Can a violation of section 246.3 form the basis for a conviction under the second degree felony-murder rule?

California, United States of America


The following excerpt is from People v. Robertson, 17 Cal.Rptr.3d 604, 34 Cal.4th 156, 95 P.3d 872 (Cal. 2004):

Also, the majority's holding that a violation of section 246.3 may form the basis for a conviction under the second degree felony-murder rule is inconsistent with the rule that to prove felony murder the prosecution must show that the defendant had "the specific intent to commit the underlying felony." (People v. Hart (1999) 20 Cal.4th 546, 608, 85 Cal.Rptr.2d 132, 976 P.2d 683; see also People v. Nichols, supra, 3 Cal.3d at p. 163, 89 Cal.Rptr. 721, 474 P.2d 673.) One wonders how a defendant could be said to have the specific intent to violate a statute that, like section 246.3, prohibits grossly negligent conduct. Grossly negligent conduct is highly careless or reckless, but it is not intentional. What is it that the defendant in the situation just described must specifically intend to do? The majority does not say.

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