People v. Phillips

TOBRINER, J. Defendant, a doctor of chiropractic, appeals from a judgment of the Superior Court of Los Angeles County convicting him of second degree murder in connection with the death from cancer of one of his patients. We reverse solely on the ground that the trial court erred in giving a felony-murder instruction.

Linda Epping died on December 29, 1961, at the age of 8, from a rare and fast-growing form of eye cancer. Linda's mother first observed a swelling over the girl's left eye in June of that year. The doctor whom she consulted recommended that Linda be taken to Dr. Straatsma, an opthalmologist at the UCLA Medical Center. On July 10th Dr. Straatsma first saw Linda; on July 17th the girl, suffering great pain, was admitted to the center. Dr. Straatsma performed an exploratory operation and the resulting biopsy established the nature of the child's affliction.

Dr. Straatsma advised Linda's parents that her only hope for survival lay in immediate surgical removal of the affected eye. The Eppings were loath to permit such surgery, but on the morning of July 21st Mr. Epping called the hospital and gave his oral consent. The Eppings arrived at the hospital that afternoon to consult with the surgeon. While waiting they encountered a Mrs. Eaton who told them that defendant had cured her son of a brain tumor without surgery.

Mrs. Epping called defendant at his office. According to the Eppings, defendant repeatedly assured them that he could cure Linda without surgery. They testified that defendant urged them to take Linda out of the hospital, claiming that the hospital was "an experimental place," that the doctors there would use Linda as "a human guinea pig" and would relieve the Eppings of their money as well.

The Eppings testified that in reliance upon defendant's statements they took Linda out of the hospital and placed her under defendant's care. They stated that if defendant had not represented to them that he could cure the child without surgery and that the UCLA doctors were only interested in experimentation, they would have proceeded with the scheduled operation. The prosecution introduced medical testimony which tended to prove that if Linda had undergone surgery on July 21st her life would have been prolonged or she would have been completely cured.

Defendant treated Linda from July 22 to August 12, 1961. He charged an advance fee of $ 500 for three months' care as well as a sum exceeding $ 200 for pills and medicines. On August 13th Linda's condition had not improved; the Eppings dismissed defendant.

Later the Eppings sought to cure Linda by means of a Mexican herbal drug known as yerba mansa and, about the 1st of September, they placed her under the care of the Christian Science movement. They did not take her back to the hospital for treatment.

Defendant testified that he knew that he could not cure cancer, that he did not represent to the Eppings that he could do so, that he urged them to return Linda to the hospital and that he agreed to treat her only when it became clear that the Eppings would never consent to surgery. He further testified that in administering treatment he sought to build up Linda's general health and so prolong her life. He insisted that he had never purported to "treat" cancer as such, but only to give "supportive" care to the body as a whole. He variously described his purpose as being "to build up her resistance," "assisting the body to overcome its own deficiencies" and "supporting the body defenses."

As we have noted, the trial court gave an instruction on felony murder; we point out that, although defendant could, of course, be prosecuted for grand theft, such a crime, not an inherently dangerous felony, does not support an instruction on felony murder. The giving of that instruction caused defendant prejudice and compels reversal. . . .

Defendant challenges the propriety of the trial court's instructions to the jury. The court gave the following tripartite instruction on murder in the second degree:

"[The] unlawful killing of a human being with malice aforethought, but without a deliberately formed and premeditated intent to kill, is murder of the second degree:

"(1) If the killing proximately results from an unlawful act, the natural consequences of which are dangerous to life, which act is deliberately performed by a person who knows that his conduct endangers the life of another, or

"(2) If the circumstances proximately causing the killing show an abandoned and malignant heart, or

"(3) If the killing is done in the perpetration or attempt to perpetrate a felony such as Grand Theft. If a death occurs in the perpetration of a course of conduct amounting to Grand Theft, which course of conduct is a proximate cause of the unlawful killing of a human being, such course of conduct constitutes murder in the second degree, even though the death was not intended."

The third part of this instruction rests upon the felony-murder rule and reflects the prosecution's theory that defendant's conduct amounted to grand theft by false pretenses in violation of Penal Code section 484.

We shall point out why we have concluded that . . . [1] the felony-murder instruction given here was erroneous in that such a charge can properly be grounded only upon a felony "inherently dangerous to life," and grand theft is not such a crime; [2] the erroneous instruction caused defendant prejudice because it removed from the jury the issue of malice, and [3] the prosecution cannot successfully argue that even though the instruction erroneously permitted the jury to convict without finding malice, no prejudice resulted because the jury necessarily found facts which established malice as a matter of law.

Despite defendant's contention that the Penal Code does not expressly set forth any provision for second degree felony murder and that, therefore, we should not follow any such doctrine here, the concept lies imbedded in our law. We have stated in People v. Williams . . ., that the cases hold that the perpetration of some felonies, exclusive of those enumerated in Penal Code section 189, may provide the basis for a murder conviction under the felony-murder rule.

We have held, however, that only such felonies as are in themselves "inherently dangerous to human life" can support the application of the felony-murder rule. We have ruled that in assessing such peril to human life inherent in any given felony "we look to the elements of the felony in the abstract, not the particular 'facts' of the case." ( People v. Williams).

We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism. No case to our knowledge in any jurisdiction has held that because death results from a course of conduct involving a felonious perpetration of a fraud, the felony-murder doctrine can be invoked.

Admitting that grand theft is not inherently dangerous to life, the prosecution asks us to encompass the entire course of defendant's conduct so that we may incorporate such elements as would make his crime inherently dangerous. In so framing the definition of a given felony for the purpose of assessing its inherent peril to life the prosecution would abandon the statutory definition of the felony as such and substitute the factual elements of defendant's actual conduct. In the present case the Attorney General would characterize that conduct as "grand theft medical fraud," and this newly created "felony," he urges, clearly involves danger to human life and supports an application of the felony-murder rule.

To fragmentize the "course of conduct" of defendant so that the felony-murder rule applies if any segment of that conduct may be considered dangerous to life would widen the rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life.

The proposed approach would entail the rejection of our holding in Williams. That case limited the felony-murder doctrine to such felonies as were themselves inherently dangerous to life. That decision eschews the prosecution's present sweeping concept because, once the Legislature's own definition is discarded, the number or nature of the contextual elements which could be incorporated into an expanded felony terminology would be limitless. We have been, and remain, unwilling to embark on such an uncharted sea of felony murder.

The felony-murder instruction should not, then, have been given; its rendition, further, worked prejudice upon defendant. It withdrew from the jury the issue of malice, permitting a conviction upon the bare showing that Linda's death proximately resulted from conduct of defendant amounting to grand theft. The instruction as rendered did not require the jury to find either express malice or the implied malice which is manifested in an "intent with conscious disregard for life to commit acts likely to kill." ( People v. Washington).

The instruction thus relieved the jury of the necessity of finding one of the elements of the crime of murder. (Penal Code, section 187) Even if the evidence could have supported a finding of implied malice, the instruction failed to require the jury so to determine. "[Defendants] have a constitutional right to have the jury determine every material issue presented by the evidence . . ." (People v. Gilbert). The denial of defendant's right to a determination by the jury as to whether he acted with malice resulted in a miscarriage of justice within the meaning of California Constitution, article VI, section 4 1/2. (People v. Conley).

The prosecution does not deny that the giving of a felony-murder instruction engendered the possibility of a conviction of murder in the absence of a finding of malice. It contends, however, that even if the jury acted on the erroneous instruction it must necessarily have found facts which establish, as a matter of law, that defendant acted with conscious disregard for life and hence with malice. The prosecution thus asks us to dissect the jury's verdict, setting the facts of the case against the instructions in an attempt to isolate the facts which the jury necessarily found in reaching its verdict. From these facts it further asks us to infer the existence of others which the jury was never asked to find.

Examination of the record suggests that even this doubtful enterprise would not enable us to overcome the effect of the erroneous instruction. The prosecution urges that the jury could not have convicted defendant under the felony-murder instruction without having found that he made representations to the Eppings which he knew to be false or which he recklessly rendered without information which would justify a reasonable belief in their truth. Such a finding does not, however, establish as a matter of law the existence of an "intent with conscious disregard for life to commit acts likely to kill." ( People v. Washington). In the absence of a finding that defendant subjectively appreciated the peril to which his conduct exposed the girl, we cannot determine that he acted with conscious disregard for life. The record contains evidence from which a trier of fact could reasonably have concluded that although defendant made false representations concerning his ability to cure, he nevertheless believed that the treatment which he proposed to give would be as efficacious in relieving pain and prolonging life as the scheduled surgery.

Of course the jury could have concluded from some of the evidence that defendant did not entertain any such belief in the relative efficacy of his proposed treatment. We cannot, however, undertake to resolve this evidentiary conflict without invading the province of the trier of fact. We cannot predicate a finding of conscious disregard of life upon a record that would as conclusively afford a basis for the opposite conclusion.

The judgment is reversed.