by Douglas Ankney

The California Court of Appeal, Third Appellate District, reversed Dwayne Lamont Burgess’ felony murder conviction because the evidence was insufficient to support the underlying predicate felony of attempted robbery.

In December 1990, Burgess was a participant in a crime that ended in the death of a drug dealer. The plan was to cheat the victim by giving him some real money wrapped around a wad of fake bills in exchange for marijuana. But after Burgess handed the fake money to the victim, the victim called the deal off. Burgess fired his gun into the air to scare him and then ran off. Burgess heard another gunshot when his cousin shot and killed the victim.

Burgess was convicted by a jury of attempted robbery and first-degree felony murder. The jury also found he personally used a firearm in the commission of each offense. He was sentenced to prison for a term of 29 years to life on the murder and its enhancement while the sentence for the attempted robbery and its enhancement was stayed.

Burgess subsequently petitioned for resentencing under California Penal Code § 1172.6 and was granted a hearing under subdivision (d)(3). (Note: All statutory references are to the California Penal Code.) The Court of Appeal summarized the trial court’s findings at that hearing as follows:

“The trial court’s factual findings were that defendant was an accomplice with his cousin to a ‘plan to meet the victim in order to purchase marijuana,’ but with different intentions ‘to extract revenge by shortchanging the victim on this deal. To further that revenge, it was the defendant who would use fake money wrapped in real money as his payment.’ Further, while defendant was ‘prepared to use’ a gun, defendant ‘intended to rip off a known drug dealer who had shorted him in the past.’ As for the purpose of defendant’s gun possession, the trial court found ‘defendant anticipated that the victim could be armed ... [and r]ecognizing this risk, the defendant prepared himself for the potential for danger by arming himself with a loaded firearm.’ Additionally, the trial court found defendant’s use of the gun only evidenced his ‘fail[ure] to take reasonable steps to minimize the inherent risks of ripping off a known drug dealer ...’ and that, after firing the gun, the defendant ran away.”

The trial court found Burgess was ineligible for resentencing because he was a major participant in an attempted robbery who acted with reckless indifference to human life. Burgess appealed.

The Court observed that § 1172.6(d)(3) provides in pertinent part: “At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to § 188 or 189 made effective January 1, 2019.”

Section 188(a)(3) reads: “Except as stated in subdivision (e) of § 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” Section 189(e) “allows for a murder conviction only when ‘[a] participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs’ was the actual killer, aided and abetted with the intent to kill, or acted as a major participant with reckless indifference to human life when committing the underlying felony enumerated in subdivision (a).”

In the present case, the parties agreed that the underlying felony listed in § 189(a) was attempted robbery. Robbery is defined as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” § 211. “An attempted robbery consists of two elements: (1) the specific intent to rob; and (2) a direct, unequivocal, but ineffectual, overt act towards the commission of the intended robbery.” People v. Vizcarra, 110 Cal. App. 3d 858 (1980).

In People v. Williams, 305 P.3d 1241 (Cal. 2013), “the defendant contended his robbery conviction should be reversed because robbery requires theft by larceny, not by false pretenses.” The defendant in Williams purchased gift cards with an altered and invalid credit card, supporting his argument that the theft was by false pretenses. The California Supreme Court agreed with the defendant, explaining that robbery requires a trespassory taking, which is absent in a theft by false pretenses. “[T]heft by false pretenses involves the consensual transfer of possession as well as title of property; therefore, it cannot be committed by trespass....” Id.

In turning to the present case, the Court stated that the evidence was insufficient to show that Burgess attempted to rob the victim. At most, he attempted to obtain the marijuana by false pretenses – tricking the victim into consenting to give him the marijuana in exchange for fake money like in Williams where the defendant tricked the cashier into giving him gift cards based on payment with a fake credit card, the Court reasoned. Theft by false pretenses is not one of the enumerated felonies in § 189(a).

Thus, the Court ruled that because theft by false pretenses is insufficient to support a felony murder conviction under current law – that is, there is no felony to predicate Burgess’ felony murder conviction upon – the prosecution failed to prove beyond a reasonable doubt that Burgess is guilty of murder.

Accordingly, the Court reversed the trial court’s order. See: People v. Burgess, 2023 Cal. App. LEXIS 119 (2023).  

Writer’s note: This opinion also explains the doctrines of collateral estoppel and issue preclusion and why neither applies in the context of a § 1172 proceeding.