People v. Lopez
| Decision Date | 30 March 1971 |
| Docket Number | Cr. 8636 |
| Citation | 16 Cal.App.3d 346,93 Cal.Rptr. 885 |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos LOPEZ, Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
George P. Eshoo, Redwood City, for appellant (under appointment of the Court of Appeal).
Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent.
Appellant was convicted by jury of second degree murder and robbery. (Pen.Code, §§ 187, 211.) Although the notice of appeal would include the robbery, no argument is made on the subject of that crime; wherefore, the appeal is deemed abandoned as to that crime.
On Tuesday, June 17, 1969, appellant, Lopez, and three other prisoners escaped, without the use of force, from the San Francisco Jail at San Bruno. Appellant and another, Galindo, parting from the others, made their way beyond the fence at the jail's boundary and headed for the hills. Their departure was discovered at midnight. On Wednesday and Thursday, they remained at large, eating only wild berries. Lopez testified that on five occasions they came close to being discovered. This testimony, of course, need not have been believed, and besides, was conclusionary; but there were at least two episodes which brought the fugitives close to apprehension. One was testified to by two high school girls, and corroborated by Lopez. The girls met Lopez and another man (Galindo) who was sick and nervous. Lopez was agreeable. The men were sitting on a fence near a schoolyard. Lopez told the girls of the escape and asked them to fetch food and clothing. The girls refused. The other episode, testified to by appellant and not contradicted, was that police officers had entered the Pedersen home, where the homicide later occurred looked around and departed, while fugitives were in the shed behind the house. So, the men reached several successive points of temporary safety.
On Friday morning, a vicious attack was made on both of the Pedersens, as a result of which Mr. Pedersen died and his wife was severely injured. She was unable to testify, perhaps by reason of her age and perhaps because of the injuries. Galindo was not on trial with Lopez. He was called as a defense witness, but he refused to testify on the ground of self-incrimination. Lopez' testimony is that Galindo, who was ill, probably from lack of food, decided to enter the Pedersen home and that he, Lopez, after trying to dissuade Galindo from this project on the ground that it was dangerous from the standpoint of capture, parted company with his companion and walked away from the home. He had not gone far before he heard a woman's cries and he returned to find that Galindo had gone berserk and was striking both of the Pedersens with metal shears. Lopez then shielded Mrs. Pedersen, he testified, and applied a cloth to her wounds, while her husband lay on the bed. The two men had something to eat and changed their clothes, taking Mr. Pedersen's, took some money (the robbery charge is based on this taking), called a cab, and prepared to leave for San Francisco. Neighbors, having suspected that something was wrong, called the police and the two men were found while trying to hide under the house.
The principal point on this appeal is that of the application of the second degree felony-murder rule. The jury was instructed as follows:
'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.
'The specific intent to commit escape and the commission of or attempt to commit such crime must be proved beyond a reasonable doubt.'
The crime of escape was not defined to the jury, nor was anything more said on the subject of escape.
Appellant's first contention is that the crime of escape without force or violence is not one which is inherently dangerous to human life. Since the whole theory of the second degree felony-murder rule is that one who commits a crime which is inherently dangerous to human life acts with an abandoned and malicious heart, and therefore brings himself within the definition of implied malice as set forth in Penal Code, section 188 (People v. Phillips, 64 Cal.2d 574, 584, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Washington, 62 Cal.2d 777, 780, 44 Cal.Rptr. 442, 402 P.2d 130; People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Thomas, 41 Cal.2d 470, 479, 261 P.2d 1 [concurring opinion of Justice Traynor]), the instruction would be improper if the underlying crime were not an inherently dangerous one. Appellant argues that many escapes are from unguarded or loosely patrolled places such as work furlough camps, that many escapes are accomplished or attempted without the use of weapons because the prisoner is unable to provide himself with any, and that the prisoner, in trying to escape, is not looking for a confrontation with anyone but rather, seeks an undetected flight. The test is not whatever peril was present in the particular case, but that which is attached to the crime in the abstract. (People v. Williams, 63 Cal.2d 452, 458, 47 Cal.Rptr. 7, 406 P.2d 647; People v. Phillips, 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Nichols, 3 Cal.3d 150, 163, 89 Cal.Rptr. 721, 474 P.2d 673.)
We conclude that although many escapes no doubt are perpetrated or attempted without considerable peril, the nature of the crime nevertheless is such as to be inherently dangerous to life. It is the duty of custodial officers to prevent the escape by force, if necessary. The prisoner may desire nothing more than an undetected flight, but he may not be and quite often is not so fortunate as to elude the officers. He comes upon an encounter with them and the danger is obvious. An escape without the actual use of force or violence may be by a prisoner who is armed and ready to attack. We observe that the Legislature has made killings first degree murder which are committed in the perpetration or attempt to perpetrate burglary, among other crimes (Pen.Code, § 189), and this includes second degree burglary. By definition, second degree burglary is committed by a person who is not armed with a deadly weapon (Pen.Code, § 460), and of course, the burglar, like the escaping prisoner, fervently hopes that he will not meet anyone during the course of the crime. Since the Legislature has made it an even higher offense for a homicide committed in the course of second degree burglary, we are convinced that homicide which directly results from perpetration of an escape is second degree murder.
Appellant's next contention is that even if escape be regarded an inherently dangerous offense, the second degree murder concept does not apply to the instant case because the crime of escape had terminated. It is necessary to consider whether escape is such a crime as to be completed when the fugitive has arrived at a place of temporary, or is one which continues beyond that point. We conclude that the crime of escape, like that of robbery, does come to such termination. In cases in which a homicide became murder in the first degree because to was committed in the perpetration of robbery, although the culprit had left the immediate scene of the encounter with the victim, it has been pointed out carefully that the robber had not reached a place of temporary safety. In People v. Boss, 210 Cal. 245, 250-251, 290 P. 881, it was reasoned that when the conspirators have not won their way momentarily to a place of safety, and the possession of the plunder is not anything more than a scrambling possession, the use of arms which was necessary to aid the felon in reducing the property to possession is necessary to protect him in its possession and in making good his escape. In People v. Carroll, 1 Cal.3d 581, 585, 83 Cal.Rptr. 176, 463 P.2d 400, it was pointed out that the crime of robbery is not complete until the robber has won his way to a place of temporary safety (citing People v. Anderson, 64 Cal.2d 633, 638, 51 Cal.Rptr. 238, 414 P.2d 366; and People v. Ketchel, 59 Cal.2d 503 523--524, 30 Cal.Rptr. 538, 381 P.2d 394).
In People v. Ford, 65 Cal.2d 41, 56--57, 52 Cal.Rptr. 228, 416 P.2d 132, many hours had elapsed between the time of the robbery and the shooting of an officer. The officer was not in pursuit of the robber and did not even know of the robber, although he knew of a subsequent crime of assault which had been committed by the robber during his flight. It...
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