*1 Aug. No. 12937. In [Crim. 1972.] Bank. PEOPLE,
THE Plaintiff and Respondent, SALAS, FRANCISCO CARRASCO Defendant and Appellant. *3 Counsel Court, Anderson, for under Carl Supreme
Robert appointment Defendant Appellant. Maier, General, Assistant Attorney C. Doris H. Lynch, Attorney
Thomas Hinz, Jr., General, General, for Plaintiff and Edward A. Attorney Deputy and Respondent.
Opinion
murder
WRIGHT, C. J.
found defendant
of first
A jury
degree
guilty
211,
Code,
(Pen. Code,
(Pen.
189) and first
§ §
§ §
Code,
190).1
(Pen.
211a) and fixed
for the
-at death
murder
§
penalty
denied. As the death
cannot
motion for a new trial was
Defendant’s
penalty
accordance
we
modify
judgment
constitutionally imposed
Penal Code.
indicated section
are to sections of the
Unless otherwise
references
v. Anderson
The cash had two drawers and after had register emptied Finnegan bank $150) contents of one of them to about into a cloth bag, (amounting asked, “How on the defendant about the other drawer register?” Upon satisfied that the second defendant took the bank being drawer was empty men, ordered to lie down near the other told them not to bag, Finnegan move or he would shoot them and backed out of the front door. Damion, had friend
Defendant been driven to the bar Arlin a who from emerged remained the car When during robbery. seat, the bar and entered of the front the vehicle on the side passenger’s Damion drove away. after received midnight Sheriff O’Neal a radio
Shortly Deputy George broadcast that the had been He Hub Bar robbed. advising just immediately drove his car three-tenths of mile an 1.2 miles from patrol intersection the bar. He knew that used this intersection was on route frequently robbers area. Just as he reached the making from escapes general he intersection saw an car who to be with two men approaching appeared of Mexican bar and descent. The car from the direction of the approached vehicle in the car and was then The followed sight. deputy Mexican,” advised was a After further by radio “male suspect radio communication the activated red and siren of the deputy light vehicle and the their vehicle. police suspects eventually stopped halted his car about feet behind the deputy suspects’ 15 to 18 patrol car, out and their hands out of the shouted to the two men to stepped put demand; car tire there- windows. Neither deputy suspect responded the driver’s side reached his Damion the door on shotgun. upon opened Defendant, however, of his car and fled on foot into an field. did not open to the officer’s further demands. respond
A second sheriff, Kenneth B. deputy arrived in car. Royal, his patrol drew his service Royal revolver walked toward the car on suspects’ the driver’s side. O’Neal heard shots fired saw fall to the Royal ground. Defendant from the on car side with a in his emerged passenger’s gun hand. O’Neal fired his at Defendant fell defendant. shotgun ground and then revolver, arose. fired his Royal and O’Neal fired his' shotgun second time. Defendant fell to the but once more again ground, got up continued down the road from the Defendant fell to away deputies. ground and was then had arrived again another officer who apprehended at the scene. died of a Royal wound in the neck. single gunshot
Finnegan and Schwab did testified that defendant not sway, stagger, words, slur his or in Defendant, any other to be drunk. on way appear hand, other testified he well drunk” night “pretty He claimed that killing. after Damion fled saw a from car he police officer awith at his face and gun pointed that he saw flame from the officer’s and felt gun hot on his face. He further claimed that something he did not recall and that he did gun not intend shoot the shooting officer. He admitted that he committed the and he had a clear recollection most of details of that crime.
Evidence was received in behalf of defendant a that blood disclosing taken from him at 2:50 sample á.m. on of the homicide had morning a blood alcohol content of .23 A percent. testified criminologist judgment a memory with blood alcohol level of about .25 person would be
percent impaired. Defendant also called a had who examined psychiatrist defendant Sacramento five jail weeks after the County homicide. The phychiatrist testified that defendant’s mental had been reduced capacity his intoxi- cated state to the extent that “there is considerable doubt that he had sufficient capacity and deliberate” premediate at the time of the crimes.
Defendant’s various contentions of trial error further factual matters related specifically thereto will be examined order individually occurrences, their claimed He first contends that court trial committed Damion, error in a prejudicial motion granting who defendant, jointly charged for a trial. Defendant that claims separate he was because he was prejudiced Damion’s when deprived testimony the latter refused to on the testify at defend ground self-incrimination ant’s trial. At that' time Damion’s had not trial taken place. 733, Cal.2d
Massie court should hold that the trial we noted more recent cases that where there is for of trial “possibility codefendants separate purposes testimony.” a codefendant would give exonerating at trial separate there was evidence before At the for trials time of the motion separate The trial court had Damion. exonerating that defendant made statements would, in a because “Damion court ordered- trials specifically separate . . . trial, be testimony by joint exculpatory [defendant] [be- deprived this testi- Damion could there would no in which way compel cause] mony trial.” during
Defendant that he argues of his under due “right deprived process of law to have all witnesses necessary in his own defense.” How- testify ever, Damion, if he had been tried with he jointly would not have had to Damion’s “right” in that testimony, Damion could have refused States, to take (See, stand. witness Bruton v. United U.S. e.g., 123, 127-128, 476, 480-481, 485, L.Ed.2d 88 S.Ct.
It noted, also, should be did not at time any prior for motion new trial make to Damion’s motion for any objection trials, separate trials, the order or the order granting separate setting Damion’s trial after that of defendant. At time motion for a new heard, trial was not, defense counsel that he had at acknowledged time of the trials, motion or order for trial later separate requested date. He also stated at the on the hearing motion for new trial that he did not know client; whether Damion’s would be favorable to his testimony and on he does not claim have such appeal He thus fails knowledge. to demonstrate not only error but also any suffered prejudice granting motion trials. separate
Defendant next claims error in the denial of his motion for *6 change venue because of the nature of v. Superior In Maine pretrial publicity. (1968) Court 375, 372], 724, 68 Cal.2d 438 P.2d Cal.Rptr. [66 we held a that motion of venue or continuance change must granted whenever it is determined that due the dissemination of potentially prejudicial material there is a trial reasonable likelihood a fair cannot be had in the absence such relief. also held in Maine that con- We 333, sistent v. Sheppard (1966) Maxwell 384 U.S. 362 L.Ed.2d [16 600, 620, 86 S.Ct. courts must make an appellate independent evaluation evidence to determine whether a defendant has obtained 382; a fair (68 Cal.2d see v. O’Brien trial. at also impartial p. 138, (1969) 394, 202, 71 Cal.2d 455 456 P.2d 400 [78 Cal.Rptr. Our review of the evidence the instant case indicates independent 818 the standard under received a fair and trial
that defendant impartial Maine. forth in “reasonable likelihood” set nature, timing Maine we considered such factors as frequency
.In interest; the limited evidence of continued community of the publicity; occurred; and the standings the crime size of the in which community case, bulk In the community. and the accused in the present victim arrest, including of the the circumstances of the news stories concerned that anyone It is doubtful and the use of details as weapons. details; stories would recall to such stories reading listening a confession that reports have the kind of intrinsic impact do not 386.)2 (Cf. at have. 68 Cal.2d p. most of the of reports, currency to the
With frequency respect 1968, 7, the day on June the news media appeared reports "a consisted of one- case thereafter of defendant’s crime. The mention on different times at two funeral telecasted on the victim’s minute film funeral, 11; including on the photograph a June 12 news article June and the 8 one on July brief reports, and a brief two newspaper caption; District and Recreation 16, Park that the Southside other on July relating a friend letter from a short after Royal;3 to name a Deputy planned park editor in a him, newspaper a letter to the lauding published Royal, was seeking 17; that Damion and a June July newspaper report on did not that defendant plan dismissal of the him charges against 16, began the time the trial September indictment. By challenge two months. for nearly the news media 1968, no had report appeared had in the case short, disappeared. the news media the interest of It further that the cause in the instant case arose Sacramento appears which has a more than 12 times that of Mendocino County, population (See Superior involved Whittaker v. Court in Maine. County, county 357, 710, A Appendix Cal.Rptr. Court, 358]; 375, 385-386.) Maine v. Superior supra, 68 Cal.2d ignorance and most Finally, jurors’ importantly, pretrial that defendant was not tried publicity very strong indication Tahl, (People biased Cal.2d jury. shooting Royal shooting complains Deputy 2Defendant was related to the (who Royal died) Kennedy day of Senator had died on June before tele However, Misterly. County
vised interview with John the inter Sacramento Sheriff *7 clearly only very question point asked this and indicates viewer one brief on the record jurors that none of the was aware of the remark. ruling judge, upon on defendant’s motion for 3It should be noted trial that the venue, park to held change permit stated not the dedication of the that he would during or about the time of the trial. or hearing reading did not recall twelve jurors of the 246].) Eight so dim was four the remaining and the recollection about the case to be negligible.4 was clear of the
It is from our examination record jury the that was not influenced by any pretrial publicity trial reason thereof. motion fair and deprived impartial venue was denied. change properly
Defendant next contends that the trial court in received improperly evidence a color of the deceased photograph of a deputy. Photographs victim of a crime are admissible if generally their out value probative weighs effect. any This inflammatory determination is within ordinarily the sound discretion trial (People of the court. Nye (1969) v. 71 Cal.2d 356, 467, 395]; People 455 P.2d Goodridge Cal.Rptr. (1969) 70 Cal.2d 452 P.2d In the case, after present careful consideration of a total of 20 photographs outside the presence jury, trial allowed the judge prosecution to introduce one only of the deceased’s wound and photograph closeup another the location of showing the fatal wound in a full view. Defense body counsel to objected the introduction latter That photograph. however, had clearly value photograph, in that it probative showed location of the wound relation to the deceased’s body aided Dr. understanding testimony of Pierce Rooney, autopsy (See People surgeon. v. Talbot 708 [51 Cal.Rptr. overruled on other grounds v. Ireland pertinent 4The jurors statements of four were as follows: Mr. Reed stated that case, dire questioning after the voir preceding day, reading he did recall recalled; but that was about all he that a deputy he could recall that shot any attempted robbery; there was an that he did not recollect respect facts with it; shooting anything fairly incident or around that he could base his decision only upon case; he evidence was hear in the and that he had formed tenta no opinion guilt tive as to defendant’s or innocence based on he had what read. reading “I vaguely Mr. Foster stated: remember a newspaper article where someone one, during robbery. in a —someone barroom was killed I it’s the same feel sure but respect very vague.” it’s opinion He then that he said had formed no tentative with guilt or based upon defendant’s innocence he had read and that he base what would solely his verdict he the evidence was to hear the courtroom. pertain stated could an incident in June which could Mrs. Severance that she recall positive; that could the case but she was not that she not recall whether the incident case; did it to the same pertained occurred in not know whether Sacramento case; pay did not and that there she much attention the details of might nothing her which influence deliberations. “just vaguely” reading about the case in stated that recall Mr. Miller he could deliberations; that he had formed paper; nothing he had read influence case; respect to and that he had preliminary opinions no conclusion might evidence what it open mind about the show. completely *8 580, 188, 40 A.L.R.3d P.2d
(1969) (1956) v. Redston People differs from case The instant clearly v. Burns 880], P.2d 490-491 [293 139 Cal.App.2d cited (1952) 541-542 [241 109 Cal.App.2d into evidence receive defendant, it held improper wherein by with the deceased showed value which no having probative photographs error claimed The an by autopsy. a shaved head horribly disfigured merit. thus without that, law, We deal next contention matter of the defendant’s had been to the time and at a different of robbery completed prior place than the that the therefore not have been com- homicide could killing; mitted course rule and in the of the within the robbery felony-murder court the such rule. Defendant trial erred instructing that, the further even that instructions on assuming felony-murder contends rule term, the were it for the court to refuse to define was error appropriate, of the robbery to the
“scrambling possession” as applied proceeds to do when so the jury. requested
Section which establishes the limits of the felony-first-degree-murder rule, that all provides “murder . . . which is committed in the perpetra of, tion or . . . attempt ... is perpetrate murder of the robbery ...” degree; Our concern is whether the particular of the killing after defendant had deputy been while fleeing from the scene stopped of the was a the robbery, killing of the “perpetration” robbery. trial court four instructions which gave we have numbered and set forth within margin time which concerning is still in robbery progress of rule. purposes application 5(1) robbery “A is still in being commission while the is perpetrator pursued im mediately after taking the commission of the act property another force or possession fear with long the fruits the"crime in so culprit his as the has not won way momentarily place even safety possession and the nothing plunder scrambling possession.” more than'a (2) robbery “A is still in during continuous, commission integrated attempt successfully leave with the loot.” (3) robbery “If has completed been prior killing, terminated to the then robbery may not be used to guilty find the defendant degree. of murder of the first killing Whether decided during was committed perpetration must jury. committed, being “A is still no matter how far from the scene afterward, long nor how if way momentarily the robber has not won his even to a temporary safety nothing plunder more than (This scrambling possession.” given instruction was request.) at defendant’s “If has been completed and prior killing terminated to the then the robbery may be used guilty to find the degree. of the murder of the first hand, On the killing being other unlawful of a human which is committed in the attempt perpetration perpetrate robbery, the commission of which itself crime *9 deliberate, the court the returned to requesting jury to retiring After in the second the first murder further on murder in degree, instructions la,w is, felony that how a long of danger,” and the to “zone degree, applying the court instructions read by Included in the continues progress. in Some the instructions heretofore quoted. to the were four pursuant request once. Two were read more than them, the jurors, of after questions court, after The saying the court define “scrambling.” that jurors requested should that the jurors that the definition would dictionary help of a from the scene a fleeing the word in the context of person consider 5, supra, set forth in footnote with the reread instruction robbery plunder, later, returned hours the (1). jury again two enumerated Approximately in instructions connection asked the court to reread the and a juror the instructions The court read whether the was robbery progress. the (4) jurors footnote 5 several times (1) through enabling as designated than hour a little more an deliberated for to write them down. The jury after reconven- its verdict shortly for the and returned retiring before night ing following morning. both that find (3) (1) jury to
Instructions appear require and that safety” a of temporary the robber did not win his toway “place than a “scrambling possession” was no more his plunder possession (1) Instruction was still in progress. before it could find that robbery taking after the “immediately” physical, further requires hand, to (2) (4), require on the other appear Instructions property. toway did not win “place find that the robber that jury is, escape was still attempting that robber safety”—that was still in —to find that the progress. robbery phrases “place temporary safety” “scrambling possession”
are derived the landmark case of v. Boss Cal. from P. In that case two and ran defendants robbed store 881]. street; into the an them and was shot immediately employee pursued Boss a moment later when the furthermost defendant was no more than 125 feet held instructed from store. We that the trial court properly doubt, beyond proved degree must be a reasonable is murder of the first whether the killing intentional, unintentional even accidental. killing during robbery perpetration “Whether was committed must be jury. decided being robbery robbery is “A still committed no matter how far from the scene of the long way, momentarily, nor how if the has even afterward robber not won his completed safety. say, at the That is not progress property, moment during the robber obtains of the stolen but is still words, escape escape attempt the robber’s with the loot. In other (This given at part is a instruction robbers with the loot itself.” prosecution.) request as the homicide was committed murder felony “It a sound we stated: perpetration principle
law which inheres common reason where two or more persons *10 in a an is to commit officer or citizen engage conspiracy robbery murdered while in of one of number who is immediate their from the scene of the crime with the fruits thereof in his fleeing possession, or in the of a the crime is not co-conspirator, possession complete law, of as said have not won their purview way the inasmuch conspirators and the of even to a of momentarily safety temporary possession the In such a case is more than plunder nothing scrambling possession. the was aid the felon continuation of the use of arms which to necessary the is to him its to reducing possession necessary protect property is and in unlike good burglary making Robbery, possession escape. locus, considerable not confined to a fixed but is over frequently spread the with the distance and of time. The of robbers escape varying periods loot, arms, is as to the execution of means of by necessarily important as Without revolvers terrify, gaining possession plan property. or, them kill who if occasion any person attempts apprehend requires, said of at the of or immediately gaming possession property, time upon which is defense of felonious their be childlike. The possession plan of the forcible of challenged immediately upon taking part plan it, gestae res of the crime.” it is (Pp. or as books express [4].) The court in Boss thus maintained that the was not complete, as the robbers had not won their to a way “place safety” temporary and their possession was no more than plunder “scrambling possession.” meaning the two is not made clear. phrases entirely The fact that a robber has not won his toway “place can mean that safety” he is still still If fleeing, trying escape. phrase redundant, is not to be treated “scrambling possession” merely it means robber is being and his felonious immediately pursued loot being forcible challenged “immediately upon taking.”
The great
rule cases
majority
felony-murder
as the
involving robbery
decided
felony
this court since Boss involve fact
underlying
situations
elements,
both
(lack
continuous
flight
“place
and continuous
safety”)
challenging pursuit (“scrambling possession”)
set forth the
of Boss without further
Thus
generally
language
analysis.
these cases
little
do
whether both
are
clarify
elements
question
for a
to be considered
required
continuing
purposes
rule.
felony-murder
13, People v. Kendrick
It
held
that case that instructions
was nevertheless
48 minutes after
occurred about
were
when the
given
killing
rule
properly
the defendant
when
accosted victim had
been
officer
the defendant had apparently stopped
who
shot
police
fatally
We
for a
and had no information about
robbery.
him
traffic violation
in Boss
of temporary safety”
ignored
language
concerning “place
of Boss which stresses
“scrambling
part
possession”
quoted
. .
the loot ...
to the execution of
. with
importance
escape
“[t]he
homicide,
was while defendant
“The
committed as it
stating,
plan,”
*11
belief that
stolen
and in the
the officer
flight
was in hot
with the
property
(P.
this
to
falls well within
rule.”
was about
arrest him for the
described, the “rule”
in Kendrick
90.)
not
so
as
Although
expressly
applied
to have reached
the element of the defendant’s failure
only
required
of
“place
safety.”
temporary
(1963)
394] to and Defendants safety” “scrambling possession.” temporary attempted in Boss and relied that case themselves within bring language upon both, which “a and “scrambling spoke temporary safety” place pos- their we relied which session.” contention facts only rejecting upon established that the defendants had reached a place (P. 524.) and the element That ignored safety scrambling possession. case like Kendrick stand that robber’s fleeing must proposition to safety failure reach a alone sufficient establish place within the rule. continuity Ketchel,
In the as was committed case the homicide present “was in before defendant had reached while he hot safety flight place was with the stolen and in the belief that the officer about property arrest him for the to follow O’Neal commenced defend robbery.” Deputy ant’s vehicle the time left the bar and within three minutes of defendant occurred within six of that time. Thus the killing or seven minutes defendant at trial. still in the as conceded escape stage, testified not that he was while caught escape Defendant attempting loot, he would that he did not know whether with but also split deter had to make that loot with Damion as had no they opportunity mination. were if the killing
Under the here even circumstances present defendant, it occurred while or accidental unintentional contended under constituted murder degree continued in progress the felony-murder rule. Although introduction the instruc tions to the of immediate concepts together scrambling pursuit define court’s refusal to “scrambling may possession” erroneous, have been no resulted defendant as in event any prejudice were find that jurors the homicide was committed before compelled defendant had reached a The introduction of the safety. did in fact scrambling confer benefits to which concepts was not entitled. discussion,
Defendant’s final contention aside from attacks meriting on the trial, death is that there is no substantial evidence penalty penalty that he acted with and malice More aforethought. premeditation specifically (1) he that argues there is no evidence to rebut his own testimony he had been struck a bullet and fired his own from Royal’s gun Deputy gun “[tjhere unconsciously uncontradicted response, evidence that defendant was intoxicated to a which him. placed the area of ‘mental confusion’ . . . .”
In People v. Robillard (1960) Cal.2d 83 A.L.R.2d we instructions upheld on premedita- *12 tion and deliberation on the basis of circumstantial evidence a where felon faced with killed a apprehension case, police officer. In the as in present Robillard, the activities of defendant to the actual and prior killing existence of an motive to kill the apparent officer both police provide strong circumstantial evidence of and premeditation (Cf. deliberation. Anderson, People v. [8] [73 The uncontradicted evidence shows that defendant brandished a gun while the bar. robbing victims of the testified that defendant, after floor, lie ordering them to on the warned try them not to to get or he would “blow up heads off.” This evidence of [their] defendant’s actions to the prior actual indicates killing strongly that he intended to kill if necessary prevent apprehension.
At the time of the defendant killing was from the scene of fleeing He robbery. refused to with O’Neal’s comply Deputy orders to out get and, disclosed, car the evidence hid the bank bag money containing under the front seat of the vehicle while was Deputy Royal approaching. When Royal the driver’s door of the approached car defendant shot him. Under the circumstances the trier of fact could have reasonably rejected defendant’s version of how he had killed the could deputy, reasonably have inferred that defendant from the to kill beginning planned anyone with the successful interfering and perpetration could accordance with Royal that defendant killed conclude reasonably term. and a long avoiding prison apprehension plan purpose claim, to defendant’s findings contrary In aid of the implied a else head or anywhere he was not hit in the evidence indicates that buckshot only. wounds from bullet fired as defendant’s resulted by Royal armed with .38 was with a while Royal O’Neal armed shotgun,' did that he testified at time O’Neal shooting. caliber revolver Thus the trier after defendant shot Royal. not fire his until shotgun fired unconsciously defendant’s version that he fact well may rejected have struck a bullet from Royal’s gun. to being response that due to defendant’s further claim his evidence Also contrary to deliberate premeditate intoxication he lacked the capacity who testified criminologist judgment not uncontradicted. The about .25 would alcohol level of percent with a blood memory persons altered, that the extent to which be also testified on cross-examination this level is at impaired judgment reasoning ability person’s different among persons; factors and varies widely on many dependent able control was) is (as admittedly drinker heavy it would be and that better non-drinker of intoxication than symptoms this to kill and out carry the intent for some to form persons possible by defendant concluded called at a .25 level. The psychiatrist intent percent state, mental defendant’s that, capacity because his intoxicated he had considerable doubt that “there is was reduced to the extent that added.) (Italics deliberate.” sufficient premeditate capacity face In the of the above inconclusive evidence offered defendant’s *13 witnesses, victims, was there testimony by one of whom was robbery bartender, did words, not slur his sway, stagger, appear flushed, or in other to be any way drunk. He was well enough appear oriented to insist that both drawers cash be examined for register and his other in currency, actions connection with the were those in full of his It faculties. was for trier of fact person possession to resolve the conflict in the as to whether defendant in fact evidence so intoxicated as be unable to deliberate the record premeditate in favor of the substantially findings supports implied judgment. Defendant’s various attacks of the trial upon penalty propriety Anderson, People are rendered moot our in v. decision proceedings supra, 6 Cal.3d be constitu- the death holding penalty may tionally imposed. death, it modified
The insofar as for the judgment, provides penalty in of the death provide of life penalty punishment imprisonment and as so modified is affirmed in all other respects.
Tobriner, J., Mosk, Burke, J., J., J., Sullivan, concurred. McCOMB, that, J. I concurin the for reasons majority opinion, except Anderson, People in in v. expressed my dissenting opinion I dissent from the modification of the judgment.
PETERS, J.
I dissent.
have extended the
rule and
majority
repudiated
the landmark
People
decision in
v. Boss
Section of the Penal which establishes the felony-first-degree- rule, that all . . . in the murder “murder which committed provides of, . . . or ... is murder of perpetration attempt perpetrate the first ...” degree; as “the felonious
Section 211 of Penal Code defines robbery taking another, from his person personal property will, immediate means of force presence, against accomplished by or fear.”
A literal sections, reading of the of com- light requirement mission in the of the perpetration and in light the definition mean that the homicide must occur during taking to the property termination of the prior force and fear which taking accomplished. (cid:127)
However, this court a literal rejected construction of the two' statutes Boss, supra, Cal. and established a broader rule determining whether homicide occurred perpetration *14 or robbery after its In termination. the of the expanding operation felony- situation, rule murder in the the court in Boss established two limitations on the continuation of the the robbery. Today, majority repu- diate one of limitations and to that extent overrule Boss. I cannot agree the. with the further of the expansion doctrine. Boss,
People v. supra, 210 Cal. involved two defendants who street; robbed a store and ran into the an employee immediately pursued
827 the when furthermost shot Boss a moment them later (Id. 247-248.) In from the store. at was not more than 125 feet pp. to first the as that the trial court instructed holding properly the the in because homicide was committed perpetration murder felony of law which “It is a the this court sound principle of stated: robbery, ain engage in where two or more persons inheres common reason that while citizen is murdered to and an officer or commit conspiracy from scene who is of one of their number fleeing in immediate pursuit or in possession crime with the fruits thereof his of the possession, law, of the in the the crime is purview co-conspirator, complete even momentarily as have not won their said conspirators way inasmuch is nothing of the of to a temporary safety possession plunder place In case the continuation of the such a more than scrambling possession. aid arms to the felon reducing use of which necessary property and making is to him its necessary possession protect possession locus, a fixed not confined to unlike is Robbery, good escape. burglary distance and varying periods is over considerable but frequently spread arms, loot, means of necessarily time. The robbers escape as gaining is as execution of important plan possession or, kill any if occasion terrify, Without revolvers to requires, property. the time of or immediately who them at person attempts apprehend be childlike. their plan of said property, gaining upon challenged immediately upon which is The defense of felonious possession books robbery, express is a the plan the forcible taking part 250-251.) at it, (Id. gestae it is res of the crime.” pp. court
The thus established two to establish that the requirements First, was not must be which there “immediate means complete. pursuit” that the This limitation possession merely “scrambling possession.” because, finds some language statute so support long as there is “immediate and a mere can it pursuit” “scrambling possession,” it argued is not because “taking” property complete Second, the must “a being robbers not have reached physically disputed. place temporary safety.” limitation, but holding majority today recognize repudiate so, safety. sole test is majority place doing Ketchel, People v. Cal.2d
rely Cal.Rptr. upon Kendrick, Ketchel, however, on its facts a homicide which occurred involved 13]. with the within both There was immediate resulting limitations. had not reached a mere robbers scrambling possession, the court of the failure reach safety. Although spoke *15 828 contention, in with the connection defendants’
place safety this Was because the based defendants’ contention was on the temporary- in Boss. There safety was no intent to the immediate language depart from limitation; and the court in pursuit fact scrambling possession quoted (59 Moreover, limitation Boss. 524.) from Cal.2d at p. subsequent Ford, 41, 228, case of v. 65 Cal.2d 55-57 416 P.2d Cal.Rptr. [52 132], we reiterated again both of the limitations set in Boss. forth
It is true that in Kendrick there was no immediate or scrambling pursuit court, Boss, and that the and although citing relying upon relied merely failure of the robber upon to reach point in safety However, instructions on rule. I upholding felony-murder do not believe that Kendrick be viewed as may substantial authority warranting limitation of immediate and scram- repudiation pursuit and bling possession of Boss and the numerous cases which have followed it. The defendant in that case that the homicide urged was too distant in and time it as occurred classify having during perpetration So robbery. far as the defendant did not on the limitation rely appears, of immediate scrambling possession, answering defendant, contention of that Boss specific it out had proper point established a rule which meant it was determinative that homicide occurred some distance sometime later. from circumstances, Under the it seems to hold that the court intended improper Boss, one of the the case which was repudiate requirements quoted from and relied upon. principally Kendrick, their reliance Ketchel from
Apart give majority Boss, view, no reason to the first limitation of and in those repudiate my cases a weak foundation provide for the action. There are several majority’s we why reasons should adhere to the first limitation Boss and not further extend the rule. felony-murder doctrine ascribes malice felon aforethought
who kills in the of an and clas inherently dangerous felony perpetration sifies the offense as murder of the degree first homicides which are the direct result of those six felonies enumerated in section 189 of Penal Ireland, 522, Code. (People 188, v. Cal.2d Cal.Rptr. [75 P.2d 1323].) 40 A.L.R.3d section Although 189 speaks “murder,” inadvertent or accidental degrees killings are when murders committed felons perpetration of the rule is deter felons from purpose negligently accidentally them killing by holding strictly (People commit. responsible killings they Washington, 130]; v. 62 Cal.2d People Coefield,
829 rule has been criticized on the that grounds “The felony-murder cases which it is it is it erodes unnecessary almost all applied v. (People between criminal and moral culpability.” the relation liability cited; 783, 777, see also Washington, supra, 62 Cal.2d authorities Wilson, 494, 22]; 462 P.2d People v. Cal.3d 440 1 Cal.Rptr. Ireland, 539.) v. Cal. 2d The has been abolished supra, rule 1, 1957, Act, origin where it had its Homicide England (English § II, 11). the rule & 6 Eliz. ch. We have out that recently pointed “expresses its no extension beyond a artificial deserves highly concept required (People Phillips, application.” state, the law this do not rule remains I Although we term defining
believe should extend its by broadly applicability instead in criminal with liability furtherance robbery; policy equate we robbery limit the of the term as used meaning should culpability strictly in section 189. reached
To extend rule until the robber has a felony-murder place is whether the decedent a victim regard of without safety, temporary witness of to whether there has been regard or the crime without the death victims of break would mean that of automobile pursuit, or of an collisions occurring accidentally during may escape pedestrians In victims constitute first murder. the absence of direct pursuit by degree witnesses, felony-murder or such a broad application of the rule rule to accidental in accord killings purpose or of the statutes. language we
Once from the literal definition of in section 211 depart Code, the Penal test that be used to determine whether a rob- any might rule is necessarily the bery complete purposes or continuous test is not safety, flight, arbitrary. temporary place foreseeable caused related either to increased directly danger detection. The or to the robber’s motive in seeking escape of the robbery risk of due to the commission increased a killing occurring for he long safety continues after the robber reaches place temporary other kill to to have the motive to escape will continue apprehension. words, officers seeking the risk of death injury investigating loot, is has the to whether the robber may relate criminal apprehend conviction, to whether armed, relationship bears little but it or anticipates safety. has reached the robber place length makes safety based A test solely leaves the scene the robber If the decisive consideration. route escape scene, the felony- near the or home and reaches his hideout *17 rule murder under the test whether inapplicable place-of-temporary-safety loot, he is or still in but if cross the armed he must city so, to his hideout homicide occurs to his the test prior doing armed, make the rule robber felony-murder applicable although loot, he killed, had lost the homi- or disposed pedestrian cide occurred a and the substantial time after the taking property termination of the force and fear incident it. to limitation finds no safety
Finally, place support of the relevant statutes. language hand,
On the other the limitation to immediate scrambling pursuit seen, as we have finds some in the definition of support possession, this court refuse adhere in section 211 of the Penal Code. to Although may Boss and the cases to the literal of the statute as was done in wording it, entirely. we should not the terms of statute Where following ignore or of the victims witnesses of taking there immediate or the risk of or death is greatly force and fear used the robbery, injury increased, as exists regard and it is not the same risk apprehension to the occurring subsequent taking. course,
Of if the of an officer killing a felon is seeking apprehend premeditated with malice (Pen. it is first aforethought murder degree Code, 1'87, 189), However, and we may § § will so find. expect jury view is my that an accidental killing person seeking apprehend defendant should not be elevated to first murder because degree merely the felon had not reached a where the decedent safety, was not a or victim witness of the and where there was break in the pursuit. I would not
Accordingly, either of the limitations established repudiate in Boss and the cases which have followed it.
As the out, majority the evidence point case is instant sufficient to warrant a finding of degree murder on a theory premeditation. The evidence also shows that the decedent was not the victim the robbery or a witness to it and that there was a break in view, pursuit. my it was submit case proper jury on theory premeditation, but it was error to submit the case to the on jury felony-murder theory. Defendant denied that he decedent, and, intended to kill if the were satisfied that the unintentional, was inadvertent killing or it should not have found him guilty murder in the first degree. felony-murder instructions, however, permitted of first murder if finding even view of the unintentional, jury’s and in was inadvertent the shooting instructions, be held the error must with the concern express prejudicial. would reverse judgment.
I