*1 4, 1971.] 15619. In Bank. Nov. [Crim. No. PEOPLE,

THE Plaintiff and Respondent, LOPEZ,

CARLOS Defendant Appellant.

Counsel Eshoo, Court, P. under for Defendant appointment by Supreme

George and Appellant. General,

Thomas C. and Evelle J. Robert R. Lynch Attorneys Younger, Granucci, Svetcov, Edward P. O'Brien and Sanford Attorneys Deputy General, Plaintiff for and Respondent.

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

In the instant case we apply principles explained 33, 1361], P.2d order to determine page whether crime of section 4532 of the Penal escape proscribed Code is a to human fife and therefore felony inherently dangerous capable a second We conclude supporting instruction. degree felony-murder it is not such a that it was therefore error to a second felony, give case, was instruction in this and that the error degree felony-murder We therefore reverse the as it convicts defend- insofar prejudicial. judgment (See 1, ant of ante.) second degree murder. fn. 7, 1969,

On defendant was and sentenced to convicted of April robbery However, admitted state the term law. he was prison prescribed on the condition that he serve one probation year county jail. 1 Although judgment robbery the appeal necessarily from the includes the convic

tion, argument subject defendant offers appeal no of that conviction and the deemed abandoned with thereto. respect es- county prisoners defendant and three other jail

On June from blankets. a fashioned jail by rope caped county descending authori- without on the detection accomplished part The escape one Clarence defendant and into two ties. The four men groups, split at large near the There remained jail. Galindo headed into area hilly they the eve- wild blackberries. On for the better of two days, eating only part in Pacifica discovered a shed near a house second ning day they the house the next broke into there. Galindo night Early morning spent assaulted, of metal in order to obtain food. There he with brutally pair shears, the man and wife. occupants, elderly Galindo, came the house with who had not entered Lopez,

Defendant and the been struck down after the man had elderly in few minutes later and Galin- Galindo was in Defendant the woman by progress. assault upon *4 to the and on clothing belonging discarded their coveralls put do then and, vic- to the food taking money belonging man. ate some They elderly the However, at tims, before it arrived were arrested called for a taxi. they man died been a The elderly house who had alerted by neighbor. by police, wounds; wife, attack. survived the of his seriously injured, although when Galindo decided to At trial2 defendant testified that his separate house, (defendant) the break into the he tried to dissuade him from project and, so, walked from the when he was unable to do left Galindo and away woods; the the house when he heard house toward the that he ran back to man woman that he went to the bedroom and found the screaming; elderly beserk, Galindo, in his own blood the bed and who had on lying gone shears; (defendant) with that he wildly the woman the metal striking at- Galindo and him to the pushed woman away persuaded stop tack; that-then, situation, and to make the best of the prepared deciding breakfast, clothes, and called the taxi. changed and malice on the definition murder instructed the jury trial court

The (CALJIC Nos. and the of murder 301 (CALJIC degrees No. (supp.))3 based on first murder 302-A). degree upon It also instructed felony 302-F)4 instruc- (CALJIC No. and gave special burglary robbery and/or defendant, against plea Galindo entered a days judgment entered 2 Seven after imprisonment. The degree to life remain guilty to first murder and was sentenced ing charged against were dismissed. counts him indicated, California herein are to all references “CALJIC” 3 Unless otherwise (rev. 1958). parentheses “supp.” in Jury ed. The abbreviation Instructions—Criminal pocket supple following any is made to the 1967 instruction indicates that reference yet been third revised edition had not ment At the time of trial the 1970 to that work. published. substantially given by that which 302-F the court was 4 The version of CALJIC No. 1970) (3d 8.21. later as CALJIC ed. No. appeared first rule to the facts of tions degree felony-murder relating particu- lar case. The was instructed on jury language premeditation CALJIC No. 303 (supp.).

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

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

robbery not of and not degree, guilty of assault burglary, guilty with a deadly weapon.

Defendant a new trial the moved for on unsuccessfully ground, among others, that the second instruction should not have degree felony-murder (1) been of a felony He that the crime is not given. urged escape dangerous to human life and therefore will not a second degree support instruction, (2) and that in event the crime of felony-murder any escape had terminated when the homicide occurred. On this from the appeal judg- ment of conviction he raises the same Because we arguments. agree the crime of is not escape human life and therefore inherently dangerous instruction, will not a second do we not reach support defendant’s second argument. 5 Although (3d 1970) trial, CALJIC ed. had not at the of published been time the degree felony-murder given second quently appeared instruction identical to that which was subse being by in that edition—the underscored words added the court by contemplated as the of particular instruction fit the circumstances the case. (CALJIC

Apparently the (supp.)) former second murder instruction No. 305 1970) 8.30, (now (3d was broken down into three instructions CALJIC ed. Nos. 8.31, 8.32) following (1965) our in Sears 737 and decision 62 Cal.2d 938], copies 401 P.2d of the new instructions were distributed by Angeles Superior Committee on CALJIC of the Los Court on December 1968, prior to trial of the instant case.

so de- unauthorized defendant committed his by of which escape

The crime of the Penal section 4532 is county jail by from the proscribed parture in section, in in the as revised set forth full margin, which is Code.6 That 1969,7 escapes attempted felonious great variety escapes renders escape from felony which forbid many 4532 but statutes 6 Section is one training See, (public 107 Penal Code section example, various institutions. state (California school, county 2042 Voca reformatory, hospital); or Penal Code section farm); Institution); (county Penal Code industrial Penal Code section tional (medical (state correctional institu prison); Penal Code section 6133 section 4530 School). ; (California Training tion) Youth Welfare Institutions Code section with, for, of a 7 “(a) charged or convicted Every arrested and booked prisoner 5654, 5656, misdemeanor, every committed under the terms Section person inebriate, any is Code as an who confined in the Welfare and Institutions or 5677 of camp or who is county engaged of city jail or or farm or industrial road prison or industrial or custody county any county work or who is in the lawful road other regular continuing in educational employed who or his person, officer or or is employment away place or education to secure program or authorized (Section 1208), confinement, Furlough Law Rehabilitation pursuant to Work city county jail, attempts such or escapes escape or from and who thereafter camp custody of the officer industrial road or from farm or prison, industrial going returning engaged to or from such charge of on or in him while person or custody lawful person or whose county custody or officer work from and, is, escape attempt to force felony escape such or not guilty is of a if he or exceeding violence, prison for not one punishable by in the state imprisonment is convictions, jail county exceed or in not year day, regardless any prior and one however, escape attempt or is force escape if such ing provided, year; one by imprisonment violence, felony punishable person guilty of such or county exceeding exceeding year; not one years, prison the state county be is to served in imprisonment term of that when said second provided, jail would have been dis prisoner otherwise from time such it shall commence jail. said from misdemeanor, prisoner, felony “The willful failure whether convicted of a or a continuing regular program employed or educational or authorized to secure Furlough (Section pursuant to the Work employment education Rehabilitation Law 1208) place period to return to confinement not later than the of a expiration which, law, during confinement, away to that pursuant is authorized from such place place punishable such confinement provided *6 this subdivision. subdivision, violence, by violation of “A conviction of this not force or shall not charged felony any subsequent a prior prosecution public as conviction in a for offense. “(b) for, with, Every prisoner arrested booked and or of a convicted felony county any city jail who is confined in or or or industrial or prison farm engaged any county county camp road or who is road other industrial or work custody who is in the officer who person, escapes attempts or lawful or or to county city jail, escape prison, camp from such or industrial farm or industrial road custody person charge engaged in or from the the officer or of him while on or officer or returning going county custody or from such work or is, and, person custody guilty felony escape whose lawful of a if such or in is violence, escape attempt by punishable by or imprisonment was not force is in the prison years jail county state not less than six more than five or in the not months nor exceeding year; escape if or provided, escape attempt one such is force violence, felony person guilty punishable imprisonment or such of a in to its from facilities. The city subject county penal range persons convicted of extends from those committed as inebriates to those provisions felonies. The assortment in- of custodial to which it arrangements applies cludes road work well The included modes county as as actual confinement. range from those to tardiness on the escape force violence involving of one in part a work engaged furlough program. violation of this which was the basis of It is defendant’s statute .8 have concluded

second instruction in this case We that the of such an instruction was error because the of giving proscribed fense, abstract, a viewed is not to human dangerous inherently felony life. case,

In the in People supra, instant unlike v. page 28, no decisions have determined whether or not violation of the prior affords subject a sufficient basis for provision felony- application murder doctrine. Thus we proceed directly prin application People v. ciples (1965) Williams 63 Cal.2d 452 406 P. Cal.Rptr. [47 2d Phillips (1966) 647] 64 Cal.2d 574 414 P.2d as those were elucidated in Satchell. 353] principles question abstract, before us is this: Viewed in the is the from a county city an offense penal facility dangerous to human life? indicated,

We answer As this we have crime negative. question section 4532 a It multitude sins. escape proscribed by comprehends to the man who is a tardy from work as well applies returning furlough as to the man a who obtains contraband decides to shoot his weapon out of It to the committed way jail. inebriate who wanders off from applies road county job in search of drink as well felon who desperate who, seizes a hostage in order to for his It bargain freedom. to those applies defendant, blankets, it, like this fashion a climb down steal rope into the woods as well as to those who guard to obtain Ms strangle key. cannot We conclude that those who commit nonviolent such as escapes those here suggested thereby an offense which should perpetrate logically serve as the basis for the of malice imputation aforethought murder prosecution. Because section 4532 draws no relevant distinction between exceeding prison years, state not county exceeding 10' or in year; one provided, county when said second imprisonment term of to be served *7 jail it shall commence prisoner from the time such would otherwise have been dis- jail.” from said 8 Although jury instructions to did specific not include reference to offense, escape it is clear that applicable section 4532 the only provision. It also clear that defendant violated that provision. which, offense it an violent

such and the more variety,9 proscribes escapes life abstract, to human inherently dangerous considered in the instruction. felony-murder a second degree cannot support properly nonviolent, inher- are that however argument We all escapes, reject because efforts of prevention apprehension invite ently they dangerous during of violence custodial and law enforcement officers. The possibility when, the facts of the parti- can under become an actuality only escape or, elude case, in efforts to cular violent resistance escapee attempts that conclude in a We cannot conducts himself reckless manner. capture, be considered such a reaction on the of is so common to part escapees do occur intrinsic to the crime of The fact that such reactions escape. some cases is who not sufficient to the conclusion one escapes support to confinement creates a situation legal thereby dangerous inherently human life. (1970) v. 3 Cal.3d Nichols

The recent case provides we 673], contrast. There held P.2d an instructive Code, 449a], which contains usually of a motor vehicle burning § “the [Pen. inher and which is found close usually proximity gasoline people, 163.) we held that (3 life.” Cal.3d at Thus p. human ently dangerous car, any the usual surrounding circumstances burning because committed life— who that offense to human person thereby posed danger i.e., se that the offense was offense per dangerous. escape, hand, involves no arises Danger the other danger anyone. itself (Cf. People supra, from the conduct only escapee. 42-43.) If in a act that conduct results felonious which is pp. homicide, the dangerous to human life and does not with the felony- merge rule be murder will malice subse aforethought applied impute results, murder If such but no felonious act a killing quent prosecution. occurs, the nevertheless of malice is to be determined question aforethought to basic murder according principles. a second give error in this case to

It was defendant’s violation of section 4532 the Penal based upon instruction Code, because relieved the it clearly jury error was prejudicial ac malice circumstances. aforethought By necessity finding found that he was not the jury necessarily defendant of burglary quitting greater punishment escapes accom prescribes 9 The fact that section 4532 offenses—i.e., separate our view create two plished by force or violence does not in escape. escape. The offense is The circumstances nonviolent and violent committed but to the punishment commission are relevant not to offense imposed therefor. *8 an to Galindo’s initial into the victim’s house. accomplice entry By finding the murder be of the second that the concluded degree necessarily jury the did not de occur in the of the of which killing perpetration robbery considerations, fendant was found These with the fact that guilty. together victim, defendant was of the assault the female indicate acquitted upon that the believed jury defendant’s story that he terminated his partnership with Galindo before the latter entered the and revived the house relation he only after had the the assault on female victim.10Accord ship stopped it that ingly, the second appears murder conviction resulted from the the application the erroneous jury instruction based felony-murder Thus, the offense of upon manifest. escape. is prejudice Here, supra, as in we that emphasize p. decision, the instant while doc application precluding felony-murder trine to malice impute to those who kill the course of aforethought does not hinder the that the act was with escape, showing done prosecution was, therefore, malice aforethought murder. Upon determining life, the crime of human we inherently dangerous simply the remove short-circuit the doctrine and provided by require here, as in the normal the major crucial mental state of prosecution, malice be demonstrated to the trier of fact. aforethought judgment reversed insofar as it convicts defendant murder of the second In all degree. other the is affirmed. respects judgment J., Peters, J., Tobriner,. J., Mosk, J., Burke,

Wright, J., C. con- curred.

McCOMB, J. I concurin the affirmance of conviction judgment for first I robbery dissent degree. reversal of judgment of conviction for murder of the second I because do not believe the has error resulted in therefore, miscarriage justice. The judgment, reversed, VI, should not be for the reason that article section California aside, Constitution “No shall be set new judgment or provides: cause, trial granted, of misdirection or of ground jury, jury 10 The language was instructed on complicity termination of CALJIC : (supp.) knowingly No. 91-F “One who has intent aided and with criminal abetted of a may liability commission terminate his his responsibility crime end by notifying knowledge the crime party parties other of whom he has of his doing everything intention to power withdraw from the commission in his crime prevent its party parties impossible commission. If notice the other doing or impracticable may responsibility by everything power end his prevent the contemplated commission of the crime.” *9 evidence, error as to any any or for admission or rejection improper unless, or for error as to matter procedure,

matter of pleading, evidence, cause, court the entire including after examination of in a mis- that the error has resulted shall be complained opinion of justice.” carriage December for a denied 1971.

Respondent’s rehearing petition