Too-weak Notice? the Charging Conundrum Presented by Felony-murder in California

• Publication year: 2021
• Author: By Matthew M. Fitzgerald

TOO-WEAK NOTICE? THE CHARGING CONUNDRUM PRESENTED BY FELONY-MURDER IN CALIFORNIA

By Matthew M. Fitzgerald^*

I. INTRODUCTION.

California follows the majority of states in maintaining a statutory felony-murder rule.¹ The State defines murder as "the unlawful killing of a human being . . . with malice aforethought."² In all murder cases, the prosecution must prove that a defendant acted with malice, whether express or implied, except for cases of felony-murder.³ The penal code further details that murder perpetrated by "willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, . . . or [additional enumerated felonies] . . . is murder of the first degree."⁴

In an effort to cabin the reach of the felony-murder rule, California lawmakers amended section 189 in 2019.⁵ Although the amended rule limits the scope of accomplice liability and eliminates the "natural and probable consequences" doctrine, several often-criticized aspects of the felony-murder rule remain untouched.⁶ This article focuses on a less-oft criticized conundrum: a prosecutor's decision to charge or leave uncharged predicate felonies in conjunction with murder, as well as downstream effects on an accused's Sixth Amendment right to be informed of the nature and cause of the accusation.

II. CHARGING FELONY-MURDER IN CALIFORNIA.

In California, a murder conviction under a felony-murder theory may obtain notwithstanding the absence of a predicate felony charge.⁷ In 2002, the Supreme Court of California "reject[ed], as contrary to [California] case law, the premise . . . that felony murder and malice murder are two separate offenses."⁸ The court went on to specifically reject a defendant's claim that because the information charged only malice murder, and the trial court instructed the jury pursuant to both malice and felony-murder theories, the general verdict convicting him of first-degree murder necessitated reversal. The court's holding has been interpreted to mean that a predicate felony need not be charged in order to proceed on a theory of felony-murder at trial.⁹ This article posits that whether or not a prosecutor should charge a predicate felony requires a relatively straightforward determination, albeit one in which case law demonstrates several prosecutors have erred.

Three additional factors diminish the prosecutor's dilemma when charging felony-murder. First, California's pleading rules permit prosecutors to charge with nonspecific language. Second, prosecutors may sometimes amend or add charges prior to verdict.¹⁰ Third, evidence of a predicate felony may be relevant as to a defendant's motive for murder.¹¹ In aggregate, the breadth of these procedural bounds enables prosecutors to charge only murder while intending to proceed on a theory of felony-murder at trial. However, as discussed in Part IV, such a course of action has the potential to undermine the accused's right to notice, albeit within the bounds of well-established California case law.

A. CALIFORNIA'S INFORMATION AFFORDS PROSECUTORS BROAD LATITUDE WHEN CHARGING FELONIES.

The United States Constitution mandates indictment by grand jury for felony charges, but only in federal courts.¹² California's liberal pleading rules mandate only that the charging instrument

contains in substance, a statement that the accused has committed some public offense therein specified. . . . It may be in the words of the enactment describing the offense. . . , or in any words sufficient to give the accused notice of the offense of which he is accused.¹³

The Supreme Court of California has sustained broad charges in several instances, including holding that notice "is satisfied when the accused is advised of the charges against him so that he has a reasonable opportunity to prepare and present a defense[.]"¹⁴ The court has also provided a specific example of a charge that would sufficiently notify a defendant of an attempted murder charge, including allegation that "defendant committed attempted murder in that on or about [date], he attempted to murder a member of a group of persons gathered together in a parking lot in Lemoore[.]"¹⁵ Accordingly, the indictment need not include the alleged victim's name, nor the time of day, nor a pinpoint location¹⁶ in order to enable the defendant to prepare a defense.¹⁷ "Inartful" wording does not doom an information,¹⁸ and insufficient clarity in an indictment constitutes defect only pursuant to defense objection on such basis.¹⁹ However, even if a defendant timely objects to an insufficiently specific indictment, remedy typically takes the form of amendment rather than dismissal.

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B. A PROSECUTOR MAY AMEND A DEFICIENT INFORMATION.

The California Penal Code allows for the amendment of an information to add "separate counts . . . which might properly have been joined in the original complaint."²⁰ An information is deficient, so as to permit its amendment, if it fails to charge one or more of the offenses shown by the evidence at the preliminary hearing.²¹ The purpose of a preliminary hearing is to weed out groundless or unsupported charges of grave offenses,²² as well as to curtail unjustifiable prosecution.²³ The content or nature of the amendment bears on the permissible timing of amendment.²⁴

Sheppard v. Rees identified a persuasive temporal limit for amending an indictment to charge felony-murder.²⁵ In Sheppard, petitioner appealed his murder conviction alleging inadequate notice. The Ninth Circuit Court of Appeal found that petitioner was tried on a theory of deliberation and premeditation, noting that "[a]t no time during pretrial proceedings, opening statements, or the taking of testimony was the concept of felony-murder raised, directly or indirectly."²⁶ Both parties submitted jury instructions without the prosecutor mentioning a felony-murder theory. The prosecutor then introduced a felony-murder theory in closing argument, the court instructed accordingly, and the jury returned a general guilty verdict. The Attorney General later conceded that the prosecutor's conduct "affirmatively misled the defendant, denying him an effective opportunity to prepare a defense."²⁷ The Ninth Circuit held that under such facts, petitioner lacked adequate notice.

Although persuasive, Sheppard v. Rees does not bind California courts.²⁸ Thus, the outer-boundary of notice requirements might be when "at no time during pretrial proceedings, opening statements, or the taking of testimony was the concept of felony-murder raised, directly or indirectly," and when a defendant is affirmatively misled.²⁹ However, the Ninth Circuit has consistently distinguished Sheppard as an unparalleled fact pattern.³⁰ As discussed in Part III, California courts have similarly limited the applicability of Sheppard.

C. A MURDER CHARGE GENERALLY PERMITS PROSECUTORS TO INTRODUCE EVIDENCE OF A PREDICATE FELONY, AT ANY TIME, TO SHOW MOTIVE.

The People are permitted to prove specific intent to commit a predicate felony, or in the alternative, to prove motive.³¹ The standard for showing motive is lower than that of proceeding on a charge for predicate felony, as charges must be supported by probable cause.³² Evidence tending to show motive is admissible where it is merely relevant. Moreover, "wide latitude" is permitted in admitting evidence of motive, and its probative value generally exceeds its prejudicial effect.³³

Even weak evidence of a robbery- or burglary-as-motive theory invites admission of several additional types of evidence that would otherwise have little or no bearing on a pure malice-murder theory. For example, evidence of a defendant's financial circumstances might become relevant, or at a minimum might chill a defendant's willingness to raise favorable financial circumstances. Evidence of a victim's habitual wear of valuable objects, or habitual carrying of a purse or wallet might wax relevant, as well as the absence of such items on a victim's person subsequent to their death. Evidence of prior "bad acts" resembling predicate felonies might be admissible to prove relevant facts other than a defendant's criminal disposition, such as identity.³⁴ The availability of this workaround stands to shift the role of gatekeeper from judge to prosecutor in some cases.

III. A MURDER CHARGE MIGHT NOT SATISFY DUE PROCESS "IN SOME INSTANCES," BUT CALIFORNIA COURTS HAVE NOT IDENTIFIED A BOUNDARY.

The Supreme Court of California has indicated that an information for such a broad charge might not satisfy due process "in some instances."³⁵ In People v. Silva, the information charged "the crime of murder, in violation of § 187 . . . That the [defendant] . . . did willfully . . . and with malice aforethought murder [victim]."³⁶ The information did not refer to felony-murder, but the jury was instructed on felony-murder and the elements of robbery as a predicate felony. In upholding petitioner's conviction, the court found sufficient notice in the prosecutor's references in opening statement to the defendant's intent to rob the murder victim, followed by introduction of evidence showing attempted robbery. Despite noting the potential for constitutional infirmity, the Supreme Court of California held that Mr. Silva "could not have been taken unawares."³⁷

Although the Silva court weighed evidence of a felony-murder theory in the prosecutor's opening statement and case-in-chief, an indictment alone may provide adequate notice of a felony-murder theory. People v. Morgan upheld a defendant's murder conviction, finding adequate notice of the prosecution's intent to proceed on a felony-murder theory where the indictment alleged that the murder was committed under the special circumstance of murder in the course of kidnapping and unlawful penetration by a foreign object. ³⁸ People v. Kipp found adequate notice in an indictment where the information included charges of rape...