People v. Lopez

• Decision Date: 04 November 1971
• Docket Number: Cr. 15619
• Citation: 489 P.2d 1372,98 Cal.Rptr. 44,6 Cal.3d 45
• Parties: , 489 P.2d 1372 The PEOPLE, Plaintiff and Respondent, v. Carlos LOPEZ, Defendant and Appellant. In Bank
• Court: California Supreme Court

Page 44

98 Cal.Rptr. 44

6 Cal.3d 45, 489 P.2d 1372

The PEOPLE, Plaintiff and Respondent, v. Carlos LOPEZ, Defendant and Appellant.

Cr. 15619.

Supreme Court of California,

In Bank.

Nov. 4, 1971.

Rehearing Denied Dec. 2, 1971.

George P. Eshoo, Redwood City, under appointment by the Supreme Court, for defendant and appellant.

Thomas C. Lynch and Evelle J. Younger, Attys. Gen., Robert R. Granucci and Sanford Svetcov, Deputy Attys., Gen., for plaintiff and respondent.

SULLIVAN, Justice.

Defendant Carlos Lopez was charged by information with murder (Pen.Code, § 187), burglary (Pen.Code, § 459), robbery (Pen.Code, § 211), and assault with a deadly weapon (Pen.Code, § 245). He admitted two prior felony convictions. After a trial by jury he was convicted of murder of the second degree and robbery of the first degree and was acquitted of burglary and assault with a deadly weapon. He appeals from the judgment of conviction. ¹

In the instant case we apply the principles explained in People v. Satchell, Cal., 98 Cal.Rptr. 33, 489 P.2d 1361, in order to determine whether the crime of escape proscribed by section 4532 of the Penal Code is a felony inherently dangerous to human life and therefore capable of supporting a second degree felony-murder instruction. We conclude that it is not such a felony, that it was therefore error to give a second degree felony-murder instruction in this case, and that the error was prejudicial. We therefore reverse the judgment insofar as it convicts defendant of second degree murder. (See fn. 1, Ante.)

On April 7, 1969, defendant was convicted of robbery and sentenced to state prison for the term prescribed by law. However, he was admitted to probation on condition that he serve one year in the county jail.

On June 17, 1969, defendant and three other county jail prisoners escaped from the county jail by descending a rope fashioned from blankets. The escape was accomplished without detection on the part of jail authorities. The four men split into two groups, and defendant and one Clarence Galindo headed into a hilly area near the jail. There they remained at large for the better part of two days, eating only wild blackberries. On the evening of the second day they discovered a shed near a house in Pacifica and spent the night there. Early the next morning Galindo broke into the house in order to obtain food. There he brutally assaulted, with a pair of metal shears, the occupants, an elderly man and wife.

Defendant Lopez, who had not entered the house with Galindo, came in a few minutes later after the elderly man had been struck down and the assault upon the woman by Galindo was in progress. Defendant and Galindo then discarded their jail coveralls and put on clothing belonging to the elderly man. They ate some food and, taking money belonging to the victims, called for a taxi. However, before it arrived they were arrested at the house by police, who had been alerted by a neighbor. The elderly man died of his wounds; his wife, although seriously injured, survived the attack.

At his separate trial ² defendant testified that when Galindo decided to break into the house, he (defendant) tried to dissuade him from the project and, when he was unable to do so, left Galindo and walked away from the house toward the woods; that he ran back to the house when he heard the woman screaming; that he went to the bedroom and found the elderly man lying in his own blood on the bed and Galindo, who had gone beserk, wildly striking the woman with the metal shears; that he (defendant) pushed Galindo away from the woman and persuaded him to stop the attack; and that then, deciding to make the best of the situation, he prepared breakfast, changed clothes, and called the taxi.

The trial court instructed the jury on the definition of murder and malice (CALJIC No. 301 (supp.)) ³ and the degrees of murder (CALJIC Nos. 302 and 302--A). It also instructed on first degree felony murder based upon robbery and/or burglary (CALJIC No. 302--F) ⁴ and gave special instructions relating the first degree felony-murder rule to the facts of the particular case. The jury was instructed on premeditation in the language of CALJIC No. 303 (supp.).

On the subject of second degree murder the trial court gave, in addition to the general instruction (CALJIC No. 305 (supp.)), the following second degree felony-murder instruction: 'The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of Escape, and where there was in the mind of the perpetrator the specific intent to commit such a crime, is murder of the second degree. (Par.) The specific intent to commit Escape and the commission of or attempt to commit such crime must be proved beyond a reasonable doubt.' ⁵ This instruction was given over defendant's objection.

The trial court went on to instruct the jury on burglary and robbery, but it did not instruct on the crime of escape. (See CALJIC No. 961, et seq., CALJIC (3d ed. 1970) No. 7.30, et seq.) The jury was also instructed on the law of principals and aiding and abutting (CALJIC Nos. 91, 91--E, 91--F (supp.)). No manslaughter instructions were given or requested.

The jury found defendant guilty of murder of the second degree, guilty of robbery of the first degree, not guilty of burglary, and not guilty of assault with a deadly weapon.

Defendant unsuccessfully moved for a new trial on the ground, among others, that the second degree felony-murder instruction should not have been given. He urged (1) that the crime of escape is not a felony inherently dangerous to human life and therefore will not support a second degree felony-murder instruction, and (2) that in any event the crime of escape had terminated when the homicide occurred. On this appeal from the judgment of conviction he raises the same arguments. Because we agree that the crime of escape is not inherently dangerous to human life and therefore will not support a second degree felony-murder instruction, we do not reach defendant's second argument.

The crime of escape which defendant committed by his unauthorized departure from the county jail is proscribed by section 4532 of the Penal Code. ⁶ That section, which is set forth in full in the margin, as revised in 1969, ⁷ renders felonious a great variety of escapes and attempted escapes from county and city penal facilities. The range of persons subject to its provisions extends from those committed as inebriates to those convicted of felonies. The assortment of custodial arrangements to which it applies includes county road work as well as actual confinement. The included modes of escape range from those involving force or violence to tardiness on the part of one engaged in a work furlough program.

It is defendant's violation of this statute which was the basis of the second degree felony-murder instruction in this case. ⁸ We have concluded that the giving of such an instruction was error because the proscribed offense, viewed in the abstract, is not a felony inherently dangerous to human life.

In the instant case, unlike in People v. Satchell, Supra, no prior decisions have determined whether or not violation of the subject provision affords a sufficient basis for application of the felony-murder doctrine. Thus we proceed directly to an application of the principles of People v. Williams (1965) 63 Cal.2d 452, 47 Cal.Rptr. 7, 406 P.2d 647 and People v. Phillips (1966) 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353 as those principles were elucidated in Satchell. The question before us is this: Viewed in the abstract, is the escape from a county or city penal facility an offense inherently dangerous to human life?

We answer this question in the negative. As we have indicated, the crime of escape proscribed by section 4532 comprehends a multitude of sins. It applies to the man who is tardy in returning from a work furlough as well as to the man who obtains a contraband weapon and decides to shoot his way out of jail. It applies to the committed inebriate who wanders off from a county road job in search of drink as well as to the desperate felon who seizes a hostage in order to bargain for his freedom. It applies to those who, like this defendant, fashion a rope from blankets, climb down it, and steal into the woods as well as to those who strangle a guard to obtain his key. We cannot conclude that those who commit nonviolent escapes such as those here suggested thereby perpetrate an offense which should logically serve as the basis for the imputation of malice aforethought in a murder prosecution. Because section 4532 draws no relevant distinction between such escapes and the more violent variety, ⁹ it proscribes an offense which, considered in the abstract, is not Inherently dangerous to human life and cannot properly support a second degree felony-murder instruction.

We reject the argument that all escapes, however nonviolent, are inherently dangerous because they invite efforts of prevention and apprehension by custodial and law enforcement officers. The possibility of violence during an escape can become an actuality only when, under the facts of the particular case, the escapee attempts violent resistance or, in his efforts to elude capture, conducts himself in a reckless manner. We cannot conclude that such a reaction on the part of escapees is so common as to be considered intrinsic to the crime of escape. The fact that such reactions do occur in some cases is not sufficient to support the conclusion that one who escapes from legal confinement thereby creates a situation inherently dangerous to human life.

The recent case of People v. Nichols (1970) 3 Cal.3d 150, 89 Cal.Rptr. 721, 474 P.2d 673, provides an instructive contrast. There we held that 'the burning of a motor vehicle (Pen.Code, § 449a), which...