IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S105058
v.
) Ct.App.
1/3
A081492
JAMES FREDDIE CAVITT,
San
Mateo
County
Defendant and Appellant.
Super. Ct. No. SC038915B
)
THE PEOPLE,
Plaintiff and Respondent,
S105058
v.
) Ct.App.
1/3
A088117
ROBERT NATHANIEL WILLIAMS,
San
Mateo
County
Defendant and Appellant.
Super. Ct. No. SC038915C
Defendants James Cavitt and Robert Williams were convicted in separate
trials of the felony murder of 58-year-old Betty McKnight, the stepmother of
Cavitt’s girlfriend, Mianta McKnight. Defendants admitted plotting with Mianta
to enter the McKnight home, to catch Betty unawares and tie her up, and to steal
Betty’s jewelry and other property. On the evening of December 1, 1995, with
Mianta’s assistance, the plan went forward. Defendants entered the house, threw a
sheet over Betty’s head, bound this hooded sheet to her wrists and ankles with
rope and duct tape, and escaped with guns, jewelry, and other valuables from the
bedroom. Betty was beaten and left hog-tied, face down on the bed. Her
breathing was labored. Before leaving, defendants made it appear that Mianta was
a victim by pretending to tie her up as well. By the time Mianta untied herself and
called her father to report the burglary-robbery, Betty had died from asphyxiation.
The evidence at trial amply supported a finding that defendants were the
direct perpetrators of the murder. However, there was also evidence that tended to
support the defense theory—namely, that Mianta deliberately suffocated Betty, for
reasons independent of the burglary-robbery, after defendants had escaped and
reached a place of temporary safety. Defendants assert that the felony-murder rule
would not apply to this scenario and that the trial court’s instructions erroneously
denied the jury the opportunity to consider their theory.
Because the jury could have convicted defendants without finding they
were the direct perpetrators of the murder, we granted review to clarify a
nonkiller’s liability for a killing “committed in the perpetration” of an inherently
dangerous felony under Penal Code section 189’s felony-murder rule.1 (See
People v. Pulido (1997) 15 Cal.4th 713, 720-723 (Pulido).) We hold that, in such
circumstances, the felony-murder rule requires both a causal relationship and a
temporal relationship between the underlying felony and the act resulting in death.
The causal relationship is established by proof of a logical nexus, beyond mere
coincidence of time and place, between the homicidal act and the underlying
felony the nonkiller committed or attempted to commit. The temporal relationship
is established by proof the felony and the homicidal act were part of one
1
The jury also found true the burglary-murder and robbery-murder special
circumstances. Defendants have not independently challenged the special
circumstance findings in this proceeding, and we express no views here as to the
scope of a nonkiller’s liability under the felony-murder special-circumstance
provisions.
2
continuous transaction. Applying these rules to the facts here, we affirm the
judgments of the Court of Appeal.
BACKGROUND
Defendant James Cavitt started dating Mianta McKnight in January 1995.
Mianta’s father, Philip, and her stepmother, Betty, disapproved of the relationship.
Concerned about Mianta’s late-night dating and her high school truancy, Philip
insisted that Mianta move from Oakland, where she had been living with Philip’s
niece, back to Brisbane to live with him and Betty. He hoped this would keep her
away from Cavitt.
After moving back to Brisbane in November 1995, Mianta became upset
that Philip and Betty did not allow her to go on dates with Cavitt. Her relationship
with Betty in particular had been rocky for some time, and she often told her
schoolmates that she hated Betty.
Around the end of November 1995, 17-year-old Mianta, 17-year-old Cavitt,
and Cavitt’s friend, 16-year-old defendant Robert Williams, developed a plan to
burglarize the McKnight house, where Mianta was then living. The plan was to
enter the house with Mianta’s assistance, tie up Betty, and steal what they could
find. The three scheduled the burglary-robbery for December 1. On that
afternoon, Mianta purchased rope and packing tape on the way home from school.
Later on, she placed a bed sheet outside the house and left the side door unlocked.
Around 6:30 p.m., Williams and Cavitt drove together to the McKnight
house. They were wearing black clothes, gloves, and hockey masks and were
carrying duct tape. Between 7:00 and 7:15 p.m., Mianta met them at the side door,
gave them the rope she had just bought, and told them Betty was upstairs in bed.
All three went upstairs. Cavitt and Williams threw the sheet over Betty’s head.
While Cavitt secured the sheet around Betty’s head with duct tape, Williams
fastened Betty’s wrists together with plastic flex cuffs. Then they used the rope to
3
bind her ankles and wrists together with the sheet, creating a kind of hood for
Betty’s head. During the process, Cavitt and Williams also punched Betty in the
back with their fists to get her to be quiet. Betty sustained extensive bruising to
her face, shoulders, arms, legs, ankles and wrists, consistent with blunt force
trauma.
After Betty was immobilized, Cavitt, Williams, and Mianta ransacked the
bedroom, removing cash, cameras, Rolex watches, jewelry, and two handguns.
Before leaving, Cavitt and Williams pretended to bind Mianta and placed her on
the bed next to Betty. Cavitt and Williams each claimed that Betty was still
breathing, although with difficulty, when they left her, face down on the bed.
After Mianta freed herself, she turned Betty over onto her back. Mianta
claimed she removed duct tape from Betty’s mouth. Betty did not move and did
not appear to be breathing. Mianta called her father to tell him they had been
robbed. She also told him Betty was unconscious. Philip immediately reported
the incident to the Brisbane Police Department at 7:44 p.m. When the dispatcher
called the McKnight house at 7:45 p.m., Mianta claimed that robbers had entered
the house while she was downstairs watching television, had put a sheet over her
head, and had knocked her unconscious; that she was eventually able to free
herself; that she had called her father to report the crime; and that her stepmother
was unconscious.
Brisbane police arrived at 7:52 p.m. Betty was on her back on the bed. She
was not breathing and had no pulse. Her hands were bound behind her, and her
wrists and ankles were tied together with a rope. Officers attempted
cardiopulmonary resuscitation. Paramedics obtained a heartbeat at 8:11 p.m., but
Betty had already suffered severe and irreversible brain injury. She was
pronounced dead the next morning. The cause of death was insufficient oxygen,
4
or anoxia, caused by asphyxiation. The injuries she sustained were a contributing
cause.
During conversations with police and a neighbor, Mianta reiterated her
claim that unidentified robbers had somehow entered the house, that they had
wrapped her in a sheet and knocked her unconscious, and that she had been unable
to untie herself until after the robbers left, at which point she discovered that her
stepmother was unconscious. When police secured Philip’s consent to conduct a
polygraph of his daughter, however, Mianta eventually confessed to her
involvement in the burglary-robbery. Cavitt and Williams were arrested on
December 2 and also confessed. While being transported to juvenile hall, Cavitt
said to Williams, “Man, we fucked up. We should have just shot her.”
Police found the stolen jewelry, cameras, and handguns at Cavitt’s home, as
well as black clothing, gloves, and hockey masks.
Cavitt and Williams, who were tried separately, contended that Mianta
must have killed Betty after they had left and for reasons unrelated to the burglary-
robbery. To that end, they offered evidence tending to show that Mianta hated her
stepmother, that Mianta had expressed to her schoolmates a desire to kill her
stepmother, and that Betty could have been suffocated after Cavitt and Williams
had returned to Cavitt’s home with the loot.
Cavitt and Williams were convicted of first degree murder with the special
circumstances of robbery murder and burglary murder, as well as certain lesser
offenses. Cavitt was also convicted of personally inflicting great bodily injury in
the commission of the murder. Each was sentenced to an unstayed term of 25
years to life. (See Pen. Code, § 190.5, subd. (b).) The Court of Appeal, having
ordered the cases consolidated for purposes of oral argument and decision,
affirmed in an unpublished decision.
5
DISCUSSION
This case involves the “ ‘complicity aspect’ ” of the felony-murder rule.
(Pulido, supra, 15 Cal.4th at p. 720.) As in Pulido, we are not concerned with that
part of the felony-murder rule making a killer liable for first degree murder if the
homicide is committed in the perpetration of a robbery or burglary. Rather, the
question here involves “a nonkiller’s liability for the felony murder committed by
another.” (Id. at p. 720.)
Defendants contend that a nonkiller can be liable for the felony murder
committed by another only if the act resulting in death facilitated the commission
of the underlying felony. Since (in their view) the evidence here would have
supported the inference that Mianta killed her stepmother out of a private animus,
and not to advance the burglary-robbery, they claim that the trial court’s failure to
instruct the jury on the requirement that the killing facilitate the burglary-robbery
mandates reversal of their felony-murder convictions. The Attorney General, on
the other hand, asserts that no causal relationship need exist between the
underlying felony and the killing. In his view, it is enough that the act resulting in
death occurred at the same time as the burglary and robbery.
After reviewing our case law, we find that neither formulation satisfactorily
describes the complicity aspect of California’s felony-murder rule. We hold
instead that the felony-murder rule does not apply to nonkillers where the act
resulting in death is completely unrelated to the underlying felony other than
occurring at the same time and place. Under California law, there must be a
logical nexus—i.e., more than mere coincidence of time and place—between the
felony and the act resulting in death before the felony-murder rule may be applied
to a nonkiller. Evidence that the killing facilitated or aided the underlying felony
is relevant but is not essential.
6
We also hold that the requisite temporal relationship between the felony
and the homicidal act exists even if the nonkiller is not physically present at the
time of the homicide, as long as the felony that the nonkiller committed or
attempted to commit and the homicidal act are part of one continuous transaction.
A
“All murder . . . which is committed in the perpetration of, or attempt to
perpetrate [certain enumerated felonies including robbery and burglary] . . . is
murder of the first degree.” (Pen. Code, § 189.) The mental state required is
simply the specific intent to commit the underlying felony (People v. Gutierrez
(2002) 28 Cal.4th 1083, 1140), since only those felonies that are inherently
dangerous to life or pose a significant prospect of violence are enumerated in the
statute. (People v. Roberts (1992) 2 Cal.4th 271, 316 [“the consequences of the
evil act are so natural or probable that liability is established as a matter of
policy”]; People v. Washington (1965) 62 Cal.2d 777, 780; 2 La Fave, Substantive
Criminal Law (2d ed. 2003) § 14.5(b), p. 449.) “Once a person has embarked
upon a course of conduct for one of the enumerated felonious purposes, he comes
directly within a clear legislative warning—if a death results from his commission
of that felony it will be first degree murder, regardless of the circumstances.”
(People v. Burton (1971) 6 Cal.3d 375, 387-388 (Burton).)
The purpose of the felony-murder rule is to deter those who commit the
enumerated felonies from killing by holding them strictly responsible for any
killing committed by a cofelon, whether intentional, negligent, or accidental,
during the perpetration or attempted perpetration of the felony. (Burton, supra, 6
Cal.3d at p. 388.) “The Legislature has said in effect that this deterrent purpose
outweighs the normal legislative policy of examining the individual state of mind
of each person causing an unlawful killing to determine whether the killing was
with or without malice, deliberate or accidental, and calibrating our treatment of
7
the person accordingly. Once a person perpetrates or attempts to perpetrate one of
the enumerated felonies, then in the judgment of the Legislature, he is no longer
entitled to such fine judicial calibration, but will be deemed guilty of first degree
murder for any homicide committed in the course thereof.” (Ibid.)
1
Defendants contend that a nonkiller’s liability for the felony murder
committed by a cofelon depends on proof of a very specific causal relationship
between the homicidal act and the underlying felony—namely, that the killer
intended thereby to advance or facilitate the felony. Yet, defendants cite no case
in which we have relieved a nonkiller of felony-murder liability because of
insufficient proof that the killer actually intended to advance or facilitate the
underlying felony. Indeed, the felony-murder rule is intended to eliminate the
need to plumb the parties’ peculiar intent with respect to a killing committed
during the perpetration of the felony. (Burton, supra, 6 Cal.3d at p. 388.)2
Defendants’ formulation, which finds no support in the statutory text, would
thwart that goal.
Moreover, defendants’ formulation is at odds with a fundamental purpose
of the felony-murder rule, which is “ ‘to deter felons from killing negligently or
accidentally by holding them strictly responsible for killings they commit.’ ”
(People v. Billa (2003) 31 Cal.4th 1064, 1069.) It is difficult to imagine how
homicidal acts that are unintentional, negligent, or accidental could be said to have
advanced or facilitated the underlying felony when those acts are, by their nature,
unintended.
2
As we have previously explained, it is no defense to felony murder that the
nonkiller did not intend to kill, forbade his associates to kill, or was himself
unarmed. (People v. Boss (1930) 210 Cal. 245, 249; People v. Floyd (1970) 1
Cal.3d 694, 707, disapproved on other grounds in People v. Wheeler (1978) 22
Cal.3d 258, 287, fn. 36.)
8
Defendants make little effort to grapple with the policies underlying the
felony-murder rule and rely instead almost entirely on our oft-repeated observation
in People v. Vasquez (1875) 49 Cal. 560 (Vasquez) that “ ‘[i]f the homicide in
question was committed by one of [the nonkiller’s] associates engaged in the
robbery, in furtherance of their common purpose to rob, he is as accountable as
though his own hand had intentionally given the fatal blow, and is guilty of
murder in the first degree.’ ” (Id. at p. 563, italics added.) Relying on Vasquez,
defendants claim the felony-murder rule requires proof that the homicidal act have
advanced or facilitated the underlying felony. Defendants misread Vasquez.
In the century and a quarter since Vasquez was decided, we have never
construed it to require a killing to advance or facilitate the felony, so long as some
logical nexus existed between the two. To the contrary, in People v. Olsen (1889)
80 Cal. 122, 125 (Olsen), overruled on other grounds in People v. Green (1956) 47
Cal.2d 209, 227, 232, we upheld an instruction that based a nonkiller’s complicity
on a killing that was committed merely “in the prosecution of the common
design”—and, in Pulido, we observed that this instruction was “similar” to the
Vasquez formulation. (Pulido, supra, 15 Cal.4th at p. 720.) The similarity, of
course, is that both require a logical nexus between the homicidal act and the
underlying felony. Although evidence that the fatal act facilitated or promoted the
felony is unquestionably relevant to establishing that nexus, California case law
has not yet required that such evidence be presented in every case.
Such a requirement finds no support in the statutory text, either. Penal
Code section 189 states only that “[a]ll murder . . . which is committed in the
perpetration of, or attempt to perpetrate” the enumerated felonies “is murder of the
first degree.” (Pen. Code, § 189.) Nowhere has the Legislature imposed a
requirement that the killer intended the act causing death to further the felony. We
are therefore reluctant to derive such a requirement from the “in furtherance”
9
discussion in our case law, which is itself only a court-created gloss on section
189.
Indeed, even jurisdictions whose felony-murder statutes require the
homicidal act be “in furtherance” of an enumerated felony do not require proof
that the act furthered or aided the felony. People v. Lewis (N.Y.Sup.Ct. 1981) 111
Misc.2d 682, 686 [444 N.Y.S.2d 1003, 1006], which construed a New York
felony-murder statute that included this language, is instructive: “This equation of
‘in furtherance’ with ‘in aid of’ or ‘in advancement of’ has the virtue of linguistic
accuracy, but is at odds with both the history and purpose of the ‘in furtherance’
requirement. The phrase can best be understood as the third logical link in the
triad which must be present to connect a felony with a consequent homicide. Just
as ‘in the course of’ imposes a duration requirement, [and] ‘causes the death’ a
causation requirement, ‘in furtherance’ places a relation requirement between the
felony and the homicide. More than the mere coincidence to time and place
[citation], the nexus must be one of logic or plan. Excluded are those deaths
which are so far outside the ambit of the plan of the felony and its execution as to
be unrelated to them.” In sum, it is “a misinterpretation of the phrase to require
that the murder bring success to the felonious purpose.” (Id. at p. 687 [444
N.Y.S.2d at pp. 1006-1007]; State v. Young (Conn. 1983) 469 A.2d 1189, 1193
[“New York courts have construed the phrase to impose the requirement of a
logical nexus between the felony and the homicide”]; see also State v.
Montgomery (Conn. 2000) 759 A.2d 995, 1020 [“ ‘ “The phrase ‘in furtherance of’
was intended to impose the requirement of a relationship between the underlying
felony and the homicide beyond that of mere causation in fact” ’ ”].) We likewise
construe Penal Code section 189 to require only a logical nexus between the
felony and the homicide.
10
Defendants’ proffered interpretation would also lead to absurd results.
Consider the situation in which a fire is set and the defendant departs by the time a
firefighter arrives and dies in the course of combating the fire. A Washington
appellate court, embracing defendants’ approach, interpreted the “in furtherance”
requirement in its felony-murder statute to relieve a defendant-arsonist from
liability in those circumstances: “Here, there is no evidence from which any
reasonable juror could conclude that in acting to advance or promote the arson,
[defendant] caused [the victim’s] death.” (State v. Leech (Wash.Ct.App. 1989)
775 P.2d 463, 466.) The Washington Supreme Court rejected this approach and
upheld the felony-murder conviction, finding it sufficient that there was a temporal
and causal connection between the arson and the death. (State v. Leech (Wash.
1990) 790 P.2d 160, 163-165 & fn. 21, revg. State v. Leech, supra, 775 P.2d 463;
accord, Morris, The Felon’s Responsibility for the Lethal Acts of Others (1956)
105 U.Pa. L.Rev. 50, 79-80 (Morris).)
The Attorney General, on the other hand, contends that the requisite intent,
combined with a killing by a cofelon that occurs while the felony is ongoing, is
sufficient to establish the nonkiller’s liability for felony murder. His formulation,
in other words, would require only a temporal connection between the homicidal
act and the underlying felony. This description of the relationship between the
killing and the felony is incomplete. We have often required more than mere
coincidence in time and place between the felony and the act resulting in death to
establish a nonkiller’s liability for felony murder. In People v. Washington, supra,
62 Cal.2d 777, for example, we reversed a conviction of felony murder where the
accomplice was killed during the robbery by the victim. We held that Penal Code
section 189 requires “that the felon or his accomplice commit the killing, for if he
does not, the killing is not committed to perpetrate the felony.” (Washington,
supra, at p. 781.) In Pulido, supra, 15 Cal.4th 713, we held that section 189 does
11
not apply even where a cofelon committed the killing during a robbery, if the
nonkiller did not join the felony until after the killing occurred. (Pulido, supra, at
p. 716.)
The Attorney General correctly points out that we have approved
instructions imposing felony-murder liability on a nonkiller “if a human being is
killed by any one of several persons jointly engaged at the time of such killing in
the perpetration of or an attempt to perpetrate the crime of robbery, whether such
killing is intentional, or unintentional, or accidental.” (People v. Perry (1925) 195
Cal. 623, 637; People v. Martin (1938) 12 Cal.2d 466, 472.) But this “well-
settled” formulation (Martin, supra, at p. 472) does not suggest that no causal
connection need exist between the felony and the act resulting in death. By its
terms, the Martin-Perry formulation requires the parties to have been jointly
engaged in the perpetration or the attempt to perpetrate the felony at the time of
the act resulting in death. A confederate who performs a homicidal act that is
completely unrelated to the felony for which the parties have combined cannot be
said to have been “jointly engaged” in the perpetration or attempt to perpetrate the
felony at the time of the killing. Otherwise, “if one of two burglars ransacking a
home glances out of a window, sees his enemy for whom he has long been
searching and shoots him, the unarmed accomplice, party only to the burglary, will
be guilty of murder in the first degree.” (Morris, supra, 105 U.Pa. L.Rev. at p.
73.)
California law thus has long required some logical connection between the
felony and the act resulting in death, and rightly so. Yet the requisite connection
has not depended on proof that the homicidal act furthered or facilitated the
underlying felony. Instead, for a nonkiller to be responsible for a homicide
committed by a cofelon under the felony-murder rule, there must be a logical
12
nexus, beyond mere coincidence of time and place, between the felony the parties
were committing or attempting to commit and the act resulting in death.
We therefore reject the assumption—shared by both parties—that the “ ‘in
furtherance’ ” (e.g., Vasquez, supra, 49 Cal. at p. 563) and “jointly engaged” (e.g.,
People v. Martin, supra, 12 Cal.2d at p. 472) formulations articulate opposing
standards of felony-murder liability. The latter does not mean—as the Attorney
General suggests—that mere coincidence of time and place between the felony
and the homicide is sufficient. And the former does not require—as defendants
suggest—that the killer intended the homicidal act to aid or promote the felony.
Rather, Vasquez and Martin have merely used different words to convey the same
concept: to exclude homicidal acts that are completely unrelated to the felony for
which the parties have combined, and to require instead a logical nexus between
the felony and the homicide beyond a mere coincidence of time or place.
2
One of the most discussed cases in this area—People v. Cabaltero (1939)
31 Cal.App.2d 52 (Cabaltero)3—merits additional analysis.
In Cabaltero, six defendants were convicted of felony murder, based on the
killing of an accomplice (Ancheta) during the perpetration of the robbery of a rural
landowner (Nishida). The conspirators plotted to rob Nishida on payday by
creating an altercation that would divert attention from the robbery. One of the
conspirators was to create the distraction; two others were to rob Nishida; two
more were to stand guard outside the building where the robbery was to take
place; and Cabaltero was to drive the getaway car. (Id. at pp. 55-56.) The robbery
proceeded as planned, and the loot was obtained at gunpoint without anyone firing
3
See, e.g., Pulido, supra, 15 Cal.4th at page 722 and footnote 2, and
citations therein.
13
a shot. Meanwhile, Ancheta, who was standing guard outside, fired shots at two
people who had just driven up. Immediately after the shots were fired, one of the
robbers emerged from the building, exclaimed, “Damn you, what did you shoot
for,” and shot Ancheta fatally. (Id. at p. 56.)
Some courts and commentators have criticized Cabaltero, charging that it
sustained felony-murder liability for nonkillers based merely on “the deliberate
acts of one accomplice, outside the conspiracy, ‘outside the risk’ of the
conspiracy, and serving only his personal animus.” (Morris, supra, 105 U.Pa.
L.Rev. at p. 73.) As we have explained above, we agree that a nonkiller cannot be
liable under the felony-murder rule where the killing has no relation to the felony
other than mere coincidence of time and place. Cabaltero does not appear to be
such a case, however. Viewing the situation objectively, it seems plain that
Ancheta was shot as punishment for the greatly increased risk of detection caused
by his decision to fire at two people who were approaching the building. To the
extent the Ancheta shooting was intended to aid in the escape from the robbery
(Cabaltero, supra, 31 Cal.App.2d at pp. 61-62), the homicide would satisfy even
the strict causal connection demanded by defendants. Accordingly, a logical
nexus between the homicide and the felony existed in that case.
3
Substantial evidence of a logical nexus between the burglary-robbery and
the murder exists in this case as well. The record supports a finding that
defendants and/or Mianta killed Betty to eliminate the sole witness to the burglary-
robbery or that Betty died accidentally as a result of being bound and gagged
during the burglary-robbery. Either theory is sufficient to support the judgment.
(E.g., People v. Kimble (1988) 44 Cal.3d 480, 502 (Kimble).) Even if the jury
believed that defendants did not want to kill Betty or that they conditioned their
participation in the burglary-robbery on the understanding that Betty not get hurt,
14
it would not be a defense to felony murder. (People v. Boss, supra, 210 Cal. at p.
249; Vasquez, supra, 49 Cal. at pp. 562-563.)
As defendants point out, however, the record might also have supported a
finding that Mianta killed Betty out of a private animus and not to aid or promote
the burglary-robbery. Defendants contend that the jury instructions, by omitting
any requirement that the homicidal act be “in furtherance of” the burglary-robbery,
failed to apprise the jury of this latter possibility and therefore mandate reversal of
their convictions.
We disagree. Although we have used the “in furtherance” phrase with
some frequency in our opinions, we also recognize that this wording has the
potential to sow confusion if used in the instructions to the jury. (See Francis v.
City & County of San Francisco (1955) 44 Cal.2d 335, 341 [“The admonition has
been frequently stated that it is dangerous to frame an instruction upon isolated
extracts from the opinions of the court”]; Merritt v. Reserve Ins. Co. (1973) 34
Cal.App.3d 858, 876, fn. 5.) Indeed, as we have explained above, the felony-
murder rule does not require proof that the homicidal act furthered or facilitated
the felony, only that a logical nexus exist between the two. We therefore do not
find the jury instructions deficient merely because the “in furtherance” phrasing
was omitted. We must instead measure the instructions against the applicable law
as set forth in part A.1, ante.
The instructions in Cavitt’s case tracked CALJIC No. 8.27 and provided in
relevant part: “If a human being is killed by one of several persons engaged in the
commission of the crimes of robbery or burglary, all persons, who either directly
and actively commit the act constituting that crime, or who with knowledge of the
unlawful purpose of the perpetrator of the crime and with the intent or purpose of
committing, encouraging or facilitating the commission of the offense, aid,
promote, encourage or instigate by act or advice its commission, are guilty of
15
murder in the first degree, whether the killing is intentional, unintentional or
accidental.” Williams’s jury received a substantively similar instruction.4
The instructions adequately apprised the jury of the need for a logical nexus
between the felonies and the homicide in this case. To convict, the jury
necessarily found that “the killing occurred during the commission or attempted
commission of robbery or burglary” by “one of several persons engaged in the
commission” of those crimes.” The first of these described a temporal connection
between the crimes; the second described the logical nexus. A burglar who
happens to spy a lifelong enemy through the window of the house and fires a fatal
shot, as in Professor Morris’s example (Morris, supra, 105 U.Pa. L.Rev. at p. 73),
may have committed a killing while the robbery and burglary were taking place
but cannot be said to have been “engaged in the commission” of those crimes at
the time the shot was fired.
We further find that the trial court had no sua sponte duty to clarify the
logical-nexus requirement. The existence of a logical nexus between the felony
and the murder in the felony-murder context, like the relationship between the
robbery and the murder in the context of the felony-murder special circumstance
(People v. Green (1980) 27 Cal.3d 1, 59-62), is not a separate element of the
charged crime but, rather, a clarification of the scope of an element. (Kimble,
supra, 44 Cal.3d at p. 501.) “[T]he mere act of ‘clarifying’ the scope of an
4
“If a human being is killed by any one of several persons engaged in the
commission or attempted commission of the crime[s] of burglary or robbery, all
persons, who either directly and actively commit the act constituting that crime, or
who with knowledge of the unlawful purpose of the perpetrator of the crime and
with the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, aid, promote, encourage, or instigate by act or advice
its commission, are guilty of murder in the first degree, whether the killing is
intentional, unintentional, or accidental.”
16
element of a crime or a special circumstance does not create a new and separate
element of that crime or special circumstance.” (Ibid.)
Hence, if the requisite nexus between the felony and the homicidal act is
not at issue and the trial court has otherwise adequately explained the general
principles of law requiring a determination whether the killing was committed in
the perpetration of the felony, “it is the defendant’s obligation to request any
clarifying or amplifying instructions on the subject.” (People v. Garrison (1989)
47 Cal.3d 746, 791.) “Sua sponte instructions are required only ‘ “ ‘on the general
principles of law relevant to the issues raised by the evidence. [Citations.] The
general principles of law governing the case are those principles closely and
openly connected with the facts before the court, and which are necessary for the
jury’s understanding of the case.’ ” ’ ” (Kimble, supra, 44 Cal.3d at p. 503;
People v. Guzman (1988) 45 Cal.3d 915, 952 [no sua sponte duty to define the
meaning of the phrase “ ‘while [defendant] was engaged in . . . the commission of’
rape”], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th
1046, 1069, fn. 13.) In sum, there is no sua sponte duty to clarify the principles of
the requisite relationship between the felony and the homicide without regard to
whether the evidence supports such an instruction. (Garrison, 47 Cal.3d at p.
791.)
Because the evidence here did not raise an issue as to the existence of a
logical nexus between the burglary-robbery and the homicide, the trial court had
no sua sponte duty to clarify this requirement. This is not a situation in which
Mianta just happened to have shot and killed her lifelong enemy, whom she
coincidentally spied through the window of the house during the burglary-robbery.
(Cf. Morris, supra, 105 U.Pa. L.Rev. at p. 73.) Betty, the murder victim, was the
intended target of the burglary-robbery. As part of those felonies, Betty was
covered in a sheet, beaten, hog-tied with rope and tape, and left face down on the
17
bed. Her breathing was labored at the time defendants left. These acts either
asphyxiated Betty in themselves or left her unable to resist Mianta’s murderous
impulses. Thus, on this record, one could not say that the homicide was
completely unrelated, other than the mere coincidence of time and place, to the
burglary-robbery.5
Defendants apparently assume that Mianta’s personal animus towards the
victim of the felony, if credited, should somehow absolve the other participants of
their responsibility for the victim’s death. They are mistaken. Liability for felony
murder does not depend on an examination of “the individual state of mind of each
person causing an unlawful killing to determine whether the killing was with or
without malice, deliberate or accidental . . . . Once a person perpetrates or
attempts to perpetrate one of the enumerated felonies, then in the judgment of the
Legislature, he is no longer entitled to such fine judicial calibration . . . .” (Burton,
supra, 6 Cal.3d at p. 388.) “The felony-murder rule generally acts as a substitute
for the mental state ordinarily required for the offense of murder.” (People v.
Patterson (1989) 49 Cal.3d 615, 626.) Accordingly, a nonkiller’s liability for
felony murder does not depend on the killer’s subjective motivation but on the
existence of objective facts that connect the act resulting in death to the felony the
nonkiller committed or attempted to commit. Otherwise, defendants’
responsibility would vary based merely on whether the trier of fact believed that
5
As Cavitt concedes, cases that raise a genuine issue as to the existence of a
logical nexus between the felony and the homicide “are few indeed.” It is difficult
to imagine how such an issue could ever arise when the target of the felony was
intentionally murdered by one of the perpetrators of the felony. Nor, other than in
circumstances akin to Professor Morris’s hypothetical, does it seem likely that a
genuine dispute could arise when the victim was killed during the escape from the
felony or was killed negligently or accidentally during the perpetration of the
felony.
18
Mianta killed Betty by accident, because of a personal grudge, to eliminate a
witness, or simply to find out what killing was like.6
One would hardly be surprised to discover that targets of inherently
dangerous felonies are selected precisely because one or more of the participants
in the felony harbors a personal animus towards the victim. But it would be novel
indeed if that commonplace fact could be used to exculpate the parties to a
felonious enterprise of a murder committed in the perpetration of that felony,
where a logical nexus between the felony and the murder exists. (Cf. People v.
Gutierrez, supra, 28 Cal.4th at p. 1141 [“concurrent intent to kill and to commit
the target felony or felonies does not undermine the basis for a felony-murder
conviction”].) Defendants’ focus on the killer’s subjective motivation thus is not
merely contrary to the felony-murder rule but would in practice swallow it up.
Under the circumstances here, we reject the defense contention that the trial court
erred in failing to give, sua sponte, a clarifying instruction to explain more fully
the requisite connection between the felonies and the homicide. (People v.
Alvarez (1996) 14 Cal.4th 155, 222-223; Kimble, supra, 44 Cal.3d at p. 503.)
6
We also reject Cavitt’s summary assertion that Olsen, supra, 80 Cal. 122,
excluded killings that are a “ ‘fresh and independent product’ of the killer’s mind”
from the ambit of the felony-murder rule. Cavitt misreads Olsen, which explicitly
did not address “the supposed case of counsel where the greater crime was, or
might have been, ‘a fresh and independent product of the mind of one of the
conspirators . . . .’ ” (Olsen, supra, 80 Cal. at p. 125.)
Moreover, as stated above, the felony-murder rule renders it unnecessary to
examine the individual state of mind of each person causing an unlawful killing—
which is precisely what the “fresh and independent product” limitation would
require courts to do. Here, for example, the defense theory was that Mianta
decided to kill Betty for reasons independent of the felony. As we explain in the
text, however, this theory even if credited would not relieve defendants of liability
for felony murder in this case.
19
B
Defendants challenge next the instructions concerning the temporal
relationship between the homicide and the felonies. The defense theory was that
Mianta killed Betty in the five or ten minutes after defendants had left the house
and, along with the stolen property, had reached a place of temporary safety but
before Mianta reported the crime. Thus, in their view, the burglary and robbery
had ended before Betty was killed, relieving them of liability for felony murder.
The People contended that Betty was killed—or the acts resulting in her
death were performed—while defendants were present or, at the least, before
defendants reached a place of temporary safety. They also argued that defendants
were guilty of felony murder, even if the homicide occurred after they had reached
a place of temporary safety, as long as the felonies and the homicide constituted
part of one continuous transaction. The trial court in both cases agreed, and
instructed each jury that a killing “is committed in the commission of a felony if
the killing and the felony are parts of one continuous transaction. There is no
requirement that the homicide occur while committing or while engaged in the
felony or that the killing be part of the felony, so long as the two acts are part of
one continuous transaction.”7
7
Cavitt’s jury was further instructed as follows: “When a killing occurs after
the elements of the felony have been committed, the felony-murder rule applies if
the killing and the felony were part of ‘one continuous transaction.’ Some factors
that you may consider in determining whether the killing and the felony were part
of, ‘one continuous transaction’ might include, but are not limited to, the
following considerations:
“(1) whether or not any aider and abettor exercised continuous control over
the victim. [¶] (2) whether or not the killing occurs in pursuance of a felony. [¶]
(3) the distance between the location of the perpetration of the felony and the
location of the killing. [¶] (4) the time lapse between the perpetration of the
felony and the killing. [¶] (5) whether the killing is a direct causal result of the
felony. [¶] (6) whether the killing occurs while the perpetrators are attempting to
20
We find no error. Our case law has consistently rejected a “ ‘strict
construction of the temporal relationship’ between felony and killing as to both
first degree murder and [the] felony-murder special circumstance.” (People v.
Sakarias (2000) 22 Cal.4th 596, 624.) Instead, we have said that “a killing is
committed in the perpetration of an enumerated felony if the killing and the felony
‘are parts of one continuous transaction.’ ” (People v. Hayes (1990) 52 Cal.3d
577, 631.) Indeed, we have invoked the continuous-transaction doctrine not only
to aggravate a killer’s culpability, but also to make complicit a nonkiller, where
protect themselves against discovery of the felony or reporting of the crime. [¶]
(7) whether the killing is a natural and probable consequence of the felony.
“No one of these factors, or any combination of factors is to be considered
by you to be determinative of the phrase ‘one continuous transaction.’ There is no
requirement that the defendant be present at the scene of the killing so long as the
defendant’s participation in the felony sets in motion a chain of events which
resulted in the killing.”
In addition to the instruction quoted in the text, Williams’s jury was
instructed in accordance with CALJIC Nos. 8.21.1 and 8.21.2, which define,
respectively, the duration of a robbery and a burglary. The burglary instruction
closely tracked, with appropriate modifications, the robbery instruction, which
provided: “For the purposes of determining whether an unlawful killing has
occurred during the commission or attempted commission of a robbery, the
commission of the crime of robbery is not confined to a fixed place or a limited
period of time. [¶] A robbery is still in progress after the original taking of
physical possession of the stolen property while the perpetrators are in possession
of the stolen property and fleeing in an attempt to escape. Likewise, it is still in
progress so long as immediate pursuers are attempting to capture the perpetrators
or to regain the stolen property. [¶] A robbery is complete when the perpetrators
have eluded any pursuers, have reached a place of temporary safety, and are in
unchallenged possession of stolen property after having effected an escape with
such property.” The trial court then modified each instruction by adding a
concluding paragraph: “The perpetrators have not reached a place of temporary
safety if, having committed the robbery [or burglary] with other perpetrators, any
one of the perpetrators continues to exercise control over the victim. Only when
all perpetrators have relinquished control over the victim[,] are in unchallenged
possession of the stolen property[,] and have effected an escape can it be said that
any one of them has reached a place of temporary safety.”
21
the felony and the homicide are parts of one continuous transaction. (E.g., People
v. Whitehorn (1963) 60 Cal.2d 256, 260, 264 [defendant, who had raped the
victim, was guilty of felony murder when accomplice strangled the victim after the
rape]; see also People v. Ross (1979) 92 Cal.App.3d 391, 402; People v. Manson
(1976) 61 Cal.App.3d 102, 208-209; People v. Medina (1974) 41 Cal.App.3d 438,
452; see generally 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) § 139, p.
754.)
Our reliance on the continuous-transaction doctrine is consistent with the
purpose of the felony-murder statute, which “was adopted for the protection of the
community and its residents, not for the benefit of the lawbreaker, and this court
has viewed it as obviating the necessity for, rather than requiring, any technical
inquiry concerning whether there has been a completion, abandonment, or
desistence of the [felony] before the homicide was completed.” (People v. Chavez
(1951) 37 Cal.2d 656, 669-670.) In particular, the rule “ ‘was not intended to
relieve the wrongdoer from any probable consequence of his act by placing a
limitation upon the res gestae which is unreasonable or unnatural.’ The homicide
is committed in the perpetration of the felony if the killing and felony are parts of
one continuous transaction” (id. at p. 670), with the proviso “that felony-murder
liability attaches only to those engaged in the felonious scheme before or during
the killing.” (Pulido, supra, 15 Cal.4th at p. 729.)
This is not to say that Mianta, by remaining in the house with Betty, could
have prolonged defendants’ liability indefinitely. For example, if Mianta had
untied Betty, revived her, and two weeks later poisoned her in retaliation for some
perceived slight, the burglary-robbery and the murder would not be part of “one
continuous transaction.” Cavitt’s fear that, because Mianta lived with the victim,
the felonies “could be deemed to continue indefinitely” is therefore unfounded.
Hence, no error appears in the Cavitt instructions.
22
The jury in Williams’s trial, however, received not only the instruction
concerning the continuous-transaction rule, but also CALJIC Nos. 8.21.1 and
8.21.2. (See fn. 7, ante.) Those instructions provided that the burglary and
robbery continued while the “perpetrators” were in flight and that those crimes
were “complete” when the “perpetrators” had reached a place of temporary safety.
The court then added the following paragraph: “The perpetrators have not reached
a place of temporary safety if, having committed the robbery [or burglary] with
other perpetrators, any one of the perpetrators continues to exercise control over
the victim. Only when all perpetrators have relinquished control over the victim[,]
are in unchallenged possession of the stolen property[,] and have effected an
escape can it be said that any one of them has reached a place of temporary
safety.” In Williams’s view, the requirement that all perpetrators must reach a
place of temporary safety before any of them can be said to have done so—and
thus, before the underlying felony can be said to be completed—is a misstatement
of law.
To resolve this claim, we first recognize that we are presented with two
related, but distinct, doctrines: the continuous-transaction doctrine and the escape
rule. The “escape rule” defines the duration of the underlying felony, in the
context of certain ancillary consequences of the felony (People v. Cooper (1991)
53 Cal.3d 1158, 1167), by deeming the felony to continue until the felon has
reached a place of temporary safety. (E.g., People v. Bodely (1995) 32
Cal.App.4th 311, 313.) The continuous-transaction doctrine, on the other hand,
defines the duration of felony-murder liability, which may extend beyond the
termination of the felony itself, provided that the felony and the act resulting in
death constitute one continuous transaction. (Ibid. [“the duration of felony-murder
liability is not determined by considering whether the felony itself has been
completed”]; People v. Castro (1994) 27 Cal.App.4th 578, 585 [“it is settled that a
23
murder is deemed to occur in the commission of rape even after the rape is
completed so long as the rape and murder are part of a continuous transaction”];
People v. Taylor (1980) 112 Cal.App.3d 348, 358.) It thus would have been
sufficient to have instructed the Williams jury on the continuous-transaction
doctrine alone, as the Cavitt jury was instructed. (See generally People v.
Montoya (1994) 7 Cal.4th 1027, 1045, fn. 9 [“the duration of the offense of
burglary, as defined for the purpose of assigning aider and abettor liability, need
not and should not be identical to the definition pertinent to felony-murder
liability”].) Williams, however, asked for and received CALJIC Nos. 8.21.1 and
8.21.2.
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. (E.g., People v. Auman (Colo.Ct.App.
2002) 67 P.3d 741, 751-752, cert. granted (Colo. 2003) 2003 Colo. LEXIS 262;
White v. State (Md.Ct.Spec.App. 2001) 781 A.2d 902, 911; see Morris, supra, 105
U.Pa. L.Rev. at pp. 75-77.) We need not decide whether this instruction
accurately states the law in California, however, because we find that any error
could not have prejudiced Williams. As stated, his jury was correctly instructed
on the continuous-transaction doctrine. Moreover, the only “control” Mianta had
over Betty was attributable to the fact that defendants had bound and gagged Betty
during the burglary-robbery. Even if Mianta had decided to kill Betty for personal
reasons, there was no evidence that she formed this private intent after defendants
had left and reached a place of temporary safety. Inasmuch as concurrent intent to
kill and to commit the target felonies “does not undermine the basis for a felony-
murder conviction” (People v. Gutierrez, supra, 28 Cal.4th at p. 1141), a finding
that Betty remained under Mianta’s control at the time of the homicide was, in this
particular situation, equivalent to a finding that the homicide was part of a
24
continuous transaction with the burglary-robbery. (People v. Castro, supra, 27
Cal.App.4th at p. 585; see People v. Jones (2001) 25 Cal.4th 98, 109-110; People
v. Portillo (2003) 107 Cal.App.4th 834, 846.) Thus, under the facts of this case,
the additional paragraph did not supply an impermissible route to conviction. We
therefore find that even if the additional paragraph misstated California law, it was
harmless beyond a reasonable doubt. (People v. Sakarias, supra, 22 Cal.4th at p.
625-626.)
C
At both trials, Mianta’s schoolmates testified that Mianta hated her
stepmother and had said she wanted to kill her. In Cavitt’s trial, however, the
court informed the jury that this testimony could not be used in evaluating the
charge of felony murder but could be used only for the robbery-murder and
burglary-murder special circumstances. Cavitt argues that the limiting instruction
was error and requires reversal of his felony-murder conviction. We find that any
error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Evidence that Mianta wanted to kill Betty, even if credited, would not have
affected the undisputed logical nexus between the burglary-robbery and the
homicide. That connection was based on the fact that the crimes involved the
same victim, occurred at the same time and place, and were each facilitated by
binding and gagging Betty. Evidence that Betty was intentionally murdered by
Mianta because of a private grudge, instead of killed accidentally or killed
intentionally to facilitate the burglary-robbery, would not have undermined that
connection. Hence, the exclusion of this evidence from the jury’s consideration,
even if error, could not have been prejudicial.
On the other hand, evidence that Mianta had a private motive was relevant
to the jury’s determination that the homicide and the burglary-robbery were part of
a single continuous transaction. Nonetheless, it is not reasonably probable that the
25
result would have been different had the testimony of Mianta’s schoolmates been
admitted without the limiting instruction. As stated, the jury was permitted to use
this testimony in considering the robbery-murder and burglary-murder special
circumstances. In order to find the special circumstances true, the jury necessarily
found that the murder was committed “during the commission of or in order to
carry out or advance the commission of the crimes of robbery or burglary or to
facilitate the escape therefrom or to avoid detection.” Accordingly, the jury,
despite this testimony, found either that the homicide was committed “during the
commission” of the burglary-robbery or that it was designed to facilitate those
crimes or the escape therefrom. Either finding demonstrates that the homicide was
part of a continuous transaction with the burglary-robbery. Moreover, despite the
admission of this same testimony for all purposes, Williams’s jury convicted him
of felony murder.
The likelihood of prejudice was further diminished by the fact the jury did
hear from other witnesses that Mianta’s relationship with Betty was poor, that she
was angry with Betty, and (from Cavitt himself) that Mianta wanted to kill Betty.
None of this testimony was subject to the limiting instruction concerning the
testimony of Mianta’s schoolmates. In sum, Cavitt cannot show prejudice.
26
DISPOSITION
The judgment of the Court of Appeal is affirmed.
BAXTER, J.
WE CONCUR:
GEORGE, C.J.
CHIN, J.
BROWN, J.
MORENO, J.
27
CONCURRING OPINION BY WERDEGAR, J.
I concur in the majority’s result and in most of its reasoning, but I cannot agree
that CALJIC No. 8.27, the standard instruction outlining complicity in felony murder,
“adequately apprised the jury of the need for a logical nexus between the felonies and the
homicide.” (Maj. opn., ante, at p. 16.) That instruction tells the jury that when a killing
is perpetrated by “one of several persons engaged in the commission of” the predicate
felony (CALJIC No. 8.27, italics added), all those complicit in the felony are also
complicit in murder. In my view, the italicized language is calculated only to inform the
jury of the necessary temporal connection between the predicate felony and the murder,
not of the necessary causal or logical connection. Like the so-called Martin-Perry
formulation1 from which the standard instruction apparently derives, CALJIC No. 8.27
“appear[s] to state a broader rule of felony-murder complicity, under which the killing
need have no particular causal or logical relationship to the common [felonious] scheme.”
(People v. Pulido (1997) 15 Cal.4th 713, 722.)
The majority (ante, at p. 16) suggests that a felon who kills during the
commission of the felony but for reasons or in a manner logically and causally unrelated
to the felony is not “engaged in the commission of” the felony when he or she kills; the
killing, therefore, would not create cofelon liability under CALJIC No. 8.27. (See also
1
See People v. Perry (1925) 195 Cal. 623, 637 (all those are complicit in
murder who were, with the killer, “jointly engaged at the time of such killing” in
the underlying felony); People v. Martin (1938) 12 Cal.2d 466, 472 (same).
1
maj. opn., ante, at p. 12 [same argument as to Martin-Perry formulation].) This reading
of the instruction, I fear, is too subtle to be apprehended by the ordinary juror, especially
when CALJIC No. 8.27 is coupled with standard instructions designed to be given in
felony-murder cases on duration of the predicate felony. (See, e.g., CALJIC Nos. 8.21.1
(7th ed. 2004) [robbery still in progress while perpetrator is fleeing with the loot, until
perpetrator reaches place of temporary safety], 8.21.2 (7th ed. 2004) [burglary still in
progress while perpetrator is fleeing in an attempt to escape, until perpetrator reaches
place of temporary safety].) Without further instruction, a reasonable layperson would
assume that the law considers a burglar, for example, to be engaged in the commission of
the crime from the moment of entering the building at least until leaving it, despite any
momentary diversion from the felonious enterprise the burglar may experience during
that period.
As the majority explains, an accomplice in the predicate felony is liable for a
killing committed by another of the felons only if the killing is logically or causally
related to the contemplated felony; complicity depends on “the existence of objective
facts that connect the act resulting in death to the felony the nonkiller committed or
attempted to commit.” (Maj. opn., ante, at p. 18.) The rule is similar, though not
identical, to that governing complicity in crimes committed by a fellow conspirator or
accomplice generally. When two or more persons set out to commit a robbery, for
example, and one of them not only robs but tries to kill a victim, the other robbers are
held complicit in attempted murder if and only if that attempt was a natural and probable
outgrowth of the target robbery. (People v. Prettyman (1996) 14 Cal.4th 248, 261-263;
People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) Analogously, a robber is liable for a
murder committed by his or her confederate if and only if the murder, objectively
2
viewed, proceeded logically or causally from the commission of the target crime, the
robbery.2
CALJIC No. 8.27 simply fails to inform a jury of this principle. Any error in
failing to give a clearer instruction on the point was, as the majority explains, harmless
here, for there was no substantial evidence to support the theory that Mrs. McKnight’s
killing was logically or causally unrelated to the conspirators’ commission of burglary
and robbery, in which defendants Cavitt and Williams were full participants. (Maj. opn.,
ante, at pp. 17-18.) In future cases, nevertheless, it would be appropriate for trial courts
2
Commentators have observed that the two complicity rules (that governing
felony murder and that governing aiding and abetting generally) involve similar
imputations of conduct and culpability (Robinson, Imputed Criminal Liability (1984)
93 Yale L.J. 609, 617-618) and may be seen as general and specific aspects of the
same problem—“the problem of the responsibility of one criminal . . . for the
conduct of a fellow-criminal . . . who, in the process of committing or attempting
the agreed-upon crime, commits another crime” (2 La Fave, Substantive Criminal
Law (2d ed. 2003) § 14.5(c), p. 452). The language used to define the scope of the
two rules also is linked historically in California law. (See People v. Olsen (1889)
80 Cal. 122, 124-125 [instruction that nonkiller was complicit in felony murder
committed “in the prosecution of the common design” necessarily excluded
killings that were “outside of and foreign to the common design” and hence not
the “ ‘ordinary and probable effect’ ” of the agreed-upon felony], overruled on other
grounds in People v. Green (1956) 47 Cal.2d 209, 227; People v. Kauffman (1907) 152
Cal. 331, 334 [seminal decision on natural and probable consequences rule:
conspirator not liable for crimes committed by another conspirator unless they
were done “in execution” or “in furtherance” of the common design]; People v.
Terry (1970) 2 Cal.3d 362, 401-402 & fn. 18, disapproved on another point in
People v. Carpenter (1997) 15 Cal.4th 312, 382 [approving, in felony-murder
case, instruction that nonkiller was not responsible for murder if it was neither “in
furtherance of” nor a “natural and probable consequence of” the planned
robbery].) Nevertheless, complicity appears broader under the felony-murder rule
than under the natural and probable consequences doctrine, which we have
described as resting on foreseeability (People v. Croy, supra, 41 Cal.3d at p. 12,
fn. 5), in that a felon may be held responsible for a killing by his or her cofelon,
under the felony-murder rule, even if the killing was not foreseeable to the
nonkiller because “the plan as conceived did not contemplate the use or even the
carrying of a weapon or other dangerous instrument.” (2 La Fave, Substantive
Criminal Law, supra, § 14.5(c), p. 452.)
3
to clearly explain that murder complicity under the felony-murder rule requires not only a
temporal relationship between commission of the felony and the killer’s fatal act, but also
a logical or causal one. I suggest this principle, however phrased, be included in standard
instructions on felony-murder complicity.
WERDEGAR, J.
I CONCUR:
KENNARD, J.
4
CONCURRING OPINION BY CHIN, J.
I agree fully with the majority opinion, which I have signed. I write separately
only to comment on the standard jury instructions, and in particular on CALJIC No. 8.27.
I agree with the majority that that instruction is generally adequate. But it can be
improved.
As the majority holds, a nonkiller is not liable for all killings during the course of
a felony the nonkiller is perpetrating. There must be a causal relationship between the
felony and the death, i.e., there must be some logical nexus, beyond mere coincidence of
time and place, between the killing and the underlying felony. (Maj. opn., ante, at p. 2.)
This requirement will rarely be significantly at issue in a felony-murder case. Rarely will
a killing during a felony have no connection to that felony, but merely be coincidental.
Indeed, it may be only in law-school-type hypotheticals such as the one suggested in the
article the majority cites (maj. opn., ante, at p. 12)—hypothesizing one of two burglars
who, while committing the burglary, just happens to spot a long-sought enemy and shoots
him for reasons completely unrelated to the burglary—that the required causal
relationship might be missing. Such scenarios are exceedingly unlikely in real life. And
certainly if, as is usually the case (and was here), the felony’s target was killed, it is hard
even to hypothesize a factual scenario in which there would be no connection between
the felony and the killing.
But the fact that the causal relationship requirement will rarely be truly at issue
does not mean the instructions should not be the best and clearest possible. Accordingly,
1
I suggest that in the future, courts might more clearly inform the jury that the felony-
murder rule requires both a causal and a temporal relationship between the underlying
felony and the act resulting in death. The causal relationship requires some logical
connection between the killing and the underlying felony beyond mere coincidence of
time and place. The temporal relationship requires that the felony and the killing be part
of one continuous transaction.
CHIN,
J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Cavitt & Williams
__________________________________________________________________________________
Unpublished Opinion
XXX NP opn. filed 2/5/02 - 1st Dist., Div. 3Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S105058Date Filed: June 21, 2004
__________________________________________________________________________________
Court:
SuperiorCounty: San Mateo
Judge: Craig L. Parsons and Rosemary Pfeiffer
__________________________________________________________________________________
Attorneys for Appellant:
Neil Rosenbaum, under appointment by the Supreme Court, for Defendant and Appellant James FreddieCavitt.
Paul V. Carroll, under appointment by the Supreme Court, for Defendant and Appellant Robert Nathaniel
Williams.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner and Robert R. Anderson, Chief Assistant AttorneysGeneral, Ronald A. Bass and Gerald A. Engler, Assistant Attorneys General, Christina V. Kuo, Catherine
A. Rivlin and Jeffrey M. Bryant, Deputy Attorneys General, for Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Neil Rosenbaum247 Hartford Street, Suite 200
San Francisco, CA 94114
(415) 626-4111
Paul V. Carroll
5 Manor Place
Menlo Park, CA 94025
(650) 322-5652
Jeffrey M. Bryant
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5852
2
Opinion Information
| Date: | Docket Number: |
| Mon, 06/21/2004 | S105058 |
Parties
| 1 | Cavitt, James Freddie (Defendant and Appellant) Represented by Neil J. Rosenbaum Attorney at Law 247 Hartford St. San Francisco, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Jeffrey M. Bryant Office Of The Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 3 | Williams, Robert Nathaniel (Defendant and Appellant) Represented by Paul V. Carroll Attorney At Law 5 Manor Place Menlo Park, CA |
| 4 | Williams, Robert Nathaniel (Defendant and Appellant) Represented by First District Appellate Project 730 Harrison St. Ste.201 730 Harrison St. Ste.201 San Francisco, CA |
| Disposition | |
| Jun 21 2004 | Opinion: Affirmed |
| Dockets | |
| Mar 12 2002 | Petition for review filed By counsel for appellant {James Freddie Cavitt}. |
| Mar 13 2002 | Record requested |
| Mar 13 2002 | Received: Appellant's amended proof of service. |
| Mar 18 2002 | 2nd petition for review filed by counsel for appellant Robert Nathaniel Williams. |
| Apr 4 2002 | Second Record Request |
| Apr 9 2002 | Received Court of Appeal record file jacket/briefs/two sealed envelopes |
| May 6 2002 | Received Court of Appeal record A088117-file jacket/briefs/sealed envelope/envelope of exhibits/accordian file |
| May 15 2002 | Petition for Review Granted; issues limited (criminal case) Briefing and argument shall be limited to the following issues: 1) Does first-degree felony murder liability attach to the nonkiller accomplice only when the killing is committed "in furtherance of the common design" of the felony, or instead, when the accomplice is "jointly engaged" in the felony, a question left open in People v. Pulido (1997) 15 Cal.4th 713? 2) Whether the enumerated felony continues as to every accomplice when some, but not all, reach a place of temporary safety. 3) Whether the trial court prejudicially erred in precluding defendants from presenting evidence establishing a cohort harbored independent animus for purposes of first-degree felony murder. Votes: George, CJ., Kennard, Baxter, Werdegar and Moreno, JJ. |
| Jun 11 2002 | Request for extension of time filed by counsel for appellant (R. WILLIAMS) requesting extension to July 13, 2002 to file opening briefs. |
| Jun 17 2002 | Counsel appointment order filed Paul Carroll to represent aplt Robert Williams. Appellant's brief on the merits is due w/in 30 days. |
| Jun 17 2002 | Counsel appointment order filed Neil Rosenbaum to represent aplt James Cavitt. Appellant's brief on the merits is due w/in 30 days. |
| Jul 11 2002 | Request for extension of time filed for aplt Williams to file the opening brief on the merits, to 8/19. |
| Jul 16 2002 | Request for extension of time filed by aplt Cavitt to file the opening brief on the merits. to 8/16. |
| Jul 17 2002 | Filed: Supp. declaration from counsel Paul Carroll re extension request. |
| Jul 22 2002 | Extension of time granted to 8-19-02 for aplt Cavitt to file the opening brief on the merits. (with directions) |
| Jul 22 2002 | Extension of time granted to 8-19-02 for aplt Williams to file the opening brief on the merits. |
| Aug 16 2002 | Request for extension of time filed Counsel for appellant (Williams) requests 30-day extension to file opening brief. |
| Aug 19 2002 | Request for extension of time filed counsel for appellant (Cavitt) requests extension to September 19, 2002, to file the brief on the merits. |
| Aug 19 2002 | Extension of time granted appellant's time to serve and file the opening brief is extended to and including September 19, 2002. |
| Aug 22 2002 | Extension of time granted Appellant's time to serve and file the brief on the merits is extended to and including September 19, 2002. |
| Sep 18 2002 | Request for extension of time filed for aplt Williams to file the opening brief on the merits, 30 days (to 10/21) |
| Sep 19 2002 | Request for extension of time filed for Aplt Cavitt to file the opening brief on the merits, 30 days. |
| Sep 23 2002 | Extension of time granted to 10-21-02 for (both) aplts to file their opening briefs on the merits. |
| Oct 16 2002 | Request for extension of time filed counsel for appellant (R. Williams) requests a 30-day extension to November 20, 2002, to file the opening brief on the merits. |
| Oct 18 2002 | Request for extension of time filed for aplt Cavitt to file the opening brief on the merits. |
| Oct 23 2002 | Extension of time granted On applications of appellants and good cause appearing, it is ordered that the time to serve and file the opening briefs on the merits is extended to and including 11-20-02. No further extensions of time are contemplated. |
| Nov 18 2002 | Request for extension of time filed by counsel for aplt Cavitt to file the opening brief on the merits, to 11/30. |
| Nov 22 2002 | Exhibits lodged one envelope from C/A--Exhibit #59. |
| Nov 22 2002 | Opening brief on the merits filed by counsel for aplt. Williams (timely per CRC 40k) |
| Nov 22 2002 | Extension of time granted to 12-2-02 for aplt Cavitt to file the opening brief on the merits. No further extensions of time are contemplated. |
| Nov 27 2002 | Opening brief on the merits filed by counsel for appellant (J. Cavitt) |
| Dec 4 2002 | Filed: Application of appellant Williams to join in arguments of appellant Cavitt. |
| Dec 23 2002 | Request for extension of time filed by resp (AG) to file consolidated answer brief on the merits to aplts' opening brief, to 1-27-03. |
| Jan 8 2003 | Extension of time granted to 1-27-03 for resp to file a consolidated answer brief on the merits to aplts' opening briefs. |
| Jan 28 2003 | Request for extension of time filed by resp to file the consolidated answer brief on the merits, to 2-26. ***permission granted, order being prepared |
| Jan 30 2003 | Extension of time granted to 2-26-03 for resp to file the consolidated answer brief on the merits. |
| Feb 25 2003 | Request for extension of time filed by resp to file the answer brief on the merits. to 3-28. (3rd ext. req) |
| Mar 5 2003 | Extension of time granted to 3-28-03 for resp to serve & file the answer brief on the merits. |
| Mar 28 2003 | Request for extension of time filed for resp to file the answer brief on the merits, to 4-27-03. |
| Apr 10 2003 | Extension of time granted to 4-27-03 for resp to file the answer brief on the merits.The extension is granted based upon counsel's representation that no further extension requests are contemplated. |
| Apr 28 2003 | Request for extension of time filed for resp to file the answer brief on the merits, to 5-8-03. |
| May 2 2003 | Extension of time granted The time to serve and file resp's answer brief on the merits is extended to May 8. No further extensions of time are contemplated. |
| May 8 2003 | Received: Resp's oversize answer brief, with application for permission. |
| May 13 2003 | Answer brief on the merits filed by resp (with permission) |
| May 27 2003 | Request for extension of time filed for aplt Cavitt to file the reply brief on the merits, to 6/28 |
| May 28 2003 | Request for extension of time filed for aplt Williams to file the reply brief on the merits. |
| May 29 2003 | Extension of time granted On applications of appellants Cavitt and Williams and good cause appearing, it is ordered that the time to serve and file appellants' reply briefs on the merits is extended to and including June 30, 2 |
| Jun 26 2003 | Request for extension of time filed for aplt Williams to file the reply brief on the merits. 30-day ext requested (to 7-30) |
| Jun 27 2003 | Request for extension of time filed counsel for appellant (Cavitt) requests extension of time to July 28, 2003 to file the reply brief. |
| Jul 1 2003 | Extension of time granted Appellant's time to serve and file the reply brief is extended to and including July 28, 2003. No further extensions are contemplated |
| Jul 7 2003 | Filed document entitled: Supplemental declaration of aplt. Williams' counsel re extension request filed 6/26. |
| Jul 9 2003 | Extension of time granted to 7-30-03 for aplt Williams to file the reply brief on the merits. No more than one further extension of time is contemplated. |
| Jul 10 2003 | Filed document entitled: 2nd Supp. Declaration for Ext. of Time to File Reply Brief (re aplt Williams) |
| Jul 22 2003 | Request for extension of time filed for aplt Williams to file the reply brief on the merits; 30 days requested. |
| Jul 23 2003 | Received: aplt Cavitt's oversized reply brief. |
| Jul 28 2003 | Reply brief filed (case not yet fully briefed) by aplt Cavitt (with ct's permission) |
| Jul 30 2003 | Extension of time granted to 8-29-03 for Aplt. Williams to file the reply brief on the merits. |
| Sep 2 2003 | Reply brief filed (case fully briefed) by counsel for appellant (R. Williams) (40k) |
| Dec 10 2003 | Compensation awarded counsel Atty Carroll |
| Mar 10 2004 | Case ordered on calendar TO BE CALLED AND CONTINUED TO EARLY MAY CALENDAR (was 4-7-04, 9am, L.A.) |
| Mar 15 2004 | Filed: aplt counsel's (Neil Rosenbaum) request to reset oral argument. |
| Mar 15 2004 | Note: Letter sent to counsel: Oral argument will be reset to early May calendar. |
| Apr 6 2004 | Case ordered on calendar 5-4-04, 9am, S.F. |
| Apr 7 2004 | Cause called and continued to 5-4-04, 9am, S.F. |
| Apr 19 2004 | Filed: request of aplts' attorneys to divide oral argument time. |
| Apr 28 2004 | Order filed permission granted for two counsel to present oral argument for aplts. |
| Apr 28 2004 | Order filed permission granted for division of oral argument time: 20 min to atty Neil Rosenbaum for aplt Cavitt and 10 min to Paul Carroll for aplt. Williams. |
| May 4 2004 | Cause argued and submitted |
| May 7 2004 | Received Court of Appeal record one envelope containing Superior Ct exhibs. (People's 58, 72, 57) |
| May 7 2004 | Filed: letter from atty Rosenbaum (for aplt Cavitt) |
| May 10 2004 | Filed: Appellant Williams' application to file supplemental letter brief. with brief |
| May 13 2004 | Filed: aplt Williams' supplemental letter brief (with permission) |
| Jun 21 2004 | Opinion filed: Judgment affirmed in full Majority opinion by Baxter, J. ------------joined by George, C.J., Chin, Brown, Moreno, JJ. Concurring Opinion by Werdegar, J.---joined by Kennard, J. Concurring Opinion by Chin, J. |
| Jul 28 2004 | Remittitur issued (criminal case) |
| Dec 15 2004 | Compensation awarded counsel Atty Carroll |
| Mar 23 2005 | Compensation awarded counsel Atty Rosenbaum |
| Briefs | |
| Nov 22 2002 | Opening brief on the merits filed |
| Nov 27 2002 | Opening brief on the merits filed |
| May 13 2003 | Answer brief on the merits filed |
| Jul 28 2003 | Reply brief filed (case not yet fully briefed) |
| Sep 2 2003 | Reply brief filed (case fully briefed) |
