A person who commits, or attempts to commit, a felony can be convicted of murder if someone dies during the commission (or attempt) if:
  • the person has intentionally engaged in the felony
  • the felony is inherently dangerous
  • the death occurs during the commission of the felony
  • the death is independent and collateral to the felony, and
  • the felon (or an accomplice) caused the death.

The inherently dangerous element is automatically satisfied if the felony is listed in the first-degree murder statute; in California, those felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, sodomy, lewd or lascivious acts involving children, oral copulation, [sexual] penetration by foreign object, and drive-by shootings.

If the felon or an accomplice causes a death during one of these felonies, then the murder charge is of the first degree; otherwise, it is of the second degree.

For felonies not listed in the first-degree murder statute, the court determines whether the felony is inherently dangerous, that is, whether (in the abstract) the felony cannot be committed without endangering life. So, for example, the felony of manufacturing methamphetamine has been held to be inherently dangerous (California v. Stamp, 82 Cal. Rptr. 598), while felony tax evasion is probably not inherently dangerous.

The death must occur during the commission of the felony, but the requirement is somewhat relaxed: if the injury or event that ultimately results in the death occurs during the felony, that is enough (as long as the death occurs within the statutory period, which in California is three years and a day).

The death must be independent and collateral to the felony: if the intent of the felon in carrying out the felony is to kill or injure the person who dies, then the felony murder rule is inapplicable. However, if the felon has multiple motives (say, he intends to steal the car after killing the driver) then the rule can be applied.

Finally, the felon or an accomplice must cause the death (or, in California, they must at least initiate the gun battle in which the person dies). Therefore, if a victim, bystander, or police officer kills a third party during the felony, the felon can't be charged under the felony murder rule. (But see Taylor v. Superior Court, 477 P.2d 131, for another way to get the felon for murder.)

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