Is passive possession of a dangerous article a predicate felony for purposes of the second degree felony-murder rule?

California, United States of America


The following excerpt is from People v. Morse, 2 Cal.App.4th 620, 3 Cal.Rptr.2d 343 (Cal. App. 1992):

Assuming mere passive possession of a dangerous article is to be considered a predicate felony for purposes of the second degree felony-murder rule that crime likewise must have a termination point. For this specie of crime it requires no "technical inquiry" to identify the critical point because the "transaction" involved is not comprised of a series of complex often simultaneous actions by several persons. As might be expected in the typical fast-moving robbery or similar active felony, most claims the felony terminated before the killing occurred have involved surrenders or arrests, often momentary, instants before the victim's death. (See, e.g., People v. Mitchell (1964) 61 Cal.2d 353, 362, 38 Cal.Rptr. 726, 392 P.2d 526 [defendant who committed robbery guilty of first degree felony murder despite evidence he attempted to surrender just before shooting broke out] and see cases collected in Note, "What Constitutes Termination of Felony For Purposes of the Felony Murder Rule", 58 A.L.R.3d 851, 902-906.)

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