People v. Phillips

• Decision Date: 23 May 1966
• Docket Number: Cr. 8914
• Citation: 64 Cal.2d 574,414 P.2d 353,51 Cal.Rptr. 225
• Court: California Supreme Court
• Parties: , 414 P.2d 353 The PEOPLE, Plaintiff and Respondent, v. Marvin PHILLIPS, Defendant and Appellant. In Bank

Page 225

51 Cal.Rptr. 225

64 Cal.2d 574, 414 P.2d 353

The PEOPLE, Plaintiff and Respondent, v. Marvin PHILLIPS, Defendant and Appellant.

Cr. 8914.

Supreme Court of California,

In Bank.

May 23, 1966.

Melvin M. Belli, Samuel S. Brody, Belli, Ashe, Gerry & Leon, Belli, Ashe & Gerry, Brody, Grayson & Green, Los Angeles, Daniel J. Jaffe, Beverly Hills, Lou Ashe, Los Angeles, Richard Gerry, Seymour Ellison, Frederick Cone and N. Rommel Bondoc, San Francisco, for defendant and appellant.

Burton Marks, Beverly Hills, amicus curiae on behalf of defendant and appellant.

Stanley Mosk and Thomas C. Lynch, Attys. Gen., William E. James, Asst. Atty. Gen., William L. Zessar, Deputy Atty. Gen., William B. McKesson and Evelle J. Younger, Dist. Attys., and John W. Miner, Deputy Dist. Atty., for plaintiff and respondent.

TOBRINER, Justice.

Defendant, a doctor of chiropractic, appeals from a judgment of the Superior Court of Los Angeles County convicting him of second degree murder in connection with the death from cancer of one of his patients. We reverse solely on the ground that the trial court erred in giving a felony murder instruction.

Linda Epping died on December 29, 1961, at the age of eight, from a rare and fast-growing form of eye cancer. Linda's mother first observed a swelling over the girl's left eye in June of that year. The doctor whom she consulted recommended that Linda be taken to Dr. Straatsma, an ophthalmologist at the UCLA Medical Center. On July 10th Dr. Straatsma first saw Linda; on July 17th the girl, suffering great pain, was admitted to the center. Dr. Straatsma performed an exploratory operation and the resulting biopsy established the nature of the child's affliction.

Dr. Straatsma advised Linda's parents that her only hope for survival lay in immediate surgical removal of the affected eye. The Eppings were loath to permit such surgery, but on the morning of July 21st Mr. Epping called the hospital and gave his oral consent. The Eppings arrived at the hospital that afternoon to consult with the surgeon. While waiting they encountered a Mrs. Eaton who told them that defendant had cured her son of a brain tumor without surgery.

Mrs. Epping called defendant at his office. According to the Eppings, defendant repeatedly assured them that he could cure Linda without surgery. They testified that defendant urged them to take Linda out of the hospital, claiming that the hospital was 'an experimental place,' that the doctors there would use Linda as 'a human guinea pig' and would relieve the Eppings of their money as well.

The Eppings testified that in reliance upon defendant's statements they took Linda out of the hospital and placed her under defendant's care. They stated that if defendant had not represented to them that he could cure the child without surgery and that the UCLA doctors were only interested in experimentation, they would have proceeded with the scheduled operation. The prosecution introduced medical testimony which tended to prove that if Linda had undergone surgery on July 21st her life would have been prolonged or she would have been completely cured.

Defendant treated Linda from July 22 to August 12, 1961. He charged an advance fee of $500 for three months' care as well as a sum exceeding $200 for pills and medicines. On August 13th Linda's condition had not improved; the Eppings dismissed defendant.

Later the Eppings sought to cure Linda by means of a Mexican herbal drug known as yerba mansa and, about the 1st of September, they placed her under the care of the Christian Science movement. They did not take her back to the hospital for treatment.

Defendant testified that he knew that he could not cure cancer, that he did not represent to the Eppings that he could do so, that he urged them to return Linda to the hospital and that he agreed to treat her only when it became clear that the Eppings would never consent to surgery. He further testified that in administering treatment he sought to build up Linda's general health and so prolong her life. He insisted that he had never purported to 'treat' cancer as such, but only to give 'supportive' care to the body as a whole. He variously described his purpose as being 'to build up her resistance,' 'assisting the body to overcome its own deficiencies' and 'supporting the body defenses.'

As we have noted, the trial court gave an instruction on felony murder; we point out that, although defendant could, of course, be prosecuted for grand theft, such a crime, not an inherently dangerous felony, does not support an instruction on felony murder. The giving of that instruction caused defendant prejudice and compels reversal. Initially, however, we dispose of defendant's argument that the prosecution failed to establish such causal relationship between defendant's conduct and the death as is requisite to his criminal responsibility.

Legal Cause

We cannot accept defendant's contention that his conduct did not proximately cause Linda's death. Defendant's argument rests upon either of two unsupportable propositions: (1) that the testimony failed as a matter of law to establish a causal relationship between the absence of surgery on July 21st and any shortening of Linda's life; (2) that the conduct of Linda's parents subsequent to defendant's dismissal constituted an 'independent intervening force' between the misrepresentation and Linda's death.

The fact that defendant represented that he could cure Linda without surgery and that such representation caused the Eppings to remove Linda from the hospital finds ample substantiation in the record. The medical evidence likewise supports the jury's conclusion that the cancellation of the operation had the effect of shortening the child's life. ¹ Dr. Straatsma testified with 'reasonable medical certainty' ² that the performance of the operation on July 21st would have extended Linda's life by a minimum of two months. He also gave his opinion that surgery on that date could have effected a complete cure.

Although defendant maintains that Dr. Straatsma on cross-examination disclaimed his testimony as to the beneficial effect of the operation planned for July 21st, the record does not support that contention. Dr. Straatsma merely acknowledged that he could not say with certainty whether the course of the disease had become irreversible on July 21st. The doctor also testified that he could not state the exact period of time by which surgery on that date would have lengthened Linda's life. Neither aspect of the doctor's cross-examination in any way reduced the force of his earlier testimony that if the girl had received the scheduled operation, her life would have been extended by a substantial period.

The showing that the length of Linda's life had thus been limited sufficed for this aspect of the prosecution's case; no burden rested upon the prosecution to prove that the operation would have cured the disease. Murder is never more than the shortening of life; if a defendant's culpable act has significantly decreased the span of a human life, the law will not hear him say that his victim would thereafter have died in any event. (People v. Moan (1884) 65 Cal. 532, 537, 4 P. 545; People v. Ah Fat (1874) 48 Cal. 61, 64; Perkins, Criminal Law, pp. 27--28.) The jury could properly have found that defendant's conduct proximately caused Linda's death.

As we have stated, defendant secondly contends that the actions of Linda's parents subsequent to his dismissal operated as an 'independent intervening force' to relieve him of criminal responsibility for her death. He urges that no act of his caused the Eppings to abstain from surgery beyond August 13th, the date of his discharge. ³

In pressing this argument, defendant assumes that if the surgery had been performed after Linda left his care, it would have been as efficacious in arresting or retarding the cancer as surgery performed on July 21st. The record refutes this assumption. The evidence established that the tumor grew dramatically during the period in which Linda submitted to defendant's ministrations; Dr. Straatsma testified that her prospects dimmed rapidly with the passage of time. The jury could properly have concluded that defendant's conduct in preventing the operation during his treatment measurably reduced the period by which surgery would have extended Linda's life and significantly diminished her chances for a complete recovery.

The Instruction on Second Degree Felony Murder

Defendant challenges the propriety of the trial court's instructions to the jury. The court gave the following tripartite instruction on murder in the second degree: ⁴

'(T)he unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree:

'(1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or

'(2) If the circumstances proximately causing the killing show an abandoned and malignant heart, or

'(3) If the killing is done in the perpetration or attempt to perpetrate a felony such as Grand Theft. If a death occurs in the perpetration of a course of conduct amounting to Grand Theft, which course of conduct is a proximate cause of the unlawful killing of a human being, such course of conduct constitutes murder in the second degree, even though the death was not intended.'

The third part of this instruction rests upon the felony murder rule and reflects the prosecution's theory that defendant's conduct amounted to grand theft by false pretenses in violation of Penal Code section 484.

We shall point out why we have concluded that (1) defendant's contention that section 1714 of the Health and Safety Code preempts the field of fraudulent representation of a cancer cure and therefore precludes...