Return to CALJIC Part 5-8 – Contents
F 8.21.1 n1 Felony Murder Inapplicable To Pre-Proposition 115 Kidnapping For Robbery (PC 189, PC 209 & PC 211).
The current use note to CJ 8.21.1 (former CJ 9.44) states that it is “designed for use in connection with a charge of felony murder based on robbery or a charge of kidnapping for the purpose of robbery.”
However, neither ordinary kidnapping nor kidnapping for robbery were included in PC 189 as a predicate for felony murder prior to the passage of Proposition 115. (Compare, PC 190.2(17)(ii) which includes kidnapping as a basis for the felony murder special circumstance.) Therefore, no felony murder instructions may be given in a PC 209 kidnapping case which predates Proposition 115 (June 6, 1990). (See FORECITE F 8.81.17 n10, regarding limitation of the still-in-progress instruction in felony murder special circumstance cases predicated upon kidnapping for robbery.)
F 8.21.1 n2 Robbery Continues While Presence Of Victim Places Robber’s Safety In Jeopardy (PC 189, PC 209 & PC 211).
In People v. Carter (93) 19 CA4th 1236, 1251 [23 CR2d 888], it was held that the trial court properly gave a prosecution pinpoint instruction which stated that, “A 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.”
F 8.21.1 n3 Felony Murder: “Temporary Safety” Rule Applicable To Burglary And Sex Crimes.
It has been held that the “temporary safety” rule applies to both robbery and burglary. (See People v. Salas (72) 7 C3d 812, 823-24 [103 CR 431]; see also, People v. Bodely (95) 32 CA4th 311 [38 CR2d 72].)
People v. Portillo (2003) 107 CA4th 834 [132 CR2d 435] held that rule also applies to rape.
F 8.21.1 n4 Application Of “Temporary Safety” Rule To Enhancements.
While the “temporary safety” rule has typically been discussed in the context of the felony murder rule, it is also applicable to a determination of whether the defendant is liable for a particular enhancement. (See People v. Carroll (70) 1 C3d 581, 584-85 [83 CR 176] [allowing GBI enhancement for injury inflicted while fleeing from a robbery]; see also, People v. Taylor (95) 32 CA4th 578, 582-83 [38CR2d 127] enhancement properly imposed upon defendant who returned to the scene of a burglary with a firearm].)
F 8.21.1 n5 Receiving Stolen Property: Applicability Of Temporary Safety Rule.
In People v. Dobson (88) 205 CA3d 496, 502 [252 CR 423] and cases cited therein, the court recognized that for the purpose of sentencing enhancements, the crime of receiving stolen property continues until the defendant has reached a place of temporary safety. (See also, People v. Taylor (95) 32 CA4th 578, 582-83 [38CR2d 127].)
F 8.21.1a
Robbery: When Still In Progress
(PC 189 & PC 211)
*Add to CJ 8.21.1:
The commission of the crime of robbery is not confined to a fixed place or a limited time. [However, the scope of the term “commission” differs depending upon the issue which you are resolving.]
[For purposes of determining whether the defendant is guilty of robbery as an aider and abettor the robbery continues so long as the stolen property is being carried away to a place of temporary safety. The robbery is complete at the time the perpetrator disposes of the loot or reaches a position of temporary safety with the stolen property.]
[For purposes of determining whether the defendant [is guilty of robbery felony murder] [inflicted great bodily injury during the commission of a robbery] the robbery continues until the robber has reached a position of temporary safety, with or without the stolen property.]
Points and Authorities
In People v. Cooper (91) 53 C3d 1158, 1164-65 [282 CR 450], the Supreme Court held that CJ 8.21.1 (former CJ 9.44) should not be given for purposes of determining aider and abettor liability. Rather, such a determination must be defined in terms of asportation not escape (i.e., has “the loot” been carried to a place of temporary safety). However, for purposes of ancillary determinations (e.g., felony murder and great bodily injury) the completion of the robbery should be defined in terms of escape (i.e., has the perpetrator reached a place of temporary safety).
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.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
See FORECITE F 9.40d for further discussion of Cooper and its implications.
RESEARCH NOTES
See 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 and Later Case Service.
F 8.21.1b
Robbery: When Still In Progress – Temporary Safety Defined
(PC 189 & PC 211)
*Add as 4th ¶ of CJ 8.21.1:
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. In determining whether a suspect has reached a “place of temporary safety,” you should consider the following factors: (1) the suspect’s subjective belief as to whether [he] [she] has reached a place of temporary safety; (2) the amount of time which has transpired between the commission of the crime and the apprehension of the suspect; (3) whether the suspect has had an opportunity to dispose of some or all of the loot from the crime; (4) whether the suspect exercised continuous control over the victim; (5) whether any crimes committed during the escape were linked by a motive related to the underlying felony; and (6) any other factor which is relevant to a determination of whether the suspect is still fleeing from the scene of the crime or is trying to escape from [his] [her] pursuers.
Points and Authorities
According to the Supreme Court, a “‘place of temporary safety’ can only mean that [the defendant] is still fleeing, still trying to escape.” (People v. Salas (72) 7 C3d 812, 822 [103 CR 431].) Importantly, a place of temporary safety may be reached even though the defendant is merely driving around aimlessly. (People v. Ford (66) 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 (92) 5 CA4th 552, 560-61 [7 CR2d 23]; but see People v. Haynes (98) 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 (95) 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.)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
It may be argued that the term “temporary safety” is a technical term which requires sua sponte definition. (See, e.g., People v. Pitmon (85) 170 CA3d 38, 52 [216 CR 221]; and FORECITE PG II(B).)
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 (90) 51 C3d 72, 101 [270 CR 817].)
This instruction would also be appropriate as a supplement to CJ 9.40.1 regarding aider and abettor liability for robbery based on after-acquired intent.
F 8.21.1c
Robbery: When Still In Progress – Momentary Safety
(PC 189 & PC 211)
*Modify last ¶ of CJ 8.21.1 to provide as follows [added language is capitalized]:
A robbery is complete when the perpetrator has eluded any pursuers AND, EVEN MOMENTARILY, reached a place of temporary safety, and is in unchallenged possession of the stolen property after having effected an escape with such property.
Points and Authorities
A robbery is incomplete until the robbers have “won their way even momentarily to a place of temporary safety.” (People v. Boss (30) 210 C 245, 250 [290 P 881]; see also People v. Johnson (92) 5 CA4th 552, 560 [7 CR2d 23].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]