Lead Opinion
Opinion
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 comer 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.
Neither defendant 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 dеgree murder and sentenced him to state prison for 15 years to life, also staying the term for his auto burglary pursuant to section 654.
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)
As Thongvilay acknowledges, this same issue was raised and rejected in People v. Fuller (1978)
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
The foregoing jury instruction, a nearly verbatim recitation of CALJIC former No. 14.55,
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,
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 guilty beyond a reasonable doubt.” (People v. Johnson (1980)
Here, the jury was instructed on the felony-murder rule. During closing argument, counsel for both defendants analyzed the facts and argued that they were insufficient to support a finding that the accident occurred while defendants were “fleeing” from the burglary. Counsel were diligent in their claim that defendants had reached a “place of temporary safety.” Nonetheless, the jury found otherwise. We find sufficient evidence to support its conclusion.
Mr. Cabral testified that he watched defendants as they were burglarizing his girlfriend’s car. While he was on the phone with 911, he continued to
Like the jury, we find that the above evidence supports a finding that defendants had failed to reach a place of temporary safety before they caused the accident which took the life of Ms. Jacobs.
The dissent disagrees. Instead, the dissent concludes “as a matter of law ... the death and the burglary were not part of one continuous transaction.” (Dis. opn., post, at p. 90.) To reach this conclusion, the dissent describes defendants’ flight from the scene of the burglary as one where defendants simply “left the crime scene.” (Id. at p. 91.) Likewise, it observes that there was no immediate pursuit of defendants. In response to the dissent’s observations, we find ourselves asking two questions. First, if defendants simply “left the crime scene,” then why did they leave the passenger door of the burglarized car wide open? To us, such evidence suggests that defendants felt the need to leave the crime scene in a hurry and thus, the simple act of closing the passenger door would have delayed their departure. In response, the dissent finds such fact irrelevant. Instead, the dissent observes “[djefendants were burglars, after аll, [and ojrdinarily burglars are not so courteous as to tidy up when they leave . . . .” (Id. at p. 92, fn. 4.) However, if defendants were “presumably looking for another car to burglarize,” (id. at p. 90.) upon leaving the present crime scene, why would they want to call attention to the fact that some nefarious act had just occurred on one car?
Second, if Mr. Cabral’s actions did not constitute an immediate pursuit of defendants, what actions would have? Mr. Cabral testified that he continued to watch defendants as he called 911. However, when his girlfriend’s father turned the front porch light on, defendants took flight. Mr. Cabral raced to get the keys to his girlfriend’s car so that he could immediately pursue defendants. There is no evidence that he purposely, or inadvertently, delayed his actions. Instead, he immediately proceeded out of the house in pursuit of
Nonetheless, the dissent maintains that “defendants had momentarily won their way to a place of temporary safety.”(Dis. opn., post, at p. 92.) We conclude otherwise. We reach such conclusion because the facts support a finding that Mr. Cabral was in immediate pursuit of defendants. In finding that defendants had reached a place of temporary safety, the dissent places too much weight on defendants’ state of mind, i.e., they were “presumably looking for another car to burglarize.” (Id. at p. 90.) However, defendants never testified as to their subjective beliefs. Even if they had, their belief is not dispositive on this issue. As we state in the next section, “[t]he black letter law announced in the rеlevant cases states the rule in terms of whether the defendant actually reached a place of temporary safety, rather than whether the defendant believed that he or she reached such a safe location. [Citations.]” (People v. Johnson (1992)
While application of the felony-murder rule to this case may seem harsh, we are reminded of the rule’s primary purpose, “to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.” (People v. Washington (1965) 62 Cal.2d 777, 781 [
The Trial Court Properly Refused to Give Defendants’ Pinpoint Instructions
The jury was instructed on the law regarding felony murder and they were told that whether defendants had reached a place of temporary safety is an objective question of fact for them to decide based upon all the surrounding circumstances.
Dеfense instruction No. 1 — “In determining whether a defendant has reached a ‘place of temporary safety’ you should consider the following factors: [^[] (1) the suspect’s subjective belief as to whether he has reached a place of temporary safety; fl[] (2) whether the suspect had an opportunity to dispose of some or all of the loot from the crime; HD (3) any other facts relevant to determining whether the defendant has reached a ‘place of temporary safety.’ ”
Defense instruction No. 2 — “A burglary is complete when the perpetrator has[,] even momentarily, reached a place of tempor[ar]y safety, and has disposed of the loot or is in unchallenged possession of the stolen property after having effected an escape with such property.”
Defendants argue that these instructions would have informеd the jury that they were allowed to consider defendants’ subjective beliefs that they had reached a place of temporary safety and whether there was an opportunity to dispose of the stereo taken from the car. Respondent argues the instructions were properly rejected because the points defendants sought to convey were duplicative of, or adequately covered by, the given instructions. We agree with respondent. Where the proposed instructions are repetitious of others, or merely elaborate on the general instructions, the trial court may refuse to give them. (People v. Sanders (1995)
Defense instruction No. 2 was adequately covered by CALJIC former No. 14.55, supra, (Burglary — When Still in Progress/Felony Murder) which informed the jury that a burglary was not complete until defendants had reached a place of temporary safety. Defense instruction No. 1 listed the factors which could be considered by the jury in deciding whether defendants had reached a place of temporary safety. However, whether defendants had reached a place of temporary safety is determined by an objective standard. (People v. Johnson, supra, 5 Cal.App.4th 552, 559-560.) “The black letter law announced in the relevant cases states the rule in terms of whether the defendant actually reached a place of temporary safety, rather than whether the defendant believed that he or she reached such a safe location. (See People v. Milan [(1973)] 9 Cal.3d [185,] 195 [
“Certainly, appellate courts have considered the defendant’s belief about whether he or she reached a place of temporary safety. (See, e.g., People v. Kendrick (1961)
Thus, the issue of defendants’ belief that they had reached a place of temporary safety is only one factor for the jury to consider. Under the instructions given by the trial court, defendants were able to, and did, argue all the factors, including their belief, during closing argument. As such we find no error in the trial court’s refusal to give the instructions requested by defendants.
The Trial Court’s Special Instruction on Felony Murder Was a Correct Statement of Law
During deliberations, Naly’s jury sent a series of four notes to the court.
The court then instructеd the jury with its special instruction: “A burglary continues during flight as long as the perpetrators have not eluded any pursuers and reached a place of temporary safety. Whether a defendant has reached a place of temporary safety is a question of fact for you, the jury, to determine. The issue of whether the defendant believed that he had reached a place of temporary safety may be considered by the jury, ffl] But the standard to be applied to the underlying question, however, is an objective one; that is, whether the defendant has actually reached a place of temporary safety rather than whether the defendant believed that he had reached such a safe location.”
On appeal, Naly complains that the trial court’s special instruction, as read, is an incorrect statement of the law. We disagrеe. As respondent points out, the trial court’s instruction parallels CALJIC former No. 14.55 and correctly states the objective standard of determining whether defendants had reached a place of temporary safety based upon all the surrounding circumstances. (People v. Johnson, supra,
The Trial Court Properly Admitted Thongvilay’s Hospital Statement to Officer Clark
Prior to trial, Thongvilay moved to exclude his various statements to the police claiming he had not been advised of his Miranda
The trial court held a hearing on Thongvilay’s in limine motion to suppress his statements wherein the various police officers testified regarding their respective questioning of defendant. The testimony showed that Officer Douglas arrived at the accident scene shortly after 1:14 a.m. Without drawing her weapon she asked Thongvilay if he knew what had happened.
Officer Douglas unsuccessfully tried to wake Naly up and determined that the female inside the car had no pulse. As the officer backed away from the car Naly jumped up and almost hit her. In response, Officer Douglas drew her weapon and told him to lie back down. When she asked Naly what had happened, he said that he and his friend crashed.
Within minutes, Officer Nhek arrived at the scene in response to Officer Douglas’s call for other units and paramedics. Officer Nhek went back to Officer Douglas’s patrol car when she asked him to secure or watch Thongvilay. As Officer Nhek adjusted the light in the patrol car, Thongvilay asked him if anyone was dead. Officer Nhek said that he thought the driver of the other car was dead. Thongvilay started crying. When Officer Nhek asked Thongvilay if he knew who was driving at the time of the accident, he said, “It was me. It was me that was driving.”
Fifteen or twenty minutes after Officer Douglas contacted Naly, she returned to her patrol car and asked Thongvilay what had happened and if he was driving the car. Thongvilay told her that he and his friend tried to steal a car stereo, were chased by the burglary victim, ran a red light and hit the lady. He then asked, “Is she okay? My life’s over; right? I’m going to jail for murder; right? She is dead; isn’t she?”
Thongvilay was then taken to thе hospital. About 4:20 a.m., some three hours after his statements at the accident scene, Officer Clark came to ask him some questions. Thongvilay was not in handcuffs; however, Officer Clark told him that he was under arrest for auto burglary and vehicular manslaughter. Thongvilay was read his Miranda rights. Thongvilay said that he was waiving his Miranda rights and signed the Miranda waiver form before giving the statements which the trial court ruled admissible and which he now challenges.
On appeal, Thongvilay contends the trial court erred in admitting the third statement because it was the product, or “fruit” of the two earlier xmMirandized statements. We disagree.
“In Oregon v. Elstad (1985)
Even if we were to assume that the trial court erred in admitting Thongvilay’s statements at the hospital, we would find the error was harmless beyond a reasonable doubt. (People v. Cahill (1993)
The Trial Court Did Not Err by Failing to Instruct the Jury With CALJIC No. 2.01
Thongvilay contends that the trial court erred by failing to give CALJIC No. 2.01, entitled “Sufficiency of Circumstantial Evidence—Generally.” “That instruction concerns the proper consideration of circumstantial evidence. However, the obligation to give CALJIC No. 2.01 arises only in those cases where circumstantial evidence is ‘ “substantially relied on for proof of guilt.” ’ [Citations.] ‘The reason for this rule is found in the danger of misleading and confusing the jury where the inculpatory evidence consists wholly or largely of direct evidence of the crime. [Citation.]’ [Citation.]” (People v. Wright (1990)
Thongvilay contends that the prosecution’s case “turned on an inference from the circumstance[,] . . . i.e., whether the defendants had or had not reached a place of temporary safety.” We disagree. Reviewing the record, it is apparent to us that the prosecution relied primarily on the direct evidence of Mr. Cabral’s testimony and Thongvilay’s own admissions. (People v. Marquez (1992)
The Trial Court Properly Denied Thongvilay’s Motion to Reduce His Verdict
After the verdict in this case, Thongvilay moved for a reduction of his verdict, with consequent reduction of the punishment, alleging violation of the constitutional prohibition of cruel or unusual punishment. The trial court denied the motion, stating that section 3046 made Thongvilay eligible for parole in seven years. It further concluded that Thongvilay’s punishment did not constitute cruel or unusual punishment. On appeal, Thongvilay argues that the trial court erred in refusing to grant his motion. Respondent disagrees, stating that “[although the trial court did misconstrue . . . section 3046 by erroneously concluding that it made Thongvilay eligible for parole in seven years . . . , it nеvertheless properly denied Thongvilay’s motion to modify the verdict because Thongvilay’s sentence of 25-years-to-life was not constitutionally disproportionate.” We agree with respondent.
“ ‘ “No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.” ’ ” (People v. Zapien (1993)
In his final argument, Thongvilay contends that his sentence constitutes cruel and unusual punishment under the United States and California Constitutions because the penalty is grossly disproportionate to the offense for which it is imposed. (People v. Dillon (1983)
A sentence may violate the state constitutional ban on cruel and unusual punishment (Cad. Const., art. I, § 17) if “ ‘. . . it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and
In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. (People v. Dillon, supra,
This three-pronged analysis provides guidelines for determining whether a punishment is cruel or unusual. The importance of each prong depends on the facts of each case. An examination of the first prong alone can result in a finding of cruel or unusual punishment. (People v. Dillon, supra,
Turning to the instant case, Thongvilay was convicted of two burglaries and first degree felony murder. Focusing his argument solely on the first prong of the analysis, he argues that he was “immature, being only a few days past his 17th birthday,” he had no prior record of convictions, and the “case was a fairly minor automobile burglary, which turned into a car chase when the victim took off after the perpetrators, and finally into a homicide when the perpetrators, fearing the harm the enraged burglary victim might do to them, ran a red light at exactly the wrong time.” Moreover, he claims that the circumstances surrounding the commission of the offense underscore its nonviolent nature and the inadvertence of the tragic accident which resulted.
Nonetheless, we note that according to the probation report, Thongvilay’s earlier auto burglary also involved an аccident while he was fleeing the
Furthermore, we agree with respondent that Thongvilay’s sentence does not shock the conscience or offend fundamental notions of human dignity. (See People v. Guinn (1994)
Finally Thongvilay claims that the same analysis argued under the California Constitution applies to his claim under the United States Constitution. Thus, he maintains that his sentence should be reversed under the Eighth Amendment as well as the California Constitution. For the reasons stated above, we disagree.
Disposition
The judgments are affirmed. The trial court is ordered to prepare an amended abstract of judgment to reflect the fact that Naly was sentenced for second degree murder.
Richli, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
The abstract of judgment incorrectly states that Naly was sentenced for first degree murder. We shall order the trial court to correct it.
Defendants were tried in a single proceeding but with separate juries. However, the trial court instructed both juries on first degree felony murder, as set out above. Therefore, in using the singular term “jury,” we intend to refer to both juries.
CALJIC former No. 14.55 was new in 1996 (see Id. (1996 new) (5th ed. pocket pt.) at p. 114) and carried over into the recently issued sixth edition as CALJIC No. 8.21.2.
“The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission of burglary, a felony, is murder of the first degree when the perpetrator had the specific intent to commit such crime. [TO The specific intent to commit burglary and the commission of such crime must be proved beyond a reasonable doubt.” (CALJIC No. 8.21 (5th ed. 1988).)
“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. [U] A burglаry 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. [IQ A burglary is complete when the perpetrator has eluded any pursuers and reached a place of temporary safety.” (CALJIC former No. 14.55, supra.)
Defendant Naly explains that the notes are not part of the record on appeal because they could not be found in the superior court file.
Miranda v. Arizona (1966)
It was not established whether or not Thongvilay was able to leave the accident scene, but he was not yet under arrest.
Concurrence Opinion
I reluctantly agree with the majority’s conclusion, citing People v. Fuller (1978)
According to the undisputed evidence presented in the trial court, defendants drove away after stealing the stereo and were not immediately pursued. Defendants drove slowly through the housing development for some minutes, presumably looking for another car to burglarizе, before Charles Cabral began his search for defendants’ red car. During that time, defendants examined and discarded the stolen stereo. Several minutes more elapsed before defendants actually encountered Cabral.
Because felony murder is a legal fiction that “ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony” (People v. Washington (1965)
During the interval of time Cabral was in the house, defendants drove away. Cabral was not pursuing them when defendants left the crime scene and that lapse in time precludes Cabral’s pursuit from being “immediate.” That Cabral could not immediately pursue defendants because he apparently did not have the keys to his car does not excuse the requirement that the pursuit be “immediate.” Thus, defendants were not fleeing the crime scene, or escaping from immediate pursuers when they crashed into and killed Ms. Jacobs.
I base my conclusion defendants had reached a place of temporary safety, in part, on People v. Salas (1972)
Defendants in this, case did not “flee” the burglary; they simply left the crime scene.
The collision in this case unquestionably was related to the burglary in the sense that Cabral would not have gone out to look for defendants had he not first seen them steal the stereo from the car. Nor, presumably, would defendants have fled had they not recognized Cabral’s car as one they recently burglarized. First degree felony murder requires proof of more than a relationship between the burglary and the collision. It requires proof the killing occurred during the commission of the burglary before liability equivalent to thаt of premeditated murder may be extended to an accidental killing.
By disagreeing with the majority, I do not intend to suggest that defendant Thongvilay, who was the driver of the car, is not criminally responsible for the death of Ms. Jacobs. As to him, the evidence might support a second degree murder conviction on an implied malice theory and clearly supports a
I, thеrefore, respectfully disagree with the majority and would reverse the judgments. Because I would reverse the judgments, I do not address the remaining issues defendants raise in this appeal and therefore express no view regarding the majority’s resolution of those issues.
A petition for a rehearing was denied March 25, 1998, and appellants’ petition for review by the Supreme Court was denied June 17, 1998. Mosk, J., was of the opinion that the petition should be granted.
Interestingly, the Fuller court devoted more than half of its discussion of the above noted issue to apologizing for its decision to extend first degree felony murder to the accidental killing at issue in that case. (People v. Fuller, supra, 86 Cal.App.3d at pp. 624-628.) When the Legislature enacted the felony-murder statute in 1872 only nighttime residential burglaries were criminalized in Penal Code section 459. Later, the Legislature divided burglary into degrees (Pen. Code, § 460) and added automobile burglaries as second degree burglaries without amending the first degree felony-murder statute (Pen. Code, § 189) to include only first degree burglaries. It is questionable whether the Legislature really intended a car burglary to be included with the other inherently dangerous crimes that trigger the first degree felony-murder rule. (People v. Fuller, supra, at p. 627.) The burglary of an unattended car by an unarmed perpetrater is not inherently dangerous to human life. It would be insufficient to even support second degree felony murder. “[H]ow can it rationally be used to support a first degree felony murder?” (Id. at p. 626.)
The facts in Fuller, in which the Fifth District reversed an order granting the defendant’s Penal Code section 995 motion and dismissed a first degree felony-murder charge, are that a police officer saw the defendants stealing tires from a closed car lot. When the defendants got into their car and “drove away ‘really fast’ ” the officer followed and “a high speed chasе ensued.” That chase ended when the defendants ran a red light at an intersection and hit a car, killing the driver. (People v. Fuller, supra, 86 Cal.App.3d at pp. 621-622.)
The majority note defendants turned off the headlights on their car at that point. In my view, that fact cuts the opposite way and supports my conclusion that defendants were not immediately pursued, as disclosed by the fact they were driving around the neighborhood with the headlights on, presumably looking for another car to burglarize.
The majority focus on the fact defendants left the car door open when they left the scene of the crime. In the majority’s view, this fact is only explicable as evidence that defendants were fleeing the scene. In my view the fact defendants left the car door open is irrelevant. Defendants were burglars, after all, who had just broken into the car and ripped out the stereo. Ordinarily burglars are not so courteous as to tidy up when they leave, the majority’s apparent contrary view notwithstanding.