SHOOT TO KILL - IF NOT, IT'S MURDER

I think it was Gilbert & Sullivan who said "The law is an ass". While that is not always true, the felony-murder rule certainly supports their claim. The felony-murder rule basically provides that even though you did not intend to murder someone, if you commit a felony dangerous to life you can still be found guilty of murder.

The rule makes sense in many contexts. For example, if you drive 100 miles an hour in a residential neighborhood and run down and kill someone, your conduct is so obviously dangerous to life that you could be found guilty of second-degree murder. Or if you participate in an armed robbery and someone is killed, you could be found guilty of murder under the felony-murder rule.

However, in California, our Supreme Court has annunciated a felony-murder rule that makes a mockery out of the rule of law and justice. The case is People v. Robertson, (2004) 34 Cal.4th 160). This case arose out of a situation where the defendant was accosted by several individuals who tried to burglarize his automobile, and when he tried to scare them away by pointing a gun at them they further threatened him. He ended up shooting and killing one of the men. His defense was that he was acting in self-defense. Unfortunately for the defendant, however, he testified at trial that he was not actually shooting at the victim to kill him, but rather shot into the air in order to scare him, and the bullet accidentally hit the victim.

Because of this testimony, the prosecution charged the defendant with shooting a firearm with gross negligence, under the theory that firing a weapon in the general direction of a human being is clearly gross-negligence. The Supreme Court, in its infinite wisdom [not], decided that even though the defendant might have a valid claim of self-defense to the charge of murder, shooting a firearm with gross-negligence is inherently dangerous to life, and therefore constitutes felony-murder and the defendant is legally guilty of second-degree murder. In other words, if the defendant had testified that he intentionally shot at the victim, he could claim self-defense, and if believed he would be guilty of at worst manslaughter. But if he testifies that he was not trying to shoot at the victim, then even though he has a valid claim of self-defense he is guilty of second degree murder under the felony-murder rule!!

So the moral of the story is that if you shoot at your assailant because you are afraid for your life, you better testify that you aimed to kill, and not just fired your gun to scare the person away. Incidentally, this issue is now on appeal again in a different case with the same basic facts, so maybe this time the courts will decide to overrule Robertson and Gilbert & Sullivan.

Follow-up:
 
Lo and behold, on March 30, 2009, the California Supreme Court, in People v. Chun, overruled the Robertson case and held that even if you shoot to scare, rather than to kill, the felony-murder rule does not apply.  So maybe there really is justice in the world after all.