People v. Burroughs

• Decision Date: 19 April 1984
• Docket Number: Cr. 23151
• Citation: 35 Cal.3d 824,201 Cal.Rptr. 319,678 P.2d 894
• Parties: , 678 P.2d 894 The PEOPLE, Plaintiff and Respondent, v. Stanley BURROUGHS, Defendant and Appellant.
• Court: California Supreme Court

Page 319

201 Cal.Rptr. 319

35 Cal.3d 824, 678 P.2d 894

The PEOPLE, Plaintiff and Respondent, v. Stanley BURROUGHS, Defendant and Appellant.

Cr. 23151.

Supreme Court of California In Bank.

April 19, 1984.

Rehearing Denied May 24, 1984.

Estelle A. Schleicher, William A. Wright, Sacramento, for defendant and appellant.

Shirley A. Nelson, Deputy Atty. Gen., Sacramento, for plaintiff and respondent.

GRODIN, Justice.

Defendant Burroughs, a 77-year-old self-styled "healer," appeals from a judgment convicting him of unlawfully selling drugs, compounds, or devices for alleviation or cure of cancer (Health & Saf.Code, § 1707.1); felony practicing medicine without a license (Bus. & Prof.Code, § 2141.5, now § 2053); and second degree felony murder (Pen.Code, § 187) in the treatment and death of Lee Swatsenbarg.

Burroughs challenges his second degree murder conviction by contending the felonious unlicensed practice of medicine is not an "inherently dangerous" felony, as that term has been used in our previous decisions to describe and limit the kinds of offenses which will support application of the felony-murder rule. We conclude that while the felonious unlicensed practice of medicine can, in many circumstances, pose a threat to the health of the individual being treated, commission of that crime as defined by statute does not inevitably pose danger to human life. Under well-established principles it cannot, therefore, be made the predicate for a finding of murder, absent proof of malice. As a consequence, we must reverse defendant's second degree felony-murder conviction.

The trial court did properly instruct the jury with respect to the unlawful selling of drugs, compounds, or devices for alleviation or cure of cancer, and felony practicing medicine without a license. There was substantial evidence presented from which the jury could have convicted defendant of these crimes. We affirm these convictions.

Lee Swatsenbarg had been diagnosed by the family physician as suffering from terminal leukemia. Unable to accept impending death, the 24-year-old Swatsenbarg unsuccessfully sought treatment from a variety of traditional medical sources. He and his wife then began to participate in Bible study, hoping that through faith Lee might be cured. Finally, on the advice of a mutual acquaintance who had heard of defendant's ostensible successes in healing others, Lee turned to defendant for treatment.

During the first meeting between Lee and defendant, the latter described his method of curing cancer. This method included consumption of a unique "lemonade," exposure to colored lights, and a brand of vigorous massage administered by defendant. Defendant remarked that he had successfully treated "thousands" of people, including a number of physicians. He suggested the Swatsenbargs purchase a copy of his book, Healing for the Age of Enlightenment. If after reading the book Lee wished to begin defendant's unorthodox treatment, defendant would commence caring for Lee immediately. During the 30 days designated for the treatment, Lee would have to avoid contact with his physician.

Lee read the book, submitted to the conditions delineated by defendant, and placed himself under defendant's care. Defendant instructed Lee to drink the lemonade, salt water, and herb tea, but consume nothing more for the ensuing 30 days. At defendant's behest, the Swatsenbargs bought a lamp equipped with some colored plastic sheets, to bathe Lee in various tints of light. Defendant also agreed to massage Lee from time to time, for an additional fee per session.

Rather than improve, within two weeks Lee's condition began rapidly to deteriorate. He developed a fever, and was growing progressively weaker. Defendant counseled Lee that all was proceeding according to plan, and convinced the young man to postpone a bone marrow test urged by his doctor.

During the next week Lee became increasingly ill. He was experiencing severe pain in several areas, including his abdomen, and vomiting frequently. Defendant administered "deep" abdominal massages on two successive days, each time telling Lee he would soon recuperate.

Lee did not recover as defendant expected, however, and the patient began to suffer from convulsions and excruciating pain. He vomited with increasing frequency. Despite defendant's constant attempts at reassurance, the Swatsenbargs began to panic when Lee convulsed for a third time after the latest abdominal massage. Three and a half weeks into the treatment, the couple spent the night at defendant's house, where Lee died of a massive hemorrhage of the mesentery in the abdomen. The evidence presented at trial strongly suggested the hemorrhage was the direct result of the massages performed by defendant.

I.

Defendant's conviction of second degree felony murder arose out of the jury's determination that Lee Swatsenbarg's death was a homicide committed by defendant while he was engaged in the felonious unlicensed practice of medicine. The trial court ruled that an underlying felony of unlicensed practice of medicine could support a felony-murder conviction because such practice was a felony "inherently dangerous to human life." ¹ Consequently, the trial judge instructed the jury that if the homicide resulted directly from the commission of this felony, the homicide was felony murder of the second degree. ² This instruction was erroneous as a matter of law.

When an individual causes the death of another in furtherance of the perpetration of a felony, the resulting offense may be felony murder. (People v. Doyell (1874) 48 Cal. 85.) This court has long held the felony-murder rule in disfavor. "We have repeatedly stated that felony murder is a 'highly artificial concept' which 'deserves no extension beyond its required application.' " (People v. Dillon (1983) 34 Cal.3d 441, 462-463, 194 Cal.Rptr. 390, 668 P.2d 697, quoting People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; accord, People v. Henderson (1977) 19 Cal.3d 86, 92-93, 137 Cal.Rptr. 1, 560 P.2d 1180, and authorities cited there.) For the reasons stated below, we hold that to apply the felony-murder rule to the facts of the instant case would be an unwarranted extension of this highly "anachronistic" ³ notion.

At the outset we must determine whether the underlying felony is "inherently dangerous to human life." (People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892.) We formulated this standard because "[i]f the felony is not inherently dangerous, it is highly improbable that the potential felon will be deterred; he will not anticipate that injury or death might arise solely from the fact that he will commit the felony." (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 4, 47 Cal.Rptr. 7, 406 P.2d 647.)

In assessing whether the felony is inherently dangerous to human life, "we look to the elements of the felony in the abstract, not the particular 'facts' of the case." (Id., at p. 458, fn. 5, 47 Cal.Rptr. 7, 406 P.2d 647; People v. Phillips, supra, 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Henderson, supra, 19 Cal.3d 86, 93, 137 Cal.Rptr. 1, 560 P.2d 1180; People v. Satchell (1971) 6 Cal.3d 28, 36-38, 39-42, 98 Cal.Rptr. 33, 489 P.2d 1361; People v. Lopez (1971) 6 Cal.3d 45, 51-52, 98 Cal.Rptr. 44, 489 P.2d 1372.) This form of analysis is compelled because there is a killing in every case where the rule might potentially be applied. If in such circumstances a court were to examine the particular facts of the case prior to establishing whether the underlying felony is inherently dangerous, the court might well be led to conclude the rule applicable despite any unfairness which might redound to the defendant by so broad an application: the existence of the dead victim might appear to lead inexorably to the conclusion that the underlying felony is exceptionally hazardous. We continue to resist such unjustifiable bootstrapping.

In our application of the second degree felony-murder analysis we are guided by the bipartite standard articulated by this court in People v. Henderson, supra, 19 Cal.3d 86, 137 Cal.Rptr. 1, 560 P.2d 1180. In Henderson, we stated a reviewing court should look first to the primary element of the offense at issue, then to the "factors elevating the offense to a felony," to determine whether the felony, taken in the abstract, is inherently dangerous to human life (id., at p. 94, 137 Cal.Rptr. 1, 560 P.2d 1180), or whether it possibly could be committed without creating such peril. (Ibid.; accord, People v. Lopez, supra, 6 Cal.3d 45, 98 Cal.Rptr. 44, 489 P.2d 1372.) In this examination we are required to view the statutory definition of the offense as a whole, taking into account even nonhazardous ways of violating the provisions of the law which do not necessarily pose a threat to human life. (People v. Satchell, supra, 6 Cal.3d at p. 40, 98 Cal.Rptr. 33, 489 P.2d 1361.)

The primary element of the offense in question here is the practice of medicine without a license. The statute defines such practice as "treating the sick or afflicted." One can certainly conceive of treatment of the sick or afflicted which has quite innocuous results--the affliction at stake could be a common cold, or a sprained finger, and the form of treatment an admonition to rest in bed and drink fluids or the application of ice to mild swelling. Thus, we do not find inherent dangerousness at this stage of our investigation.

The next level of analysis takes us to consideration of the factors which elevate the unlicensed practice of medicine to a felony: "circumstances or conditions which cause or create a risk of great bodily harm, serious mental or physical illness, or death." That the Legislature referred to "death" as a separate risk, and in the disjunctive, strongly suggests the Legislature perceived that one may violate the proscription against the felonious practice of medicine without a license and yet...