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People v. Epps6/27/1986
alty law retained the requirement of the defendant's intent to kill for several reasons. Foremost among those reasons was its determination that a construction of paragraph 17 of section 190.2 without an intent requirement would have anomalous results: "Five of the felonies listed in that paragraph -- arson, rape, robbery, burglary and child molesting -- also appear in section 189, the statutory felony-murder provision. [Fn. omitted.] As to these offenses, an unintentional killing in perpetration of the felony, raised to first degree murder by operation of section 189, would without further proof constitute a special circumstance under paragraph 17. The remaining four felonies -- kidnaping, sodomy, oral copulation, and train wrecking -- are not enumerated in section 189. Since it is clear that in virtually every case an intent to kill would be required to render a death occurring in the course of one of these four felonies a first degree murder -- a prerequisite to any special circumstance finding (§ 190.2, subd. (a)) -- a defendant who kills unintentionally during the commission of those offenses is not subject to the death penalty or imprisonment without possibility of parole. [Fn. omitted.]
"There is, however, no reason to believe that the drafters or voters intended to distinguish between deaths which occurred during the course of section 189 felonies and those in nonsection 189 felonies; the two classes of felonies are interspersed randomly in paragraph 17. And the result of such a distinction would be difficult to defend. A defendant who killed unintentionally during a robbery or rape could be convicted of first degree murder with special circumstances and executed, while one who killed unintentionally during a kidnaping for robbery or a forcible sodomy could not be convicted
of first degree murder and thus could not be executed." (35 Cal. 3d at pp. 140-141.)
Extrapolating from the foregoing in Carlos, appellant argues that failure to construe section 190.2, subdivision (a)(17), to contain the requirement that the homicide be deliberate and premeditated would similarly lead to an anomalous result in its application. In other words, appellant contends that application of the special circumstance rule to those felonies not enumerated in Penal Code section 189 (defining first degree murder) would require a determination of premeditation and deliberation in order to satisfy the requirement of section 190.2, subdivision (a), that the murder be of the first degree. On the other hand, a homicide during the commission of any of the other felonies in section 190.2, subdivision (a)(17), which are also enumerated in Penal Code section 189 would be appropriate without a determination of the defendant's premeditation and deliberation.
Ordinary first degree murder, which requires premeditation and deliberation with malice aforethought, and felony murder are not the same crimes because malice is not an element of felony murder. (See People v. Dillon, supra, 34 Cal. 3d at pp. 476-477.) Nevertheless, appellant argues that failure to construe the statute in question to require the factors of premeditation and deliberation in all cases would violate a basic principle of statutory construction: "that a statute should be construed so that the scope and meaning of statutory language remains the same in different parts or portions of the same law." However, the authorities relied upon by appellant merely stand for the proposition that "when a word or phrase has been given a particular scope or meaning in one part or portion of a law it shall be given the same sc
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