TOO-WEAK NOTICE? THE CHARGING CONUNDRUM PRESENTED BY FELONY-MURDER IN CALIFORNIA

By Matthew M. Fitzgerald^*

I. INTRODUCTION.

California follows the majority of states in maintaining a statutory felony-murder rule.¹ The State defines murder as "the unlawful killing of a human being . . . with malice aforethought."² In all murder cases, the prosecution must prove that a defendant acted with malice, whether express or implied, except for cases of felony-murder.³ The penal code further details that murder perpetrated by "willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, . . . or [additional enumerated felonies] . . . is murder of the first degree."⁴

In an effort to cabin the reach of the felony-murder rule, California lawmakers amended section 189 in 2019.⁵ Although the amended rule limits the scope of accomplice liability and eliminates the "natural and probable consequences" doctrine, several often-criticized aspects of the felony-murder rule remain untouched.⁶ This article focuses on a less-oft criticized conundrum: a prosecutor’s decision to charge or leave uncharged predicate felonies in conjunction with murder, as well as downstream effects on an accused’s Sixth Amendment right to be informed of the nature and cause of the accusation.