escape rule in California

2023Because we conclude that the trial court’s response was appropriate, we need not address this argument separately. 12 the felony and the homicidal act, and ‘[t]he temporal relationship is established by proof the felony and the homicidal act were part of one continuous transaction.’ (Ibid.)” (People v. Wilkins (2013) 56 Cal.4th 333, 346-347 (Wilkins).) “When the killing occurs during flight, . . . the escape rule establishes the ‘outer limits of the “continuous- transaction” theory.’ ” (Id. at p. 345.) Pursuant to the escape rule, flight following a felony is considered part of the same transa

2023(Ibid.) This means that “[a] robber has not reached a place of temporary safety while an immediate and active pursuit to recover the property is in progress.” (Ibid.) Under a corollary doctrine known as the escape rule, a “‘killing committed by a robber during his or her flight from the scene of the crime, and before reaching a place of temporary safety, comes within section 189.’” (People v. Wilkins (2013) 56 Cal.4th 333, 341 .) Even if the killing is unintentional, “‘[f]elony-murder liability continues throughout the flight of a perpetrator from the scene of a robbery until the perpetrator r

2022(Ibid.) “Therefore, … for conviction of the more serious offense of aiding and abetting a robbery, a getaway driver must form the intent to facilitate or encourage commission of the robbery prior to or during the carrying away of the loot to a place of temporary safety.” (Ibid.) Cooper specifically rejected language defining the duration of the robbery as “continu[ing] through the escape to a place of temporary safety” to avoid confusion with the “escape rule,” a rule used to define the scope of liability for murder in felony-murder cases, kidnapping in perpetration of a robbery, and “other an

2015For example, in People v. Cooper (1991) 53 Cal.3d 1158 [ 282 Cal.Rptr. 450 , 811 P.2d 742 ], the court declined to apply the escape rule in the scope of determining aider and abettor *1008 liability for robbery.

2023(Compare Cavitt, supra, 33 Cal.4th at p. 204 [sua sponte instruction on the logical nexus between a burglary-robbery was not required because the evidence did not raise the issue] with Wilkins, supra, 56 Cal.4th at pp. 341, 347-348 [trial court was required to give the escape rule instruction requested by the defense because the instruction was legally correct and supported by substantial evidence].) The trial court was required to do so only if the continuous transaction doctrine and the escape rule were “ ‘closely and openly’ ” connected to the facts adduced at trial and necessary for the ju

2018In People v. Cavitt (2004) 33 Cal.4th 187 , however, the Supreme Court stated: “There is case support for the proposition that, under the escape rule, a felony continues as long as any one of the perpetrators retains control over the victim or is in flight from the crime scene. [Citations.]” (Id. at p. 209, italics added.) Shortly thereafter, the Supreme Court applied this principle in People v. Coffman and Marlow (2004) 34 Cal.4th 1 .

2023(See Montoya, supra, 7 Cal.4th at pp. 1047, 1050.) In the present case, however, the connection between the theories urged on appeal and the facts adduced at trial is not so close and open that the trial court had a sua sponte obligation to instruct on the continuous transaction doctrine or the escape rule.

2015“The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047 .) Travis’ argument that the trial court had a sua sponte duty to instruct on the escape rule overlooks the reality that such an instruction would have been inconsistent with the defense he presented at trial.

2013(See People v. Ainsworth (1988) 45 Cal.3d 984, 1016 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ]; People v Chavez (1951) 37 Cal.2d 656, 670 [ 234 P.2d 632 ].) Respondent’s argument fails because the escape rule does not define the duration of the underlying felony for purposes other than determining whether a killing or some other act has occurred in the perpetration or commission of the felony.

2013(See People v. Ainsworth (1988) 45 Cal.3d 984, 1016 [ 248 Cal.Rptr. 568 , 755 P.2d 1017 ]; People v Chavez (1951) 37 Cal.2d 656, 670 [ 234 P.2d 632 ].) Respondent’s argument fails because the escape rule does not define the duration of the underlying felony for purposes other than determining whether a killing or some other act has occurred in the perpetration or commission of the felony.

2013(See People v. Fuller (1978) 86 Cal.App.3d 618, 623 [ 150 Cal.Rptr. 515 ]; People v. Bodely (1995) 32 Cal.App.4th 311 [ 38 Cal.Rptr.2d 72 ] (Bodely).) Bodely reasoned that although a burglary is complete for other purposes when the burglar leaves the structure, “application of the escape rule to burglary is consistent with the ‘one continuous transaction’ test . . . .” (Bodely, supra, at p. 314 .) Similarly, the escape rule has been extended to felony murder in the perpetration of rape even though rape itself is complete upon penetration, because “flight following a felony has also been consid

2013(See People v. Fuller (1978) 86 Cal.App.3d 618, 623 [ 150 Cal.Rptr. 515 ]; People v. Bodely (1995) 32 Cal.App.4th 311 [ 38 Cal.Rptr.2d 72 ] (Bodely).) Bodely reasoned that although a burglary is complete for other purposes when the burglar leaves the structure, “application of the escape rule to burglary is consistent with the ‘one continuous transaction’ test . . . .” (Bodely, supra, at p. 314 .) Similarly, the escape rule has been extended to felony murder in the perpetration of rape even though rape itself is complete upon penetration, because “flight following a felony has also been consid

2016(People v. Stankewitz (1990) 51 Cal.3d 72, 101 ; People v. Fields (1983) 35 Cal.3d 329 , 365–368; People v. Carter (1993) 19 Cal.App.4th 1236 , 1251–1253; accord, CALJIC No. 8.21.1.) This limitation on felony murder liability arises from what has come to be called the “escape rule.” Under the escape rule, a killing committed by a felon during his or her flight from the scene of the underlying felony, and before reaching a place of temporary safety, is within the scope of the felony-murder statute.

2016(CALCRIM No. 3261; accord, People v. Stankewitz, supra, 51 Cal.3d at p. 101 ; People v. Fields, supra, 35 Cal.3d at pp. 337, 365–368; People v. Carter, supra, 19 Cal.App.4th at pp. 1251–1253.) That is presumably why he did not request an escape rule instruction at trial, and why on appeal he has not assigned as error the failure to give one sue sponte.

2013(See People v. Fuller (1978) 86 Cal.App.3d 618, 623 [ 150 Cal.Rptr. 515 ]; People v. Bodely (1995) 32 Cal.App.4th 311 [ 38 Cal.Rptr.2d 72 ] (Bodely).) Bodely reasoned that although a burglary is complete for other purposes when the burglar leaves the structure, “application of the escape rule to burglary is consistent with the ‘one continuous transaction’ test . . . .” (Bodely, supra, at p. 314 .) Similarly, the escape rule has been extended to felony murder in the perpetration of rape even though rape itself is complete upon penetration, because “flight following a felony has also been consid

2013Citing to People v. Fields (1983) 35 Cal.3d 329, 364-367 (Fields), and People v. Carroll (1970) 1 Cal.3d 581, 584 (Carroll), Wilkins recognized that the escape rule does not apply when a homicide occurs as part of the same transaction as a felony but before the perpetrator attempts to flee.

2021(Ibid.) Drawing from other cases, it further stated that “ ‘the applicability of the escape clause turns on whether the information existed or was reasonably available to the petitioner, and not on whether the petitioner’s failure to seek the information was reasonable.’ ” (Id. at p. 552.) The Oregon Supreme Court vacated the Hernandez-Zurita decision and remanded for reconsideration in light of Gutale (Hernandez- Zurita v. State (Or. 2019) 451 P.3d 236 ), “after which the case was jointly dismissed by the parties.” (Canales-Robles v. Laney (Or. 2021) 314 Or.App. 413, 420, fn. 1 .) Finding Gut

2021(Ibid.) Drawing from other cases, it further stated that “ ‘the applicability of the escape clause turns on whether the information existed or was reasonably available to the petitioner, and not on whether the petitioner’s failure to seek the information was reasonable.’ ” (Id. at p. 552.) The Oregon Supreme Court vacated the Hernandez-Zurita decision and remanded for reconsideration in light of Gutale (Hernandez- Zurita v. State (Or. 2019) 451 P.3d 236 ), “after which the case was jointly dismissed by the parties.” (Canales-Robles v. Laney (Or. 2021) 314 Or.App. 413, 420, fn. 1 .) Finding Gut

2013(See People v. Fuller (1978) 86 Cal.App.3d 618, 623 [ 150 Cal.Rptr. 515 ]; People v. Bodely (1995) 32 Cal.App.4th 311 [ 38 Cal.Rptr.2d 72 ] (Bodely).) Bodely reasoned that although a burglary is complete for other purposes when the burglar leaves the structure, “application of the escape rule to burglary is consistent with the ‘one continuous transaction’ test . . . .” (Bodely, supra, at p. 314 .) Similarly, the escape rule has been extended to felony murder in the perpetration of rape even though rape itself is complete upon penetration, because “flight following a felony has also been consid

2013(See People v. Fuller (1978) 86 Cal.App.3d 618, 623 [ 150 Cal.Rptr. 515 ]; People v. Bodely (1995) 32 Cal.App.4th 311 [ 38 Cal.Rptr.2d 72 ] (Bodely).) Bodely reasoned that although a burglary is complete for other purposes when the burglar leaves the structure, “application of the escape rule to burglary is consistent with the ‘one continuous transaction’ test . . . .” (Bodely, supra, at p. 314 .) Similarly, the escape rule has been extended to felony murder in the perpetration of rape even though rape itself is complete upon penetration, because “flight following a felony has also been consid

2016(People v. Wilkins (2013) 56 Cal.4th 333, 341 (Wilkins).) The escape rule serves to establish the “ ‘outer limits of the “continuous-transaction” theory.’ ” (Id. at p. 345, quoting People v. Portillo (2003) 107 Cal.App.4th 834, 846 .) Thus, the continuous transaction doctrine and the escape rule are not mutually exclusive or contradictory.

2015(Id. at p. 340.) When 8. the killing occurs during flight, the escape rule establishes the “‘outer-limits of the “continuous-transaction” theory.’” (Id. at p. 345, quoting People v. Portillo (2003) 107 Cal.App.4th 834, 846 .) Travis did not ask the trial court to provide the jury with instructions on the continuous transaction doctrine or the escape rule.

2023(See, e.g., People v. Russell (2010) 187 Cal.App.4th 981 , 991- 992; People v. Thongvilay (1998) 62 Cal.App.4th 71, 79-80 ; People v. Johnson (1992) 5 Cal.App.4th 552, 561-562 .) A nonkiller may also be liable for the killing under the escape rule.

2022(See, e.g., People v. Russell (2010) 187 Cal.App.4th 981 , 991–992 [shortly after fleeing scene of burglary, defendant was observed by police and began driving at high rate of speed, causing traffic collision that killed victim]; People v. Thongvilay (1998) 62 Cal.App.4th 71 , 79–80 [while being pursued in his car by witness to burglary, defendant ran a red light and crashed into another vehicle, killing victim]; People v. Johnson (1992) 5 Cal.App.4th 552 , 561–562 [defendant fled scene of robbery in stolen car and accidentally struck another motorist, causing her death].) Here, there is no di

2013(See People v. Fuller (1978) 86 Cal.App.3d 618, 623 [ 150 Cal.Rptr. 515 ]; People v. Bodely (1995) 32 Cal.App.4th 311 [ 38 Cal.Rptr.2d 72 ] (Bodely).) Bodely reasoned that although a burglary is complete for other purposes when the burglar leaves the structure, “application of the escape rule to burglary is consistent with the ‘one continuous transaction’ test . . . .” (Bodely, supra, at p. 314 .) Similarly, the escape rule has been extended to felony murder in the perpetration of rape even though rape itself is complete upon penetration, because “flight following a felony has also been consid

2013(See People v. Fuller (1978) 86 Cal.App.3d 618, 623 [ 150 Cal.Rptr. 515 ]; People v. Bodely (1995) 32 Cal.App.4th 311 [ 38 Cal.Rptr.2d 72 ] (Bodely).) Bodely reasoned that although a burglary is complete for other purposes when the burglar leaves the structure, “application of the escape rule to burglary is consistent with the ‘one continuous transaction’ test . . . .” (Bodely, supra, at p. 314 .) Similarly, the escape rule has been extended to felony murder in the perpetration of rape even though rape itself is complete upon penetration, because “flight following a felony has also been consid

2013(Cavitt, supra, at p. 208 .) Cavitt does not support the conclusion that an instruction on the escape rule is inapplicable in a felony-murder case like the present one, in which the complicity aspect of the felony-murder rule is not at issue and the question is whether “a killer [is] liable for first degree murder if the homicide is committed in the perpetration of a . . . burglary.” ( Cavitt, supra, 33 Cal.4th *343 at p. 196.) Cavitt notes that the escape rule applies “in the context of certain ancillary consequences of the felony.” (Id. at p. 208.) We have long recognized that one of those a

2013(Cavitt, supra, at p. 208 .) Cavitt does not support the conclusion that an instruction on the escape rule is inapplicable in a felony-murder case like the present one, in which the complicity aspect of the felony-murder rule is not at issue and the question is whether “a killer [is] liable for first degree murder if the homicide is committed in the perpetration of a . . . burglary.” ( Cavitt, supra, 33 Cal.4th *343 at p. 196.) Cavitt notes that the escape rule applies “in the context of certain ancillary consequences of the felony.” (Id. at p. 208.) We have long recognized that one of those a

2013When the jury is “misinstructed on an element of the offense . . . reversal ... is required unless we are able to conclude that the error was harmless beyond a reasonable doubt.” (People v. Hayes (1990) 52 Cal.3d 577, 628 [ 276 Cal.Rptr. 874 , 802 P.2d 376 ] [misinstruction on “immediate presence” element of robbery required reversal under Chapman standard]; see People v. Harris (1994) 9 Cal.4th 407 [ 37 Cal.Rptr.2d 200 , 886 P.2d 1193 ] [misinstruction on “immediate presence’.’ element of robbery was harmless beyond a reasonable doubt].) Defendant contends that the trial court’s failure to in

2013When the jury is “misinstructed on an element of the offense . . . reversal ... is required unless we are able to conclude that the error was harmless beyond a reasonable doubt.” (People v. Hayes (1990) 52 Cal.3d 577, 628 [ 276 Cal.Rptr. 874 , 802 P.2d 376 ] [misinstruction on “immediate presence” element of robbery required reversal under Chapman standard]; see People v. Harris (1994) 9 Cal.4th 407 [ 37 Cal.Rptr.2d 200 , 886 P.2d 1193 ] [misinstruction on “immediate presence’.’ element of robbery was harmless beyond a reasonable doubt].) Defendant contends that the trial court’s failure to in

2024(See, e.g., People v. Russell (2010) 187 Cal.App.4th 981 , 987–988, discussing application of the escape doctrine in determining whether a killing and an underlying felony are part of one 7 continuous transaction.) But even if Dadabhai could have been prosecuted for felony murder, the changes to the law do not alter the result because they apply only to accomplices “who were neither the actual killers nor intended to kill anyone.” (Strong, supra, 13 Cal.5th at p. 707 .) The implied malice theory of felony murder for actual killers remains unchanged by Senate Bill 1437.

2015This argument conflicts with the holding in People v. Russell (2010) 187 Cal.App.4th 981 (Russell), where the appellant claimed that liability under the escape rule requires evidence showing the perpetrator was actively chased from the scene of the felony (in that case a burglary), or at a minimum that someone reported the crime to police following the perpetrator’s departure from the scene.

2013(Cavitt, supra, at p. 208 .) Cavitt does not support the conclusion that an instruction on the escape rule is inapplicable in a felony-murder case like the present one, in which the complicity aspect of the felony-murder rule is not at issue and the question is whether “a killer [is] liable for first degree murder if the homicide is committed in the perpetration of a . . . burglary.” ( Cavitt, supra, 33 Cal.4th *343 at p. 196.) Cavitt notes that the escape rule applies “in the context of certain ancillary consequences of the felony.” (Id. at p. 208.) We have long recognized that one of those a

2013(People v. Boss (1930) 210 Cal. 245, 250-251 [explaining that a robbery is not completed as long as the robbers are fleeing from the scene of the crime, having “not won their way even momentarily to a place of temporary safety and the possession of the plunder is nothing more than a scrambling possession.”].) The escape rule extends felony murder liability to accidental deaths occurring during a perpetrator’s flight from a robbery scene “ ‘because the robbery and the accidental death . . . are parts of a “continuous transaction”.’ ” (People v. Wilkins (2013) 56 Cal.4th 333, 345 (Wilkins).) Thu

2023(See, e.g., People v. Russell (2010) 187 Cal.App.4th 981 , 991- 992; People v. Thongvilay (1998) 62 Cal.App.4th 71, 79-80 ; People v. Johnson (1992) 5 Cal.App.4th 552, 561-562 .) A nonkiller may also be liable for the killing under the escape rule.

2022(See, e.g., People v. Russell (2010) 187 Cal.App.4th 981 , 991–992 [shortly after fleeing scene of burglary, defendant was observed by police and began driving at high rate of speed, causing traffic collision that killed victim]; People v. Thongvilay (1998) 62 Cal.App.4th 71 , 79–80 [while being pursued in his car by witness to burglary, defendant ran a red light and crashed into another vehicle, killing victim]; People v. Johnson (1992) 5 Cal.App.4th 552 , 561–562 [defendant fled scene of robbery in stolen car and accidentally struck another motorist, causing her death].) Here, there is no di

2016(Id. at pp. 347-348.) The court found the error prejudicial under either Chapman v. California (1967) 386 U.S. 18 (Chapman) or People v. Watson (1956) 46 Cal.2d 818 (Watson), there being a reasonable probability a jury properly instructed on the escape rule would have concluded that Wilkins had reached a place of temporary safety before the fatal act occurred and was not guilty of felony murder. ( Wilkins, supra, at pp. 349– 351.) Thus, by our reading, Wilkins merely reconfirmed the importance of the escape rule in the context of felony murder as applied in a single perpetrator case; it did no

2015There was no evidence that anyone was following him or that anyone was even aware of the burglary.” (Id. at pp. 347-348.) Travis argues the Wilkins opinion “held that giving CALCRIM No. 549 without instruction on the escape rule results in misinstruction on an essential element of felony murder, which must be reviewed as federal constitutional error using the Chapman test [Chapman v. California (1967) 386 U.S. 18 (Chapman)].” His synopsis is not entirely accurate.