Members of the Church “believe that disease is a physical manifestation of errors of the mind.” (Comment, Religious Beliefs and the Criminal Justice System: Some Problems of the Faith Healer (1975) 8 Loyola L.A. L.Rev. 396, 397, fn. 7.) The use of medicine is believed to perpetuate such error and is therefore discouraged. (Schneider, Christian Science and the Law: Room for Compromise? (1965) 1 Colum. J.L. & Soc. Probs. 81, 87-88.) Nonetheless, “the Church sets up no abstract criteria for determining what diseases or injuries should be treated by prayer or other methods but, rather, leaves such questions to individual decision in concrete instances. . . If some turn in what they think is an urgent time of need to medical treatment for themselves or their children, they are not—contrary to some recent charges— stigmatized by their church.” (Talbot, The Position of the Christian Science Church (1983) 26 N.E. Med. J. 1641, 1642, italics in original.)

2

The Church describes in an amicus curiae brief the role of Christian Science practitioners and nurses: “[Christian Science practitioners are] individuals who devote their full time to healing through prayer, or spiritual treatment. These individuals are approved for listing by the Church in The Christian Science Journal, after having given evidence of moral character and healing ability. Practitioners determine their own charges, usually from seven to fifteen dollars per day of treatment, and are paid by their patients. . . The practitioner’s work, however, is a religious vocation, a ministry of spiritual healing in its broadest sense. Christian Scientists may also call upon the services of a Christian Science nurse, who provides such practical care as dressing of wounds for those having spiritual treatment.”

3

The statute thus reads in pertinent part: “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor . . . If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute ‘other remedial care’, as used in this section.”

4

This analysis reflects the rule that different statutes should be construed together only if they stand in pari materia. “Statutes are considered to be in pari materia when they relate to the same person or thing, to the same class of person of things, or have the same purpose or object. Characterization of the object or purpose is more important than characterization of subject matter in determining whether different statutes are closely enough related to justify interpreting one in light of the other. It has been held that where the same subject is treated in several acts having different objects the statutes are not in pari materia. ‘The adventitious occurrence of. . . similar subject matter, in laws enacted for wholly different ends will normally not justify applying the rule.’ ” (2A Sutherland, Statutory Construction (Sands, 4th ed. 1984) § 51.03, p. 467, citations and fns. omitted.) Even if statutes stand in pari materia, “each retains its independence and a violation of one is not necessarily a violation of the other.” (Id. at p. 468.) Similarly, a defense to one is not necessarily a defense to the other.

5

Defendant acknowledges that the dispositional provisions of section 270d substantiate the contrary conclusion reached by this court in Sorensen. She maintains that section 270d should be ignored because it was added to the Penal Code after the original passage of section 270. Her contention contradicts the established principle that in construing a statute to discern its purpose, its provisions should be read together “so that all may be harmonized and have effect.” (Moore v. Panish (1982) 32 Cal.3d 535, 541 [186 Cal.Rptr. 475, 652 P.2d 32].) The sequence of enactment of particular sections in a statute bears on its construction only when two provisions stand in irreconcilable conflict; in that event, the terms of the later prevail. (City of Petaluma v. Pac. Tel. & Tel. Co. (1955) 44 Cal.2d 284, 288 [282 P.2d 43].)

6

This conclusion disposes of defendant’s separate contention that both section 270 and section 273a(l) address the same object—child endangerment—and therefore that she must be charged under the provision more specifically encompassing her conduct. (See In re Williamson (1954) 43 Cal.2d 651, 654 [276 P.2d 593].) Because we have determined that section 270 is not intended to protect children from life-threatening bodily harm but rather focuses on the procurement of their routine support, the doctrine does not apply. (People v. Jenkins (1980) 28 Cal.3d 494, 502 [170 Cal.Rptr. 1, 620 P.2d 587].) Indeed, it would be a bizarre result if parents who starve their children nearly to death by failing to furnish food could be prosecuted for no more than a misdemeanor violation of section 270.

7

Defendant posits a causal relationship between a misdemeanor-manslaughter prosecution detailed in the 1920 report and the 1925 amendment to section 270, briefly extolled in the latter report. However, the cited passage of the 1925 report simply recites the language of the amendment and terms the legislation “a forward step . . . .” No mention is made of any relationship between the amendment and manslaughter liability in general nor the specific manslaughter prosecution discussed in the earlier report. In an attempt to forge the missing causal link, defendant disingenuously observes that in “a [misdemeanor-manslaughter] case cited in those . . . materials,” a judge purportedly ruled from the bench that prayer is “a legal, lawful means of healing disease in the State of California as contemplated by Section 270 or any other section of the laws of the State of California . . . .” On the basis of this ruling, defendant concludes that the 1925 legislation had afforded “a parent who provides his/her child with treatment by prayer as an alternative to medical attendance with a complete statutory defense to manslaughter charges . . . .” (Italics in original.) What defendant fails to note is that the discussion of the ruling appeared in the 1920 annual report. The case therefore predated the 1925 amendment by at least five years, obviously lends nothing to its interpretation, and was flatly erroneous in light of the language of section 270 existing prior to 1925, which recognized no substitute for the provision of medical attendance. (See Pen. Code (1st ed. 1872) § 270.)

8

Section 192(b) defines involuntary manslaughter as the unlawful killing of a human being without malice “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection.” The information charging defendant with manslaughter alleges that she killed her daughter “without malice but in the commission of a lawful act which might produce death in an unlawful manner and without due caution and circumspection.”

9

See, e.g., Business and Professions Code sections 2063, 2731, and 2789; Health and Safety Code sections 430.8, 1270, 1505, subdivision (f), 1569.145, subdivision (c), 1569.31, 1709, and 1738. As we long ago observed, the exemption of spiritual practitioners from licensure requirements simply reflects the fact that those who rely on spiritual care understand that its effectiveness is independent of the knowledge and skills which the licensing statutes seek to assure in those who represent themselves to the public as physicians. (People v. Jordan (1916) 172 Cal. 391, 400 [156 P. 451]; see also Comment, Religious Beliefs and the Criminal Justice System: Some Problems of the Faith Healer, supra, 8 Loyola L.A. L.Rev. at p. 399, fn. 12.)

10

See, e.g, Welfare and Institutions Code sections 7104, 14004, 14059, and 14132, subdivision (a); Education Code section 44978; Unemployment Insurance Code sections 2627.5, subdivision (c)(4), and 2709.

11

The Attorney General’s interpretation duplicates an earlier construction of precisely the same words offered from a surprising quarter: the Christian Science Church. The Church-sponsored legislation containing the 1976 amendment to section 270 originally included an additional amendment to section 600 (now section 300) of the Welfare and Institutions Code, which sets forth the circumstances under which children can be declared dependents of the court and taken from their parents. The amendment, deleted from the legislation prior to its passage, provided that “No child who in good faith is under treatment solely by spiritual means through prayer alone . . . shall, for that reason alone, be considered a person described by Section 600.” (Assem. Bill No. 3843 (1975-1976 Reg. Sess.), as introduced Mar. 17, 1976, italics added.) When the Director of the Department of Health questioned whether the amendment would bar children receiving prayer treatment from being declared dependents even if their health became endangered, the Christian Science official sponsoring the legislation gave the following response in a letter dated June 16, 1976: “The general counsel for the Christian Science Committee on Publication for Southern California . . . gave us his considered opinion that [the amendment] does not preclude the court’s taking custody of a minor if the [prayer treatment] is not effective. It only says to the court that it cannot take a child into custody for the sole reason that he is being furnished accredited Christian Science treatment.” (Italics in original.) The Church official reiterated his analysis in a letter to Senator Carpenter on the same day: “[T]he court can’t take a child away from a parent solely because he’s having accredited Christian Science treatment in lieu of medical. Of course, the bill doesn’t say that the child can’t be taken if the treatment should not be effective.” (Italics in original.)

12

The Colorado Supreme Court has reached the same conclusion with respect to nearly identical statutory language: “In our view, the meaning of the statutory language, ‘for that reason alone,’ is quite clear. It allows a finding of. . . neglect for other ‘reasons,’ such as where the child’s life is in imminent danger, despite any treatment by spiritual means. In other words, a child who is treated solely by spiritual means is not, for that reason alone, . . . neglected, but if there is an additional reason, such as where the child is deprived of medical care necessary to prevent a life-endangering condition, the child may be adjudicated . . . neglected under the statutory scheme.” (People In Interest of D.L.E. (Colo. 1982) 645 P.2d 271, 274-275.)

13

W&I section 18950.5 reads: “For the purposes of. . . [the Office of Child Abuse Prevention] chapter, a child receiving treatment by spiritual means as provided in [section 16509.1] of the Welfare and Institutions Code shall not for that reason alone be considered an abused or neglected child.” (W&I section 18950.5 actually cites former section 16508 of the Welfare and Institutions Code, where the language of W&I section 16509.1 was previously codified in nearly identical terms prior to a 1982 amendment that renumbered the provisions of the child welfare services chapter. (Stats. 1982, ch. 978, § 62.) The reference in W&I section 18950.5 to the superseded code section was apparently overlooked at the time of the 1982 amendment.)

Section 11165.2 reads in pertinent part: “For the purposes of this chapter, a child receiving treatment by spiritual means as provided in Section 16509.1 of the Welfare and Institutions Code . . . shall not for that reason alone be considered a neglected child.”

14

Although more than a century old, the cases represent the last word of the English courts on the common law question of criminal negligence in such circumstances. Parliament thereafter passed the Poor Law Amendment Act of 1868 imposing a statutory duty on parents to provide their children with medical care. (Trescher & O’Neill, Medical Care for Dependent Children: Manslaughter Liability of the Christian Scientist (1960) 109 U. Pa. L.Rev. 203, 206-207.)

15

While this decision postdates the passage of the Poor Law Amendment Act of 1868, the court apparently disregarded the statute and applied common law principles. (Trescher & O’Neill, op. cit. supra, 109 U. Pa. L.Rev. at p. 206.)

16

We note that in the one other English case apparently decided under the common law, a parent was convicted of unlawfully neglecting to provide medical aid after praying for an ailing child. (Reg. v. Hurry (1872) 76 Cent. Crim. Ct. 63; see Trescher & O’Neill, op. cit. supra, 109 U. Pa. L.Rev. at p. 206, fn. 16.)

17

Compare LaFave and Scott’s comment that “an honest belief that prayer is a better cure than medicine, that Providence can heal better than doctors, might serve to negative the awareness of risk which is required for manslaughter in those states which use a subjective test of criminal negligence.” (LaFave & Scott, Criminal Law (1972) p. 590, fn. 23, italics added.)

18

The Attorney General contends that we should analyze this question under the “reasonable reliance” doctrine rather than as a traditional fair-notice issue. Unlike fair notice, which addresses the validity and enforceability of a statute, “reasonable reliance” is an exception to the rule that ignorance of the law is no excuse. (Kratz v. Kratz (E.D.Pa. 1979) 477 F.Supp. 463, 480.) It focuses on those circumstances in which an individual acts “in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous,” and is then prosecuted for a violation of the law. (Model Pen. Code, § 2.04, subd. (3)(b).) Unlike a fair-notice defense, the reasonable reliance doctrine requires proof of actual reliance on a mistaken construction of the statute. (Cf. McBoyle v. United States (1931) 283 U.S. 25, 27 [75 L.Ed. 816, 818, 51 S.Ct. 340].)

The issue before us is clearly of a different sort. Section 270 is not an erroneous statement or interpretation of sections 273a(1) and 192(b); it is a separate statute with full legal force and effect. The significance of this distinction is borne out by the cases analyzed under the reasonable reliance doctrine. (Compare Raley v. Ohio, supra, 360 U.S. 423, Cox v. Louisiana (1965) 379 U.S. 559 [13 L.Ed.2d 487, 85 S.Ct. 476], and United States v. Lichenstein (5th Cir. 1980) 610 F.2d 1272 [statements of public officials misrepresenting applicable law analyzed under reasonable reliance doctrine] with United States v. Cardiff (1952) 344 U.S. 174 [97 L.Ed. 200, 73 S.Ct. 189], and Mid-Fla Coin Exchange, Inc. v. Griffin (M.D.Fla. 1981) 529 F.Supp. 1006 [conflicting statutory provisions analyzed under fair-notice doctrine].) There is a distinction of constitutional dimension between an official statement of the law and the law itself. The former, if erroneous and actually relied upon, may constitute an affirmative factual defense; the latter, if “inexplicably contradictory,” violates fair notice and as a matter of law cannot form the basis for criminal liability.

19

The American Civil Liberties Union argues in an amicus curiae brief that these allegedly conflicting statutes warrant particularly close scrutiny because they impinge on conduct protected by the First Amendment. Amicus curiae cites authority supporting the proposition that vague laws which chill protected expression are a cause for serious concern. (See, e.g., Groyned v. City of Rockford (1972) 408 U.S. 104, 109 [33 L.Ed.2d 222, 228, 92 S.Ct. 2294]; Smith v. California (1959) 361 U.S. 147, 150-151 [4 L.Ed.2d 205, 209-210, 80 S.Ct. 215].) The authority is inapposite. The only conduct that could possibly be “chilled” by the interrelation of these statutes is reliance on prayer alone in circumstances reached by sections 192(b) and 273a(l)—that is, when the conduct endangers or takes the life of a child. In such circumstances, free exercise is not implicated. (Ante, at pp. 138-141.)

MOSK, J., Concurring

My opinion prepared for the court holds as a matter of statutory construction that Penal Code section 270 (hereafter section 270) provides no religious defense to charges arising under the manslaughter and felony child-endangerment statutes. Because of this holding, the majority chose not to reach the Attorney General’s separate contention that an extension of section 270’s religious exemption to this felony prosecution would import into the proceeding a defense that offends the establishment clauses of the state and federal Constitutions. The issue, however, has been timely raised and thoroughly briefed, and its importance is manifest. I believe we should address it in this case for the guidance of the Legislature, so that any further legislative efforts to accommodate religious practice will comply with this constitutional command. As will appear, in my view the statutory exemption as it now reads plainly violates the establishment clauses.

The California and federal Constitutions admonish the Legislature “to make no law respecting an establishment of religion.” (U.S. Const., 1st Amend.; Cal. Const., art. I, § 4.) Two broad classes of legislation fall under this proscription: laws “affording a uniform benefit to all religions” and laws “that discriminate among religions.” (Larson v. Valente (1982) 456 U.S. 228, 252 [72 L.Ed.2d 33, 52-53, 102 S.Ct. 1673], italics in original.) The constitutionality of the first class of enactments is traditionally measured against three criteria delineated by the United States Supreme Court in Lemon v. Kurtzman (1971) 403 U.S. 602 [29 L.Ed.2d 745, 91 S.Ct. 2105]. Under Lemon, a law must first have a secular legislative purpose; second, its principal or primary effect must neither advance nor inhibit religion; and third, it must not foster an excessive governmental entanglement with religion. (Id. at pp. 612-613 [29 L.Ed.2d at pp. 755-756].)

Laws in the second class strike closer to the heart of the establishment clause prohibition and thus require more demanding scrutiny. (Larson v. Valente, supra, 456 U.S. at p. 252 [72 L.Ed.2d at p. 52].) As the Larson court observed, “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” (Id. at p. 244 [72 L.Ed.2d at p. 47].) The essential attribute of this constitutional dictate is governmental neutrality with respect to matters of faith: “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” (Epperson v. Arkansas (1968) 393 U.S. 97, 103-104 [21 L.Ed.2d 228, 234, 89 S.Ct. 266].)1 If a law effects a preference among religions, the governmental policy is presumptively suspect and subject to strict scrutiny. (Larson v. Valente, supra, 456 U.S. at p.246 [72 L.Ed.2d at p. 49].)

The court in Larson considered a provision exempting from the reporting and registration requirements of a charitable solicitations act only those religious organizations receiving over 50 percent of their contributions from members or affiliated organizations. (Id. at p. 231 [72 L.Ed.2d at p. 39].) By plainly discriminating among religions in the allocation of the statutory exemption, the provision granted a denominational preference requiring strict scrutiny. (Id. at p. 246.) While acknowledging that the state had “a significant interest in protecting its citizens from abusive practices in the solicitation of funds for charity, and that this interest retains importance when the solicitation is conducted by a religious organization” (id. at p. 248 [72 L.Ed.2d at p. 50]), the court nonetheless determined that the 50 percent rule was not sufficiently tailored to the statutory objective to withstand constitutional scrutiny. (Id. at p. 251 [72 L.Ed.2d at p. 52].)

Section 270 similarly allocates its religious benefit on a selective basis. The statute excludes from criminal liability any parent who provides a minor with “treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly-accredited practitioner thereof’’' (Italics added.) The provision thus affords no protection for parents who otherwise treat their children “by spiritual means through prayer alone.” Specifically denied the exemption are (1) parents not affiliated with a “recognized” church or religious denomination who nonetheless provide prayer treatment on the basis of personal religious beliefs or the teachings of an unrecognized sect, and (2) parents who provide prayer treatment in accordance with the tenets of a recognized denomination that does not “accredit” prayer “practitioners.”

These excluded believers are not the fanciful product of a strained reading of the statutory language. In People v. Arnold (1967) 66 Cal.2d 438 [58 Cal.Rptr. 115, 426 P.2d 515], this court considered a religious exemption claimed under section 270 by a member of “the Church of the First Born,” described as “a religious group believing in faith healing.” (Id. at p. 442, fn. 1.) Whether, and on what basis, a court would determine that the Church of the First Born constitutes a “recognized” religion is a serious question not easily answered.2 Furthermore, while the opinion in Arnold states that members of the group prayed with the defendant for a cure, there is no indication that they were “duly accredited practitioner[s]” of prayer treatment. (Ibid.) If not, Mrs. Arnold would have been denied the current statutory exemption even if the Church of the First Born had been “recognized.” Indeed, certain well-known denominations decline to term anyone a “healer”: “The so-called Pentecostal sects have some members who actively seek and encourage ‘divine intervention,’ but they do not ordinarily perform acts that are thought to ‘heal’ a sick person. In this sense, there are no ‘healers’; the cure is thought to come directly from God.” (Comment, Religious Beliefs and the Criminal Justice System: Some Problems of the Faith Healer (1975) 8 Loyola L.A. L.Rev. at pp. 413-414.)

Also denied the statutory exemption are parents whose use of prayer treatment stems from personal religious beliefs rather than the tenets of a recognized church or denomination. In other jurisdictions such parents have repeatedly prevailed on establishment and equal protection grounds against similarly formulated provisions. In Davis v. State (1982) 294 Md. 370 [451 A.2d 107], the court considered a challenge to a compulsory immunization statute exempting children whose parents objected because the procedure “conflicts with the tenets and practice of a recognized church or religious denomination of which he is an adherent or member ....” (Id. at pp. 108-109, italics deleted.) The plaintiff “rested his objection [to the immunization] on his personal religious views rather than the tenets of any recognized church or religious denomination of which he was a member or adherent.” (Id. at p. 109.) In Dalli v. Board of Education (1971) 358 Mass. 753 [267 N.E.2d 219], the plaintiff fell outside a similar exception to a compulsory immunization statute because she objected on the basis of “her personal ‘belief in the Bible, and its teachings.’ ” (Id. at p. 220.) Finally, the court in Brown v. Stone (Miss. 1979) 378 So.2d 218, certiorari denied 449 U.S. 887 [66 L.Ed.2d 112, 101 S.Ct. 242], considered the claim of a parent whose minister submitted the following statement: “ ‘Be it known that the [Cjhurch of Christ as a religious body does not teach against the use of . . . immunizations or vaccinations .... However, [plaintiff] who is a member of the . . . Church of Christ . . . does have strong convictions against the use of any kind of medications and we respect his views.’ ” (Id. at pp. 219-220; see also Maier v. Besser (1972) 73 Mise.2d 241 [341 N.Y.S.2d 411, 412]; cf. Lewis v. Califano (3d Cir. 1980) 616 F.2d 73, 75.) Were these parents charged with failure to furnish medical attendance under section 270, they would face conviction regardless of their alternative provision of “treatment by spiritual means through prayer alone.”

The one group of parents squarely protected by the terms of the statute are Christian Scientists, whose denomination sponsored the 1976 amendment to section 270 enacting its religious exemption. It is thus more than fortuity that the word “practitioner,” used by Christian Scientists to formally designate their healers, also appears in section 270 to describe the required providers of the exempted treatment. As the analysis of the amendment prepared for the Senate Committee on Judiciary frankly observed, the purpose of the legislation was to “Ensure that no parent who uses Christian Science methods to heal his or her child shall be liable for not providing recognized medical attention for the children.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3843 (1975-1976 Reg. Sess.), italics added; accord, Sen. Democratic Caucus, 3d reading analysis of Assem. Bill No. 3843 (1975-1976 Reg. Sess.).)

By sparing the favored from criminal liability while condemning others for failure to cloak identical conduct in the mantle of a sanctioned denomination or procedure, the religious exemption of section 270 operates without neutrality “in matters of religious theory, doctrine, and practice,” and thus cannot survive in the absence of a compelling state interest in its discriminatory effect. Unlike the exemption in Larson, however, which advanced an independent secular objective, the only discernible state interest in this exemption is religious accommodation per se. While accommodation has been sustained as a legitimate objective when it “reflects nothing more than the governmental obligation of neutrality in the face of religious differences” (Sherbert v. Verner (1963) 374 U.S. 398, 409 [10 L.Ed.2d 965, 83 S.Ct. 1790]), here the accommodation reflects nothing less than a denominational preference in the face of indistinguishable religious conduct. Manifestly this is not a compelling objective in the constitutional sense.

If the Legislature wishes to exempt from criminal liability those parents who rely on prayer treatment in lieu of medical care, the establishment clause requires at a minimum that the exemption be granted irrespective of denominational affiliation or practice. (Gillette v. United States (1971) 401 U.S. 437, 454 [28 L.Ed.2d 168, 183, 91 S. Ct. 828]; Lewis v. Califano, supra, 616 F.2d at p. 78 [“The establishment clause requires the government to extend the same benefits it currently extends to Christian Scientists ... to all individuals who sincerely believe in faith healing”]; Developments in the Law: Religion and the State (1987) 100 Harv.L.Rev. 1606, 1738 [“The only legislative accommodations that can withstand establishment clause scrutiny are those that accommodate all religious objectors equally”].)3 The conclusion is thus inescapable that the religious exemption found in section 270 violates the establishment clauses of the California and federal Constitutions. (Accord, Dalli v. Board of Education, supra, 267 N.E.2d at p. 223; Davis v. State, supra, 451 A.2d at pp. 113-114; State v. Miskimens (1984) 22 Ohio Misc.2d 43 [490 N.E.2d 931, 934]; Maier v. Besser, supra, 341 N.Y.S.2d at p. 414; Kolbeck v. Kramer (1964) 84 N.J.Super. 569 [202 A.2d 889, 892]; Note, California's Prayer Healing Dilemma (1987) 14 Hastings Const.L.Q. 395, 412-414; Comment, Religious Beliefs and the Criminal Justice System: Some Problems of the Faith Healer (1975) 8 Loyola L.A. L.Rev. 396, 429.)4

The exemption in section 270 is also invalid under the criteria set forth in Lemon v. Kurtzman, supra, 403 U.S. at pages 612-613 [29 L.Ed.2d at pages 755-756], even though “the Lemon v. Kurtzman ‘tests’ are intended to apply to laws affording a uniform benefit to all religions, and not to provisions . . . that discriminate among religions.” (Larson v. Valente, supra, 456 U.S. at p. 252 [72 L.Ed.2d at pp. 52-53], italics in original, fn. omitted.) As noted above, Lemon requires that a statute (1) have a secular purpose, (2) neither advance nor inhibit religion, and (3) foster no excessive entanglement between government and religion.

I have already observed that the accommodative purpose of this statutory exemption reflects a nonsecular preference among adherents of prayer treatment rather than a neutral governmental response to genuine religious differences. While one might charitably argue that the exemption has the effect of identifying indicia of sincere religious conduct, thus facilitating administration of the statute, discrimination subject to the strictest scrutiny cannot be justified on the basis of administrative convenience alone. (Cf. Frontiero v. Richardson (1973) 411 U.S. 677, 690 [36 L.Ed.2d 583, 594, 93 S.Ct. 1764].) Furthermore, the indicia are underinclusive and more likely to complicate rather than facilitate administration by requiring theological and social judgments that law enforcement officials and courts are not equipped to make. These administrative complications are closely linked to the troubling entanglement of church and state that the provision invites and Lemon forbids.

To apply section 270, law enforcement officials and courts are required to evaluate “the tenets and practices” of various religions, searching for a doctrinal sanction of “spiritual treatment by prayer alone”; they are called upon to consider whether individual healers have been “duly accredited” by a particular denomination; and most disturbing, they are required to ascertain whether a particular religious group is “recognized.” This last inquiry requires prosecutors and law enforcement officials to judge in their discretion whether a particular religious group has reached the critical mass of size and acceptance necessary for statutory protection, and leaves courts with nothing but subjective experience and belief to guide the required determination.

The assistant legal affairs secretary to the Governor clearly anticipated the foregoing troubling scenario in her preenactment analysis of the 1976 amendment to section 270: “The bill requires that the religion or denomination be ‘recognized.’ No further definition is provided. While this would constitute a severe problem in the medical emergency situation, it would not present a problem where there is sufficient opportunity to argue the problem of religion.” It is precisely the entangling prospect of public officials arguing “the problem of religion” as an aspect of their ongoing enforcement of section 270, coupled with the politically divisive implications of their judgments, that the establishment clause seeks to avert. (Larson v. Valente, supra, 456 U.S. at pp. 252-255 [72 L.Ed.2d at pp. 52-55].)

Defendant maintains that even if the statutory exemption violates the establishment clause, courts should nevertheless construe it in an edited fashion to avert the constitutional difficulties raised by its facially preferential language. This cannot be done. It is of course fundamental that “If feasible within bounds set by their words and purposes, statutes should be construed to preserve their constitutionality.” (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 175 [167 Cal.Rptr. 854, 616 P.2d 836].) This is a limited interpretive function, however, and in no way delegates to courts the authority to rewrite the work of the Legislature. As Justice Tobriner observed with respect to the constitutionality of another provision of section 270, “If elimination of objectionable parts of a statute requires a wholesale rewriting, a court’s attempt to do so transgresses both the legislative intent and the judicial function.” (In re King (1970) 3 Cal.3d 226, 237 [90 Cal.Rptr. 15, 474 P.2d 983], cert. den. 403 U.S. 931 [29 L.Ed.2d 709, 91 S.Ct. 2249]; sec Metromedia, Inc. v. City of San Diego (1982) 32 Cal.3d 180, 187 [185 Cal.Rptr. 260, 649 P.2d 902].) Here, too, the unconstitutional aspect of the statute so clearly manifests a particular legislative intent that its elimination would amount to amendment by judicial fiat.

The Legislature has repeatedly designed statutory exemptions for parental use of prayer treatment with precisely the language found in section 270. Welfare and Institutions Code section 16509.1 excludes from its definition of neglect the provision of “treatment solely by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof . . . .” Section 11165.2 of the Penal Code and Welfare and Institutions Code section 18950.5 incorporate this definition by reference in their separate provisions defining the relationship of prayer treatment to child abuse and neglect. Finally, newly amended Welfare and Institutions Code section 300 adopts the language nearly verbatim in its provision defining the relationship of prayer treatment to child dependency proceedings. (See also Welf. & Inst. Code, § 5006.) Repeated use of the precise language evinces a legislative affinity for an invalid formulation that cannot be ignored.

Had the Legislature confronted the choice of extending its religious exemption to all parents who sincerely rely on prayer treatment, no matter how unorthodox or unconventional their creed may appear, or alternatively to none at all, one cannot presume that it would have chosen the former rather than the latter option. The statutory provision thus must be considered as written. If the Legislature seeks to accommodate the practice of prayer treatment, it must more clearly evince its intent to do so in a nonpreferential manner to avert the fatal constitutional defects afflicting section 270.

Kaufman, J., concurred.

1

Under the California Constitution this value is explicit. Article I, section 4, assures that “free exercise and enjoyment of religion without discrimination or preference are guaranteed.” In view of this provision, “Preference thus is forbidden even when there is no discrimination.” (Fox v. City of Los Angeles (1978) 22 Cal.3d 792, 796 [150 Cal.Rptr. 867, 587 P.2d 663].) The establishment clause of the California Constitution must be read in conjunction with this unqualified constitutional prohibition against religious preference to appreciate the full scope of its independent protections.

2

Consider for example the case of Arthur Charles Grady, who was described in another case as “a self-styled ‘peyote preacher’ and ‘way shower.’ ” (In re Grady (1964) 61 Cal.2d 887, 888 [39 Cal.Rptr. 912, 394 P.2d 728].) Grady “acted as the spiritual leader of a group of individuals consisting of [five] codefendants and himself. This group lived together in [the home of a codefendant]. Although [Grady] did not share in the living expenses of the group, he selected their food, taught them deepbreathing exercises, how to pray, ‘and in general how to love the Christian life.’ ” (Ibid.) Would this group warrant “recognized” status under the terms of the statutory exemption if its members were instructed by Grady to provide prayer in lieu of medical care to their ill children?

3

It is of course a separate question whether a blanket exemption under section 270 for all parents who sincerely provide children with prayer treatment would survive under the establishment clause. However, an exemption discriminating among parents who provide prayer treatment as a matter of sincere religious practice surely amounts to an unconstitutional establishment of religion.

4

Defendant and the Church cite three cases in which exemptions reserved for adherents of a “recognized” church or denomination were upheld. (Jaggard v. Comr. of Internal Revenue (8th Cir. 1978) 582 F.2d 1189; Varga v. United States (D.Md. 1979) 467 F.Supp. 1113, affd. (4th Cir. 1980) 618 F.2d 106; Kleid v. Board of Education (W.D.Ky. 1976) 406 F.Supp. 902.) Each is readily distinguishable. Both Varga and Jaggard involved challenges to a statute exempting from the federal self-employment tax those individuals who belong to a recognized religious sect which opposes acceptance of the benefits of any private or public insurance and which provides otherwise for its dependent members. (Jaggard, supra, 582 F.2d at p. 1190; Varga, supra, 467 F.Supp. at p. 1116.) Employing a compelling interest test, the court in Varga found that the governmental distinction was justified: “ ‘The limitation by Congress of the exemption to members of religious sects with established tenets opposed to insurance and which made reasonable provisions for their dependent members was in keeping with the overall welfare purpose of the Social Security Act. This provision provided assurance that those qualifying for the exemption would be otherwise provided for in the event of their dependency.’ ” (Id. at p. 1118; accord, Jaggard v. Comr. of Internal Revenue, supra, 582 F.2d at p. 1190.)

The court in Kleid considered an exemption from a compulsory immunization statute reserved for “members of a nationally recognized and established church or religious denomination.” (Kleid v. Board of Education, supra, 406 F.Supp. at p. 903, fn. 3.) The plaintiff challenged the statute as violative of the establishment clause because it denied its exemption to those who objected to immunization on “ ‘non-religious grounds.’ ” {Id. at p. 904.) The court thus did not consider discrimination among religions; the issue presented involved a religious exemption not otherwise provided for secular objectors. The opinion nowhere mentions the possibility under the statutory language of discrimination among the religious, and as such is inapposite.

BROUSSARD, J., Concurring and Dissenting

I agree with the majority that a prosecution may be maintained against petitioner for involuntary manslaughter. (Pen. Code, § 192, subd. (b).)1 However, I cannot agree that the child endangerment provisions of section 273a are applicable to cases where the parent has omitted to provide necessary medical attendance. Rather the failure to provide necessary medical attendance is made punishable by section 270, and section 273a is not applicable to omissions to provide care but to active conduct endangering the child. Moreover, even if the failure to provide necessary medical attendance were punishable under section 273a, the prayer exemption of section 270 must be read into section 273a or the exemption is pointless. It is overwhelmingly clear that the Legislature sought to preclude child endangerment liability of persons coming within the religious exemption in section 270, particularly where prayer is successful, and to apply section 273a to such persons would defeat the legislative intent rendering the religious exemption meaningless.

Section 270 provides in part: “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary . . . medical attendance ... he or she is guilty of a misdemeanor . . .”2 Section 273a provides that a person who “willfully causes or permits” child abuse or endangerment of the child’s health or person is guilty of a felony or a misdemeanor. The section is divided into two subdivisions which use identical language to describe the conduct proscribed except that subdivision (1) of the section applies “under circumstances or conditions likely to produce great bodily harm or death” and subdivision (2) of the section applies “under circumstances or conditions other than those likely to produce great bodily harm or death.” Subdivision (1) provides that its violation is punished by imprisonment in the county jail not exceeding one year or in the state prison for two, four or six years. Violation of subdivision (2) is a misdemeanor.3

We must interpret the statutes “in accordance with applicable rules of statutory construction, fundamental among which are those which counsel that the aim of such construction should be the ascertainment of legislative intent so that the purpose of the law may be effectuated [citation]; that a statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts [citations]; and that courts should give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citations.]” (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [80 Cal.Rptr. 89, 458 P.2d 33]; People v. Woodhead (1987) 43 Cal.3d 1002, 1007-1008 [239 Cal.Rptr. 656, 741 P.2d 154]; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40 [127 Cal.Rptr. 122, 544 P.2d 1322].)

When we follow the fundamental rules of statutory construction it is clear that sections 270 and 273a are both concerned with the protection of the health and person of children, that section 270 is applicable to a willful failure to provide necessary care and that section 273a is not applicable to a failure to provide medical care but to willful active conduct causing harm or endangering the child’s health or person.

There can be no rational doubt that the Legislature intended that section 270 should be applicable where a parent fails to provide medical care endangering the health or person of a child. The language of the section speaks of the omission to “furnish necessary . . . medical attendance.” Medical attendance is only necessary when the health or person of the child is endangered. The plain language of the first sentence of the section shows that the section applies to child endangering conduct. If the parent in the instant case had not come within the prayer exemption, it is clear that she could be prosecuted under section 270. (See People v. Arnold (1967) 66 Cal.2d 438, 451, 452 [58 Cal.Rptr. 115, 426 P.2d 515] [upholding misdemeanor manslaughter charge on the basis of section 270 prior to adoption of the religious exemption].)

Section 270 is not merely an economic regulation requiring reimbursement of those providing medical attendance. While the third sentence of the section provides that a parent is not relieved of criminal liability because another furnishes the medical care, that sentence may not be read as prohibiting criminal liability when no one provides the necessary support. People v. Sorenson (1968) 68 Cal.2d 280, 287 [66 Cal.Rptr. 7, 437 P.2d 495, 25 A.L.R.3d 1093], the principal case relied upon by the majority in concluding that the purpose of section 270 is reimbursement (maj. opn., p. 124), expressly states that “ ‘the principal statutory objectives are to secure support of the child’ ” and to protect the public fisc. If there was any doubt as to the legislative intent that the statute should be applied when the child does not receive necessary medical attendance as well as when the state seeks reimbursement, such doubt is dispelled by the adoption of the religious exemption in the last sentence of the section. As the majority recognize, the legislative history shows that the Legislature sought to “shield from liability those parents who provide prayer in lieu of medical care” (maj. opn., pp. 122-123), and it would be absurd to conclude that by adopting that provision the Legislature intended only to exempt a parent from a duty to pay for medical care which was not furnished.

Accordingly section 270, like section 273a, is applicable to child endangerment, and both sections are applicable whether or not the child is injured (see People v. Peabody (1975) 46 Cal.App.3d 43, 46 [119 Cal.Rptr. 780]; People v. Harris (1966) 239 Cal.App.2d 393, 398 [48 Cal.Rptr. 677]). Both sections are found in the same chapter of the Penal Code. The statutes are in pari materia. (People v. Caudillo (1978) 21 Cal.3d 562, 585 [146 Cal.Rptr. 859, 580 P.2d 274]; see 2A Sutherland, Statutory Construction (Sands, 4th ed. 1984) § 51.03, p.467.) Accordingly, it is our duty to construe them together and harmonize them.

We cannot reject application of the pari materia rule on the grounds that section 270 deals not only with child endangerment but also with reimbursement or that section 273a deals not only with child endangerment but also with child abuse. If the pari materia rule were limited to identical statutes, it would serve no purpose at all and could never be applied. The basis of the pari materia rule is that both statutes share the same purpose or object. (Ibid.) The pari materia rule applies although the statutes may have additional dissimilar objectives so long as they also share the same common objective.

When we harmonize the statutes, the result is clear. Section 270 imposes a duty upon parents to provide the identified “necessary . . . medical attendance,” and imposes criminal liability when the parent “willfully omits” to do so, thereby endangering the child. Section 273a imposes criminal liability for willfully causing or permitting child endangerment. To avoid conflict between the sections, section 273a should not be construed to apply when the asserted criminal conduct is the omission to perform the duties imposed by section 270, but only when the basis of the child endangerment is active conduct endangering the child, willfully causing or permitting child endangerment. The only active conduct shown by the evidence is that petitioner prayed. Prayer is not prohibited by section 273a.

Moreover, even if it is concluded that the failure to provide necessary medical attendance is punishable under section 273a in cases where the section 270 prayer exemption is inapplicable, we may not apply section 273a to cases where that exemption applies. The conclusion is unavoidable that the Legislature intended to exempt parents who utilize prayer treatment from the statutory requirement to provide “necessary . . . medical attendance.” As pointed out above, medical attendance is necessary when its absence endangers the health or person. To hold that section 273a applies to parents who utilize prayer treatment in accordance with the exemption in section 270 means that those exempt may always be prosecuted under section 273a for child endangerment and that, since injury is unnecessary for child endangerment, it would be irrelevant whether God answered the prayers.

The legislative intent to provide some exemption from criminal liability is overwhelmingly clear, although the extent of the exemption may not be clear. The exemption is obviously directed at the duty to protect the child by securing medical attendance imposed by section 270. It would be unrealistic and contrary to all of the legislative history we have been furnished to conclude that the exemption is directed at the economic aspect of section 270.4 There is nothing in the legislative history to indicate that the Legislature sought to eliminate a nonexistent duty to pay for medical services which were never rendered or was concerned primarily with reimbursement for medical services paid for by others.

The religious exemption must be applied to the child endangerment provisions of section 273a or the legislative intent is totally defeated. It must be applied to cases where the failure to provide necessary medical attendance endangers the child’s health but does not result in harm.

I would reverse the judgment of the Court of Appeal with directions to grant the petition for writ of prohibition insofar as it seeks dismissal of the section 273a charge and to deny it insofar as it seeks dismissal of the manslaughter charge.

Petitioner’s application for a rehearing was denied January 9, 1989.

1

All further statutory references are to the Penal Code unless otherwise indicated.

2

Section 270 provides: “If a parent of a minor child willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter or medical attendance, or other remedial care for his or her child, he or she is guilty of a misdemeanor punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in the county jail not exceeding one year, or by both such fine and imprisonment. If a court of competent jurisdiction has made a final adjudication in either a civil or a criminal action that a person is the parent of a minor child and the person has notice of such adjudication and he or she then willfully omits, without lawful excuse, to furnish necessary clothing, food, shelter, medical attendance or other remedial care for his or her child, this conduct is punishable by imprisonment in the county jail not exceeding one year or in a state prison for a determinate term of one year and one day, or by a fine not exceeding two thousand dollars ($2,000), or by both such fine and imprisonment. This statute shall not be construed so as to relieve such parent from the criminal liability defined herein for such omission merely because the other parent of such child is legally entitled to the custody of such child nor because the other parent of such child or any other person or organization voluntarily or involuntarily furnishes such necessary food, clothing, shelter or medical attendance or other remedial care for such child or undertakes to do so.

“Proof of abandonment or desertion of a child by such parent, or the omission by such parent to furnish necessary food, clothing, shelter or medical attendance or other remedial care for his or her child is prima facie evidence that such abandonment or desertion or omission to furnish necessary food, clothing, shelter or medical attendance or other remedial care is willful and without lawful excuse.

“The court, in determining the ability of the parent to support his or her child, shall consider all income, including social insurance benefits and gifts.

“The provisions of this section are applicable whether the parents of such child are or were ever married or divorced, and regardless of any decree made in any divorce action relative to alimony or to the support of the child. A child conceived but not yet born is to be deemed an existing person insofar as this section is concerned.

“The husband of a woman who bears a child as a result of artificial insemination shall be considered the father of that child for the purpose of this section, if he consented in writing to the artificial insemination.

“If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute ‘other remedial care’, as used in this section.”

3

Section 273a provides: “(1) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health is endangered, is punishable by imprisonment in the county jail not exceeding one year, or in the state prison for 2, 4, or 6 years.

“(2) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of such child to be injured, or willfully causes or permits such child to be placed in such situation that its person or health may be endangered, is guilty of a misdemeanor.”

4

I agree with the majority conclusion that no weight may be given to the Assembly staff report urging that section 273a should be amended to incorporate the religious exemption or to the Senate staff report raising questions as to a possible conflict between the exemption and the child harm provisions of section 273a. (See maj. opn., pp. 128-129.) We cannot tell whether the members of the Legislature decided the amendment was undesirable, was unnecessary or should be deferred so as to avoid interruption of the enactment process.

I would also point out that neither report focused on child endangerment; both were concerned with the necessity for amendment of section 273a with respect to the child abuse portion of the section and the manslaughter statute, cases where there is not merely endangerment but harm.

Notes and Questions

1.    Causation and Concurrence of the Elements. As in any case, in order to find Walker guilty, the prosecution must establish that the defendant's act, or failure to act, was the proximate cause of the victim's death. In addition, in every case, there must be a concurrence of mens rea and actus reus at the specific time of the alleged crime. Typically, causation and concurrence of the elements are self-evident: X shoots Y, intending to cause death, and Y dies. X's act occurred concurrently with the requisite mens rea, and is the proximate cause of Y's death.

These two requirements can be complicated to establish in cases of alleged failure to act. Note how the outcome of this case turns on the fact that Walker continued to pursue spiritual healing, in spite of the fact that the disease was worsening. Yet it is not a crime to pursue spiritual (or any alternative) healing in the first place. The interesting legal question involves discerning the point at which not getting Western medical care became a crime. To convict Walker, the state had to show that she had a duty to act, and the breach of that duty caused Shauntay's death.

Would the result in Walker change if Shauntay’s illness had progressed far more rapidly, such that Shauntay died 48 hours after first spiking a fever? How might the defense raise a "concurrence of the elements" challenge in such a case? How might the defense argue against proximate cause? 

What result if Walker had tried faith healing for the first four days of Shauntay’s illness, and then, when the stiff neck developed, brought her daughter to doctors, who tried, but failed to save Shauntay’s life because the illness was too far advanced? Can you articulate the concurrence of the elements and the causation challenge? How must the state respond to it?

2.    Ordinary Negligence. Was Walker negligent in seeking only spiritual treatment for her child in the ordinary (tort/civil) sense? That is, would a reasonable person have done what she did in that situation? Did it matter that Walker was a Christian Scientist, and believed in the power of prayer to heal? Recall the provocation standard illustrated under Beltran (note 3, supra). Do we look at the reasonable Christian Scientist? The reasonable person, irrespective of religion? 

Consider additional fact changes. If Walker was raised within her church, and had never obtained Western medical care nor been educated about its benefits, should a court take these facts into consideration when determining guilt? What if, instead, if Walker could not afford medical treatment. Should a court take into account her financial situation?

3.    Criminal Negligence. The standard applied in California (and almost everywhere else today) is not ordinary negligence but criminal negligence. As the California Supreme Court put it, criminal negligence is “aggravated, culpable, gross, or reckless” such that the conduct is such a departure from that of an ordinary person “as to be incompatible with a proper regard for human life.” In criminal law, the phrase “gross negligence” is sometimes used interchangeably with "criminal negligence."  

4.    Objective and Subjective. Part of the criminal negligence standard, as discussed above, is objective in asking about the conduct of an ordinary (reasonable) person. However, there is also a subjective component. This excerpt from renowned jurist, Oliver Wendell Holmes, explains:

The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen.

On the other hand, there must be actual present knowledge of the present facts which make an act dangerous. The act is not enough by itself. * * *

* * * For instance, if a workman on a house-top at mid-day knows that the space below him is a street in a great city, he knows facts from which a man of common understanding would infer that there were people passing below. He is therefore bound to draw that inference, or, in other words, is chargeable with knowledge of that fact also, whether he draws the inference or not. If, then, he throws down a heavy beam into the street, he does an act which a person of ordinary prudence would foresee is likely to cause death, or grievous bodily harm, and he is dealt with as if he foresaw it, whether he does so or not. O.W. Holmes, Jr., The Common Law 53–55 (1881).

5.    The Model Penal Code. Consider the Model Penal Code’s definition of negligence in § 2.02(2)(d):

(d)    Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation

Does the MPC contain a subjective component, as well? If Walker were tried in a MPC jurisdiction, what form of homicide would she be guilty of (if any)? (See MPC Sections 210-210.4)

6.    What to Charge? Prosecutors are planning to bring homicide charges against D after her 10-month-old son died in a vehicle parked outside her home last June. D admitted to having left her son in the car for an hour while her son’s father, who did not reside with them, came to visit. While her son was inside the car, the outside temperature rose to 89 degrees, making it over 100 degrees inside the vehicle. An autopsy confirmed that her son's body temperature had been dangerously elevated. D also admitted to having smoked marijuana the day of her son’s death.

You are a law clerk in the District Attorney’s office. Consider how these facts might support prosecution under the statutes below, and advise the prosecution on how to proceed.

MS Code § 97-3-19 (2014)

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:…

(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be second-degree murder;…

MS Code § 97-3-47 (2013)

Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.

7.    A True Hypothetical. One particularly complex illustration of the complicated relationship between parental autonomy and criminal negligence arises when parents avoid taking children for medical care because they fear loss of custody. Between 1958 and 1967, the Child Welfare League of America campaigned to remove Native-American children from their families and place them with white families. Deb Haaland, My grandparents were stolen from their families as children. We must learn about this history, Wash. Post (Jun. 25, 2021). During this period of time, between 25-35% of Native children were removed from their families; of those, 85% were placed outside of their communities, even if relatives were fit and willing to take in the children. Id. (In Summer 2021, the discovery of the graves of over 315 Indigenous children on the grounds of government residential boarding schools in Canada catalyzed a reckoning with the child-removal policies that marked official government policies in both the United States and Canada. For more background, see  My grandparents were stolen from their families as children. We must learn about this history).

Case study: H and W have a son, C (14 months old). Both H and W are Indigenous persons. Neither attended school beyond 6th grade. Between September 1, 1968, and September 12, 1968, C became ill. They noticed that C was sick approximately 2 weeks before C died. He was fussy, could not keep his food down, and had a swollen cheek. C’s cheek swelling went up and down, but did not disappear. His cheek also turned a bluish color. They suspected C had a toothache and provided aspirin in hopes of improving C’s condition. H had heard that neither doctors nor dentists would pull a tooth out when it’s “swollen up like that,” but also said he and W did not take C to a medical doctor because they feared that the Welfare Department would take C away from them. H and W said that H’s cousin lost a child that way.

C died on September 12, 1968. An autopsy revealed that C had an abscessed tooth that developed into an infection of the mouth and cheeks, eventually becoming gangrenous. Experts testified that stated that the odor generally associated with gangrene would have been present for approximately 10 days before C’s death. The experts also stated that if medical care had been obtained in the last week before C’s death, such care would have been obtained too late to save C’s life. (See State v. Williams, 4 Wash.App 908, 484 P.2d 1167 (1971).

Were you the defense lawyer on appeal for the convictions in State v. Williams, can you think of a way to use this background to argue that your clients should have been found non-negligent, and therefore not guilty? 

If you would acquit H and W, would you do so under the same facts, save that the parents decided against taking their child to the doctor because they lacked proof of citizenship? Because they lacked health insurance?

Court of Appeals of Virginia

Noakes v. Commonwealth

54 Va. App. 577, 681 S.E.2d 48

Record No. 0295-08-2

2009-08-18

ELIZABETH POLLARD NOAKES,

v.

COMMONWEALTH OF VIRGINIA.

Record No. 0295-08-2.

Court of Appeals of Virginia, Richmond.

January 13, 2009.

James T. Maloney (Maloney & David, P.L.C., on brief), for appellant.

Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Kelsey, Beales and Retired Judge Clements^[*].

MEMORANDUM OPINION^[**]

JUDGE RANDOLPH A. BEALES.

Elizabeth Noakes (appellant) was convicted after a bench trial of involuntary manslaughter in the death of fifteen-month-old Noah Colassco (Noah). On appeal, appellant argues that the Commonwealth presented insufficient evidence that she acted with criminal negligence, an essential element of involuntary manslaughter. For the reasons stated below, we reject appellant's argument and affirm her conviction.

I. BACKGROUND

On October 18, 2006, Noah was placed in the care of appellant, who ran a daycare business out of her home. Appellant placed Noah and at least one other child in cribs located in a spare bedroom. A review of the videotape recorded hours after Noah's death reveals his crib was more analogous to a portable "pack and play" variety than to a traditional wooden crib. The surface of the Graco crib was raised from the floor by four legs, which continued upward until they met hard plastic supports at the top of each corner. The four "walls" of the crib were made of a mesh material. The rectangular crib was placed in a corner of the bedroom, at the intersection of the back wall and the right side wall; therefore, one long side of the crib and one short side of the crib abutted those walls. The other short side of Noah's crib was situated within inches of another crib, leaving the remaining long side ("the front side") as the only side of the crib exposed to the remainder of the bedroom.

Appellant put Noah down for a nap at around noon, but Noah refused to sleep. Noah's refusal to sleep was a common occurrence while he was in appellant's care. Appellant had tried several "traditional" methods to get Noah to sleep, but those were unsuccessful. Appellant determined that the source of the problem was Noah's ability and desire to stand in his crib.

In an attempt to prevent Noah from standing up, appellant devised a plan to cover the top of the crib with cardboard and fabric and place a thirty-three-pound, folded-up dog crate on top of the cardboard. The cardboard and fabric would cover the entire top of the crib, and the dog crate would cover half the width of the crib. Appellant would place the dog crate so that it covered the front side of the crib, where Noah usually stood.

Before leaving the dog crate there with Noah inside, appellant removed Noah from the crib, placed the crate on the crib, and then shook the crib to determine if the crate would easily fall down into the crib. Satisfied that the dog crate would not fall in the crib, appellant removed the crate momentarily and placed Noah back in his crib. Appellant placed the cardboard and fabric on top of the crib in such a way as to create an "overhang" to prevent Noah from sticking his fingers between the crib and the cardboard, thereby potentially injuring his fingers by getting them stuck in the dog crate. Appellant also considered the cardboard covering (padded with the fabric) to be a buffer should Noah hit his head while attempting to stand. Appellant then placed the dog crate on the crib, inspected the arrangement with Noah inside, and went back and forth periodically between her bedroom and the adjoining loft bedroom to monitor the situation and see if Noah was distressed.

Despite these efforts, Noah still refused to sleep. Instead, he began pressing his face against the front side of the crib's mesh wall. To stop this behavior, appellant placed a large nylon toy against the front side's wall, so that Noah could not look out of the crib. Appellant then assumed Noah went to asleep. She left the room at approximately 1:00 p.m.

Appellant did not return to the bedroom until approximately 3:30 p.m., when she attended to another child. She left without checking on Noah.

A few minutes after 4:00 p.m., appellant returned to wake Noah from his nap. She saw Noah standing in the crib with his head, neck, and hands over the side of the crib. His neck was wedged between the cardboard covering and the wall of the front side of the crib. The dog crate, still on top of the covering, held Noah in this position. As appellant demonstrated in the videotape recorded following Noah's death, Noah apparently lifted the cardboard covering enough to cause the dog crate to slide backwards. Noah apparently then stuck his head over the front-left corner and progressively slid along the front side's rail until he was wedged under the thirty-three-pound dog crate near the center of the front side. Noah became trapped as a result.

Noah was unconscious, and his face was blue. Appellant unsuccessfully attempted CPR while she was on the phone with the emergency operator. The responding paramedics pronounced Noah dead at appellant's home.

The medical examiner determined that Noah died from asphyxiation; specifically, the suppression of the blood vessels in his neck had constricted the flow of oxygen to his brain. The medical examiner could not determine a time of death, but indicated that this type of asphyxiation typically would have taken "minutes and not hours."

At the conclusion of appellant's trial, the trial court found that the Commonwealth had sufficiently proven appellant's criminal negligence, commenting that appellant's "conduct was arrogantly reckless, merciless and inhumane, recklessly disregarding Noah's safety or [the] consequences of her actions, being indifferent as to whether the harm would result." The court found appellant guilty of involuntary manslaughter, and this appeal followed.

II. ANALYSIS

When considering the sufficiency of the evidence on appeal, "a reviewing court does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' " Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court," Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), "[w]e must instead ask whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,' " Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319.

While involuntary manslaughter is a Class 5 felony, it is not statutorily defined. See Code § 18.2-36. In a recent opinion, our Supreme Court explained the elements of involuntary manslaughter accordingly:

[T]he crime of common law involuntary manslaughter has two elements: 1) the accidental killing of a person, contrary to the intention of the parties; and 2) the death occurs in the defendant's prosecution of an unlawful but not felonious act, or in the defendant's improper performance of a lawful act. Cable v. Commonwealth, 243 Va. 236, 240, 415 S.E.2d 218, 220 (1992); Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443 (2000); Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984). To constitute involuntary manslaughter, the "improper" performance of a lawful act must amount to an unlawful commission of that lawful act, manifesting criminal negligence.Cable, 243 Va. at 240, 415 S.E.2d at 220; Kirk v. Commonwealth, 186 Va. 839, 847, 44 S.E.2d 409, 413 (1947). 

West v. Director, Dep't of Corrs., 273 Va. 56, 63-64, 639 S.E.2d 190, 195 (2007).

Here, the trial court found appellant acted with criminal negligence and was guilty of involuntary manslaughter. The trial court's findings are examined on appeal by reviewing the totality of the evidence. See Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004). In reviewing the sufficiency of the evidence supporting the verdict in this case, our analysis is guided particularly by two principles.

First, although " 'the application of the distinctions between the[] degrees of negligence is frequently difficult to apply,' " Tubman v. Commonwealth, 3 Va. App. 267, 273, 348 S.E.2d 871, 875 (1986) (quoting Town of Big Stone Gap v. Johnson, 184 Va. 375, 379, 35 S.E.2d 71, 73 (1945)), such determinations "only become questions of law to be determined by [an appellate] court [rather than by the factfinder], when reasonable minds could not differ," Forbes v. Commonwealth, 27 Va. App. 304, 309, 498 S.E.2d 457, 459 (1998) (quoting Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875). Therefore, only in the event that reasonable minds would be compelled to agree that appellant's actions were not criminally culpable could we, as an appellate court, find the evidence of appellant's criminal negligence insufficient.

Second, in determining whether reckless conduct amounts to unlawful conduct sustaining a conviction for involuntary manslaughter, it is immaterial whether the unlawful act was unlawful in its inception — that is, an inherently unlawful act — or was a lawful act that then actually became unlawful by the way it was performed after it was begun. See Gooden, 226 Va. at 571, 311 S.E.2d at 784. As in Gooden, "[t]he present case is of the second category; conduct not inherently unlawful, but done without requisite caution, in an unlawful manner." Id. To prove a defendant's criminal negligence in relation to an otherwise lawful act, the Commonwealth must show that the performance was so improper as to constitute negligence so gross and culpable as to indicate a callous disregard of human life. Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 10 (1975) (citing Goodman v. Commonwealth, 153 Va. 943, 946, 151 S.E. 168, 169 (1930)).

"The word 'gross' means 'aggravated or increased negligence' while the word 'culpable' means 'deserving of blame or censure.' Bell [v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681 (1938)]. "Gross negligence" is culpable or criminal when accompanied by acts of commission or omission of a wanton or willful nature,^[1] showing a reckless or indifferent disregard of the rights of others, under circumstances reasonably calculated to produce injury, or which make it not improbable that injury will be occasioned, and the offender knows, or is charged with the knowledge of, the probable result of his acts.' Id. at 611-12, 195 S.E. at 681." 

Morris v. Commonwealth, 272 Va. 732, 739, 636 S.E.2d 436, 439-40 (2006) (quoting Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 111 (2004)) (footnote added).

On brief, appellant recognizes that there is support for a finding that she was grossly negligent, insofar as her act of placing the dog crate on Noah's crib "constituted a disregard of prudence" and would "shock[] the fair minded." See Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971) (stating gross negligence is "that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety" of another and "must be such a degree of negligence as would shock fair minded men although something less than willful recklessness"). However, she contends that she went to sufficient lengths to anticipate potential risks resulting from her "unconventional method" and to prevent those risks from becoming harmful. For instance, appellant noted that she shook the crate (after initially placing it on the crib while it was empty), to test the crate's tendency to fall from its perch over Noah; she padded the bottom of the crate with cardboard and fabric to safeguard Noah against injury to his head if he tried to stand; and she created an "overhang" with the cardboard to safeguard against Noah injuring his fingers in the holes of the crate. Appellant claims that such precautions demonstrate that she did not act with a callous disregard for the risks of death or serious injury that were likely to materialize. Therefore, appellant argues, while she may have been grossly negligent in her care of Noah, she was not criminally negligent.

We disagree with appellant's contention that her recognition of some risks inherent in placing a thirty-three-pound dog crate on a crib militates against a finding of criminal negligence. "Willful or wanton negligence involves a greater degree of negligence than gross negligence, particularly in the sense that in the former an actual or constructive consciousness of the danger involved is an essential ingredient of the act or omission." Griffin v. Shively, 227 Va. 317, 321-22, 315 S.E.2d 210, 213 (1984) (citations omitted). Here, the danger was that Noah would be harmed by appellant's placement of the dog crate atop his crib. This danger came in numerous forms, and appellant was aware of, or should have been aware of, far less dangerous alternatives to putting a thirty-three-pound collapsed dog crate over a young and active child in order to convince him to lie down and take a nap. Cf. Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc) (holding that criminal negligence is judged under an objective standard). Notably, appellant testified at trial that she considered using only the cardboard or a net-like dome instead of the dog crate, but rejected those options because they would not have prevented Noah from standing up. So, appellant instead placed the dog crate on Noah's crib, despite her recognition — implicit in the precautions that she took — that this act could be dangerous. The trial court could reasonably have concluded that appellant recklessly disregarded Noah's safety by proceeding with her plan to prevent Noah from standing up by placing the dog crate on his crib.

Appellant contends that, because Noah's death resulted from a different risk of harm than she had foreseen, Noah's death was improbable; therefore, she claims that she was not criminally liable for his death. This contention is meritless. "It is not necessary that [appellant] foresaw the specific manner in which injury and death occurred." Gallimore v. Commonwealth, 15 Va. App. 288, 296, 422 S.E.2d 613, 618 (1992). Instead, "[i]t is sufficient that she reasonably could have foreseen that risk of death or serious harm might result from her actions." Id. (citing Blondel v. Hays, 241 Va. 467, 475, 403 S.E.2d 340, 345 (1991)). Here, given that appellant saw the need to protect this infant from some risks, appellant could have foreseen the harm that could and did befall Noah from putting a thirty-three-pound collapsed dog crate on top of his crib.

This is not a case where the defendant's mere inadvertence or inattentiveness created harm or the potential for harm. See, e.g., Ellis v. Commonwealth, 29 Va. App. 548, 555-56, 513 S.E.2d 453, 457 (1999) (finding that defendant was not criminally negligent because she was unaware she had left a kitchen burner on and, accordingly, did not consciously disregard the likely ignition of a grease fire that would ultimately endanger the lives of her children). Appellant affirmatively and knowingly created this danger to Noah, and then, despite her initial concerns, failed to check on him for several hours. Furthermore, the nature of Noah's death could not be considered improbable, given appellant was aware that Noah was tall enough to stand with his head above the crib side.^[2] See Conrad, 31 Va. App. at 121-22, 521 S.E.2d at 325-26 (holding that criminal negligence "may be found to exist where the offender either knew or should have known the probable results of his acts"); Tubman, 3 Va. App. at 274, 348 S.E.2d at 875 (requiring the Commonwealth to prove that "a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender").

In addition, appellant knew that Noah wanted to stand in the crib. Consequently, she should have been especially concerned about how the child would attempt to move the items over his crib when he attempted — as young children do — to get around the constraints placed on him. "The same discernment and foresight that older people and experienced persons habitually employ in discovering dangers cannot be reasonably expected of children of tender years, and therefore the greater precaution should be taken where children are exposed to such dangers." Lynchburg Cotton Mills v. Stanley, 102 Va. 590, 594, 46 S.E. 908, 909 (1904). While appellant's "test" of the dog crate on the empty crib suggested to her that the crate would stay in place sufficiently enough not to fall in the crib, appellant was very aware that Noah was determined to stand in his crib. It was not at all improbable that a determined child of tender years would be able to get under the sides of this make-shift contraption, move the dog crate, and, in the process, as here, get his neck trapped so that he was asphyxiated. See id. ("That course of conduct which would be ordinary care when applied to persons of mature judgment and discretion might be gross, and even criminal, negligence toward children of tender years.").

Appellant's inattentiveness to the danger in which she placed Noah reinforces our holding that a rational factfinder could find appellant guilty of involuntary manslaughter. By appellant's own admission, she did not go in the bedroom where Noah was to check on him for approximately two and a half hours, from 1:00 p.m. until 3:30 p.m. When she checked on the other child in the bedroom at 3:30 p.m., she did not even look in Noah's direction.^[3] Appellant assumed Noah was asleep. Appellant then left Noah unattended from 3:30 p.m. until she found him unconscious and trapped between the crib and the cardboard/dog crate covering shortly after 4:00 p.m. The medical examiner indicated that Noah's death from asphyxiation typically would have taken "minutes and not hours." Leaving Noah unattended for even a half-hour, given the danger in which appellant placed Noah by setting a thirty-three-pound dog crate on top of his crib, was an unjustifiable risk.

In summary, the act of attempting to limit Noah's ability to stand in his crib was not inherently unlawful; rather, a reasonable factfinder could determine that the placing of a thirty-three-pound dog crate on Noah's crib, combined with appellant's inattentiveness in the face of this experimental and dangerous set-up and with Noah's conceded determination to stand up in his crib, constituted reckless and unlawful conduct in utter disregard of Noah's safety. See Gooden, 226 Va. at 573, 311 S.E.2d at 785 (differentiating inherently unlawful acts and the improper performance of lawful acts). Because reasonable minds could make a determination here that appellant was criminally negligent, cf. Tubman, 3 Va. App. at 273-74, 348 S.E.2d at 875, we conclude the trial court did not err in finding her guilty of involuntary manslaughter.

III. CONCLUSION

For the foregoing reasons, we affirm appellant's conviction.

Affirmed.

Clements, J., dissenting.

For the reasons that follow, I conclude that the evidence presented at trial was insufficient to prove the criminal negligence necessary to support an involuntary manslaughter conviction. Hence, I respectfully dissent from the majority's opinion.

"When considering a challenge to the sufficiency of evidence on appeal, we review the evidence in the light most favorable to the prevailing party at trial and consider all inferences fairly deducible from that evidence." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008). "We will not reverse the judgment of the trial court unless it is plainly wrong or without evidence to support it." Id. (citing Code § 8.01-680).

Involuntary manslaughter is defined as the accidental killing of a person, contrary to the intention of the parties, during the prosecution of an unlawful, but not felonious, act, or during the improper performance of some lawful act. The "improper" performance of the lawful act, to constitute involuntary manslaughter, must amount to an unlawful commission of such lawful act, not merely a negligent performance. The negligence must be criminal negligence. The accidental killing must be the proximate result of a lawful act performed in a manner "so gross, wanton, and culpable as to show a reckless disregard of human life."

Gooden v. Commonwealth, 226 Va. 565, 571, 311 S.E.2d 780, 784 (1984) (citations omitted) (quoting King v. Commonwealth, 217 Va. 601, 607, 231 S.E.2d 312, 316 (1977)). Thus, to sustain appellant's conviction in this case, the Commonwealth had to prove beyond a reasonable doubt that appellant's improper performance of the lawful act that proximately caused the accidental death of the child amounted to criminal negligence. Criminal negligence "is acting consciously in disregard of another person's rights or acting with reckless indifference to the consequences, with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another." Tubman v. Commonwealth, 3 Va. App. 267, 271, 348 S.E.2d 871, 873 (1986) (quoting Griffin v. Shively, 227 Va. 317, 321, 315 S.E.2d 210, 213 (1984)). "We judge criminal negligence by an objective standard. It occurs when 'the offender either knew or should have known the probable results of his acts.' " Banks v. Commonwealth, 41 Va. App. 539, 546, 586 S.E.2d 876, 879 (2003) (quoting Conrad v. Commonwealth, 31 Va. App. 113, 121-22, 521 S.E.2d 321, 325-26 (1999) (en banc)).

In this case, appellant was admittedly negligent in placing the cloth-covered cardboard and folded 33-pound dog crate over the child's crib to prevent him from standing up during nap time. However, I find no evidence in the record to support a finding that appellant's lawful act was performed in a manner so gross, wanton, and culpable as to show a reckless disregard of human life.

For one thing, nothing in the record indicates that the act itself and the manner in which it was performed were motivated by anything other than appellant's concern for the child. As appellant had discussed with the child's mother, the child had not been napping well in the three weeks appellant had been caring for him. Rather than sleep in the afternoon, the child would stand in the crib by the front railing and cry for his mother or appellant. Appellant knew from her experience that, if she could get the child to sit or lie down in the crib, the child would go to sleep. Concerned that the child was not getting enough sleep, appellant tried various "traditional means" to get the child to nap, but had no success. After "exhaust[ing] those means" and "brainstorming" for several days to come up with new ideas, appellant decided to cover the crib with something "heavy enough and large enough" to prevent the child from standing up. On the day in question, appellant determined that the crate "would work because it [was] heavy enough and large enough."

In placing the cardboard and dog crate over the crib, appellant took every step she could think of to ensure they would not harm the child. She initially tested them on the crib without the child in it to satisfy herself that they would not fall into the crib, even shaking the crib to make sure the covering was stable. She made sure the cardboard covered the entire top of the crib so the child could not hurt his head or fingers on the dog crate. She made sure the crate extended far enough over both sides of the crate so that "there would be no way that the crate could fall in given the overhang." She positioned the cardboard so that it extended beyond the crib where the child normally stood up and was folded over one side of the crib next to the wall to stabilize it. Additionally, when she placed the crate on the crib, appellant made sure it was positioned over the spot where the child normally stood by the front railing to prevent the child from being able to lift the cardboard at that spot. After putting the child in the covered crib shortly after 12:00 p.m., appellant stayed for a while in the child's room, which was a loft off her bedroom, to monitor the child and make sure he was not in any distress beneath the cardboard and crate. The child, who was playing with a ball in his crib, did not cry or try to stand up during that time. Around 1:00 p.m., appellant returned to the child's room and covered the front of the crib with a toy to help him go to sleep. The child was not standing at the time.

Several times throughout the afternoon, appellant returned to her bedroom to audibly monitor the child. Hearing no noise from the child, appellant assumed he was asleep. Around 3:30 p.m., appellant returned to the child's room for an unrelated purpose. Not seeing the child and assuming he was still asleep,[4] appellant went back downstairs. Approximately a half an hour later, appellant returned to the room to wake the child and discovered him standing in the crib with his neck wedged in between the cardboard and the front railing of the crib. Appellant immediately removed the child from the crib, called 911, and tried to revive him.

Throughout these events, appellant expressed a genuine concern only for the child's well being. No evidence suggests her actions were born of frustration, inconvenience, or any other selfish motivation.

Likewise, nothing in the record indicates that appellant was aware or reasonably should have been aware that her conduct would probably cause injury to the child. Not only did she take steps to prevent every possible danger that reasonably occurred to her, the Commonwealth presented no evidence to show she knew or reasonably should have known that the fifteen-month-old child possessed sufficient strength and ability to lift the cardboard under the 33-pound dog crate to the side so that he could stand up with his head between the cardboard and the front of the crib. To the contrary, the record shows that appellant specifically used the dog crate because she believed it was "heavy enough and large enough" to prevent the child from moving it and the cardboard beneath it. Indeed, appellant was initially unsure that she would even "be[] able to lift the crate." Nothing in the record demonstrates that appellant's belief that the weight of the crate would make it physically impossible for the child to lift the cardboard at the front of the crib was unreasonable.

Accordingly, I find the evidence insufficient to prove that appellant's improper performance of the lawful act amounted to criminal negligence. Thus, I would reverse appellant's conviction for involuntary manslaughter and dismiss the charge.

[*] Judge Clements participated in the hearing and decision of this case prior to the effective date of her retirement on December 31, 2008, and thereafter by designation pursuant to Code § 17.1-400(D).

[**] Pursuant to Code § 17.1-413, this opinion is not designated for publication.

[1] "Willful" conduct "must be knowing or intentional, rather than accidental, and be done without justifiable excuse, without ground for believing the conduct is lawful, or with a bad purpose." Duncan, 267 Va. at 384, 593 S.E.2d at 214. "Wanton" conduct is "[m]arked by or manifesting arrogant recklessness of justice, of the rights or feelings of others" such as to be "merciless" and "inhumane." Forbes, 27 Va. App. at 310, 498 S.E.2d at 459; see Town of Big Stone Gap, 184 Va. at 379, 35 S.E.2d at 745.

[2] We reject appellant's related argument that Noah's ability to lift a dog crate thirty percent heavier than his own weight was an improbable feat constituting an intervening cause for his death, thus rendering appellant's placement of the dog crate on top of his crib something other than the probable cause of his death. However, Noah's lifting the dog crate, if this is how he became wedged between the crate and the crib, "was put into operation by [appellant's] negligent act[]" of placing the dog crate on top of Noah's crib. See O'Connell v. Commonwealth, 48 Va. App. 719, 728, 634 S.E.2d 379, 383 (2006). Therefore, Noah's actions were not an intervening cause.

[3] She argued at trial and contends on appeal that, because she turned off an air conditioner situated close to the crib when she entered the room at 3:30, Noah was within her peripheral vision and she would have noticed anything amiss. However, even if appellant could see Noah's crib in her peripheral vision, it does not necessarily follow that she would have noticed anything amiss. The back side of Noah's crib was against a wall, and a large toy that appellant herself placed there covered the front side of the crib. The short sides were obscured by a wall and another crib in close proximity to Noah's crib. Furthermore, cardboard and the dog crate covered the top of the crib. Accordingly, even if appellant could see Noah's crib peripherally, numerous impediments — many of her own making — blocked appellant's view of Noah and any efforts that he might have made to circumvent the dog crate that hindered his ability to stand up in the crib.

[4] Although, as the Commonwealth points out, appellant told the police she did not directly look at or check on the child during that trip to the child's room, it is clear from the record that, had the child been standing in the crib, appellant would have seen him.

STATE of Maryland v. Muriel MORRISON

470 Md. 86

July 28, 2020

Circuit Court for Baltimore City, Case No. 113303023, Barry G. Williams, Judge.

...

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Opinion

A jury in the Circuit Court for Baltimore City convicted Respondent, Muriel Morrison (“Ms. Morrison”), of involuntary manslaughter, reckless endangerment, and neglect of a minor, stemming from the death of her infant. The infant died as a result of “asphyxia from probable overlay” after Ms. Morrison “co-slept” with her four-month-old infant and her four-year-old daughter, following a virtual evening of drinking beer with friends via Facebook livestream.

Ms. Morrison appealed her convictions to the Court of Special Appeals, which reversed in part. The State timely appealed the decision of the Court of Special Appeals. We granted certiorari to address the following question, which we have slightly rephrased:

Was the evidence sufficient to permit a rational trier of fact to find that [Ms. Morrison] was guilty of involuntary manslaughter and reckless endangerment in the death of her infant beyond a reasonable doubt?

…

FACTUAL AND PROCEDURAL BACKGROUND

I.  The Underlying Incident

As reflected from the trial testimony, during September 2013, Ms. Morrison resided in a three-story rowhouse in Baltimore City with her two youngest daughters, four-month-old I.M. and her four-year-old sister (“the four-year-old”). Ms. Morrison awoke around 7:45 a.m. on September 2, 2013 and discovered that I.M. was unresponsive. The night before, Ms. Morrison participated in a virtual “[M]oms’ night out[ ]” with girlfriends and consumed approximately four cups of beer. Approximately two and a half hours later, she fell asleep in the bed she shared with her two minor daughters. At some point, the four-year-old awoke and observed Ms. Morrison sleeping on top of I.M. The four-year-old unsuccessfully attempted to awaken Ms. Morrison by yelling and “thr[o]w[ing] stuff” at her.

Ms. Morrison later awoke to find the four-year-old playing on the floor next to the bed and I.M., closer to the edge of the bed, unconscious. I.M.’s lips were blue and her body was cold to the touch. The four-year-old told Ms. Morrison that she had “rolled on top of the baby” in her sleep. Ms. Morrison unsuccessfully attempted to perform CPR and called 911 twice before the paramedics and police arrived at her home. I.M. was transported to Johns Hopkins Hospital (the “hospital”) for treatment, but was pronounced dead upon arrival. The medical examiner determined that the cause of death was “asphyxiation from probable overlay,” as a result of Ms. Morrison sleeping on top of the infant.

Ms. Morrison was subsequently charged with involuntary manslaughter ... in connection with I.M.’s death. ...

II. Legal Proceedings

A. The Circuit Court Proceeding

…

Sergeant Laron Wilson (“Sgt. Wilson”), the police officer who responded to the 911 call, testified that he received a call for a “child non-breather” around 8:37 a.m. on September 2, 2013. According to Sgt. Wilson, the paramedics had already taken I.M. to the hospital, but Ms. Morrison remained upstairs, where she sat on the edge of the bed, staring blankly. Sgt. Wilson asked Ms. Morrison if she was alright, and Ms. Morrison responded, “No. I killed my baby.” She further stated: “I got drunk and killed my baby.” …

…

[T] he State introduced ... testimony from the medical examiner, Dr. Ana Rubio (“Dr. Rubio”). Although Dr. Rubio was unable to conclusively determine the infant’s cause of death, Dr. Rubio opined that it was likely caused by “asphyxiation from overlay[,]” because the police investigative report reflected that I.M. was found unconscious under her mother and the autopsy did not reveal the presence of any traumatic injuries or “natural disease processes[.]” Regarding the manner of death, Dr. Rubio determined that I.M.’s death was accidental. When asked about other potential causes of death, such as Sudden Infant Death Syndrome (“SIDS”), Dr. Rubio testified that she was unable to either identify or rule out SIDS as the cause of death, since the possibility of asphyxiation is enhanced when the infant is sleeping with others.

At the close of the State’s case, Ms. Morrison moved for judgment of acquittal, but the motion was denied. Following the denial of her motion, Ms. Morrison was called as the sole witness for the defense. She testified that during the day on September 1, 2013, she and her daughters had a “tire out day, which is a day [she] spen[t][ ] doing activities all day[,] instead of keeping them in the house.” She further testified that, later that evening, she was on her porch drinking, while participating in “a [virtual] mom[‘s] night out” with friends to celebrate the upcoming school year. Ms. Morrison put the four-year-old to bed to watch a movie sometime after 10 p.m. She stayed on the porch rocking I.M. until I.M. fell asleep, then put I.M. in the bed with the four-year-old, and returned to the porch. ....” Ms. Morrison recalled having about four cups of beer that evening. She waited until 2:30 a.m. for the children’s father to arrive, and when he failed to do so, she went inside. Thereafter, Ms. Morrison was able to continue with her usual routine of “pumping” her breastmilk, changing I.M.’s diaper, locking the doors, and turning the television channel to PBS, before getting into bed with her daughters and falling asleep.

At trial, an issue arose regarding the risks of parents sleeping in [the] same bed with their children. The State argued that Ms. Morrison was given a “Pack ‘n Play” for I.M. and informed of the importance of having a safe sleeping environment before I.M. was discharged from the hospital, but she chose to share a bed with I.M. despite the risk. Ms. Morrison testified that she did not use the “Pack ‘n Play” that the hospital provided to her because “critters”—mice and ants—would crawl inside, and she did not want them in the “Pack ‘n Play” with I.M. Regarding the sleeping arrangement, Ms. Morrison also testified that she shared a bed with her mother as a child, her mother had done the same with her grandmother, and that she had engaged in the practice with each of her other children, as did many of the other mothers she knew. According to Ms. Morrison, caregivers sleeping in the same bed with their children was prevalent in her family and community. She recalled that hospital staff briefly discussed sleep safety with her when I.M. was born, but no one detailed the risks associated with co-sleeping. The prosecution argued that her decision to sleep in the same bed with her four-month-old infant after a night of drinking was “extremely reckless” and “creat[ed] a substantial harm” to her now deceased child. At the close of all of the evidence, Ms. Morrison renewed her motion for judgment of acquittal, but the motion was again denied. 

At the conclusion of the three-day trial, the jury returned a verdict for the State, convicting Ms. Morrison. ...

B. Opinion of the Court of Special Appeals

In noting her timely appeal to the Court of Special Appeals, Ms. Morrison argued that ... the evidence was insufficient to support her convictions for involuntary manslaughter.... 

Regarding the sufficiency issue, the Court of Special Appeals held that Ms. Morrison’s conduct was insufficient to support a finding of “gross negligence,” which was required for the involuntary manslaughter conviction....

II. Parties’ Contentions

The State argues that the evidence was sufficient to permit a rational trier of fact to find that Ms. Morrison’s conduct amounted to gross negligence. According to the State, Ms. Morrison engaged in a practice —co-sleeping—that had been proven to be dangerous and, in addition to sharing a bed with her daughters, she drank enough alcohol to effectively “pass out.” The State contends that this alone was sufficient for a finding of gross negligence:

[Her] admission that she was drunk when she lay down in bed with I.[M.], that she then fell asleep, that she did not know and could not remember what happened, that she did not wake up when the phone rang, and that [four-year old-daughter] could not wake [Ms.] Morrison by “thr[o]w[ing] stuff” at her, is the kind of evidence that this Court has recognized supports a finding on gross negligence.

The State argues that the Court of Special Appeals focused on whether Ms. Morrison was aware of the risks associated with the sleeping arrangement, instead of applying the reasonable person standard applicable to gross negligence cases. According to the State, Ms. Morrison’s “awareness” of those risks does not absolve her of wrongdoing where the standard is that of an objectively reasonable person. ...

Ms. Morrison maintained that sharing a bed with her children was not inherently risky and that she was unaware that co-sleeping after drinking beer posed a high degree of risk to I.M.’s life. Additionally, Ms. Morrison asserts that “it is inconceivable that more than half of American mothers would choose to engage in behavior that posed an actual, substantial risk of death or serious injury to their children.”[1]

III. Sufficiency of the Evidence

A. The Court of Special Appeals correctly held that the evidence was insufficient to sustain the conviction for involuntary manslaughter based on gross negligence.

…

1. The Gross Negligence Involuntary Manslaughter Standard.

Common law involuntary manslaughter is generally defined as an “unintentional killing of a human being, irrespective of malice.”  State v. Thomas, 464 Md. 133, 152, 211 A.3d 274, 285 (2019) (citing  State v. Albrecht, 336 Md. 475, 499, 649 A.2d 336 (1994)). To sustain a conviction for involuntary manslaughter, the prosecution must prove that the killing was committed in one of three ways: “(1) by doing some unlawful act endangering life but which does not amount to a felony[;] or (2) in negligently doing some act lawful in itself[;] or (3) by the negligent omission to perform a legal duty.”  .... For the latter two variations of involuntary manslaughter, “the negligence [must] be criminally culpable.”  Thomas, 464 Md. at 152, 211 A.3d at 285 (internal citations omitted). Negligence is criminally culpable if it rises to the level of wanton and reckless conduct—i.e., gross negligence. ....

Depending on the circumstances presented, there is often a fine line of distinction between simple negligence and gross negligence. This Court has long recognized that “[t]here are degrees of negligence in the sense that some acts evidence a greater degree of carelessness and recklessness than do other acts which may still be classed as negligent.” ... “Ordinary, simple negligence is ‘any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm.’ ” Id. Conversely, conduct which is sufficient for a finding of gross negligence must establish that the accused “had a wanton or reckless disregard for human life.” Thomas, 464 Md. at 153, 211 A.3d at 285. “Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.”  State v. Kramer, 318 Md. 576, 590, 569 A.2d 674, 681 (1990).

…

In accordance with the elements of involuntary manslaughter based on gross negligence, the trial court instructed the jury that the State had the burden of proving that Ms. Morrison “acted in a grossly negligent manner and that this grossly negligent conduct caused [I.M.’s] death.” The trial court also instructed the jury that grossly negligent means “the defendant, while aware of the risk, acted in a manner that created a high degree of risk to, and showed a reckless disregard for, human life.” ...

Whether conduct rises to the level of gross negligence is fact-specific. “[T]here is no scientific test or quantifiable probability of death that converts ordinary negligence to criminal gross negligence.”  Id. at 159, 211 A.3d at 289. We have never addressed gross negligence within the context of an infant sleeping in the same bed with a parent. ...

[1] The State concedes that co-sleeping is a common practice. See Centers for Disease Control and Prevention, About 3,500 babies in the US are lost to sleep-related deaths each year, https://www.cdc.gov/media/releases/2018/p0109-sleep-related-deaths.html✎ (citing a 2015 study of mothers conducted by the CDC, in which more than sixty percent (61.4%) of respondents reported bed-sharing with their infant) (last visited July 17, 2020), archived at https://perma.cc/6P78-3HF75

Notes and Questions 

The Court summarizes the rule of law as follows:

•  Involuntary manslaughter is an “unintentional killing of a human being, irrespective of malice.”
• To sustain a conviction for involuntary manslaughter, the prosecution must prove that the killing was committed in one of these ways: negligently doing some act lawful in itself or negligently omitting to perform a legal duty. 
• The negligence [must] be criminally culpable.” Negligence is criminally culpable if it rises to the level of wanton and reckless conduct—i.e., gross negligence. (Maryland v. Morrison at 4).

What are the state’s best facts against Morrison, given this rule? What facts are most helpful to the defense? How, if at all, might the state “neutralize” (counter) the facts that cut against conviction? 

The court cites precedent noting that, “Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.” Does this precedent change your analysis? Would the outcome differ were the state to apply the negligence definitions found in the following two statutes? What additional sources might shed light on what “extraordinary and outrageous character” mean in this context? 

NV Rev Stat § 193.018 (2017). “Neglect,” “negligence,” “negligent” and “negligently” defined.  “Neglect,” “negligence,” “negligent” and “negligently” import a want of such attention to the nature or probable consequences of an act or omission as an ordinarily prudent person usually exercises in his or her own business.

Canadian Criminal Code § 219 (1). Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his legal duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

Felony Murder Rule

The felony murder rule is designed to impose harsh consequences on individuals who, in the course of committing a felony, contribute to someone else’s death. Simply put, a felony + a killing = felony murder.

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.2

(1980), 30–32.

The classic formulation of the felony-murder doctrine declares that one is guilty of murder if a death results from conduct during the commission or attempted commission of any felony. Some courts have made no effort to qualify the application of this doctrine, and a number of earlier English writers also articulated an unqualified rule. Moreover, at the time the Model Code was drafted, a number of American legislatures perpetuated the original statement of the rule by statute. As thus conceived, the rule operated to impose liability for murder based on the culpability required for the underlying felony without separate proof of any culpability with regard to the death. The homicide, as distinct from the underlying felony, was thus an offense of strict liability. This rule may have made sense under the conception of mens rea as something approaching a general criminal disposition rather than as a specific attitude of the defendant towards each element of a specific offense. Furthermore, it was hard to claim that the doctrine worked injustice in an age that recognized only a few felonies and that punished each as a capital offense.

In modern times, however, legislatures have created a wide range of statutory felonies. Many of these crimes concern relatively minor misconduct not inherently dangerous to life and carry maximum penalties far less severe than those authorized for murder. Application of the ancient rigor of the felony-murder rule to such crimes will yield startling results. For example, a seller of liquor in violation of a statutory felony becomes a murderer if his purchaser falls asleep on the way home and dies of exposure. And a person who communicates disease during felonious sexual intercourse is guilty of murder if his partner subsequently dies of the infection.

The prospect of such consequences has led to a demand for limitations on the felony-murder rule. Consider Ca. Penal Code § 189, the California felony murder statute. Note that there are only some, enumerated felonies that constitute murder: “arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking. . .” Ca. Penal Code § 189. Even given this California limitation, the results may seem quite disproportionate, as the following case illustrates.

[Crim. No. 3317. Fifth Dist. Nov. 21, 1978.]

THE PEOPLE, Plaintiff and Appellant, v. ARCHIE FULLER et al., Defendants and Respondents.

Counsel

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Joel E. Carey and Eddie T. Keller, Deputy Attorneys General, for Plaintiff and Appellant.

John B. Smurr, under appointment by the Court of Appeal, Paul Halvonik, and Quin Denvir, State Public Defenders, Gary S. Goodpaster and Ezra Hendron, Chief Assistant State Public Defenders, Mark L. Christiansen and Richard G. Fathy, Deputy State Public Defenders, for Defendants and Respondents.

Opinion

FRANSON, Acting P. J.

Introduction

This appeal challenges the California felony-murder rule as it applies to an unintentionally caused death during a high speed automobile chase following the commission of a nonviolent, daylight burglary of an unattended motor vehicle. Solely by force of precedent we hold that the felony-murder rule applies and respondents can be prosecuted for first degree murder.

Statement of the Case and Facts

Respondents were charged by information with murder (Pen. Code, § 187) and several counts of burglary. In response to a Penal Code section 995 motion to set aside the information, the trial court dismissed the murder charge and amended the information to substitute a vehicular manslaughter charge under Penal Code section 192, subdivision 3, paragraph (a). The People have appealed.

The pertinent facts are as follows: On Sunday, February 20, 1977, at about 8:30 a.m., uniformed Cadet Police Officer Guy Ballesteroz was on routine patrol in his vehicle, proceeding southbound on Blackstone Avenue in the City of Fresno. As the officer approached the Fresno Dodge car lot, he saw an older model Plymouth parked in front of the lot. He also saw respondents rolling two tires apiece toward the Plymouth. His suspicions aroused, the officer radioed the dispatcher and requested that a police unit be sent.

Officer Ballesteroz kept the respondents under observation as he proceeded past the car lot and stopped at the next intersection. As he reached that point he saw the respondents stop rolling the tires and walk to the Plymouth on the street. Ballesteroz made a U-turn and headed northbound on Blackstone. The respondents got into the Plymouth and drove away “really fast.” Thereafter, a high speed chase ensued which eventually resulted in respondents’ car running a red light at the intersection of Blackstone and Barstow Avenues and striking another automobile which had entered the intersection. The driver of the other automobile was killed. Respondents were arrested at the scene. The chase from the car lot covered some 7 miles and lasted approximately 10 to 12 minutes. During the chase the respondents’ car narrowly missed colliding with several other cars including two police vehicles that were positioned to block their escape.

Later investigation revealed that four locked Dodge vans at the car lot had been forcibly entered and the spare tires removed. Fingerprints from both of the respondents were found on the jack stands in some of the vans.

Respondents May Be Prosecuted for First Degree Felony Murder

Penal Code section 189 provides, in pertinent part: “All murder . . . which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or [lewd acts with a minor], is murder of the first degree; . . .” (Italics added.) This statute imposes strict liability for deaths committed in the course of one of the enumérated felonies whether the killing was caused intentionally, negligently, or merely accidentally. (People v. Cantrell (1973) 8 Cal.3d 672, 688 [105 Cal.Rptr. 792, 504 P.2d 1256]; People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570].) Malice is imputed and need not be shown. (People v. Burton (1971) 6 Cal.3d 375, 384-385 [99 Cal.Rptr. 1, 491 P.2d 793]; People v. Ireland (1969) 70 Cal.2d 522, 538 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R. 3d 1323].) The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. (People v. Washington (1965) 62 Cal.2d 111, 781 [44 Cal.Rptr. 442, 402 P.2d 130]; see Holmes, The Common Law, pp. 56-57.)

Burglary falls expressly within the purview of California’s first degree felony-murder rule. Any burglary within Penal Code section 459 is sufficient to invoke the rule. (People v. Talbot (1966) 64 Cal.2d 691, 705 [51 Cal.Rptr. 417, 414 P.2d 633]; People v. Thomas (1975) 44 Cal.App.3d 573, 575 [117 Cal.Rptr. 855]; People v. Earl (1973) 29 Cal.App.3d 894, 900 [105 Cal.Rptr. 831].) Whether or not the particular burglary was dangerous to human life is of no legal import. (Earl, supra.)

The meaning of murder committed “in the perpetration of’ a felony within Penal Code section 189 also is clear. The Supreme Court has stated that this language does not require a strict causal relation between the felony and the killing; it is sufficient if both are “parts of one continuous transaction.” (People v. Welch (1972) 8 Cal.3d 106, 118 [104 Cal.Rptr. 217, 501 P.2d 225]; People v. Mason (1960) 54 Cal.2d 164, 169 [4 Cal.Rptr. 841, 351 P.2d 1025].) Flight following a felony is considered part of the same transaction as long as the felon has not reached a “place of temporary safety." People v. Salas (1972) 7 Cal.3d 812, 822 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832]; People v. Boss (1930) 210 Cal. 245, 250 [290 P. 881].) Whether the defendant has reached such a place of safety is a question of fact for the jury. Respondents’ reliance on People v. Ford (1966) 65 Cal.2d 41, 56 [52 Cal.Rptr. 228, 416 P.2d 132] for the proposition that this is a legal question is misplaced. In Ford, the court held that it was a question of law in that particular case because many hours had elapsed between the felony and the killing, and there was no evidence that the defendant was attempting to escape at the time of the killing.

Respondents argue that although California has applied the felony-murder rule to escaping robbers no case has applied the rule to escaping burglars. They cite dicta in People v. Boss, supra, 210 Cal. 245, 251, to support the distinction between those escaping from robberies: “Robbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property.” (Id., at p. 251.)

This distinction does not withstand analysis. A burglary predicated on theft can be committed with equal or greater violence than a robbery, and leaving the scene with the stolen property is equally important. Moreover, the Boss dicta has not been cited to support such a distinction in any other California case. Furthermore, other states do not draw a distinction between burglary and robbery flight. To the contrary, the felony-murder rule has been applied to unintended deaths in the course of burglary flight. (See, e.g., People v. Hickman (1973) 12 Ill.App.3d 412 [297 N.E.2d 582]—flight by armed defendants who had burglarized warehouse in nighttime; Gore v. Leeke (1973) 261 S.C. 308 [199 S.E.2d 755]; Commonwealth v. Carey (1951) 368 Pa. 157 [82 A.2d 240]—armed defendant fled from residence he burglarized at night; State v. Ryan (1937) 192 Wash. 160 [73 P.2d 735]; Lakes v. State (1937) 61 Okla.Crim. 252 [67 P.2d 457];State v. Adams (1936) 339 Mo. 926 [98 S.W.2d 632, 108 A.L.R. 838]—defendants fleeing after burglarizing a filling station in nighttime; Francis v. State (1919) 104 Neb. 5 [175 N.W. 675]—armed defendants fleeing after burglarizing store buildings; Conrad v. State (1906) 75 Ohio St. 52 [78 N.E. 957]—fleeing defendants had burglarized a home; see generally Felony-Murder Rule—“Termination of Felony” (1974) 58 A.L.R.3d 851, 962-975.) Thus, the trial court erred in striking the murder count premised upon the felony-murder rule.

We deem it appropriate, however, to make a few observations concerning the irrationality of applying the felony-murder rule in the present case. In People v. Washington, supra, 62 Cal.2d 777, 783, a case limiting the rule’s application to killings committed by the defendant or his accomplice, our Supreme Court stated: “The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. [Citations.] Although it is the law in this state (Pen. Code, § 189), it should not be extended beyond any rational function that it is designed to serve.” (Italics added.) In People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353], the court elaborated: “We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism.” (Id., at pp. 582-583, fns. omitted.) The Phillips court explained, “The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant’s commission of another but because it anachronistically resurrects from a bygone age a ‘barbaric’ concept that has been discarded in the place of its origin. . . .” (Id., at p. 583, fn. 6.)

The Supreme Court has recently reaffirmed its dislike of the felony-murder rule in People v. Henderson (1977) 19 Cal.3d 86, 92-93 [137 Cal.Rptr. 1, 560 P.2d 1180]. The literature is replete with criticism of the rule. See, for example, Perkins on Criminal Law (2d ed. 1969) page 44; Packer, The Case for Revision of the Penal Code (1961) 13 Stan. L. Rev. 252, 259.

In People v. Satchell (1971) 6 Cal.3d 28 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383], our Supreme Court reversed a second degree felony-murder conviction arising out of a killing by an ex-felon in possession of a concealed weapon (a sawed-off shotgun) in violation of Penal Code section 12021. The court concluded that the felony must be viewed in the abstract and not on the basis of the particular facts of the case; that the carrying of a concealed weapon by an ex-felon is not a felony inherently dangerous to human life “. . . because we can conceive of such a vast number of situations wherein it would be grossly illogical to impute malice, . . .” (6 Cal.3d at p. 40.) The court accepted the defendant’s argument that of the many activities that are punishable as felonies only some clearly manifest a propensity for dangerous acts by the perpetrator; hence, it cannot be said theoretically that a felon who is armed with a concealable weapon presents a danger significantly greater than a nonfelon similarly armed. The court, however, pointed out that independent of the felony-murder rule the prosecution was still free to prove any degree of murder or manslaughter that the evidence might substantiate. (Id., atp. 33, fn. 11.)

Satchell also considered the propriety of a felony-murder instruction based upon a violation of Penal Code section 12020. This section provides that any person in possession of certain weapons, including a sawed-off shotgun, is guilty of a felony. The court concluded that this offense abstractly viewed also is not inherently dangerous to human life since it makes no distinction between the innocent gun collector and the hardened criminal. Again the court noted that if such possession was of an extremely reckless nature indicating a “conscious disregard for human life,” malice could be imputed via ordinary murder principles. (6 Cal.3d atp. 42.)

In People v. Lopez (1971) 6 Cal.3d 45 [98 Cal.Rptr. 44, 489 P.2d 1372], the Satchell reasoning was used to reverse a second degree murder conviction based on the underlying felony of escape from a county jail. (Pen. Code, § 4532.) “We cannot conclude that those who commit nonviolent escapes such as those here suggested thereby perpetrate an offense which should logically serve as the basis for the imputation of malice aforethought in a murder prosecution. Because section 4532 draws no relevant distinction between such escapes and the more violent variety, it proscribes an offense which, considered in the abstract, is not inherently dangerous to human life and cannot properly support a second degree felony-murder instruction.” (Italics original.) (6 Cal.3d at pp. SI-52, fn. omitted.)

And in People v. Morales (1975) 49 Cal.App.3d 134 [122 Cal.Rptr. 157], it was held that grand theft from the person of another is not an inherently dangerous felony to support a felony-murder charge: “It is apparent that the offense can readily be perpetrated without any significant hazard to human life; . . . Only in the unusual case would a taking from the person involve a substantial danger of death without the thief using force against his victim. If the thief does use force, either to effect the taking or to resist the victim’s efforts to retrieve the property [citation], the crime becomes robbery, and will support application of the felony-murder rule for that reason. Where the thief abstains from the use of force, he thereby removes the chief source of danger to human life; in such case the purpose of the felony-murder rule, ‘to deter felons from killing negligently or accidentally’ [citation], has already been achieved, and thus there would be no rational purpose to be served in extending the doctrine to cover the nonforceful larceny.” (49 Cal.App.3d at p. 143.)

Finally, the grand theft of an automobile in violation of Vehicle Code section 10851 followed by a high speed chase resulting in an unintended death does not constitute the commission of a felony inherently dangerous to human life so as to support the felony-murder doctrine (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal.Rptr. 7, 406 P.2d 647], disapproving People v. Pulley (1964) 225 Cal.App.2d 366 [37 Cal.Rptr. 376], on the ground that Pulley erroneously looked to the particular facts of the felony in determining its dangerous character).

Therefore, one may cogently ask: If possession of a concealed weapon by an ex-felon, escape from a county jail, and grand theft of an automobile are not felonies per se dangerous to human life so as to provide a basis for the felony-murder rule, how may the theft of personal property from an unattended vehicle without the use of weapons be deemed inherently dangerous? Furthermore, if such a burglary will not support a second degree felony murder, how can it rationally be used to support a first degree felony murder?

If we were writing on a clean slate, we would hold that respondents should not be prosecuted for felony murder since viewed in the abstract, an automobile burglary is not dangerous to human life. The present case demonstrates why this is so. Respondents committed the burglary on vans parked in a dealer’s lot on a Sunday morning. There were no people inside the vans or on the lot at the time. The respondents were not armed and presumably had no expectation of using violence during the burglary.

Furthermore, treating the flight as part of the burglary to bootstrap the entire transaction into one inherently dangerous to human life simply begs the issue; flight from the scene of any crime is inherently dangerous. So, if a merchant in pursuit of a fleeing shoplifter is killed accidentally (by falling and striking his head on the curb or being hit by a passing automobile), the thief would be guilty of first degree felony murder assuming the requisite intent to steal at the time of the entry into the store. (Cf. People v. Earl, supra, 29 Cal.App.3d 894.) Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting from a petty theft with a premeditated murder. In no sense can it be said that such a result furthers the ostensible purpose of the felony-murder rule which is to deter those engaged in felonies from killing negligently or accidentally. (People v. Washington, supra, 62 Cal.2d 111, 781.) On the other hand, if the flight is divorced from the burglary the latter can be objectively evaluated as to its dangerous propensities, and the instant burglary would not be deemed dangerous to human life and would be outside the purview of the felony-murder rule. 

As was pointed out in People v. Earl, supra, 29 Cal.App.3d 894, 898, when the felony-murder statute was enacted in 1872, Penal Code section 459 required that the burglary occur in the nighttime and involve the entry of a “house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car . . . As defined, burglary was per se a crime dangerous to human life based on the probability of human occupancy of the described enclosures. Such danger to life was a common element in all of the felonies specified in section 189 (i.e., arson, rape, robbery, mayhem, or lewd acts upon a child). Contrary to the holding in People v. Talbot, supra, 64 Cal.2d at page 705, it rationally can be argued that the Legislature did not intend to include an automobile burglary within the felony-murder rule. This conclusion is strongly supported by the legislative classification of burglary into degrees. Penal Code section 460 provides that every burglary of an inhabited dwelling house, trailer coach, or building committed in the nighttime, is burglary of the first degree. All other kinds of burglary are of the second degree. It would be reasonable to include only first degree burglary in the Penal Code section 189 definition of felony murder.

Nonetheless, as previously explained the force of precedent requires the application of the first degree felony-murder rule to the instant case.

Respondents Also May Be Prosecuted for Second Degree Murder

For the guidance of the trial court, we observe that respondents may also be prosecuted for ordinary second degree murder. Second degree murder is an unlawful killing with malice aforethought but not willful, premeditated or deliberate. (People v. Jeter (1964) 60 Cal.2d 671 [36 Cal.Rptr. 323, 388 P.2d 355]; People v. Brust (1957) 47 Cal.2d 776, 783 [306 P.2d 480].) Malice is implied when the circumstances attending the killing demonstrate “an abandoned and malignant heart.” (Pen. Code, § 188.) This simply means that malice may be implied when the defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life. (People v. Washington, supra, 62 Cal .2d 111, 782.)

In People v. Pulley, supra, 225 Cal.App.2d 366, the defendants stole an automobile and got involved in a 75- to 80-mile-per-hour chase with the police. They ran through a red light and caused a multi-car collision, killing one of the drivers. The court stated: “By any reasonable standard, stealing and driving a stolen car and endeavoring to escape pursuing officers with the stolen car, entering an intersection against all rules of the road at 70 to 80 miles per hour and crashing with other cars lawfully proceeding therein, are highly dangerous. Violence in evading the police is within the ambit of risk. Death here was not a freak coincidence, but an expectable incident of the felony, part of the risk that is set in motion by the original crime.” (Id., at p. 373.) The court upheld the application of the second degree felony-murder rule based upon the automobile theft.

The Supreme Court subsequently disapproved Pulley on the ground that the court erroneously looked to the particular facts of the case in determining whether it was “inherently dangerous” so as to support a second degree felony murder conviction. (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.) However, the Supreme Court thereafter made clear that the Pulley fact pattern demonstrated sufficiently extreme and wanton recklessness to establish malice aforethought and second degree murder. (People v. Satchell, supra, 6 Cal.3d 28, 33-34, fn. 11; see also People v. Phillips, supra, 64 Cal.2d 574, 581; Note (1967) 55 Cal.L.Rev. 329, 340, fn. 58.)

Respondents contend that their conduct falls within a specific proscription of Penal Code section 192, subdivision 3, paragraph (a), vehicular manslaughter, the unlawful killing by a grossly negligent use of the automobile. They argue that where general and specific statutes both punish the same conduct, the specific must control. This argument is unavailing. The respondents’ conduct was more than grossly negligent. The conduct clearly presents an issue of fact as to whether or not respondents exhibited a wanton and reckless disregard for human life. Respondents drove at high speeds through main thoroughfares of Fresno in an attempt to elude Officer Ballesteroz. At one point in the chase they drove on the wrong side of Herndon Avenue and caused oncoming cars to swerve off of the road to avoid a head-on collision. They then made a U-turn and sped back to Blackstone Avenue, ran a red light and caused other traffic to stop to avoid a collision. Respondents then drove down Blackstone at speeds estimated between 60 and 75 miles per hour and headed straight at two oncoming police vehicles which were attempting to block their flight. Respondents did not reduce their speed as they approached the officers’ vehicles, and only a last minute maneuver by the officers avoided a possible fatal collision. At the next intersection respondents’ vehicle which “hadn’t slowed down very much” ran the red light and struck and killed the driver of the other car. Under these facts the foreseeability of serious injury or death was apparent to respondents. (Cf. People v. Pulley, supra, 225 Cal.App.2d at p. 373; see Witkin, Cal. Crimes (1978 Supp.) § 327, p. 327.) In light of the Supreme Court’s language in People v. Satchell, supra, 6 Cal.3d 28, that a high speed flight from police in an automobile may support a second degree murder conviction, the respondents’ argument must fail.

The judgment is reversed.

Hopper, J., concurred.

Ginsburg, J.,* concurred only in the reversal of the judgment of dismissal.

Respondents’ petitions for a hearing by the Supreme Court were denied February 8, 1979. Bird, C. J., Tobriner, J., and Mosk, J., were of the opinion that the petitions should be granted.

***

Notes and Questions

1.    Analyzing Felony Murder. Which statute(s) must an individual read in order to determine whether or not a killing falls under the felony murder rule?

2.    A Slight Change. In this case, had the stolen car been unlocked, could Fuller still have been convicted of felony murder?

See Cal. Pen. Code 459: "Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code ... inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not."

3.    Thinking about the Felony Murder Rule. How does the felony murder doctrine fit within thinking about the conventional purposes of criminal punishment? (i.e. Does it comport with deterrence, retribution, rehabilitation, and/or incapacitation?). How might the felony murder doctrine deter killings by those who aren't deterred by criminal penalties for the underlying crime? What evidence might persuade you that the felony murder doctrine is effective in reducing loss of life? In the absence of such evidence, what grounds are left in support of the doctrine?  

For background on the origin of the American felony murder doctrine, please see Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59 (2004).

Nelson E. Roth & Scott E. Sundby—The Felony-Murder Rule: A Doctrine at Constitutional Crossroads

70 Cornell Law Review 446 (1985), 446–55, 457–59.

Few legal doctrines have been as maligned and yet have shown as great a resiliency as the felony-murder rule. Criticism of the rule constitutes a lexicon of everything that scholars and jurists can find wrong with a legal doctrine: it has been described as “astonishing” and “monstrous,” an unsupportable “legal fiction,” “an unsightly wart on the skin of the criminal law,” and as an “anachronistic remnant” that has “ ‘no logical or practical basis for existence in modern law.’ ” Perhaps the most that can be said for the rule is that it provides commentators with an extreme example that makes it easy to illustrate the injustice of various legal propositions.

Despite the widespread criticism, the felony-murder rule persists in the vast majority of states. Most states have attempted to limit the rule’s potential harshness either by limiting the scope of its operation or by providing affirmative defenses. Such patchwork attempts to mitigate the rule’s harshness, however, have been legitimately criticized because “they do not resolve [the rule’s] essential illogic.” * * * The United States thus remains virtually the only western country still recognizing a rule which makes it possible “that the most serious sanctions known to law might be imposed for accidental homicide.” * * *

I

The Conceptual Basis of the Felony-Murder Rule

A.  The Rule’s Historical Development * * *

The purpose of the felony-murder rule at common law is * * * vague. It is frequently argued that the rule’s purpose was not fully articulated because all felonies at common law were punished by death and, therefore, the rule had little practical impact. * * *

Whatever the felony-murder rule’s justification at common law, courts have attempted to provide the rule with a contemporary rationale. These post hoc rationalizations fall into four general categories: deterrence, transferred intent, retribution, and general culpability.

B.  Deterrence

The deterrence rationale consists of two different strains. The first approach views the felony-murder rule as a doctrine intended to deter negligent and accidental killings during commission of felonies. Proponents argue that co-felons will dissuade each other from the use of violence if they may be liable for murder. Justice Holmes attempted to justify the rule on this basis by arguing that the rule would be justified if experience showed that death resulted disproportionately from the commission of felonies. Holmes added the caveat that “I do not * * *, however, mean to argue that the rules under discussion arose on the above reasoning, any more than that they are right, or would be generally applied in this country.”

The second view focuses not on the killing, but on the felony itself, and endorses the felony-murder rule as a deterrent to dangerous felonies. From this perspective, punishing both accidental and deliberate killings that result from the commission of a felony is “the strongest possible deterrent” to “undertaking inherently dangerous felonies.”

Both of the deterrence justifications are logically flawed and neither has proven to have a basis in fact. The illogic of the felony-murder rule as a means of deterring killing is apparent when applied to accidental killings occurring during the commission of a felony. Quite simply, how does one deter an unintended act? * * * Moreover, any potential deterrence effect on unintentional killings is further reduced because few felons either will know that the felony-murder rule imposes strict liability for resulting deaths or will believe that harm will result from commission of the felony. Finally, statistical evidence has not borne out Holmes’s proposed justification that a disproportionate number of killings occur during felonies.

The purpose of deterring the commission of dangerous felonies through the felony-murder rule also lacks a legitimate basis. First, considerable doubt exists that serious crimes are deterred by varying the weight of the punishment. Second, the rule from this perspective uses the sanctions for murder to deter felonies, and “it is usually accepted as wiser to strike at the harm intended by the criminal rather than at the greater harm possibly flowing from his act which was neither intended nor desired by him.” Where the killing is unintended, it would be far more sensible to enhance the sentence for conduct over which the felon had control, such as the carrying of a deadly weapon, rather than automatically to elevate the killing to murder. Finally, as with the other deterrence rationale, the felony-murder rule can have no deterrent effect if the felon either does not know how the rule works or does not believe a killing will actually result. * * *

C.  Transferred Intent and Constructive Malice: The Felony-Murder Rule’s Presumption of Culpability

The felony-murder rule may be conceptualized as a theory of “transferred or constructive intent.” This theory posits that the intent to commit the felony is “transferred” to the act of killing in order to find culpability for the homicide. The rule thus serves “the purpose of * * * reliev[ing] the state of the burden of proving premeditation or malice.”

Judges and commentators have criticized the transferred intent theory of felony murder as “an anachronistic remnant” that operates “fictitiously” to broaden unacceptably the scope of murder. The very concept of transferred intent has been criticized as having “no proper place in criminal law.” * * *

The inapplicability of transferred intent to felony murder becomes evident when the crime’s two different mens rea elements are examined: the intent to commit the felony and the culpability for the killing. The mental patterns are thus distinct and separate; for example, the intent to burglarize cannot be equated with the malice aforethought required for murder. The non-transferability of culpability is even more evident where the felony-murder rule allows elevation of the killing to first degree murder. In such a situation, the rule equates the intent to commit the felony with premeditation and deliberation, specific mental states that require proof of particular acts and thoughts. * * *

D. Retribution and General Culpability: A Strict Liability View of the Felony-Murder Rule

* * * An alternative approach is to view the rule as not requiring a separate mens rea element for the homicide, but as justifying conviction for murder simply on the basis that the defendant committed a felony and a killing occurred.

* * * The justifications advanced for this conceptualization are deterrence of the underlying felony, and the notion that the felon has exhibited an “evil mind” justifying severe punishment.

The “evil mind” theory of felony murder finds its roots in seventeenth and eighteenth century English notions of criminology. Mens rea was a less developed concept and judges focused on the harm resulting from a defendant’s illegal act, rather than the maliciousness of his intent. The felony-murder rule thus partly operated on an unarticulated rationale that one who does bad acts cannot complain about being punished for their consequences, no matter how unexpected. Moreover, the felony-murder rule conceived from an “evil mind” perspective comported with the retribution theory of punishment prevailing at the time of the rule’s development, which focused on the resulting harm, not on the actor’s mental state, in deciding the appropriate punishment. A convict, therefore, bore responsibility for his felony and for any harmful result arising from the crime regardless of his specific intentions.

Continued reliance on a general culpability theory to justify the felony-murder rule has been described as a rather “primitive rationale” and as “a tribute to the tenacity of legal conceptions rooted in simple moral attitudes.” The “evil mind” theory conflicts with the basic premise that “the criminal law is concerned not only with guilt or innocence in the abstract but also with the degree of criminal liability.” Although the general culpability rationale was perhaps sufficient as long as a general intent of wrongdoing established malice aforethought, it conflicts with the progressive trend of categorizing homicide according to the degree of culpability. Indeed, the felony-murder rule viewed from a general culpability perspective effectively eliminates a mens rea element in convicting a felon for a killing occurring during the commission of a felony, and results in the rule operating as a strict liability crime: the occurrence of a killing is punished as murder regardless of the defendant’s culpability.

David Crump & Susan Waite Crump—In Defense of the Felony Murder Doctrine

8 Harvard Journal of Law & Public Policy 359 (1985), 361–63, 367–72, 374–76.

I. The Policies Supporting the Felony Murder Rule

A. Rational Classification and Proportional Grading of Offenses: Actus Reus as an Element of Just Desert

Classical theory divides the elements of crimes into two categories: mens rea and actus reus. Mens rea, or “guilty mind,” is the mental state or states required to complete the offense. Actus reus may be translated literally as “the wrongful act,” but it is better understood as referring to all of the physical elements of the crime, including the defendant’s actions, the surrounding circumstances, and the consequences.

Differences in result must be taken into account as part of actus reus if classification and grading are to be rational. For example, murder and attempted murder may require similar mental states * * * but no common law jurisdiction treats the two offenses as one, and certainly none treats attempted murder more severely. The only difference justifying this classification is that death results in one offense but not in the other. Similarly, it is a misdemeanor for a person to operate a motor vehicle while impaired by drugs or alcohol, but if this conduct causes the death of a human being, the offense in some jurisdictions is elevated to the status of homicide. * * *

These classifications are the result of a concern for grading offenses so as to reflect societal notions of proportionality. * * *

The felony murder doctrine serves this goal, just as do the distinctions inherent in the separate offenses of attempted murder and murder, or impaired driving and vehicular homicide. Felony murder reflects a societal judgment that an intentionally committed robbery that causes the death of a human being is qualitatively more serious than an identical robbery that does not. ...[T]he felony murder doctrine reflects the conclusion that a robbery that causes death is more closely akin to murder than to robbery. If this conclusion accurately reflects societal attitudes, and if classification of crimes is to be influenced by such attitudes in order to avoid depreciation of the seriousness of the offense and to encourage respect for the law, then the felony murder doctrine is an appropriate classificatory device.

There is impressive empirical evidence that this classification does indeed reflect widely shared societal attitudes. * * *

B.  Condemnation: Reaffirming the Sanctity of Human Life

A purpose of sentencing closely related to proportionality is that of condemnation. * * * [T]he purpose of condemnation or of expressing societal outrage deserves separate mention as a policy concern underlying the felony murder rule.

Condemnation itself is a multifaceted idea. It embodies the notion of reinforcement of societal norms and values as a guide to the conduct of upright persons, as opposed to less upright ones who presumably require the separate prod of “deterrence.” The felony murder rule serves this purpose by distinguishing crimes that cause human deaths, thus reinforcing the reverence for human life. * * * Another aspect of condemnation is the expression of solidarity with the victims of crime. If we as a society label a violent offense in a manner that depreciates its significance, we communicate to the victim by implication that we do not understand his suffering. * * * Felony murder is a useful doctrine because it reaffirms to the surviving family of a felony-homicide victim the kinship the society as a whole feels with him by denouncing in the strongest language of the law the intentional crime that produced the death.

 * * *

C.  Deterrence

Deterrence is often cited as one justification for the felony murder doctrine. * * * Deterrence is the policy most often recognized in the cases. 

Scholars, however, tend to dismiss this rationale, using such arguments as the improbability that felons will know the law, the unlikelihood that a criminal who has formed the intent to commit a felony will refrain from acts likely to cause death, or the assertedly small number of felony-homicides.

The trouble with these criticisms is that they underestimate the complexity of deterrence. There may be more than a grain of truth in the proposition that felons, if considered as a class, evaluate risks and benefits differently than members of other classes in society. The conclusion does not follow, however, that felons cannot be deterred, or that criminals are so different from other citizens that they are impervious to inducements or deterrents that would affect people in general. * * * The felony murder rule is just the sort of simple, commonsense, readily enforceable, and widely known principle that is likely to result in deterrence.

At the same time, the argument that felons may be ignorant of the law is unduly categorical. * * * [T]he general population, including felons, is probably more aware of the outlines of the felony murder doctrine than of many other, more common criminal concepts, if only because of the influence of television. * * *

The argument against deterrence often proceeds on the additional assumption that felony murder is addressed only to accidental killings and cannot result in their deterrence. * * * The proposition that accidental killings cannot be deterred is inconsistent with the widespread belief that the penalizing of negligence, and even the imposition of strict liability, may have deterrent consequences.

D. Clear and Unambiguous Definition of Offenses and Sentence Consequences

Clear definition of crimes is advantageous. Imprecision in homicide definition is particularly prevalent and troublesome. * * * If properly defined and applied, the felony murder doctrine sometimes provides the advantage of greater clarity. The mental state of intention to commit robbery, rape, or kidnapping is less ambiguous than the terms generally governing homicidal mental states. * * *

E. Optimal Allocation of Criminal Justice Resources

Another advantage of the felony murder rule * * * is that it may aid in the optimal allocation of criminal justice resources. * * * The efforts of judges, courtroom time, lawyering on both sides, and support services are all scarce resources. Although we resist thinking of criminal justice in these terms, and few would be willing to put a specific dollar price upon its proper function, the quality of our justice is limited by the scarcity of these resources and by the efficiency with which we allocate them. * * *

F.  Minimization of the Utility of Perjury

Many crimes are defined more broadly than their harmful consequences alone might justify. For example, there are prohibitions upon the possession of heroin or the carrying of certain kinds of weapons, even though these actions, without use of the contraband, are not intrinsically harmful. A person might attempt to defend his possession of heroin by stating that he did not intend to use or distribute it (for example, he might explain that he collects controlled substances as others collect coins or stamps). This explanation, even if true, would be regarded as irrelevant under most statutes.

Such a result may be justified by the concern that any other approach would unduly reward perjury. * * * A similar rationale may underlie the felony murder rule; thus * * * the Pennsylvania Supreme Court justified its application of the felony murder rule to the circumstances before it with the observation, “It is rare * * * that a criminal telephones or telegraphs his criminal intent. * * *The law itself is brought into disrepute when it is defined so that perjury is frequent. Jurors might be induced to lose respect for the criminal justice system even as they acquit the defendant on his ambiguous claim of accident, which they disbelieve but cannot reject beyond a reasonable doubt.

Notes and Questions

1.    State Variety. Not all states recognize the felony murder rule. For example, Hawaii and Kentucky explicitly do not recognize the felony murder rule via their statutory schemes. Massachusetts, Michigan, and New Mexico on the other hand, do not recognize felony-murder by case law. See Commonwealth v. Brown, 477 Mass. 805, 81 N.E.3d 737 (2017); People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980); and State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991).

2.    Changing Law. In 2018, the California legislature redefined felony murder to bar prosecutors from bringing charges against co-felons who did not, themselves, kill the victims. For more information on the bill, see  Article: Landmark California Law Bars Prosecutors From Pursuing Murder Charges Against People Who Didn’t Commit Murder. To view the amended and added statutes, please see California Penal Code §§ 188, 189, and 1170.95.

3. Some states also have a "misdemeanor manslaughter" equivalent to felony murder. That is, a person who, as a result of or during the commission of a misdemeanor offense, causes the death of another is guilty of a misdemeanor. This doctrine is subject to the same limiations we will see in the rest of these materials (e.g., what counts as causation, when the clock starts and stops on the commission of the offense, etc.). Consider, for example, this case from Oklahoma, where a pregnant woman who possessed and used methamphetamines (a misdemeanor) was charged with manslaughter when she miscarried.

[No. S108353. Jan. 27, 2005.]

THE PEOPLE, Plaintiff and Respondent, v. EVERT KEITH HOWARD, Defendant and Appellant.

Counsel

Madeline McDowell, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, W. Scott Thorpe, Janet E. Neeley, John G. McLean and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

KENNARD, J.

Murder is the unlawful killing of a human being, with malice aforethought. (Pen. Code, § 187, subd. (a).) But under the second degree felony-murder rule, the prosecution can obtain a conviction without showing malice if the killing occurred during the commission of an inherently dangerous felony. Is the crime of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2) an inherently dangerous felony for purposes of the second degree felony-murder rule? We conclude it is not.

I

At 12:40 a.m. on May 23, 2002, California Highway Patrol Officer Gary Stephany saw defendant driving a Chevrolet Tahoe (a sport utility vehicle) without a rear license plate, and signaled him to pull over. Defendant stopped on the side of the road. But when Officer Stephany and his partner, Officer Wayne Bernard, got out of their patrol car, defendant restarted the engine and sped to a nearby freeway. The officers gave chase at speeds of up to 90 miles per hour and radioed for assistance. Defendant left the freeway and drove onto a surface street, turning off his car’s headlights. He ran two stop signs and a red light, and he drove on the wrong side of the road. His speed was 15 to 20 miles over the posted speed limit of 50 miles per hour. At some point, he made a sharp turn onto a small dirt road and escaped.

Minutes later, Officer Anthony Arcelus and his partner, Officer Bret Boss, who had been monitoring the pursuit on their car radio, saw the Tahoe with its headlights on again and took up the chase. Officer Arcelus, who was driving, estimated the Tahoe’s speed at more than 80 miles per hour, and he saw it run a stop sign and a traffic light. By then, the car’s headlights were again turned off. Up to that point, the chase had taken place in rural parts of Fresno County. When the Tahoe started heading toward downtown Fresno, Officer Arcelus gave up the pursuit, fearing that the high-speed chase might cause an accident.

About a minute after Officer Arcelus stopped chasing the Tahoe, he saw it run a red light half a mile ahead of him and collide with a car driven by Jeanette Rodriguez. Rodriguez was killed and her husband, a passenger in the car, was seriously injured. It turned out that the Tahoe that defendant was driving had been stolen earlier that day. Defendant, who was also injured in the crash, was arrested and charged with murder (Pen. Code, § 187), with causing serious bodily injury while evading a police officer (§ 2800.3), and with evading a police officer in willful or wanton disregard for the safety of persons or property (§ 2800.2).

At trial, the prosecution called as a witness Laurie Bennett, defendant’s passenger during the chase. She was evasive about the events leading up to the accident. Ultimately, she admitted that she had told the truth when she explained to a police officer that five or six times during the chase she had begged defendant to let her get out of the car, and that defendant had run a red light at the intersection where the fatal accident occurred. An accident reconstruction expert testified that at the time of the accident the Tahoe was traveling over 80 miles per hour, and Rodriguez’s car was traveling close to the posted speed limit of 35 miles per hour. John Mikkelson, a pipeline inspector working near the intersection where the accident occurred, said he looked at the signal immediately after hearing the crash of the two colliding cars and saw that it was green for cars traveling in Rodriguez’s direction (and thus presumably red for defendant).

Forensic toxicologist Roger Peterson, a witness for the defense, testified that defendant had a “high amount” of methamphetamine in his bloodstream at the time of the accident. A person under the influence of methamphetamine, Peterson said, might drive at excessive speeds, might have trouble staying in a single lane, and might not notice traffic lights and signs. Defendant also had marijuana in his bloodstream, but not enough to be under the influence. Victim Rodriguez’s bloodstream contained morphine (a metabolite of heroin) and benzoyleconine (a metabolite of cocaine). Based on this evidence, toxicologist Peterson expressed his opinion that Rodriguez was under the influence of heroin, and possibly cocaine when the accident occurred.

Defendant testified on his own behalf. He admitted stealing the Tahoe and fleeing from the Highway Patrol officers. He did so because his probation officer had told him he would go to prison if he was again caught in a stolen car. He could only remember bits and pieces of the chase. He described himself as a skilled driver; his cousin, a race car driver, had taught him to drive “sprint cars” at a racetrack. He saw the victims’ car before the accident but could not recall hitting it. He could not remember what color the signal light was when he entered the intersection but admitted it was “most likely” red when the car he was driving crashed into the Rodriguez car.

The trial court instructed the jury: “Every person who unlawfully kills a human being during the commission of violation of California Vehicle Code section 2800.2, a felony inherently dangerous to human life, is guilty of the crime of murder in violation of Section 187 of the Penal Code. [][] In order to prove this crime, each of the following elements must be proved: 1. A human being was killed; 2. The killing was unlawful; and 3. The killing occurred during the commission of violation of California Vehicle Code section 2800.2, a felony inherently dangerous to human life. A violation of Vehicle Code section 2800.2 is a felony inherently dangerous to human life.” The trial court did not instruct the jury that malice is an element of murder or that the jury could convict defendant if it found that he acted with express or implied malice when he killed victim Rodriguez.

In his closing argument, defense counsel contended that defendant did not violate section 2800.2 because he did not drive with willful and wanton disregard for life or property; that even if defendant violated section 2800.2 while fleeing from the officers he was not doing so when the accident occurred, because by then the officers were no longer chasing him; and that defendant might not have caused the accident because there was a reasonable doubt that he ran a red light at the time of the incident.

During its deliberations, the jury sent the trial court this note: “It appears in the instructions if there is a guilty verdict in [section] 2800.2 then there must be a guilty verdict for [Penal Code section] 187, yes or no?” The court replied that it was “not in a position to say yes or no”; it then reread the instructions on felony murder and causation. The jury convicted defendant of all counts.

The Court of Appeal affirmed. As pertinent here, it rejected defendant’s contention that he could not be convicted under the second degree felony-murder rule because section 2800.2 is not an inherently dangerous felony. And it rejected defendant’s contention that he could not be convicted of murder because his conduct fit within section 2800.3 (causing death or serious bodily injury by willful flight from a pursuing peace officer), which he claimed is a “special statute” that bars his conviction for the more general crime of murder.

We granted defendant’s petition for review on these two issues: “1. Whether the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2) is a felony inherently dangerous to human life for purposes of the second degree felony-murder rule, 2. Whether the offense of proximately causing death or serious bodily injury by willful flight from a pursuing police officer (Veh. Code, § 2800.3) is a more specific offense precluding application of the second degree felony-murder rule where death occurs during the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2).”

Because the second degree felony-murder rule is a court-made rule, it has no statutory definition. This court has described it thusly: “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the . . . felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder.” (People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892], italics added.) The rule “eliminates the need for proof of malice in connection with a charge of murder.” (People v. Robertson (2004) 34 Cal.4th 156, 165 [17 Cal.Rptr.3d 604, 95 P.3d 872].)It is not an evidentiary presumption but a substantive rule of law (see People v. Dillon (1983) 34 Cal.3d 441, 472-476 [194 Cal.Rptr. 390, 668 P.2d 697]; see also People v. Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549]), which is based on the theory 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 because, by declaring the conduct to be felonious, society has warned him of the risk involved." (People v. Patterson, supra, 49 Cal.3d at p. 626.)

Because the second degree felony-murder rule is “a judge-made doctrine without any express basis in the Penal Code” (People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19), its constitutionality has been questioned (see People v. Patterson, supra, 49 Cal.3d at p. 641 (conc. opn. of Panelli, J.)). And, as we have noted in the past, legal scholars have criticized the rule for incorporating “an artificial concept of strict criminal liability that ‘erodes the relationship between criminal liability and moral culpability.’ ” (Id. at p. 621.)Therefore, we have repeatedly stressed that the rule “ ‘deserves no extension beyond its required application.’ " (Id. at p. 622; see also People v. Burroughs (1984) 35 Cal.3d 824, 829 [201 Cal.Rptr. 319, 678 P.2d 894]; People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353].)

“In determining whether a felony is inherently dangerous [under the second degree felony-murder rule], the court looks to the elements of the felony in the abstract, ‘not the “particular” facts of the case,’ i.e., not to the defendant’s specific conduct.” (People v. Hansen (1994) 9 Cal.4th 300, 309 [36 Cal.Rptr.2d 609, 885 P.2d 1022].) That is, we determine whether the felony “by its very nature . . . cannot be committed without creating a substantial risk that someone will be killed . . . ." (People v. Burroughs, supra, 35 Cal.3d at p. 833; see also People v. Robertson, supra, 34 Cal.4th at p. 166.)

Felonies that have been held inherently dangerous to life include shooting at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311), poisoning with intent to injure (People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193]), arson of a motor vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163 [89 Cal.Rptr. 721, 474 P.2d 673]; but see People v. Henderson (1977) 19 Cal.3d 86, 96 [137 Cal.Rptr. 1, 560 P.2d 1180]), grossly negligent discharge of a firearm (People v. Clem (2000) 78 Cal.App.4th 346, 353-354 [92 Cal.Rptr.2d 727]; see also People v. Robertson, supra, 34 Cal.4th at pp. 168-169 [quoting Clem with approval]), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271 [74 Cal.Rptr.2d 7]), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377 [68 Cal.Rptr.2d 61]; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299 [280 Cal.Rptr. 584])(end of elided text), and reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646 [3 Cal.Rptr.2d 343]).

Felonies that have been held not inherently dangerous to life include practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death (People v. Burroughs, supra, 35 Cal.3d at p. 833); false imprisonment by violence, menace, fraud, or deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96); possession of a concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28, 35-41 [98 Cal.Rptr. 33, 489 P.2d 1361]); possession of a sawed-off shotgun (id. at pp. 41-43); escape (People v. Lopez (1971) 6 Cal.3d 45, 51-52 [98 Cal.Rptr. 44, 489 P.2d 1372]); grand theft (People v. Phillips, supra, 64 Cal.2d at pp. 580-583); conspiracy to possess methedrine (People v. Williams (1965) 63 Cal.2d 452, 458 [47 Cal.Rptr. 7, 406 P.2d 647]); extortion (People v. Smith (1998) 62 Cal.App.4th 1233, 1236-1238 [72 Cal.Rptr.2d 918]); furnishing phencyclidine (People v. Taylor (1992) 6 Cal.App.4th 1084, 1099 [8 Cal.Rptr.2d 439]); and child endangerment or abuse (People v. Lee (1991) 234 Cal.App.3d 1214, 1229 [286 Cal.Rptr. 117]).

In determining whether section 2800.2 is an offense inherently dangerous to life, we begin by reviewing the statutory scheme. Three statutes punish those who flee from police officers: sections 2800.1, 2800.2, and 2800.3.

Section 2800.1 states that any motorist who “with the intent to evade, willfully flees or otherwise attempts to elude” a peace officer pursuing on a motor vehicle or bicycle is, under specified circumstances, guilty of a misdemeanor.

Under section 2800.3, when “willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death or serious bodily injury to any person,” the offense is a wobbler (an offense that can be a felony or a misdemeanor, at the trial court’s discretion), punishable by up to five years in prison.

Section 2800.2, which was the basis for defendant’s conviction under the second degree felony-murder rule, provides:

“(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail .... The court may also impose a fine ... or may impose both that imprisonment or confinement and fine.

“(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”

In concluding that section 2800.2 is an inherently dangerous felony, the Court of Appeal relied heavily on People v. Johnson (1993) 15 Cal.App.4th 169 [18 Cal.Rptr.2d 650]. There the Court of Appeal, construing an earlier version of section 2800.2 that was essentially the same as what is now subdivision (a) of that section, held that driving with “willful or wanton disregard for the safety of persons or property” was inherently dangerous to life. We need not decide, however, whether Johnson was correct, because in 1996, three years after Johnson was decided, the Legislature amended section 2800.2 to add subdivision (b). (Stats. 1996, ch. 420, § 1.) Subdivision (b) very broadly defines the term “willful or wanton disregard for the safety of persons or property,” as used in subdivision (a), to include any flight from an officer during which the motorist commits three traffic violations that are assigned a “point count” under section 12810, or which results in “damage to property.”

Violations that are assigned points under section 12810 and can be committed without endangering human life include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a *1138complete stop at a stop sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for 100 feet before turning (§§ 22108, 12810, subd. (e)).

The Court of Appeal here rejected defendant’s contention that because of the broad definition of the phrase “willful or wanton disregard for the safety of persons or property” in subdivision (b) of section 2800.2, violations of section 2800.2 are not inherently dangerous to life for the purposes of the second degree felony-murder rule. The Court of Appeal quoted People v. Sewell (2000) 80 Cal.App.4th 690 [95 Cal.Rptr.2d 600], which concluded that subdivision (b) “did not change the elements of the section 2800.2 offense, in the abstract, or its inherently dangerous nature.” (Sewell, at p. 694.) But, as we pointed out in the preceding paragraph, subdivision (b) greatly expanded the meaning of the quoted statutory phrase to include conduct that ordinarily would not be considered particularly dangerous. 2

The Attorney General contends that when the Legislature amended section 2800.2 to add subdivision (b), it did not intend to make the second degree felony-murder rule inapplicable to violations of that section. The legislative history of the amendment makes no mention, however, of the second degree felony-murder rule; nor does the legislative history pertaining to the original enactment in 1988 of section 2800.2 (Stats. 1988, ch. 504, § 3, p. 1919). In all likelihood, the Legislature did not consider the effect that either the statute’s original enactment or its amendment would have on murder prosecutions. In the absence of any evidence of legislative intent, we assume that the Legislature contemplated that we would determine the application of the second degree felony-murder rule to violations of section 2800.2 based on our long-established decisions holding that the rule applies only to felonies that are inherently dangerous in the abstract. (People v. Robertson, supra, 34 Cal.4th at p. 166; People v. Hansen, supra, 9 Cal.4th at p. 309; People v. Phillips, supra, 64 Cal.2d at p. 582; People v. Williams, supra, 63 Cal.2d at p. 458, fn. 5.) As we have explained in this opinion, a violation of section 2800.2 is not, in the abstract, inherently dangerous to human life. Therefore, the second degree felony-murder rule does not apply when a killing occurs during a violation of section 2800.2.

Thus, the trial court here erred when it instructed the jury that it should find defendant guilty of second degree murder if it found that, while violating section 2800.2, defendant fatally injured Jeanette Rodriguez when their cars collided.3 The parties have not briefed the question of whether the trial court’s instructional error was prejudicial. That is a matter to be considered by the Court of Appeal on remand.4

Conclusion

Nothing here should be read as saying that a motorist who kills an innocent person in a hazardous, high-speed flight from a police officer should not be convicted of murder. A jury may well find that the motorist has acted with malice by driving with conscious disregard for the lives of others, and thus is guilty of murder. (See generally People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279].) But, as we have explained, not all violations of section 2800.2 pose a danger to human life. Therefore, the prosecution may not (as it did here) resort to the second degree felony-murder rule to remove from the jury’s consideration the question whether a killing that occurred during a violation of section 2800.2 was done with malice.5

We reverse the judgment of the Court of Appeal, which upheld defendant’s conviction for second degree murder, and remand the matter to that court for further proceedings consistent with this opinion.

We reverse the judgment of the Court of Appeal, which upheld defendant’s conviction for second degree murder, and remand the matter to that court for further proceedings consistent with this opinion.(end of elided text)

George, C. J., Werdegar, J., Chin, J., and Moreno, J., concurred.

1

Unless otherwise stated, all further statutory citations are to the Vehicle Code.

2

Justice Baxter’s dissenting opinion stresses that the trial court’s instructions to the jury left the phrase “willful or wanton disregard for the safety of persons or property” undefined, and did not mention the Legislature’s broad definition of that phrase in subdivision (b) of section 2800.2. (Dis. opn., post, at p. 1145.) Thus, the dissent argues, this court should not consider the latter definition in deciding whether section 2800.2 is inherently dangerous. But in determining whether a felony is inherently dangerous, we must consider the law enacted by the Legislature, regardless of the jury instructions in a particular case. The dissent also notes that “although the Legislature elected to include subdivision (b) as part of section 2800.2, it could just have easily have added a separate section, establishing a distinct felonious offense of committing three ‘points’ violations while driving to elude a peace officer.” (Dis. opn., post, at p. 1144.) True. But the Legislature did not do so. To determine whether section 2800.2 is inherently dangerous, we must examine the law the Legislature did enact, not a hypothetical law the Legislature could have enacted.

3

Defendant asserts that when the Legislature enacted section 2800.3, it created a specific statute that specifies the penalty when flight from a pursuing peace officer results in death or serious bodily injury, thus barring his conviction of the more general crime of second degree murder under the second degree felony-murder rule, based on a violation of section 2800.2. We need not address this contention, because of our conclusion that the second degree felony-murder rule does not apply to violations of section 2800.2.

4

Justice Baxter’s dissenting opinion argues forcefully that the trial court’s instructional error was harmless because (1) there was overwhelming evidence that defendant acted with implied malice, and (2) the jury implicitly found, based on the trial court’s instructions, that defendant acted with malice. (Dis. opn., post, at pp. 1144-1147.) We express no views on Justice Baxter’s arguments, which should be considered by the Court of Appeal on remand.

5

To the extent it is inconsistent with this opinion, we disapprove People v. Sewell, supra, 80 Cal.App.4th 690, which held that a murder conviction under the second degree felony-murder rule can be based on a violation of section 2800.2

BROWN, J., Concurring and Dissenting.

I concur with the majority’s holding that defendant’s conviction for second degree felony murder must be reversed and the case remanded for further proceedings. However, for the reasons set forth in my dissenting opinion in People v. Robertson (2004) 34 Cal.4th 156, 186-192 [17 Cal.Rptr.3d 604, 95 P.3d 872] (dis. opn. of Brown, J.), I cannot countenance the majority’s continued allegiance to this dubious doctrine.

Here, defendant was convicted solely on a second degree felony-murder theory. The majority appears to acknowledge the rule is constitutionally and analytically suspect: “Because the second degree felony-murder rule is ‘a judge-made doctrine without any express basis in the Penal Code’ [citation], its constitutionality has been questioned [citation]. And, as we have noted in the past, legal scholars have criticized the rule for incorporating ‘an artificial concept of strict criminal liability that “erodes the relationship between criminal liability and moral culpability.” ’ [Citation.] Therefore, we have repeatedly stressed that the rule ‘ “deserves no extension beyond its required application.” ’ [Citations.]” (Maj. opn., ante, at p. 1135.) I agree, but I would go farther and abrogate the rule entirely. (People v. Robertson, supra, 34 Cal.4th 156, 191 (dis. opn. of Brown, J.) [“Because the second degree felony-murder rule is suspect I believe it would not be missed if we abandoned it”].) As the facts of this case conclusively demonstrate, the application of the second degree felony-murder rule remains irredeemably arbitrary.

The majority concludes, based on a technical parsing of the provision’s grammar, that a violation of Vehicle Code section 2800.2 is not an inherently dangerous felony for purposes of second degree felony murder. However, a commonsense construction of the statute’s language leads to the opposite conclusion—a conclusion that is considerably less counterintuitive. As one lower court stated in addressing the same issue we review here, “It would seem clear as a matter of logic that any felony whose key element is ‘wanton disregard’ for human life necessarily falls within the scope of ‘inherently dangerous’ felonies. [A]part from the ‘wanton disregard’ element, one must also be engaged in the act of fleeing from a pursuing peace officer whose vehicle is displaying lights and sirens. Any high-speed pursuit is inherently dangerous to the lives of the pursuing police officers. In even the most ethereal of abstractions, it is not possible to imagine that the ‘wanton disregard’ of the person fleeing does not encompass disregard for the safety of the pursuing officers.” (People v. Johnson (1993) 15 Cal.App.4th 169, 173-174 [18 Cal.Rptr.2d 650].) Unlike the majority, I find the Court of Appeal’s statement in Johnson persuasive.

Indeed, I agree with Justice Baxter that if any offense should easily qualify as inherently dangerous, Vehicle Code section 2800.2 certainly would. “Subdivision (a) of section 2800.2 gives clear and specific notice that one who, in order to elude police pursuit, drives with reckless indifference to safety is guilty of a felony. Such reckless driving is, of course, inherently dangerous—by definition, it creates a substantial risk that someone will be killed.” (Dis. opn. of Baxter, J., post, at p 1143.) Although it is possible to imagine slow motion pursuits where neither people nor property are harmed, the facts of this case present the more likely scenario: defendant greatly exceeded the speed limit, ran stop signs and stoplights, drove the wrong way on a street and entered downtown Fresno, where the pursuing police officer broke off his chase because he determined that it was too dangerous to proceed. Unfortunately, although the police officer avoided injury by breaking off his pursuit, defendant still entered an intersection on a red light and collided with another vehicle, killing its driver.

“[R]easonable judges can disagree about the legitimacy of contracting or expanding the statutory definition of a felony in order to conclude that a particular violation should be deemed inherently dangerous.” (People v. Robertson, supra, 34 Cal.4th 156, 186 (dis. opn. of Brown, J.).) Two other Court of Appeal decisions have concluded that a violation of Vehicle Code section 2800.2 is an inherently dangerous felony. (People v. Sewell (2000) 80 Cal.App.4th 690, 693-697 [95 Cal.Rptr.2d 600]; People v. Johnson, supra, 15 Cal.App.4th at pp. 173-174.) In this case, two members of this court and a unanimous Court of Appeal reached the same conclusion. The fact that such variations are not just possible, but actually inevitable, suggests a level of arbitrariness we should make every effort to eliminate from the criminal law. For that reason, as well as other concerns discussed more fully in Robertson, I would abrogate the nonstatutory second degree felony-murder rule and leave it to the Legislature to define precisely what conduct subjects a defendant to strict criminal liability.

BAXTER, J., Dissenting.

I respectfully dissent. In early morning darkness, defendant, driving a stolen vehicle, led police officers on a perilous and extended chase over Fresno County roads. He ran three stop signs and a red light, and even proceeded on the wrong side of a divided highway, while operating the vehicle far in excess of posted speed limits. Finally, as he dashed on city streets toward downtown Fresno at speeds between 80 and 90 miles per hour, he ran a second red light and collided with another vehicle. Both occupants of that car were ejected onto the street. One perished.

As a result of Ms reckless actions, defendant suffered a conviction for violation of VeMcle Code section 2800.2,1 wMch makes it a felony to flee police pursuit by driving with “a willful or wanton disregard for the safety of persons or property.” (Id., subd. (a).) Because Ms violation of this law had fatal consequences, defendant was also convicted of second degree murder on a felony-murder theory—i.e., that he caused death in the commission of an inherently dangerous felony. Instructions told the jury that the “willful or wanton disregard” necessary to both convictions required an intentional act performed with a “conscious disregard” for safety.

The majority concede that defendant (1) violated section 2800.2, the reckless flight statute, by “willful[ly] or wanton[ly] disregard[ing]” human safety during a flight from the police, and (2) thereby produced a human fatality. Nonetheless, though two Court of Appeal decisions have concluded otherwise (People v. Sewell (2000) 80 Cal.App.4th 690, 693-697 [95 Cal.Rptr.2d 600] (Sewell); People v. Johnson (1993) 15 Cal.App.4th 169, 173-174 [18 Cal.Rptr.2d 650] (Johnson)), the majority insist that this statute cannot support a felony-murder conviction.

The majority invoke the premise that second degree felony murder only occurs in the commission of a felony which is inherently dangerous in the abstract—one which, by its very nature, cannot be committed without creating a substantial risk, or a high probability, that someone will be killed. (E.g., People v. Hansen (1994) 9 Cal.4th 300, 309 [36 Cal.Rptr.2d 609, 885 P.2d 1022] (Hansen).) Relying on the peculiar construction of the reckless flight statute, including its recent amendment, the majority posit that even if defendant violated section 2800.2 in a potentially lethal way, it can be violated without creating a lethal danger to persons.

The majority focus upon subdivision (b) of section 2800.2, which was added in 1996. This subdivision states that “[f]or purposes of [section 2800.2],” driving with “a willful or wanton disregard for the safety of persons or property includes . . . driving . . . during which time . . . tiiree or more [traffic] violations that are assigned a traffic violation point count under [s]ection 12810 occur . . . .” The majority reasons that, because some statutory “points” violations are not inherently dangerous, one can commit the unitary felony described in both subdivisions of section 2800.2 in a way that does not place human life at risk.

I am not persuaded. Subdivision (a) of section 2800.2 gives clear and specific notice that one who, in order to elude police pursuit, drives with reckless indifference to safety is guilty of a felony. Such reckless driving is, of course, inherently dangerous—by definition, it creates a substantial risk that someone will be killed. Moreover, there is no doubt that defendant committed exactly the reckless endangerment of human life forbidden by the statute. As I explain in further detail below, his conviction for violating section 2800.2, as well as his felony-murder conviction, were unambiguously based on the dangerous recklessness of his flight from the police.

Hence, the principal reason noted by the majority for limiting the second degree felony-murder rule should not bar a felony-murder finding here. The statute’s express words placed defendant on notice that the particular conduct he was committing—recklessly unsafe driving to elude police pursuit—was both felonious and inherently dangerous, and thus a basis for murder liability if death resulted. This is a case where “ ‘society has declared certain inherently dangerous conduct to be felonious,’ ” and “ ‘defendant should [therefore] not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved.’ ” (Maj. opn., ante, at p. 1135, quoting People v. Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549] (Patterson).)

Conversely, the principal reason for applying the felony-murder rule is present. The purpose of the felony-murder doctrine “is to deter those engaged in felonies from killing negligently or accidentally.” (Hansen, supra, 9 Cal.4th 300, 308, quoting People v. Satchell (1971) 6 Cal.3d 28, 43 [98 Cal.Rptr. 33, 489 P.2d 1361].) Because the doctrine absolves the prosecution from proving malice, it properly applies when “the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.” (Ibid.)

Those requirements are met here. It is appropriate to deter persons from killing negligently or accidentally—as did defendant—while engaged—as was defendant—in recklessly unsafe driving to elude police pursuit, a specific form of conduct made felonious by section 2800.2, subdivision (a). Moreover, the inherent danger such conduct poses to human life is so clear that it is logical to impute malice to anyone who commits it.

Under such circumstances, it perverts reason to refuse to apply the felony-murder rule simply because subdivision (b) of section 2800.2 may additionally describe a nondangerous felony. Where society has warned, in plain statutory words, that the particular conduct committed by the defendant *1144is both dangerous and felonious, it should not matter that the statute may forbid non-dangerous conduct as well.

It is worth noting that, although the Legislature elected to include subdivision (b) as part of section 2800.2, it could just as easily have added a separate section, establishing a distinct felonious offense of committing three “points” violations while driving to elude a peace officer. This would equally have satisfied the apparent legislative purpose to deter flight from the police by expanding the circumstances under which driving to elude a pursuing police officer would constitute a felony. (See, e.g., Sen. Com. on Crim. Proc., Analysis of Assem. Bill No. 1999 (1995-1996 Reg. Sess.) as amended Apr. 29, 1996, p. 6.)

However, neither the Legislature’s desire to create a felony of flight with “points” violations, nor its choice of methodology to accomplish this result, can deprive the reckless conduct described in subdivision (a) of all force as an inherently dangerous felony. If subdivision (a) described an inherently dangerous felony before the addition of subdivision (b) in 1996 (see Johnson, supra, 15 Cal.App.4th 169, 173-174), the unchanged words of that subdivision equally do so following the 1996 amendment (see Sewell, supra, 80 Cal.App.4th 690, 693-697).

In sum, where the defendant committed inherently dangerous conduct expressly made felonious by subdivision (a) of section 2800.2, and was accused, tried, and convicted solely under that subdivision, I submit that subdivision (a) is the provision we should analyze to determine if it qualifies as a basis for felony murder.

As I have indicated above, this is such a case. The prosecution avoided all reliance on subdivision (b) of section 2800.2, and that subdivision was never an issue in the trial below. When referring to section 2800.2, the information cited only the language of subdivision (a), charging that defendant “drove with a willful or wanton disregard for the safety of persons or property.” In his testimony, one of the pursuing officers, Gary Stephany, ticked off the numerous Vehicle Code violations defendant had committed during the high-speed chase, but the import of Stephany’s testimony was simply to emphasize defendant’s extreme and ongoing recklessness. The prosecutor never asked Stephany, or any other witness, whether defendant committed “points” violations.

In his argument to the jury concerning section 2800.2, the prosecutor emphasized that defendant’s various reckless traffic violations proved he had acted with “willful or wanton disregard,” i.e., with conscious indifference to the consequences for safety. The entire focus of the prosecutor’s argument was on defendant’s culpable state of mind while fleeing the police, as evidenced by his inherently dangerous driving maneuvers. The prosecutor never suggested that technical “points” violations committed by defendant were a basis for finding him guilty of violating section 2800.2, or of murder.

Most crucially, all reference to subdivision (b) was omitted from the jury instruction on section 2800.2. When describing the elements of a violation of that statute, the instruction said only that “ ‘[wjillful or wanton’ means an act intentionally performed with a conscious disregard for the safety of persons or property. It does not necessarily include an intent to injure.” (Italics added.)

Thus, beyond doubt, the jury convicted defendant of murder based solely on proof that he fled police pursuit by driving with reckless indifference to safety, conduct which is both inherently dangerous and expressly felonious under subdivision (a) of section 2800.2. It follows that the felony underlying defendant’s murder conviction was an inherently dangerous one. Accordingly, I submit, a murder conviction could be premised on his commission of this felony.

But even if section 2800.2 were not an inherently dangerous felony that could support a felony-murder conviction, any error in instructing the jury to the contrary was harmless. Indeed, by remanding to the Court of Appeal for a determination on the issue of prejudice, the majority imply that a no-prejudice conclusion is plausible.

I find such a conclusion inescapable, for two reasons. First, a reasonable jury, properly instructed on an implied malice theory of second degree murder, could not have failed to find, on this evidence, the elements of malicious murder. Second, though this jury received no explicit instructions on malice, it necessarily did find, under the instructions which were given, that defendant killed maliciously.

“Implied malice, for which the second degree felony-murder doctrine acts as a substitute [fn. omitted], has both a physical and a mental component. . . . The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for lifer [Citation].’ ” (People v. Robertson (2004) 34 Cal.4th 156, 165 [17 Cal.Rptr.3d 604, 95 P.3d 872], quoting Patterson, supra, 49 Cal.3d 615, 626, italics added.)

In my view, the evidence that defendant acted with actual knowledge and conscious disregard of the lethal probabilities is conclusive. No other inference can be drawn from his decision to maintain his careening flight from the police over highways and streets carrying innocent travelers. During the high-speed chase, he swerved over a median boundary of a divided highway and travelled in lanes reserved for oncoming vehicles, risking a head-on collision. With equal purpose, he ran at least three stop signs and two red lights, forcing cross-traffic to yield and creating the obvious danger of crashes at these controlled intersections. In his frantic efforts to outdistance his pursuers, he “fishtailed” into curves and comers, giving rise to the peril of spin-out accidents that could involve other vehicles. The fatal collision occurred in the midst of this course of conduct, as defendant, still trying to escape, ran a red light at high speed.

As a matter of law, I believe, these intentional acts went beyond mere gross negligence or reckless indifference. Defendant—by his own evaluation a skilled driver—must have acted with full awareness that he was thereby placing human life at risk. He cannot evade this responsibility through his inherently implausible testimony that he remembered only bits and pieces of the chase, and could not recall whether the traffic light was red at the fatal intersection when he entered it.

In any event, this jury was told that the felony described in section 2800.2 required a conscious disregard for safety. Hence, in finding that defendant caused death in the commission of this felony, the jury necessarily found that he understood the danger, and chose to act anyway, thus exhibiting implied malice. Under these circumstances, reliance on a felony-murder theory, even if error, must be deemed harmless. (Cf., e.g., People v. Sedeno (1974) 10 Cal.3d 703, 720-721 [112 Cal.Rptr. 1, 518 P.2d 913].)3

Having concluded that defendant’s violation of section 2800.2 was an “inherently dangerous” felony for purposes of the felony-murder rule, I must address his second argument. Defendant urges that he cannot be prosecuted and punished for felony murder in any event because the Legislature intends section 2800.3 as the only statute under which deaths caused by vehicular flight from the police may be prosecuted and punished without proof of malice.4

Defendant invokes the principle that a special statute defining an offense preempts a more general statute encompassing the same conduct. (See, e.g., In re Williamson (1954) 43 Cal.2d 651, 654 [276 P.2d 593].) But this rule applies only “(1) when each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute. [Citation.]” (People v. Watson (1981) 30 Cal.3d 290, 295-296 [179 Cal.Rptr. 43, 637 P.2d 279].)

Neither circumstance is present here. Both statutes permit punishment, without proof of malice, for fatalities caused by vehicular flight from the police, but the two statutes do not govern such killings identically. Section 2800.3—in defendant’s view, the more specific death-related statute— sanctions such a homicide regardless of the fleeing motorist’s degree of driving care. By contrast, to be convicted of felony murder under the more “general” statute, section 2800.2, the fleeing motorist must have driven with “a willful or wanton disregard for safety.” Thus, the facial elements of the two statutes differ, and a fatality punishable under section 2800.3 will not necessarily or commonly constitute a felony murder under section 2800.2.

Through an exhaustive analysis of legislative history, defendant argues that the Legislature’s “carefully crafted” scheme for punishment of pursuit-related fatalities precludes prosecution of such homicides as felony murder. His contention lacks merit. Vehicular flight from the police, with its potential for death, injury, and property damage, has been a growing problem. The Legislature has responded over the years by expanding the punishment for such conduct under various circumstances. Among other things, it has provided in section 2800.3 that one whose flight, however carefully conducted, causes death or injury may receive up to five years in prison, a $10,000 fine, or both. But nothing indicates the Legislature intended a similar limitation on the punishment of persons who commit homicides while engaged in the inherently dangerous felony of flight from police pursuit with willful and wanton disregard for safety. Every consideration of logic and common sense suggests that such homicides may properly be treated under the law of felony murder.

For all these reasons, I would affirm the judgment of the Court of Appeal.

1

All further unlabeled statutory references are to the Vehicle Code.

2