People v. Thongvilay

• Decision Date: 12 March 1998
• Docket Number: No. E018588,E018588
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 1853, 98 Cal. Daily Op. Serv. 2581 The PEOPLE, Plaintiff and Respondent, v. Pamot Joey THONGVILAY et al., Defendants and Appellants.

Page 738

72 Cal.Rptr.2d 738

62 Cal.App.4th 71, 98 Cal. Daily Op. Serv. 1853,

98 Cal. Daily Op. Serv. 2581

The PEOPLE, Plaintiff and Respondent, v. Pamot Joey THONGVILAY et al., Defendants and Appellants.

No. E018588.

Court of Appeal, Fourth District, Division 2, California.

March 12, 1998.

Rehearing Denied March 25, 1998.

Review Denied June 17, 1998. ^*

[62 Cal.App.4th 75] Gregory Marshall, under appointment by the Court of Appeal, Palo Cedro, for Defendant and Appellant Pamot Joey Thongvilay.

Ava R. Stralla, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant Done Naly.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, [62 Cal.App.4th 76] Pamela A. Ratner and Garrett Beaumont, Supervising Deputy Attorneys

General, for Plaintiff and Respondent

OPINION

HOLLENHORST, Acting Presiding Justice.

This is a joint appeal by defendants Pamot Joey Thongvilay (herein "Thongvilay") and Done Naly (herein "Naly") whom separate juries found guilty of first degree murder in connection with the death of Joann Jacobs (herein "Ms. Jacobs") who was killed in an automobile collision with defendants. The murder was prosecuted on a felony-murder theory, specifically, that the death occurred in the course of an automobile burglary in which defendants stole the radio from a car and were pursued by the boyfriend of the owner of the burglarized car. In an effort to evade his pursuer, Thongvilay drove through an intersection against a red light and crashed into the car driven by Ms. Jacobs. As a result of the collision she died.

PROCEDURAL BACKGROUND AND FACTS

Around 1 a.m., March 30, 1995, Charles Cabral (herein "Mr. Cabral") was standing in the driveway of his girlfriend's house in Riverside when he saw defendants breaking into his girlfriend's car. He yelled, "I don't think my stereo's your style," but defendants continued committing the crime as if they did not hear him. Mr. Cabral walked into the house to call 911. While he was on the phone, he continued to watch defendants outside the front window. As he was on the phone, his girlfriend's dad came downstairs and turned on the porch light. Shortly thereafter, defendants returned to their car and pulled away.

Mr. Cabral grabbed the keys to his girlfriend's car and ran outside to follow defendants. When he got to the car, the passenger door was open all the way. He closed the door, walked around the car and got into the driver's side. As he noticed that the stereo was missing, he started the car and drove to a street exiting the housing tract to intercept defendants and get their license plate number. There are only two ways in and two ways out of the housing tract where Mr. Cabral's girlfriend lived. When defendants saw Mr. Cabral pursuing them, they gave him an "oh shit" look and swerved around a corner to escape. As Mr. Cabral gave chase, defendants sped away.

Defendants' car struck Ms. Jacobs's car and killed her when they drove through a red stoplight while attempting to elude Mr. Cabral.

In an information filed by the Riverside County District Attorney's Office, defendants were charged with the murder of Ms. Jacobs (PEN.CODE, § 187 )¹ and auto burglary (§ 459). The information also charged Thongvilay with an earlier burglary.

Neither defendants testified at trial; however, Thongvilay's counsel conceded, in her argument to the jury, that he was guilty of burglary and of vehicular manslaughter. Separate juries found defendants guilty of first degree felony murder and second degree auto burglary. Thongvilay pled guilty to the earlier burglary. On June 7, 1996, Thongvilay was sentenced to state prison for 25 years to life. The term for his auto burglary was stayed pursuant to section 654. On the same day, the trial court modified Naly's murder conviction to second degree murder and sentenced him to state prison for 15 years to life, also staying the term for his auto burglary pursuant to section 654. ²

THE FELONY-MURDER DOCTRINE APPLIES WHEN, AS HERE, DEFENDANTS CAUSED A DEATH WHILE DRIVING AWAY AFTER COMMITTING A SECOND DEGREE BURGLARY

Felony-murder liability continues throughout the flight of a perpetrator from the scene of a robbery until the perpetrator reaches a place of temporary safety because the robbery and the accidental death, in such a case, are parts of a "continuous transaction." (People v. Ainsworth (1988) 45 Cal.3d 984, 1016, 248 Cal.Rptr. 568, 755 P.2d 1017.) However, Thongvilay contends that this rule should not be extended to include this case because the burglary itself, unlike robbery, was not a crime involving danger to life. Thus, he maintains that his case should not be subjected to application of the first degree felony-murder rule. We disagree.

As Thongvilay acknowledges, this same issue was raised and rejected in People v. Fuller (1978) 86 Cal.App.3d 618, 150 Cal.Rptr. 515 and People v. Bodely (1995) 32 Cal.App.4th 311, 38 Cal.Rptr.2d 72. We agree with the Fuller and Bodely courts and thus reject defendant's contention for the reasons stated therein.

THE EVIDENCE SUPPORTS DEFENDANTS' CONVICTIONS OF FIRST DEGREE FELONY MURDER

It was the prosecution's theory that defendants killed Ms. Jacobs during the commission of the burglary and, therefore, were guilty of first degree felony murder under section 189. The trial court instructed the jury, ³ "For the purposes of determining whether an unlawful killing has occurred during the commission ... of burglary, the commission of the crime of burglary is not confined to a fixed place or a limited period of time.... [p] A burglary is in progress after the original entry while the perpetrator is fleeing in an attempt to escape. Likewise, it is still in progress so long as immediate pursuers are attempting to capture the perpetrator or to regain stolen property. [p] A burglary is complete when the perpetrator has eluded any pursuers and reached a place of temporary safety."

The foregoing jury instruction, a nearly verbatim recitation of CALJIC Former No. 14.55, ⁴ is based on People v. Bodely, supra, 32 Cal.App.4th 311, 38 Cal.Rptr.2d 72, in which our colleagues in the Sixth District affirmed a first degree felony-murder conviction resulting from a burglary where the defendant ran into a supermarket, took $75 from a cash register and ran out of the store. Several store employees chased the defendant into the parking lot where a man (presumably a customer but apparently not an employee) also joined in the chase. When the defendant started to drive away, the man tried to stop him, first by standing in front of the defendant's oncoming car and putting his hands on the hood, and then by reaching his arm in the driver's side window. As defendant drove off, he jerked his car to the left, causing the man to fall from the hood. In doing so, the man struck the back of his head on the pavement and he died from that injury.

In concluding the foregoing facts supported the defendant's first degree felony-murder conviction, the Sixth District applied the "escape rule" or the "one continuous transaction rule" which evolved from robbery cases based on the view "that the perpetration of a robbery continues, for felony-murder liability purposes, so long as the robbers are in flight from the scene of the crime and have not reached a place of temporary safety. [Citations.]" (People v. Bodely, supra, 32 Cal.App.4th 311, 313, 38 Cal.Rptr.2d 72, original emphasis, citing People v. Boss (1930) 210 Cal. 245, 250-251, 290 P. 881 and People v. Salas (1972) 7 Cal.3d 812, 823, 103 Cal.Rptr. 431, 500 P.2d 7.) As the Bodely court observed, "While this so-called 'escape rule' was originally justified by an analysis based on when the crime of robbery was 'complete,' the California Supreme Court has more recently explained that the duration of felony-murder liability is not determined by considering whether the felony itself has been completed. Instead, 'the homicide is committed in the perpetration of the felony if the killing and the felony are parts of one continuous transaction.' [Citation.]" (Bodely, supra, at p. 313, 38 Cal.Rptr.2d 72, original emphasis, citing People v. Ainsworth supra, 45 Cal.3d 984, 1016, 248 Cal.Rptr. 568, 755 P.2d 1017.) Thus, the Sixth District concluded, "If we apply this 'one continuous transaction' analysis, no rationale supports limiting the escape rule exclusively to robbery. The perpetrator's immediate escape from the scene of a crime is no less a part of the same continuous transaction which includes the crime when the crime is burglary than when the crime is robbery. Burglary and robbery, like many other crimes, are generally technically 'complete' for purposes of criminal liability prior to the escape of the perpetrator. However, 'the escape rule serves the legitimate public policy considerations of deterrence and culpability' by extending felony-murder liability beyond the technical completion of the crime. [Citation.] While the California Supreme Court has never actually decided the precise issue raised here, its various statements on this subject reflect that the escape rule is not limited to the crime of robbery." (Bodely, supra, at pp. 313-314, 38 Cal.Rptr.2d 72; see also People v. Fuller, supra, 86 Cal.App.3d 618, 150 Cal.Rptr. 515.)

Here, defendants contend that there is insufficient evidence to support the jury's first degree felony-murder conviction because the death of Ms. Jacobs did not occur during their immediate flight from the car burglary and before they had reached a place of temporary safety. We disagree.

When faced with a claim that the evidence is insufficient to support the verdict, we "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant...