This is a joint appeal by defendants Pamot Joey Thongvilay (herein Thongvilay) and Done Naly (herein Naly) whom separate juries found guilty of first degree murder in connection with the death of Joann Jacobs (herein Ms. Jacobs) who was killed in an automobile collision with defendants. The murder was prosecuted on a felony-murder theory, specifically, that the death occurred in the course of an automobile burglary in which defendants stole the radio from a car and were pursued by the boyfriend of the owner of the burglarized car. In an effort to evade his pursuer, Thongvilay drove through an intersection against a red light and crashed into the car driven by Ms. Jacobs. As a result of the collision she died.
Procedural Background and Facts
Around 1 a.m., March 30, 1995, Charles Cabral (herein Mr. Cabral) was standing in the driveway of his girlfriend's house in Riverside when he saw defendants breaking into his girlfriend's car. He yelled, "I don't think my stereo's your style," but defendants continued committing the crime as if they did not hear him. Mr. Cabral walked into the house to call 911. While he was on the phone, he continued to watch defendants outside the front window. As he was on the phone, his girlfriend's dad came downstairs and turned on the porch light. Shortly thereafter, defendants returned to their car and pulled away.
Mr. Cabral grabbed the keys to his girlfriend's car and ran outside to follow defendants. When he got to the car, the passenger door was open all the way. He closed the door, walked around the car and got into the driver's side. As he noticed that the stereo was missing, he started the car and drove to a street exiting the housing tract to intercept defendants and get their license plate number. There are only two ways in and two ways out of the housing tract where Mr. Cabral's girlfriend lived. When defendants saw Mr. Cabral pursuing them, they gave him an "oh shit" look and swerved around a corner to escape. As Mr. Cabral gave chase, defendants sped away.
Defendants' car struck Ms. Jacobs's car and killed her when they drove through a red stoplight while attempting to elude Mr. Cabral.
Neither defendant testified at trial; however, Thongvilay's counsel conceded, in her argument to the jury, that he was guilty of burglary and of vehicular manslaughter. Separate juries found defendants guilty of first degree felony murder and second degree auto burglary. Thongvilay pled guilty to the earlier burglary. On June 7, 1996, Thongvilay was sentenced to state prison for 25 years to life. The term for his auto burglary was stayed pursuant to section 654. On the same day, the trial court modified Naly's murder conviction to second degree murder and sentenced him to state prison for 15 years to life, also staying the term for his auto burglary pursuant to section 654.
The Felony-murder Doctrine Applies When, as Here, Defendants Caused a Death While Driving Away After Committing a Second Degree Burglary
As Thongvilay acknowledges, this same issue was raised and rejected in People v. Fuller (1978) 86 Cal.App.3d 618 [150 Cal.Rptr. 515] and People v. Bodely (1995) 32 Cal.App.4th 311 [38 Cal.Rptr.2d 72]. We agree with the Fuller and Bodely courts and thus reject defendant's contention for the reasons stated therein.
The Evidence Supports Defendants' Convictions of First Degree Felony Murder
It was the prosecution's theory that defendants killed Ms. Jacobs during the commission of the burglary and, therefore, were guilty of first degree
The foregoing jury instruction, a nearly verbatim recitation of CALJIC former No. 14.55,
In concluding the foregoing facts supported the defendant's first degree felony-murder conviction, the Sixth District applied the "escape rule" or the "one continuous transaction rule" which evolved from robbery cases based on the view "that the perpetration of a robbery continues, for felony-murder liability purposes, so long as the robbers are in flight from the scene of the crime and have not reached a place of temporary safety. [Citations.]" (People v. Bodely, supra, 32 Cal.App.4th 311, 313, original italics, citing People v. Boss (1930) 210 Cal. 245, 250-251 [290 P. 881] and People v. Salas (1972) 7 Cal.3d 812, 823 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832].) As the Bodely court observed, "While this so-called `escape rule' was originally justified by an analysis based on when the crime of robbery was `complete,' the California Supreme Court has more recently explained that the duration of felony-murder liability is not determined by considering whether the felony itself has been completed. Instead, `the homicide is
Here, defendants contend that there is insufficient evidence to support the jury's first degree felony-murder conviction because the death of Ms. Jacobs did not occur during their immediate flight from the car burglary and before they had reached a place of temporary safety. We disagree.
Mr. Cabral testified that he watched defendants as they were burglarizing his girlfriend's car. While he was on the phone with 911, he continued to
Like the jury, we find that the above evidence supports a finding that defendants had failed to reach a place of temporary safety before they caused the accident which took the life of Ms. Jacobs.
The dissent disagrees. Instead, the dissent concludes "as a matter of law ... the death and the burglary were not part of one continuous transaction." (Dis. opn., post, at p. 90.) To reach this conclusion, the dissent describes defendants' flight from the scene of the burglary as one where defendants simply "left the crime scene." (Id. at p. 91.) Likewise, it observes that there was no immediate pursuit of defendants. In response to the dissent's observations, we find ourselves asking two questions. First, if defendants simply "left the crime scene," then why did they leave the passenger door of the burglarized car wide open? To us, such evidence suggests that defendants felt the need to leave the crime scene in a hurry and thus, the simple act of closing the passenger door would have delayed their departure. In response, the dissent finds such fact irrelevant. Instead, the dissent observes "[d]efendants were burglars, after all, [and o]rdinarily burglars are not so courteous as to tidy up when they leave...." (Id. at p. 92, fn. 4.) However, if defendants were "presumably looking for another car to burglarize," (id. at p. 90.) upon leaving the present crime scene, why would they want to call attention to the fact that some nefarious act had just occurred on one car?
Second, if Mr. Cabral's actions did not constitute an immediate pursuit of defendants, what actions would have? Mr. Cabral testified that he continued to watch defendants as he called 911. However, when his girlfriend's father turned the front porch light on, defendants took flight. Mr. Cabral raced to get the keys to his girlfriend's car so that he could immediately pursue defendants. There is no evidence that he purposely, or inadvertently, delayed his actions. Instead, he immediately proceeded out of the house in pursuit of
Nonetheless, the dissent maintains that "defendants had momentarily won their way to a place of temporary safety." (Dis. opn., post, at p. 92.) We conclude otherwise. We reach such conclusion because the facts support a finding that Mr. Cabral was in immediate pursuit of defendants. In finding that defendants had reached a place of temporary safety, the dissent places too much weight on defendants' state of mind, i.e., they were "presumably looking for another car to burglarize." (Id. at p. 90.) However, defendants never testified as to their subjective beliefs. Even if they had, their belief is not dispositive on this issue. As we state in the next section, "[t]he black letter law announced in the relevant cases states the rule in terms of whether the defendant actually reached a place of temporary safety, rather than whether the defendant believed that he or she reached such a safe location. [Citations.]" (People v. Johnson (1992) 5 Cal.App.4th 552, 560 [7 Cal.Rptr.2d 23].)
The Trial Court Properly Refused to Give Defendants' Pinpoint Instructions
Defense instruction No. 2 — "A burglary is complete when the perpetrator has[,] even momentarily, reached a place of tempor[ar]y safety, and has disposed of the loot or is in unchallenged possession of the stolen property after having effected an escape with such property."
Defendants argue that these instructions would have informed the jury that they were allowed to consider defendants' subjective beliefs that they had reached a place of temporary safety and whether there was an opportunity to dispose of the stereo taken from the car. Respondent argues the instructions were properly rejected because the points defendants sought to convey were duplicative of, or adequately covered by, the given instructions. We agree with respondent. Where the proposed instructions are repetitious of others, or merely elaborate on the general instructions, the trial court may refuse to give them. (People v. Sanders (1995) 11 Cal.4th 475, 560 [46 Cal.Rptr.2d 751, 905 P.2d 420].) Furthermore, we note that neither defendant testified as to his subjective belief. This fact alone supports the trial court's decision to reject the requested instructions. Nonetheless, out of caution, we will complete our analysis of the trial court's decision.
Defense instruction No. 2 was adequately covered by CALJIC former No. 14.55, supra, (Burglary — When Still in Progress/Felony Murder) which informed the jury that a burglary was not complete until defendants had reached a place of temporary safety. Defense instruction No. 1 listed the factors which could be considered by the jury in deciding whether defendants had reached a place of temporary safety. However, whether defendants had reached a place of temporary safety is determined by an objective standard. (People v. Johnson, supra, 5 Cal.App.4th 552, 559-560.) "The black letter law announced in the relevant cases states the rule in terms of whether the defendant actually reached a place of temporary safety, rather than whether the defendant believed that he or she reached such a safe location. (See People v. Milan [(1973)] 9 Cal.3d [185,] 195 [107 Cal.Rptr. 68, 507 P.2d 956] [robbery incomplete until robber `has won his way to a place of temporary safety']; People v. Laursen [(1972)] 8 Cal.3d [192,] 200, fn. 6 [104 Cal.Rptr. 425, 501 P.2d 1145] [robbery does not terminate `until the robber reaches a location of temporary safety']; People v. Salas [(1972)]
"Certainly, appellate courts have considered the defendant's belief about whether he or she reached a place of temporary safety. (See, e.g., People v. Kendrick (1961) 56 Cal.2d 71, 90 ... [defendant's belief that officer was about to arrest him for robbery, among other evidence, establishes that robbery was not yet complete].) However, this does not indicate that the defendant's state of mind is dispositive on this issue. Objective criteria have also been considered relevant to this issue.... (See id., at pp. 76-78, 89-90 [time lapse, distance between felony and murder], People v. Fuller, supra, 86 Cal. App.3d at pp. 621-628 [homicide resulting from high-speed chase].)" (People v. Johnson, supra, 5 Cal.App.4th 552, 560.)
Thus, the issue of defendants' belief that they had reached a place of temporary safety is only one factor for the jury to consider. Under the instructions given by the trial court, defendants were able to, and did, argue all the factors, including their belief, during closing argument. As such we find no error in the trial court's refusal to give the instructions requested by defendants.
The Trial Court's Special Instruction on Felony Murder Was a Correct Statement of Law
The court then instructed the jury with its special instruction: "A burglary continues during flight as long as the perpetrators have not eluded any pursuers and reached a place of temporary safety. Whether a defendant has reached a place of temporary safety is a question of fact for you, the jury, to determine. The issue of whether the defendant believed that he had reached a place of temporary safety may be considered by the jury. [¶] But the standard to be applied to the underlying question, however, is an objective one; that is, whether the defendant has actually reached a place of temporary safety rather than whether the defendant believed that he had reached such a safe location."
On appeal, Naly complains that the trial court's special instruction, as read, is an incorrect statement of the law. We disagree. As respondent points out, the trial court's instruction parallels CALJIC former No. 14.55 and correctly states the objective standard of determining whether defendants had reached a place of temporary safety based upon all the surrounding circumstances. (People v. Johnson, supra, 5 Cal.App.4th 552, 559-560.)
The Trial Court Properly Admitted Thongvilay's Hospital Statement to Officer Clark
The trial court held a hearing on Thongvilay's in limine motion to suppress his statements wherein the various police officers testified regarding their respective questioning of defendant. The testimony showed that Officer Douglas arrived at the accident scene shortly after 1:14 a.m. Without drawing her weapon she asked Thongvilay if he knew what had happened.
Officer Douglas unsuccessfully tried to wake Naly up and determined that the female inside the car had no pulse. As the officer backed away from the car Naly jumped up and almost hit her. In response, Officer Douglas drew her weapon and told him to lie back down. When she asked Naly what had happened, he said that he and his friend crashed.
Within minutes, Officer Nhek arrived at the scene in response to Officer Douglas's call for other units and paramedics. Officer Nhek went back to Officer Douglas's patrol car when she asked him to secure or watch Thongvilay. As Officer Nhek adjusted the light in the patrol car, Thongvilay asked him if anyone was dead. Officer Nhek said that he thought the driver of the other car was dead. Thongvilay started crying. When Officer Nhek asked Thongvilay if he knew who was driving at the time of the accident, he said, "It was me. It was me that was driving."
Fifteen or twenty minutes after Officer Douglas contacted Naly, she returned to her patrol car and asked Thongvilay what had happened and if he was driving the car. Thongvilay told her that he and his friend tried to steal a car stereo, were chased by the burglary victim, ran a red light and hit the lady. He then asked, "Is she okay? My life's over; right? I'm going to jail for murder; right? She is dead; isn't she?"
Thongvilay was then taken to the hospital. About 4:20 a.m., some three hours after his statements at the accident scene, Officer Clark came to ask him some questions. Thongvilay was not in handcuffs; however, Officer Clark told him that he was under arrest for auto burglary and vehicular manslaughter. Thongvilay was read his Miranda rights. Thongvilay said that he was waiving his Miranda rights and signed the Miranda waiver form before giving the statements which the trial court ruled admissible and which he now challenges.
On appeal, Thongvilay contends the trial court erred in admitting the third statement because it was the product, or "fruit" of the two earlier unMirandized statements. We disagree.
"In Oregon v. Elstad (1985) 470 U.S. 298 ..., the United States Supreme Court rejected the notion that a subsequent confession must necessarily be excluded because it followed an otherwise voluntary statement that
Even if we were to assume that the trial court erred in admitting Thongvilay's statements at the hospital, we would find the error was harmless beyond a reasonable doubt. (People v. Cahill (1993) 5 Cal.4th 478, 531-541 [20 Cal.Rptr.2d 582, 853 P.2d 1037].) There was overwhelming independent evidence, including Thongvilay's fingerprints on Mr. Cabral's girlfriend's car window, which showed that Thongvilay and Naly burglarized the car and caused the accident which took the life of Ms. Jacobs while they were escaping the scene of the burglary.
The Trial Court Did Not Err by Failing to Instruct the Jury With CALJIC No. 2.01
Thongvilay contends that the prosecution's case "turned on an inference from the circumstance[,] ... i.e., whether the defendants had or had not reached a place of temporary safety." We disagree. Reviewing the record, it is apparent to us that the prosecution relied primarily on the direct evidence of Mr. Cabral's testimony and Thongvilay's own admissions. (People v. Marquez (1992) 1 Cal.4th 553, 577 [3 Cal.Rptr.2d 710, 822 P.2d 418];
The Trial Court Properly Denied Thongvilay's Motion to Reduce His Verdict
In order to determine whether a particular punishment is disproportionate to the offense for which it is imposed, we conduct a three-pronged analysis. (People v. Dillon, supra, 34 Cal.3d 441, 479; In re Lynch, supra, 8 Cal.3d 410, 429-438.) First, we examine the nature of the offense and/or the offender, with particular regard to the degree of danger both present to society. A look at the nature of the offense includes a look at the totality of the circumstances, including motive, the way the crime was committed, the extent of the defendant's involvement, and the consequences of defendant's acts. A look at the nature of the offender includes an inquiry into whether "the punishment is grossly disproportionate to the defendant's individual culpability as shown by such factors as his age, prior criminality, personal characteristics, and state of mind." (People v. Dillon, supra, 34 Cal.3d 441, 479.) Next, we compare the challenged punishment with the punishment prescribed for more serious crimes in the same jurisdiction. And finally, the challenged punishment is compared with punishment for the same offense in other jurisdictions.
This three-pronged analysis provides guidelines for determining whether a punishment is cruel or unusual. The importance of each prong depends on the facts of each case. An examination of the first prong alone can result in a finding of cruel or unusual punishment. (People v. Dillon, supra, 34 Cal.3d 441, 479, 482-483; People v. Young (1992) 11 Cal.App.4th 1299, 1308-1311 [15 Cal.Rptr.2d 30].) Regarding the other prongs, defendant bears the burden of proof. (In re DeBeque (1989) 212 Cal.App.3d 241, 254-255 [260 Cal.Rptr. 441].)
Nonetheless, we note that according to the probation report, Thongvilay's earlier auto burglary also involved an accident while he was fleeing the
Furthermore, we agree with respondent that Thongvilay's sentence does not shock the conscience or offend fundamental notions of human dignity. (See People v. Guinn (1994) 28 Cal.App.4th 1130, 1145-1147 [33 Cal.Rptr.2d 791] [upholding a life without possibility of parole term for 17-year-old convicted of robbery murder]; People v. Weddle (1991) 1 Cal.App.4th 1190, 1199-1200 [2 Cal.Rptr.2d 714] [upholding a 25-year-to-life term for a commercial burglar who killed his victim in a traffic accident while fleeing the scene of the burglary]; People v. Hankey (1989) 215 Cal.App.3d 510 [263 Cal.Rptr. 615], [upholding 25-year-to-life term for nonshooter convicted of robbery murder despite his youth, his lack of prior convictions and the possibility he did not intend to kill]; People v. Harpool (1984) 155 Cal.App.3d 877 [202 Cal.Rptr. 467] [upholding 25-year-to-life term of a youth convicted of robbery murder despite his young age and no felony priors].)
Finally Thongvilay claims that the same analysis argued under the California Constitution applies to his claim under the United States Constitution. Thus, he maintains that his sentence should be reversed under the Eighth Amendment as well as the California Constitution. For the reasons stated above, we disagree.
The judgments are affirmed. The trial court is ordered to prepare an amended abstract of judgment to reflect the fact that Naly was sentenced for second degree murder.
Richli, J., concurred.
I reluctantly agree with the majority's conclusion, citing People v. Fuller (1978) 86 Cal.App.3d 618 [150 Cal.Rptr. 515] and People v. Bodely (1995) 32 Cal.App.4th 311 [38 Cal.Rptr.2d 72], that a killing that occurs during the course of a burglary of a car supports first degree
According to the undisputed evidence presented in the trial court, defendants drove away after stealing the stereo and were not immediately pursued. Defendants drove slowly through the housing development for some minutes, presumably looking for another car to burglarize, before Charles Cabral began his search for defendants' red car. During that time, defendants examined and discarded the stolen stereo. Several minutes more elapsed before defendants actually encountered Cabral.
Because felony murder is a legal fiction that "ascribes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony" (People v. Washington (1965) 62 Cal.2d 777, 780 [44 Cal.Rptr. 442, 402 P.2d 130]) it "erodes the relation between criminal liability and moral culpability." (Id. at p. 783.) Where, as in this case, the underlying felony is the burglary of an unattended automobile, a crime which is not inherently dangerous to human life, I would require strict compliance with the essential factual elements of the so-called escape rule. Therefore, I would interpret the phrase "immediate pursuit" literally to require proof of actual physical pursuit without any intervening delay. That did not occur in this case. By the majority's own account of the facts, Cabral did not immediately pursue defendants. Instead, he went inside the house, called the police and then got his car keys from the nightstand in the bedroom.
During the interval of time Cabral was in the house, defendants drove away. Cabral was not pursuing them when defendants left the crime scene and that lapse in time precludes Cabral's pursuit from being "immediate." That Cabral could not immediately pursue defendants because he apparently did not have the keys to his car does not excuse the requirement that the pursuit be "immediate." Thus, defendants were not fleeing the crime scene, or escaping from immediate pursuers when they crashed into and killed Ms. Jacobs.
I base my conclusion defendants had reached a place of temporary safety, in part, on People v. Salas (1972) 7 Cal.3d 812 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832], in which the Supreme Court explained the "escape rule" and in doing so, noted, "The phrases `place of temporary safety' and `scrambling possession' are derived from the landmark case of People v. Boss (1930) 210 Cal. 245.... In that case two defendants robbed a store and ran into the street; an employee immediately pursued them and was shot by Boss a moment later when the furthermost defendant was no more than 125 feet from the store. We [the Supreme Court] held that the trial court properly instructed the jury as to first degree felony murder as the homicide was committed in the perpetration of a robbery and we stated: `It is a sound principle of law which inheres in common reason that where two or more
Defendants in this case did not "flee" the burglary; they simply left the crime scene.
The collision in this case unquestionably was related to the burglary in the sense that Cabral would not have gone out to look for defendants had he not first seen them steal the stereo from the car. Nor, presumably, would defendants have fled had they not recognized Cabral's car as one they recently burglarized. First degree felony murder requires proof of more than a relationship between the burglary and the collision. It requires proof the killing occurred during the commission of the burglary before liability equivalent to that of premeditated murder may be extended to an accidental killing.
By disagreeing with the majority, I do not intend to suggest that defendant Thongvilay, who was the driver of the car, is not criminally responsible for the death of Ms. Jacobs. As to him, the evidence might support a second degree murder conviction on an implied malice theory and clearly supports a
I, therefore, respectfully disagree with the majority and would reverse the judgments. Because I would reverse the judgments, I do not address the remaining issues defendants raise in this appeal and therefore express no view regarding the majority's resolution of those issues.
A petition for a rehearing was denied March 25, 1998, and appellants' petition for review by the Supreme Court was denied June 17, 1998. Mosk, J., was of the opinion that the petition should be granted.
"For the purposes of determining whether an unlawful killing has [occurred] during the commission [of burglary,] the commission of the crime of burglary is not confined to a fixed place or a limited period of time. [¶] A burglary is in progress after the original entry while the perpetrator is fleeing in an attempt to escape. Likewise it is still in progress so long as immediate pursuers are attempting to capture the perpetrator or to regain stolen property. [¶] A burglary is complete when the perpetrator has eluded any pursuers and reached a place of temporary safety." (CALJIC former No. 14.55, supra.)