Lack of Statutory Foundation, Vagueness, and Violation of the Rule of Lenity of California Second Degree Felony Murder

Abstract Restrictions recently imposed by law on the application of felony murder in California Senate Bill n. 1437 amending Sections 188 and 189 of, and adding Section 1170.95 to, the Penal Code. and a judgment of a split California Court of Appeal rejecting the claim that the second-degree felony murder provision is unconstitutionally vague Cal. 4th App. Dist. April 30, 2019, see note 74. offer the occasion to analyze the Californian second degree murder. Second degree Felony murder in California, which is not spelled out by statute, relies on the jurisprudential construction of an “inherently dangerous felony”. According to the California Supreme Court, this criterion was conceived to accompany its overall aim of deterrence as well as function as a limitation on the application of felony murder itself. The purpose of this article is to highlight how the jurisprudential reconstruction of “inherently dangerous felonies” does not present a suitable criterion for determining whether second degree murder has taken place. While calling into play the goal of deterrence may bring forth paradoxical results, the “inherently dangerous felony,” upon which second degree felony murder relies, represents a double-edged sword. In fact, this article argues that it expands, rather than restricts, the application of felony murder, also posing several constitutional concerns. It follows that, since the “inherently dangerous” category acts as the essential base upon which second degree felony murder stands, the “crumbling” of the one should lead to the fall of the other.