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Court of Appeal, First District, Division 4, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Carlos LOPEZ, Defendant and Appellant.

Cr. 8636.

Decided: March 30, 1971

George P. Eshoo, Redwood City, for appellant (under appointment of the Court of Appeal). Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Sanford Svetcov, Deputy Attys. Gen., San Francisco, for respondent.

Appellant was convicted by jury of second degree murder and robbery. (Pen.Code, §§ 187, 211.) Although the notice of appeal would include the robbery, no argument is made on the subject of that crime; wherefore, the appeal is deemed abandoned as to that crime.

On Tuesday, June 17, 1969, appellant, Lopez, and three other prisoners escaped, without the use of force, from the San Francisco Jail at San Bruno. Appellant and another, Galindo, parting from the others, made their way beyond the fence at the jail's boundary and headed for the hills. Their departure was discovered at midnight. On Wednesday and Thursday, they remained at large, eating only wild berries. Lopez testified that on five occasions they came close to being discovered. This testimony, of course, need not have been believed, and besides, was conclusionary; but there were at least two episodes which brought the fugitives close to apprehension. One was testified to by two high school girls, and corroborated by Lopez. The girls met Lopez and another man (Galindo) who was sick and nervous. Lopez was agreeable. The men were sitting on a fence near a schoolyard. Lopez told the girls of the escape and asked them to fetch food and clothing. The girls refused. The other episode, testified to by appellant and not contradicted, was that police officers had entered the Pedersen home, where the homicide later occurred, looked around and departed, while fugitives were in the shed behind the house. So, the men reached several successive points of temporary safety.

On Friday morning, a vicious attack was made on both of the Pedersens, as a result of which Mr. Pedersen died and his wife was severely injured. She was unable to testify, perhaps by reason of her age and perhaps because of the injuries. Galindo was not on trial with Lopez. He was called as a defense witness, but he refused to testify on the ground of self-incrimination. Lopez' testimony is that Galindo, who was ill, probably from lack of food, decided to enter the Pedersen home and that he, Lopez, after trying to dissuade Galindo from this project on the ground that it was dangerous from the standpoint of capture, parted company with his companion and walked away from the home. He had not gone far before he heard a woman's cries and he returned to find that Galindo had gone berserk and was striking both of the Pedersens with metal shears. Lopez then shielded Mrs. Pedersen, he testified, and applied a cloth to her wounds, while her husband lay on the bed. The two men had something to eat and changed their clothes, taking Mr. Pedersen's, took some money (the robbery charge is based on this taking), called a cab, and prepared to leave for San Francisco. Neighbors, having suspected that something was wrong, called the police and the two men were found while trying to hide under the house.

The principal point on this appeal is that of the application of the second degree felony-murder rule. The jury was instructed as follows:

‘The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of escape, and where there was in the mind of the perpetrator the specific intent to commit such a crime, is murder of the second degree.

‘The specific intent to commit escape and the commission of or attempt to commit such crime must be proved beyond a reasonable doubt.’

The crime of escape was not defined to the jury, nor was anything more said on the subject of escape.

Appellant's first contention is that the crime of escape without force or violence is not one which is inherently dangerous to human life. Since the whole theory of the second degree felony-murder rule is that one who commits a crime which is inherently dangerous to human life acts with an abandoned and malicious heart, and therefore brings himself within the definition of implied malice as set forth in Penal Code, section 188 (People v. Phillips, 64 Cal.2d 574, 584, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Washington, 62 Cal.2d 777, 780, 44 Cal.Rptr. 442, 402 P.2d 130; People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911; People v. Thomas, 41 Cal.2d 470, 479, 261 P.2d 1 [concurring opinion of Justice Traynor]), the instruction would be improper if the underlying crime were not an inherently dangerous one. Appellant argues that many escapes are from unguarded or loosely patrolled places such as work furlough camps, that many escapes are accomplished or attempted without the use of weapons because the prisoner is unable to provide himself with any, and that the prisoner, in trying to escape, is not looking for a confrontation with anyone but rather, seeks an undetected flight. The test is not whatever peril was present in the particular case, but that which is attached to the crime in the abstract. (People v. Williams, 63 Cal.2d 452, 458, 47 Cal.Rptr. 7, 406 P.2d 647; People v. Phillips, 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353; People v. Nichols, 3 Cal.3d 150, 163, 89 Cal.Rptr. 721, 474 P.2d 673.)

We conclude that although many escapes no doubt are perpetrated or attempted without considerable peril, the nature of the crime nevertheless is such as to be inherently dangerous to life. It is the duty of custodial officers to prevent the escape by force, if necessary. The prisoner may desire nothing more than an undetected flight, but he may not be and quite often is not so fortunate as to elude the officers. He comes upon an encounter with them and the danger is obvious. An escape without the actual use of force or violence may be by a prisoner who is armed and ready to attack. We observe that the Legislature has made killings first degree murder which are committed in the perpetration or attempt to perpetrate burglary, among other crimes (Pen.Code, § 189), and this includes second degree burglary. By definition, second degree burglary is committed by a person who is not armed with a deadly weapon (Pen.Code, § 460), and of course, the burglar, like the escaping prisoner, fervently hopes that he will not meet anyone during the course of the crime. Since the Legislature has made it an even higher offense for a homicide committed in the course of second degree burglary, we are convinced that homicide which directly results from perpetration of an escape is second degree murder.

Appellant's next contention is that even if escape be regarded an inherently dangerous offense, the second degree murder concept does not apply to the instant case because the crime of escape had terminated. It is necessary to consider whether escape is such a crime as to be completed when the fugitive has arrived at a place of temporary, or is one which continues beyond that point. We conclude that the crime of escape, like that of robbery, does come to such termination. In cases in which a homicide became murder in the first degree because to was committed in the perpetration of robbery, although the culprit had left the immediate scene of the encounter with the victim, it has been pointed out carefully that the robber had not reached a place of temporary safety. In People v. Boss, 210 Cal. 245, 250–251, 290 P. 881, it was reasoned that when the conspirators have not won their way momentarily to a place of safety, and the possession of the plunder is not anything more than a scrambling possession, the use of arms which was necessary to aid the felon in reducing the property to possession is necessary to protect him in its possession and in making good his escape. In People v. Carroll, 1 Cal.3d 581, 585, 83 Cal.Rptr. 176, 463 P.2d 400, it was pointed out that the crime of robbery is not complete until the robber has won his way to a place of temporary safety (citing People v. Anderson, 64 Cal.2d 633, 638, 51 Cal.Rptr. 238, 414 P.2d 366; and People v. Ketchel, 59 Cal.2d 503 523—524, 30 Cal.Rptr. 538, 381 P.2d 394).

In People v. Ford, 65 Cal.2d 41, 56—57, 52 Cal.Rptr. 228, 416 P.2d 132, many hours had elapsed between the time of the robbery and the shooting of an officer. The officer was not in pursuit of the robber and did not even know of the robber, although he knew of a subsequent crime of assault which had been committed by the robber during his flight. It was held that the first degree felony rule did not apply. In People v. Schnittspan, 250 Cal.App.2d 951, 953, 59 Cal.Rptr. 93, appellants, who had fled from a prison camp, committed a burglary, robbery, car theft and grand theft more than 48 hours after their departure from the camp and more than twenty miles away, argued that these action were all part of the single crime of escape, but it was held that escape was complete when the prisoners departed from the limits of their custody and that, therefore, there were not multiple charges of the same offense.

There are crimes which, by their nature, are continuous and which are inherently dangerous to life, such as kidnapping. Wherefore, it was held in People v. Ford, supra, 65 Cal.2d at p. 58, 52 Cal.Rptr. 228, 416 P.2d 132, that although first degree murder did not result automatically from the shooting of the officer, as explained above, second degree murder did result automatically from the commission of continuing kidnappings. But escape, we conclude, is not of the same nature as kidnapping. Kidnapping may be terminated by the felon by the releasing of his captive, but the guilty person himself is the sole subject of escape. In a certain sense, he is escaping custody until he turns himself in or is caught, even if his liberty were to endure for years as with Jean Valjean of ‘Les Miserables,’ but the crime of escape ends, as was said in People v. Schnittspan, 250 Cal.App.2d 951, 59 Cal.Rptr. 93, and also in People v. Quijada, 53 Cal.App. 39, 41, 199 P. 854, upon the violation of lawful custody. In People v. Herrera, 255 Cal.App.2d 469, 63 Cal.Rptr. 96; and People v. Temple, 203 Cal.App.2d 654, 21 Cal.Rptr. 633, the prisoners had not left the grounds of the penitentiary, but the crime of escape had been completed by their exit from the places where they were supposed to be. We take it, however, that if escaping prisoners commit a crime which is a result of their escape, during what has been called immediate pursuit or fresh pursuit (in common law it was known as hot pursuit), the crime would be second degree murder, by application of the reasoning in People v. Ford, suprai.

We consider, therefore, what the result must be by reason of the facts in the present case. The trial judge came to the conclusion that, as a matter of law, the escape was continuing at the time of the homicide. Appellant contends, first, that, as a matter of law, the crime of escape had terminated and second, that if this be not so, at least the question whither the fugitives had arrived at a place of temporary safety should have been submitted to the jury. In People v. Ford, it was held that, as a matter of law, the robbery had terminated prior to the homicide (65 Cal.2d at p. 56, 52 Cal.Rptr. 228, 416 P.2d 132). We make the same holding . The fugitives had been away from custody for two full days and nights, and for part of the first night. Although they were still being hunted, they had reached a place of temporary safety. On the night before their entry to the Pedersen home they had slept within a tool shed. At one point in their flight they had engaged in a rather amiable conversation with two high school girls in an open place. The fact that the officers apprehended the two men at the Pedersen home does not show (as respondent argues) that they had not yet reached a point of temporary safety. Nor does the fact that the officers were engaged in a continuing search do so. The fugitive from such a crime as robbery, having reached a place of refuge, may still be hunted and be the object of an all-points search, but the robbery no longer is being committed. The officers did not discover the presence of the fugitives by their own efforts, but only by information given by the Pedersens' neighbors. Nor is continuance of the crime of escape shown by the fact that it would have been helpful to flight if the men could obtain food and a change of clothing. A multitude of other acts during whatever time they remained at large would do so, and so would such acts be helpful to the fugitive from arrest for crimes other than escape.

At this point, we consider the jury's verdict on the burglary charge. It was alleged in the information that Lopez entered the dwelling with intent to commit theft. The jury found appellant not guilty. The jury therefore found that Lopez did not enter the Pedersen home with the intent of stealing food or clothing, or at least had a reasonable doubt about his guilt; this, despite the fact that the prosecution tried for conviction of first degree murder on the proposition that there was a burglary, upon which proposition instruction was given to the jury. It is to be noted that there was no charge of the crime of escape. That the jury did not find that the homicide resulted from the robbery is shown by the fact that they did not find first degree murder.

In each of the cases cited by respondent, State v. Holloway, 355 Mo. 217, 195 S.W.2d 662; State v. Lindsey, 333 Mo. 139, 62 S.W.2d 420, and Schockley v. United States (9 Cir.) 166 F.2d 704, the homicide occurred within the prison walls during attempted escape.

The next question is whether the instruction to the jury on second degree murder was prejudicial. We have no doubt that it was. Since no explanation of possible termination of escape was put before the jury, the jurors naturally would believe that escape was in progress. They could hardly avoid returning a verdict of second degree murder under the instruction which included unintentional or accidental killing. Besides, it is doubtful that the jury would have convicted Lopez of murder except by application of the felony-murder rule. Not only did they acquit him of burglary, but they also acquitted him of assault on Mrs. Pedersen, although there is no doubt that she was assaulted by someone. They may very well have believed Lopez' account of the events. It is not unlikely that they would have credited his story that Galindo had gone berserk, for there was no other explanation for Galindo's having assaulted a 92-year-old man and an aged woman with metal shears. He could have taken what he wished from the home without such violence.

The judgment of conviction of robbery is affirmed. The judgment of conviction of second degree murder is reversed.

I agree that the second-degree felony murder instruction was erroneous because appellant's escape from custody had terminated when the homicide was committed, and that the error was prejudicial. I therefore concur in the judgment, but with the reservation next noted.

I do not agree that mere escape from penal custody, as distinguished from escape ‘by force or violence’ (Pen.Code, §§ 4530, 4532), is ‘inherently dangerous to human life’ when viewed in the abstract. (People v. Nichols (1970) 3 Cal.3d 150, 163, 89 Cal.Rptr. 721, 474 P.2d 673 and cases cited.) The Legislature has in effect classified the two escapes (escape, and escape ‘by force or violence’) as separate felonies, and has prescribed more severe penalties for the latter. (Pen.Code, §§ 4530, 4532.) The validity of the legislative distinction, in my opinion, rests upon the premise that escape ‘by force or violence’ is inherently dangerous to human life, but mere ‘escape’ is not. I cannot conceive that a homicide could be the direct result of an escape not accompanied ‘by force or violence.’ It therefore seems to me that the legislative distinction should apply here, and that to speculate upon the escaper who is armed, or who might be discovered and encounter resistance, is to hypothesize ‘particular ‘facts” of a given case, which, the Supreme Court has held, we are not at liberty to do. (People v. Nichols, supra, and cases cited.)

Therefore, I find error here upon the additional ground that the felony of mere escape, when not accompanied by force or violence, and when viewed accordingly and in the abstract, does not support application of the second-degree felony murder rule. For that reason, the evidence did not support the challenged instruction here.

DEVINE, Presiding Justice.

CHRISTIAN, J., concurs.