Application of the second-degree felony-murder doctrine can be supported only by those felonies which are inherently dangerous to human life. If the felony is not inherently dangerous it is highly improbable that the potential felon will be deterred; he will not anticipate that any injury or death might arise solely from the fact that he will commit the felony. Moreover, a reviewing court looks to the elements of the felony in the abstract, not the particular facts of the case, in determining whether the felony involves an inherent danger to human life. Thus, a reviewing court's task is to determine whether the offense of felony false imprisonment, as defined in part by Cal. Penal Code § 236 and proscribed by Cal. Penal Code § 237, when considered in the abstract, is inherently dangerous to human life.
Defendants acted in concert in threatening to kill the victim, whom they believed had stolen first defendant’s television set. When defendants took the victim to the house of someone the victim claimed could provide an alibi for him, a struggle ensued. First defendant's gun went off, killing a bystander. The trial court instructed on theories of second degree murder and elements of false imprisonment. The jury found defendants guilty of second-degree murder in violation of Cal. Penal Code § 187 and false imprisonment in violation of Cal. Penal. Code §§ 236, 237, as well as various weapons charges. On defendants’ appeal, the court reversed defendants' jury convictions for second-degree felony murder but affirmed their other convictions.
Did the trial court err in giving a second-degree felony-murder instruction based upon defendants' commission of felony false imprisonment?
The offense of false imprisonment under Cal. Penal Code §§ 236, 237, was not a felony inherently dangerous to human life. The primary element of the offense, namely the unlawful restraint of another's liberty, did not necessarily involve the requisite danger to human life. The factors elevating the offense to a felony did not all involve conduct which was life endangering. Thus, the trial court erred in instructing the jury on the theory of second-degree felony murder because the offense of false imprisonment was not a felony inherently dangerous to human life, therefore, not capable of supporting a second-degree felony-murder charge.