The Felony Presumption

The Felony Presumption

The first sentence of § 210.2(1)(b), covered in the previous section, makes a reckless killing murder only when the circumstances show extreme indifference to the value of human life.¹ The second sentence of the same provision eases that burden for one class of killings. It says that such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, 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 Two findings that the prosecution would otherwise have to prove from the surrounding circumstances, conscious disregard of a risk of death and extreme indifference to life, therefore arrive together once the conditions of that sentence are met.

The reason for attaching a presumption to these felonies lies in what they have in common. Robbery, arson, burglary, kidnapping, rape by force, and felonious escape characteristically put people within reach of violence, so an actor who chooses one has chosen conduct in which a death is a foreseeable risk of the enterprise. That fact makes it reasonable to infer that the actor was aware of the risk and went ahead anyway, and it supports an inference about how little weight the actor gave to human life. Each limit in the sentence keeps the inference tied to circumstances where it fits. The closed list leaves out felonies such as a paper fraud, where nothing about the crime itself suggests danger to life and a presumption of conscious disregard would have nothing to rest on. The reach to participants and accomplices confines the inference to people who joined the dangerous undertaking, and the time window confines it to the period when that undertaking is under way or is being escaped. Remove those limits and every death connected to any felony would carry a presumption of murder.

Because the sentence has three separate conditions, the trigger is best run as three questions asked in the order the text raises them. Each question is the subject of one of the subsections that follow.

Answering yes to all three questions does not finish the analysis. The word the Code chose is presumed, which describes an inference the statute draws from the felony, and the statute does not declare the killing murder outright. How that inference operates, and how a defendant can answer it, is the work of the section after these subsections. The trigger also says nothing about who caused the death. The presumption stands in for the mental-state findings, so the prosecution must still show that the actor's conduct caused another person's death, a requirement taken up in a later section. The first of the three questions, which asks whether the felony is on the list, comes first.

Enumerated Felonies

The first question in the trigger asks whether the felony is one the Code names, and the answer comes from reading a list. The second sentence of § 210.2(1)(b) names six categories: robbery; rape or deviate sexual intercourse by force or threat of force; arson; burglary; kidnapping; and felonious escape.⁴ The sentence stops there and contains no phrase reaching other felonies, so the list is closed. A death during a felony missing from it cannot set off the presumption, however serious the crime is and however dangerously the defendant committed it. The force-or-threat qualifier attaches to the entry for rape and deviate sexual intercourse, which means a sexual act committed without force or threat of force falls outside that entry, while the other five categories are named without any such condition.⁵

Two separate reasons support drawing the line this way. The first concerns the fit between the inference and the crime. The presumption asks a factfinder to infer that the actor knew a death was a real possibility and went ahead anyway, and that inference is sound only when the crime itself ordinarily puts other people within reach of serious harm. Robbery, arson, burglary, kidnapping, and felonious escape characteristically bring the offender into contact with people, with weapons, or with fire, and the force-or-threat qualifier gives the sexual offenses the same character. A fraud or an ordinary theft is usually carried out by deceit or stealth, so a death connected to one gives the factfinder nothing in the crime itself from which to infer awareness of a risk to life. Extending the presumption to such crimes would let the bare label of felony do the work that proof of a culpable mental state is supposed to do. The second reason concerns the clarity of the line. Because the legislature fixed the list in advance, neither side has to argue at the threshold about how dangerous a given felony is, and a prosecutor has no opening to describe an unlisted felony as dangerous enough to count.

Courts applying the common-law felony-murder rule, which is taught in a separate reading, sometimes handle the same problem through a judge-made test. Some limit the rule to felonies that are inherently dangerous, and they divide over whether to judge that danger from the elements of the felony in the abstract, as California courts do, or from the nature of the felony together with the circumstances in which it was committed.⁶ The Code settles that question by statute. The legislature names the felonies, and a court applying the presumption does not ask how dangerous the felony was at the triggering stage. How the particular crime unfolded still matters, but it matters later. A burglary is a listed felony and raises the presumption, yet the presumption is rebuttable, and a defendant whose burglary involved no conscious disregard of a risk of death can answer it.⁷

Move to a crime the list omits and the presumption disappears. A swindler's investment fraud ruins a victim, who then takes his own life. Fraud is not among the listed felonies, so no presumption arises, and the link between the scheme and the death is too attenuated, and the risk of suicide too slight, to support a murder conviction on those facts.⁸ The same result follows for ordinary theft, which the text also leaves out.⁹ In neither case does the missing presumption mean the defendant escapes, only that the prosecution has lost a shortcut and must rely on whatever else the facts show.

A drug sale shows what the prosecution can do when the shortcut is gone. A dealer sells a large quantity of cocaine to a buyer the dealer knows has overdosed before, and the buyer dies. A drug sale is not enumerated, so the Code supplies no presumption. The first sentence of § 210.2(1)(b) remains available, however, and a jury could find that the dealer, aware of the buyer's history, consciously disregarded a substantial risk of death. That finding could support manslaughter or, if the circumstances show extreme indifference, murder, but it would rest on proof of the dealer's actual awareness and not on the presumption.¹⁰ The robber in the earlier scene needed no such proof from the prosecution, and that difference is exactly what the list controls.

The usual error on this point is to ask whether the felony was dangerous enough and, on a yes, to apply the presumption. The Code does not pose that question at the threshold. It asks only whether the felony appears on the list, and when it does not, the analysis moves to the first sentence of the provision, where recklessness and extreme indifference must be proved directly from the circumstances.¹¹ Even a listed felony does not make the killing murder outright, because the presumption it raises can be answered, a point developed in a later section.

Commission, Attempt, and Flight

The third condition in the trigger concerns timing, and the Code states it in a single clause. The actor must be engaged, when the killing occurs, in the commission of the listed felony, in an attempt to commit it, or in flight after committing or attempting to commit it.¹³ The three phases describe successive moments of one episode, and together they run from the point the felony is under way until the actor has gotten clear of it. A window of this kind is needed because the presumption rests on an inference about the circumstances surrounding the felony. A robbery in progress puts the robber in a confrontation with people who may resist, and the pressure of that confrontation is what makes it fair to infer that a person who fired a weapon knew a death was possible and went ahead anyway. The presumption can be no wider than those circumstances, so the clause follows them from the start of the felony through the escape and stops where they stop.

Taking the phases in order shows what each adds. Commission is the plain case: the actor is carrying out the robbery, burglary, arson, or other listed offense, and a death at that moment is inside the window. Attempt extends the window to a felony that never succeeds, and the reason is that the danger supporting the inference does not depend on whether the actor ends up with the loot. A robber who draws a gun and meets resistance has created the same confrontation whether the victim hands over the cash or fights back. If the presumption required a completed felony, a defendant whose plan collapsed would gain an advantage from having failed, even though the struggle that produced the death was identical. Flight covers the escape that follows either a completed felony or a failed attempt, and it belongs in the window because the conditions that made the felony dangerous travel with the actor out the door. The pursuers, the weapon, and the urgency of getting away are all still present, and an actor who fires to break free is acting under pressure the felony itself created.

The window has an end, and the Code's text gives it only one marker. After the listed felony is committed or attempted, the clause speaks of flight and says nothing further about how long flight lasts, how far it extends, or when an actor counts as having reached safety. The end of a felony is a recognized question in the decided cases, and courts have had to decide it many times.¹⁴ The reason the window exists points to the answer in the ordinary case. Once the felony is over and the actor is safe, the pursuit, the weapon in hand, and the pressure to escape have fallen away, and a later death no longer supports an inference that the actor was consciously disregarding a risk of death when it happened. Flight is not open-ended, and the clause reaches no further than the escape itself.

Decisions under the common-law felony-murder rule show how much room that question leaves. Courts applying it describe the time limit with the Latin term res gestae, meaning the things done in the course of the criminal transaction, and they have stretched it in different directions.¹⁵ A New Jersey court in State v. Metalski found felony murder where a police officer who had stopped two robbers for speeding was shot two hours, several miles, and a state line away from the robbery.¹⁶ A Pennsylvania court in Commonwealth v. Stelma sustained a felony-murder conviction even though the defendant struck the victim with a brick before forming the intent to rob.¹⁷ Most cases fall between those extremes, and a typical one is People v. Gladman, where the New York court upheld a conviction for a defendant who had walked a few blocks from a robbery and shot a police officer searching for him before reaching a point of safety.¹⁸ Those are common-law holdings and not applications of the Code, but they frame the question a Code problem raises. The Gladman facts are flight on any reading, because the defendant was still being sought and had not reached safety, while facts like those in Metalski, with hours, miles, and a state line between the robbers and the scene, invite the argument that the flight had already ended.

Being inside the window answers only when the killing occurred. A death that merely coincides with the felony in time and place is not thereby the actor's doing. Courts applying the common-law rule illustrate the point with a bank customer who is unaware of a robbery in progress and suffers a fatal heart attack from natural causes, so that the coincidence of time and place does not make the robber a murderer, whereas a customer with a weak heart who dies of fright at witnessing the robbery presents the causal connection the first customer lacks.¹⁹ The Code's presumption supplies the actor's mental state and nothing else, so a defendant inside the window still faces the separate requirement, taken up in a later section, that the prosecution prove the defendant caused the death.

The facts that most easily mislead a reader about where the window closes are a completed theft followed by a later death. A thief who finishes a theft, gets home safely, and is later connected to a death involving the stolen property falls outside the presumption for two separate reasons. Theft is not a listed felony, as the previous subsection showed, and the theft is also over, with the thief home and safe.²⁰ Only the second defect belongs here, so the timing question is cleaner with a listed felony substituted.

The prosecution is in a weaker position here than in the bank flight above, though not a hopeless one, because the first sentence of § 210.2(1)(b) remains available. A jury could still find that the robber handled a loaded pistol in a way that consciously disregarded a substantial risk of death, but that finding would rest on proof of what the robber actually perceived and not on the presumption.²¹ The comparison between the two robbers turns on timing alone: the first death came while the actor was escaping, and the second came after the escape was complete. The usual error is to treat a listed felony as a standing trigger, so that any death that traces back to a robbery or burglary carries the presumption. The clause asks instead where the actor stood at the moment of the killing, which must be inside the commission, the attempt, or the flight.

Accomplices

The presumption in § 210.2(1)(b) is not limited to the person who personally causes the death. It arises when the actor is engaged in a listed felony or is an accomplice in it, so a participant who did not pull the trigger can still face the presumption of recklessness and extreme indifference.²³ An accomplice is a person who takes part in another's crime in a way the law of complicity treats as participation. That body of law decides who qualifies, and it is developed in its own reading, so this section takes the status as given and asks only what the Code's text does with it.

The extension follows from the reason the presumption exists. The listed felonies are often committed by groups: one person enters, another watches the door, and a third waits with the car. The presumption rests on an inference that people who undertake such a crime know a death is a real possibility and go ahead anyway, and a lookout or a driver shares every circumstance that supports that inference, including armed confederates, victims who may resist, and the pressure to get away. If the presumption stopped with whoever fired the shot, the confederate who stayed outside would escape the inference only because someone else happened to do the shooting. Because the presumption can be rebutted, the extension does not make every participant a murderer. An accomplice who can show that he did not consciously disregard a risk of death keeps the same opportunity to answer the presumption that the shooter has.

The text reaches only an accomplice in the felony itself, and that limit shows where the extension stops.

The prosecution must therefore establish accomplice status, and that status can be contested. In Richardson v. Marsh, three people were charged after an armed robbery in which two of them killed two victims in a basement, and the third, Clarissa Marsh, was not placed in the basement. The Court of Appeals described the evidence, viewed in the light most favorable to the prosecution, as showing that she knew the two men were armed, stood at the door as a lookout, kept one victim from escaping, and was handed the bag believed to hold the proceeds, while the dissent noted a sharp dispute over whether she knew of or shared the others' plans.²⁴ That decision turned on the Confrontation Clause and was not an application of the Code, but its facts show the kind of participant the text has in view. Under the Code, the presumption could attach to someone in her position only if the factfinder first found her to be an accomplice in the robbery.²⁵

The common-law felony-murder rule also reaches a felon's accomplices, who may likewise be convicted of second degree murder.²⁶ The Code differs in what the accomplice faces, because its text extends only a presumption about mental state, and the accomplice remains free to answer it.²⁷ The presumption also supplies nothing beyond that mental state. The prosecution must still show that the death is attributable to the accomplice under the Code's general rules of causation, a requirement taken up in a later section.