First, defendant asserts the record does not establish as a matter of law that he was the actual killer of Andre, because the petition established "the possibility that [defendant] could have been convicted of ‘murder’ based on an accidental death." Defendant cites Court of Appeal decisions in People v. Vang (2022) 82 Cal.App.5th 64, 297 Cal.Rptr.3d 806 ( Vang ) and People v. Jennings (1966) 243 Cal.App.2d 324, 52 Cal.Rptr. 329 ( Jennings ) to support this argument. Second, defendant contends that "an instruction on producing a death via the ‘natural and probable consequences’ of other acts encouraged the jury to treat the question of causation in the broadest possible terms," thus indicating that defendant may not have been Andre's actual killer as that term is defined.
(1) It is settled California law that where, as here, an accomplice in a conspiracy to commit arson for the purpose of defrauding an insurer accidentally burns himself to death, his co-conspirator may not be charged with murder under the felony-murder rule. ( People v. Ferlin (1928) 203 Cal. 587, 595-597 [ 265 P. 230]; Woodruff v. Superior Court (1965) 237 Cal.App.2d 749, 750-752 [ 47 Cal.Rptr. 291]; People v. Jennings (1966) 243 Cal.App.2d 324, 328-329 [ 52 Cal.Rptr. 329].) The last cited of these cases, People v. Jennings, supra, points out that the co-conspirator or accomplice's act of accidentally killing himself does not constitute an "unlawful killing" within the meaning of section 187 of the Penal Code. (243 Cal.App.2d at p. 329.)
( Id. at pp. 750-752.) In People v.Jennings (1966) 243 Cal.App.2d 324 [ 52 Cal.Rptr. 329], three persons, including the defendants, hired another to burn a building for insurance purposes. That person caught fire himself while setting the fire and died later.
For lack of that essential element, the murder charge against the defendants in the case at bar should fall. The cases of People v. Ferlin, 203 Cal. 587, 597; Woodruff v. Superior Court, 237 Cal.App.2d 749, 750--751, 47 Cal.Rptr. 291, and People v. Jennings, 243 Cal.App.2d 324, 328--329, 52 Cal.Rptr. 329, are not apposite for they simply held that an accomplice cannot be charged with murder when his confederate accidentally kills himself while committing a felony. The courts in those cases were not faced with a situation involving the intentional commission of acts provoking lethal resistance by victims or police officers.
Furthermore, decisions in other states are not particularly helpful because our sister states are split on the issue. See, e.g., Commonwealth v. Bolish, 381 Pa. 500; 113 A.2d 464 (1955), which supports the prosecutors position, and People v. Jennings, 243 Cal.App.2d 324; 52 Cal.Rptr. 329 (1966), which supports defendants position. Furthermore, those cases are distinguishable from the case at bar inasmuch as they were first-degree felony-murder cases. The malice element of second-degree murder is satisfied by showing that the defendant possessed the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with the knowledge that death or great bodily harm would be the probable result.
( People v. Antick (1975) 15 Cal.3d 79, 87 [ 123 Cal.Rptr. 475, 539 P.2d 43].) The accidental killing of oneself does not constitute an unlawful killing within the meaning of Penal Code section 187. ( People v. Jennings (1966) 243 Cal.App.2d 324, 329 [ 52 Cal.Rptr. 329].) (1c) Similarly, logic would compel the conclusion that the accidental infliction of bodily injury to oneself as a result of the unlawful explosion of a destructive device would not constitute a violation of Penal Code section 12309.
This is true whether the killing is wilfull, deliberate and premeditated, or merely accidental or unintentional, and whether or not the killing is planned as a part of the commission of the robbery. ( People v. Lookadoo, 66 Cal.2d 307, 314 [ 57 Cal.Rptr. 608, 425 P.2d 208]; People v. Jennings, 243 Cal.App.2d 324, 328 [ 52 Cal.Rptr. 329].) (4a)People v. Washington, 62 Cal.2d 777, 783 [ 44 Cal.Rptr. 442, 402 P.2d 130], merely limits the rule to situations where the killing was committed by the felon or his accomplice acting in furtherance of their common design.
(Pen. Code, § 187.) The felony-murder doctrine imputes malice aforethought to the felon who kills another in the commission of one of the felonies enumerated in section 189 of the Penal Code. ( People v. Jennings, 243 Cal.App.2d 324, 327 [ 52 Cal.Rptr. 329]; People v. Washington, 62 Cal.2d 777, 780 [ 44 Cal.Rptr. 442, 402 P.2d 130].) It was enacted to afford the community and its residents protection ( People v. Jennings, supra, p. 328) by acting as a deterrent to those felons who might negligently or accidentally kill.
This has led to some inconsistency in how the felony-murder rule is applied, particularly in situations where the lethal act was committed by a person other than the defendant or an accomplice acting in furtherance of the underlying felony. (Compare Washington, supra , at p. 781, 44 Cal.Rptr. 442, 402 P.2d 130 [rule does not apply where accomplice killed by victim because killing was not committed in perpetration of robbery] and People v. Jennings (1966) 243 Cal.App.2d 324, 329, 52 Cal.Rptr. 329 [rule does not apply where accomplice accidentally killed self while engaged in arson] with People v. Stamp (1969) 2 Cal.App.3d 203, 209-211, 82 Cal.Rptr. 598 [felony murder applies where there is substantial evidence to prove robbery caused victim's heart attack] (superseded by statute as stated in People v. Flint (2022) 75 Cal.App.5th 607, 609, 290 Cal.Rptr.3d 522 ), People v. Hernandez (1985) 169 Cal.App.3d 282, 287, 215 Cal.Rptr. 166 [same], and People v. Billa (2003) 31 Cal.4th 1064, 1069-1072, 6 Cal.Rptr.3d 425, 79 P.3d 542 [active participant in arson liable for accidental death of accomplice].)
We agree with this latter conclusion, but would suggest even a more cogent reason therefore; one which, as the test, would be equally applicable in other felony-murder cases regardless of who did the actual killing, whether a perpetrator, the intended victim or a police officer. See, People v. Ferlin (1928), 203 Cal. 587, 265 P. 230; People v. Jennings (1966), 243 Cal.App.2d 324, 52 Cal.Rptr. 329; Woodruff v. Superior Court of County of Los Angeles (1965), 237 Cal.App.2d 749, 47 Cal.Rptr. 291; and People v. La Barbera (1936), 159 Misc. 177, 287 N.Y.S. 257. We do not, however, agree with additional reasoning used in those cases to support the result reached, some of which appears unduly to limit the scope of the felony-murder concept.