PEOPLE v. BURROUGHS (1983)

This appeal presents a tragic factual situation in which a self-styled practitioner of the healing arts proximately caused the death of a twenty-four-year-old leukemia victim.   The defendant was convicted by a jury of second degree felony murder (Pen.Code, § 187), felony practicing medicine without a license (Bus. & Prof.Code, § 2141.5;  see present Bus. & Prof.Code, § 2053), and unlawful sale of cancer treatments.  (Health & Saf.Code, § 1707.1.)   The critical issue is whether the felony of practicing medicine without a license is inherently dangerous to human life and thereby supports application of the second degree felony-murder doctrine.  (People v. Henderson (1977) 19 Cal.3d 86, 93, 137 Cal.Rptr. 1, 560 P.2d 1180.)   We find in the affirmative on this issue and shall affirm the judgment.

The Facts

In March 1980 Lee Swatsenbarg was diagnosed as suffering from chronic granulocytic leukemia, for which there is no cure, and the average rate of survival is three to three and one-half years.   Lee was informed of the diagnosis and the terminal nature of the disease.   Through chemotherapy treatment the symptoms of enlarged liver and spleen, fever and weight loss were stabilized.   However, Lee was unable to accept his terminal status.   A friend recommended he see defendant, who had apparently helped a number of people with an unusual type of treatment.

On July 18th Lee and his wife Shelley went to defendant's home, at which time defendant lectured them on his theory of cancer and its treatment.   He stated cancer was a “scavenger” in the body which could be cleared out by a “cleansing diet” of lemonade.   The treatment also included “Vita Flex” massage and exposure to various colored lights.   Defendant told them he had healed thousands of people;  that many physicians came to him for treatment but would not send their patients as they wanted the patients' money for themselves.   Lee bought a copy of defendant's book “Healing for the Age of Enlightenment.”   He was to read the book and decide whether to start the treatment.   If he did so, defendant said he was not to return to his physician for thirty days, in which time defendant could cure the leukemia.

The Swatsenbargs returned to defendant and committed Lee to his care.   They purchased a lamp with several colored plastic sheets which would bathe Lee in green light to heal his leukemia.   Defendant told Lee to drink only the lemonade mixture (lemon juice, maple syrup and cayenne pepper), salt water and herbal tea, eat nothing, use the lights and come to him whenever Lee felt he needed a Vita Flex treatment.   At the commencement of this treatment, Lee appeared quite healthy.

In the following two weeks Lee ran a fever and his blood platelet count was extremely low.   Defendant told Lee not to worry about the platelets, which were low because of the diet and the toxins being stirred up.   At defendant's urging Lee postponed a bone marrow test his physician requested.

On Sunday August 10, Lee returned to defendant for his fourth or fifth Vita Flex treatment.   By this time, Lee was very ill with pain in his shoulder and abdominal area and unable to keep any food or drink down.   Defendant stated the pain was not due to an enlarged spleen, but was the result of a blocked ascending colon.   Defendant gave Lee a deep abdominal massage and told him he should be recovered by evening.   Rather than recovering, Lee vomited all day, suffered great pain and was unable to sleep that night.   Defendant said he had seen these symptoms before and all the patients got better.   The next day, he administered another abdominal massage.¹  Lee's condition did not improve.

On Tuesday morning Lee returned for his third massage.   Defendant stated he had gotten deeper than ever before, and it was a good treatment.   He thought the blockage would be gone by 6:00 p.m.   Lee continued to throw up all day.   The vomit turned “black and vile, smelly.”   Shelley panicked and called defendant.   He told her not to worry;  that the body was passing out the poisons and to put Lee under the orange light.   When this had no effect, Shelley called again and defendant said to try the indigo light.   At about 1:00 a.m. Shelley called defendant in anger and was told to bring Lee over for another treatment.

Lee continued to vomit after arriving at defendant's home.   Defendant appeared concerned by the amount of the vomiting, but reiterated it was a good sign.   Lee began to have convulsions but defendant said he had seen it before and not to worry.   After a second convulsion the Swatsenbargs were very frightened and wanted to call the hospital.   Defendant urged them not to call, but said it was all right if it was only to administer a colonic.   Shelley called about a colonic and was referred to her family physician.   Defendant said to wait until the morning.

Defendant asked the Swatsenbargs to leave, but on the way to the car Lee had a third convulsion.   Shelley insisted on spending the night.   Lee was put on the sofa and defendant went to bed.   Shelley sat on the floor by Lee.   He was breathing rapidly.   She tried to reassure him;  to slow his breathing and get him to sleep.   He asked her to help him sit up.   When she did so, he slumped over on her, sighed deeply three times and died.

The cause of death was a massive hemorrhage of the mesentery in the abdomen.   While leukemia may render a person more prone to bleeding, particularly when the platelet count is low, Lee's leukemia was not the cause of the bleeding.   The bleeding was caused by the abdominal massage administered by defendant.

DISCUSSION

Defendant was convicted of homicide committed in the course of an inherently dangerous felony, practicing medicine without a license ² (Former Bus. & Prof.Code, § 2141.5), which is second degree felony murder.   The jury was instructed that practicing medicine without a license under circumstances or conditions which cause or create a risk of great bodily harm, serious mental or physical illness, or death is an inherently dangerous felony.   They were also instructed if the killing occurred as a direct causal result of the commission or attempt to commit this felony, it was murder in the second degree.   The lynchpin of defendant's appeal is that it was error to give these instructions to the jury.   We disagree.

I

 Defendant first contends it was error to instruct the jury the felony of practicing medicine without a license is inherently dangerous to human life.   He urges the trial court improperly perceived the facts by concentrating on that conduct which had proved dangerous to human life and therefore concluded the felony must be inherently dangerous.   The law and the record belie this claim.

 The application of the second degree felony murder doctrine has been limited to those felonies which are “ ‘inherently dangerous to human life.’ ”  (People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892.)   In determining whether a felony involves an inherent danger to human life, the court must look to the elements of the felony in the abstract, and not to the particular facts of the case.  (People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 414 P.2d 353.)   In People v. Henderson, supra, 19 Cal.3d at page 90, 137 Cal.Rptr. 1, 560 P.2d 1180, a homicide during the course of felony false imprisonment was involved.   The Court considered the factors which raised the unlawful restraint of another's liberty to a felony, i.e.;   violence, menace, fraud or deceit, and concluded the latter two factors did not necessarily involve life-endangering conduct.   Since the felony embraced a variety of conduct, both violent and nonviolent, it was not inherently dangerous in the abstract.  (Id., at p. 94, 137 Cal.Rptr. 1, 560 P.2d 1180.)

The trial court in this case applied the reasoning of Henderson.   It noted that the factor which elevated practicing medicine without a license to a felony was the risk of causing great bodily harm, serious mental or physical illness or death.   The trial court found each element of the risk involved life endangering conduct.   We concur.   By definition the felony of practicing of medicine without a license is inherently dangerous.   It can only be committed when the defendant's conduct causes or creates a risk of great bodily harm, serious mental or physical illness or death.   Without one of these factors there is no felony.   The trial court did not err in so instructing the jury.

II

 Defendant next urges the trial court should have defined an inherently dangerous felony for the jury so it could independently determine whether the felony of practicing medicine without a license was inherently dangerous.   Whether or not a felony is inherently dangerous in the abstract is a question of law for the trial court, to be decided independently of the facts of the case.  (People v. Henderson, supra, 19 Cal.3d at p. 93, 137 Cal.Rptr. 1, 560 P.2d 1180;  People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5, 47 Cal.Rptr. 7, 406 P.2d 647.)   No such instruction was required.

Defendant's final contention on this issue is claimed error in instructing on second degree felony murder.   He urges the prosecution “fragmentized” defendant's course of conduct, isolated one segment of such conduct which proved dangerous to human life, and then improperly applied the second degree felony murder rule to this particular aspect of the conduct.   Reliance is predicated on People v. Phillips, supra, 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353.   In Phillips, the defendant chiropractor, allegedly convinced the parents of a young cancer victim to remove her from a doctor's care and commit her to his care.   The child did not have necessary surgery and died.   The conviction of second degree felony-murder was based on grand theft of fees from the parents.  (People v. Phillips, supra, 64 Cal.2d at pp. 577–578, 51 Cal.Rptr. 225, 414 P.2d 353.)   The People admitted grand theft was not itself an inherently dangerous felony, but contended defendant's entire course of conduct included elements which would make his crime inherently dangerous.   (Id., at p. 583, 51 Cal.Rptr. 225, 414 P.2d 353.)   In rejecting this contention, the Court reasoned it was wrong to “fragmentize” defendant's conduct as this would impermissibly expand the application of second degree felony-murder to any felony in which the defendant acted in a manner dangerous to human life.   The Court held the felony must be assessed in the abstract.   (Id. at pp. 583–584, 51 Cal.Rptr. 225, 414 P.2d 353.)   As grand theft was not inherently dangerous, it was error to instruct on second degree felony-murder.  (Ibid.)

III

 Defendant further asserts as error the trial court's refusal to give his requested instructions on involuntary manslaughter.³  He urges the jury could have found defendant accidentally committed the homicide during the commission of a misdemeanor, or that the massage was an ordinarily lawful act involving a high degree of risk of great bodily harm or death when done without due caution and circumspection.

As to the misdemeanor-manslaughter theory, we must disagree with defendant.   The requested instruction noted the misdemeanor must be inherently dangerous to human life.  (See fn. 3;  People v. Stuart (1956) 47 Cal.2d 167, 173, 302 P.2d 5.)   Only two misdemeanors were available in this case upon which to predicate a misdemeanor-manslaughter conviction, and neither misdemeanor practicing medicine without a license nor the sale of unauthorized cancer treatments is inherently dangerous to human life in the abstract.  (See former Bus. & Prof.Code, § 2141, Health & Saf.Code, § 1707.1.)

The trial court's stated reason for rejecting the instruction on the second theory of manslaughter—that defendant accidentally committed the homicide in the course of an ordinarily lawful act (massage) entailing a great degree of risk without due caution and circumspection—was that “manslaughter is not a lesser included offense of second degree felony murder.”   Without dwelling on the accuracy of this statement, we believe the trial court construed the charge against defendant too narrowly.

 The trial court was only required to give defendant's requested involuntary manslaughter instructions if there was substantial evidence which might have led reasonable jurors to reach such a verdict.  (People v. Jackson (1980) 28 Cal.3d 264, 305, 168 Cal.Rptr. 603, 618 P.2d 149.)   If the evidence in support of this theory proves to be minimal and insubstantial, the instruction need not be given.  (People v. Flannel (1979) 25 Cal.3d 668, 684, 160 Cal.Rptr. 84, 603 P.2d 1.)   The prosecution's only theory of homicide was that defendant committed the killing in the course of felony practicing medicine without a license.   Defendant presented evidence disputing causation and that he did not hold himself out as a licensed physician.   He presented no evidence on the theory now advanced, an accidental killing committed during the course of an ordinarily lawful act involving a high degree of risk of great bodily harm or death, done without due caution and circumspection.   Accordingly, the trial court was not required to give defendant's requested instruction on this theory.

 Moreover, even assuming the evidence presented was sufficient to require the requested instructions, the erroneous failure to give instructions on a lesser included offense is not prejudicial where it is possible to determine “the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions.”  (People v. Sedeno (1974) 10 Cal.3d 703, 721, 112 Cal.Rptr. 1, 518 P.2d 913, disapproved on another point in People v. Flannel, supra, 25 Cal.3d at pp. 684–685, fn. 12, 160 Cal.Rptr. 84, 603 P.2d 1.)   Even if there was evidence from which the jury could have reached a verdict of involuntary manslaughter on the theory of an accidental killing which occurred in the commission of a lawful act involving great risk, without due caution and circumspection, the factual predicate to this theory is that the act must be lawful.   The jury considered the lawfulness of defendant's conduct and resolved the issue adversely to him when it found him guilty of practicing medicine without a license.   The massage was part of defendant's “treatment” of the victim and the jury found this was not a lawful act.   This conclusion necessarily precluded a verdict of involuntary manslaughter on the proffered theory.   The omission of the requested manslaughter instructions did not remove a material issue from the consideration of the jury.  (People v. Sedeno, supra, 10 Cal.3d at p. 721, 112 Cal.Rptr. 1, 518 P.2d 913.)   Any error was not prejudicial.

IV

 Defendant finally urges it was error to admit into evidence the entire volume of “Healing for the Age of Enlightenment.”   He contends there was an insufficient foundation laid for the entire book, as it contained unrelated material, and that the trial judge improperly deferred to the prosecutor on defendant's objection based on Evidence Code section 352.

Defendant views the relevance of the book too narrowly.   It was relevant not only to the homicide, but also to the charge of practicing medicine without a license.   The book details defendant's method of treating various disorders using the lemonade diet, Vita Flex massage and color therapy.   The evidence showed defendant was the author and had told the Swatsenbargs they should read the book before deciding to commit Lee to his care.   Defendant told them if Lee followed the treatment outlined in the book he would be cured.   An adequate foundation was established to show the book was relevant to prove defendant was practicing medicine without a license.

Defendant argues the trial court abdicated its responsibility in ruling on defendant's Evidence Code section 352 objection to the book.   The trial court stated “although I have some reservations as to what might be in there I have to take the representation of [the prosecutor], he's been through the whole thing, that there's nothing in there that's more prejudicial than it has probative value.”   Defendant urges it was unfair for the court to rely on the prosecutor's evaluation of the evidence.   Given the nature of the objection, we do not agree.

 Defendant objected to admission of the entire book on the ground there were portions which were cumulative, inflammatory or misleading.   This broad objection, however, was the limit of his argument.   Defendant did not specify what particular photographs or passages in the book were objectionable.   There was unquestionably some relevant, admissible material in the book (e.g., the lemonade diet) but defense counsel made no effort to assist the court in segregating the material he felt was inadmissible.  “An objection to a statement or document offered in evidence, part of which is admissible, must be specifically directed to the inadmissible portion.”  (People v. Romano (1961) 197 Cal.App.2d 622, 637, 17 Cal.Rptr. 399;  emphasis added.)   It was improper for counsel to attempt to shift the burden of examining the book for inadmissible material to the trial court.  (People v. Manson (1976) 61 Cal.App.3d 102, 192, 132 Cal.Rptr. 265.)   And the trial court acted properly in refusing to accept this burden.  (Ibid.)

Even assuming the trial court failed to exercise its discretion in ruling on the section 352 objection, the error was harmless.   There was overwhelming evidence defendant was practicing medicine without a license under conditions creating a serious risk of physical harm, illness or death even without the book.   Knowing Lee Swatsenbarg was a leukemia victim whose blood platelet count was very low, defendant proceeded to put Lee on a “treatment” which required Lee to stop his chemotherapy and cease seeing his physician.   Defendant “prescribed” a very specific diet and therapy with massage and colored lights which he said would cure Lee's disease.   Despite knowledge of a diagnosed enlarged spleen, defendant insisted the diagnosis was wrong and attempted to remove the “blockage” with deep abdominal massage.   Defendant persisted in this treatment in the face of Lee's progressively worsening condition.   When finally confronted with the fatally ill, weak and frightened Lee, defendant continued to urge him not to contact a physician and to trust the efficacy of his methods.   It is not reasonably probable a result more favorable to defendant would have been reached in the absence of the challenged evidence.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

The judgment is affirmed.

FOOTNOTES

1.   Each massage cost $12 after an initial charge of $16.

2.   Felony practicing medicine without a license is a distinct crime from misdemeanor practicing without a license.   At the time of trial the felony was defined as follows:  “Any person who willfully, under circumstances or conditions which cause or create risk of great bodily harm, serious mental or physical illness, or death, practices or attempts to practice, or advertises or holds himself out as practicing, any system or mode of treating the sick or afflicted in this state, or diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury or other mental or physical condition of any person, without having at the time of so doing a valid, unrevoked certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is punishable by imprisonment in the county jail for not exceeding 1 year or in the state prison for not less than 1 year nor more than 10 years.”  (Former Bus. & Prof.Code, § 2141.5;  see present Bus. & Prof.Code, § 2053.)Misdemeanor practicing medicine without a license differs from the felony in that the phrase “willfully, under circumstances or conditions which cause or create risk of great bodily harm, serious mental or physical illness, or death,” is deleted and the specification of punishment is replaced with the phrase, “is guilty of a misdemeanor.”  (Former Bus. & Prof.Code, § 2141;  see present Bus. & Prof.Code, § 2052.)

3.   Among other instructions, defendant requested CALJIC No. 8.45 which states in relevant part:  “In order to prove the commission of the crime of involuntary manslaughter, each of the following elements must be proved:  [¶] 1.   That a human being was killed, and [¶] 2.   That the killing was unlawful.  [¶] A killing is unlawful within the meaning of this instruction if it occurred:  [¶] 1. During the commission of a misdemeanor which is inherently dangerous to human life, namely, the offense[s] of _;  or [¶] 2.   In the commission of an act ordinarily lawful which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.”

CARR, Associate Justice.

PUGLIA, P.J., and REGAN, J., concur.