FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 92
Go to Volume 7 Table of Contents - Go to Chapter 92 Table of Contents

92.9 Felony Murder, Statutorily Specified Offenses

    92.9.3 Felony Murder: Whether Killing Was Committed During The Underlying Felony

    92.9.3.1 Felony: When Still In Progress -- Temporary Safety Defined
    92.9.3.2 Felony Continues Regardless Of Temporary Safety If Victim Has Not Been Released
    92.9.3.3 Temporary Safety Rule Applicable To Burglary
    92.9.3.4 Temporary Safety Rule: Factors To Consider
    92.9.3.5 Termination Of Felony: Temporary Safety As One Of Several Factors To Consider
    92.9.3.6 Robbery -- When Still in Progress/Felony Murder
    92.9.3.7 Robbery: When Still In Progress -- Distinction Between Underlying Offense And Felony Murder

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

VOLUME 7 - CHAPTER 92

RATIONALE: The felony murder rule should not apply when the killing occurred after the defendant reached a place of temporary safety following the felony. Therefore, a special instruction may be appropriate to explain the factors to consider in deciding the temporary safety issue.

POINTS AND AUTHORITIES: "A person is engaged in the commission or perpetration of a robbery while the criminal is trying to escape with the property taken in such robbery. [Citation.] Factors to be considered in determining whether there has been a break in the chain of circumstances include the relationship between the underlying felony and the homicide in point of time, place, and causation. One commentator suggests that in the case of flight, the most important consideration is whether the fleeing felon has reached a 'place of temporary safety.' [Citation to LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.5, p. 225 (1986).] We also note that the determination of whether the act of escape or flight is a continuous part of the accomplished crime or whether the defendant has reached a place of temporary safety is a question for the trier of fact." (State v. Lee (TN 1997) 969 SW2d 414, 416; see also United States v. DeStefano (1st Cir. 1995) 59 F3d 1, 4 [crime of aiding or assisting an escape cannot occur after the escapee reaches temporary safety or a point beyond immediate active pursuit].)

    However, this does not necessarily mean that the escape must be complete. A "'place of temporary safety' can only mean that [the defendant] is still fleeing, still trying to escape." (People v. Salas (CA 1972) 7 C3d 812, 822 [103 CR 431].) Thus, a place of temporary safety may be reached even though the defendant is merely driving around aimlessly. (People v. Ford (CA 1966) 65 C2d 41, 48 [52 CR 228].) Insofar as a place of temporary safety may be found almost anywhere, it is appropriate to look to the defendant's subjective belief as to whether he has reached a place of temporary safety. (People v. Johnson (CA 1992) 5 CA4th 552, 560-61 [7 CR2d 23]; but see People v. Haynes (CA 1998) 61 CA4th 1282, 1292 [72 CR2d 143] [temporary safety is not tested based on subjective impressions or recklessness of the robber but on an objective measure of safety following the initial taking]; see also People v. Ramirez (CA 1995) 39 CA4th 1369, 1374-75 [46 CR2d 530].) In addition, other appropriate factors include the time interval between the commission of the crime and the defendant's apprehension and whether or not the defendant has disposed of all or part of the stolen loot. (Ford, 65 C2d at 56-57.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

    Additional factors which may be relevant to this issue are whether the defendant exercised continuous "control" over the victim and whether any crimes committed during the escape were linked by a motive related to the underlying felony. (See People v. Stankewitz (CA 1990) 51 C3d 72, 101 [270 CR 817].)

    This instruction would also be appropriate when aider and abettor or accomplice liability for robbery is based on after-acquired intent.

RELATED FEDERAL MODEL INSTRUCTIONS:

    As it is used in this instruction, "place of temporary safety" means that a suspect is no longer fleeing from the scene of the crime or trying to escape from [his] [her] pursuers. A "place of temporary safety" need not be a specific location. Indeed, a "place of temporary safety" may be reached when a suspect is still on the street or in a motor vehicle.

[Source: FORECITE National™.]

SAMPLE INSTRUCTION # 2:

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 92

    92.9.3.2    Felony Continues Regardless Of Temporary Safety If Victim Has Not Been Released

PRACTICE NOTE: So long as the victim is still present, and thus, at risk, the courts require a finding that the killing was an integral part of a single transaction. Hence, felony murder will apply even if the defendant has reached a place of temporary safety, if the victim has not been released. (See People v. Carter (CA 1993) 19 CA4th 1236, 1251 [23 CR2d 888] ["perpetrator of a robbery has not reached a place of temporary safety if the continued control over the victim places the perpetrator's safety in jeopardy"].)

RELATED FEDERAL MODEL INSTRUCTIONS:

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 92

    92.9.3.3    Temporary Safety Rule Applicable To Burglary

PRACTICE NOTE: It has been held that the "temporary safety" rule applies to both robbery and burglary. (See People v. Salas (CA 1972) 7 C3d 812, 823-24 [103 CR 431]; see also People v. Bodely (CA 1995) 32 CA4th 311 [38 CR2d 72].)

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 92

RATIONALE: When there is an issue as to whether the defendant obtained a position of temporary safety, the jury should understand what factors to consider.

POINTS AND AUTHORITIES: The determination of temporary safety must be based on an objective standard considering all the surrounding circumstances. (People v. Thongvilay (CA 1998) 62 CA4th 71, 84 [72 CR2d 738].) In Thongvilay, the court concluded that the defendant was not entitled to an instruction which specified the defendant's subjective belief as one of the factors for consideration in determining temporary safety. However, the court held that the Sample Instruction # 1, below, "correctly states the objective standard...." (Thongvilay, 62 CA4th at 84).

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

RELATED FEDERAL MODEL INSTRUCTIONS:

    A [burglary] [robbery] [______________] 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 he had reached such a safe location.

[Source: People v. Thongvilay (CA 1998) 62 CA4th 71, 84 [72 CR2d 738].]

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 92

    The defendant's actions must be one continuous integrated attempt to successfully complete his crime and escape. (See People v. McCrary (CO 1976) 549 P2d 1320, 1332.) Factors to be considered in determining whether there has been a break in the chain of circumstances include the relationship between the underlying felony and the homicide in point of time, place, and causal relationship. (Ibid.)

    "The jury should be instructed to give consideration to whether the homicide and the felony occurred at the same location or, if not, to the distance separating the two locations. Weight may also be placed on whether there is an interval of time between the commission of the felony and the commission of the homicide. The jury may properly consider such additional factors as whether the culprits had possession of the fruits of criminal activity, whether the police, watchmen or concerned citizens were in close pursuit, and whether the criminals had reached a place of temporary safety. These factors are not exclusive; others may be appropriate in differing factual settings. If anything, past history demonstrates the fruitlessness of attempting to apply rigid rules to virtually limitless factual variations. No single factor is necessarily controlling; it is the combination of several factors that leads to a justifiable inference." (Lattimore v. State (AL 1998) 720 So2d 1000, 1003-04.)

Annotation, What Constitutes Termination Of Felony For Purpose Of Felony-Murder Rule, 58 ALR3d 851.

See Also Capital Punishment Handbook [1.11.3a. Sentencing For Murders Including Felonies: General Principles And Authorities].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 92

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 7 - CHAPTER 92

RATIONALE: The rules regarding termination of a robbery may differ for purposes of the substantive offense as opposed to felony murder. Therefore, special instruction may be appropriate to avoid juror confusion in this regard.

POINTS AND AUTHORITIES: It has been held that for the purposes of accomplice liability for the substantive offense of robbery, the offense is terminated when the asportation of the robbery proceeds is complete. (See People v. Cooper (CA 1991) 53 C3d 1158, 1164-65 [282 CR 450]; see also Eddy v. State (IN 1986) 496 NE2d 24, 28; State v. Lee (TN 1997) 969 SW2d 414, 416.) Such a determination must be defined in terms of asportation not escape. (Cooper, 53 C3d at 1164-65.)

    Because these definitions are similar there is a danger of juror confusion in cases where both aider and abettor liability and ancillary liability are at issue. Hence, a single instruction which highlights the distinction between the two definitions should be given.

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

Annotation, Use Of Force Or Intimidation In Retaining Property Or In Attempting To Escape, Rather Than In Taking Property, As Element Of Robbery, 93 ALR3d 643.

See Also Capital Punishment Handbook [1.11.3a. Sentencing For Murders Including Felonies: General Principles And Authorities].