Citation. 22 Ill.3 Cal.3d 578, 91 Cal.Rptr. 275, 477 P.2d 131 (1970)
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Brief Fact Summary.
Petitioner Taylor was charged with the murder of his co-felon who was shot by the victim in the course of an attempted robbery
Synopsis of Rule of Law.
An accomplice to a robbery is vicariously liable for any killing attributable to the intentional acts of his co-felons that are committed with a conscious disregard for life.
Petitioner and co-defendant Daniels were charged with the murder of John H. Smith. Daniels and Smith attempted to rob a liquor store that was operated by Jack and Linda West. During the attempted robbery, Daniels repeatedly threatened that both him and Smith were armed and threatened to shoot if the store owners did not cooperate. Mrs. West, in an attempt to resist, fired several shots, hitting and killing Smith. Petitioner was waiting outside the store in a getaway car and was later connected with the crime and charged with the murder of Smith. Petitioner moves to set aside the murder count.
Can the petitioner be held accountable for the death of his co-felon where the decedent was killed by the hand of the robbery victim?
Yes. Motion denied.
The Supreme Court of California adheres to the agency theory with regard to felony-murder and therefore, the petitioner cannot be convicted under the felony murder doctrine because when a killing is committed by a victim as opposed to the robber or his accomplice, malice is not attributable to the robber even if the robbery was a proximate cause of the killing.
Petitioner can be convicted on a theory of vicarious liability. An accomplice to a robbery is vicariously liable for any killing attributable to the intentional acts of his co-felons that are committed with a conscious disregard for life.
The central question in determining criminal liability for a killing committed by a resisting victim is whether the conduct of Defendant or his accomplices was sufficiently provocative of lethal resistance to support an implication that the defendant or his accomplices acted with malice.
In this case, the actions taken by Daniels and Smith, regardless of the fact that neither of them fired the first shot, was sufficiently provocative of lethal resistance such that the petitioner can be found guilty of murder under a theory of vicarious liability.
The dissent disagrees with the majority’s interpretation and distinction of People v. Washington, 62 Cal. 2d 777 (1965), which stands for the proposition that the act of pointing a gun at the victim, unlike initiating a gun battle, is not an act done with wanton disregard for human life and therefore such an act does not fulfill the malice requirement. The majority distinguishes People v. Washington by saying that in that case the defendant merely pointed a gun and the robbery victim, without further provocation, shot and killed him unlike this case where the pointing of the gun was accompanied by verbal threats. The dissent does not recognize the distinction between the threat implicit in furnishing a gun and the express threats made by Defendants in this case.
This case allows the doctrine of malice based on recklessness, as opposed to the felony-murder rule, to support a charge of murder where the killing was committed by a victim in response to provocation by on of the felons.