Brief Bank # B-796 (Re: F 8.21e [Felony Murder: Causation Requirement].)
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TERRENCE J. BENNETT
Attorney at Law
745 South Marengo Avenue
P. O. Box 709
Pasadena, California 91102-0709
(626) 792-5868
State Bar No. 053149
Attorney for John Doe
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff,
vs.
JOHN DOE,
Defendant.
____________________________________/
PENAL CODE §995 MOTION
TO COURT, CLERK AND PROSECUTOR:
PLEASE TAKE NOTICE that defendant JOHN DOE does hereby move this court for its order setting aside, per Penal Code §995(a)(2)(B), certain counts and enhancements as to which the magistrate held defendant to answer following preliminary examination.
This motion is based upon the preliminary examination transcript (hereinafter abbreviated as PXT) and Exhibits 1 – 50 and Exhibits A – E, inclusive, received in evidence at the PXT at 524/26 – 525/11.
This motion is supported by the attached memorandum of points and authorities which includes citations to the relevant portions of PXT supporting the arguments herein presented.
Dated: May 13, 1999. Respectfully submitted,
TERRENCE J. BENNETT
Attorney for John Doe
MEMORANDUM OF POINTS AND AUTHORITIES
THE LAW OF CAUSATION
The law of causation in homicide has a long and well developed history in California and in the annals of the common law:
Causal relation is the universal factor common to all legal liability . . . [c]ausation is as much an element in an accident as in a battery; in a breach of contract as in a murder. And it is exactly the same problem wherever found and is soluble by the same process [lengthy citations omitted] Witkin&Epstein, Cal. Crim Law 2nd §126,page 146.
CALJIC 3.40; 3.41; 8.55, 8.56, 8.57, 8.58, embody the ‘standardized’ California criminal law instructions on causation. Copies of each annotated CALJIC instruction are appended as Defense Exhibit A in support of this motion.
Forecite 3.40, 3.41a, 8.45a and F 8.80 – F 8.83.2 (Supplement on Special Circumstances) contain additional ideas on causation and an attack on overinclusive felony murder application where cause of death is an issue. Copies of said Forecite materials are appended as Defense Exhibit B.
It is important to note that, despite a long history of legal causation analysis, this is an area of law not easily subjugated to standardized analysis. This is so because this legal analysis necessarily involves, as Justice Kennard so pointedly reminded us in Mitchell v. Gonzales (1991) 54 C3d 1041, 1 CR2d 913 at 922, dissenting:
The majority invalidates a jury instruction on proximate cause – an essential element of every tort case – that has been used in this state for some 50 years and embodies well-established law. And, by delegating responsibility for defining proximate cause to the Committee on Standard Jury Instructions, the majority neglects its duty to provide guidance to trial courts and litigants. This court should give guidance to the committee, not seek guidance from it.
Justice Kennard explains:
. . . proximate cause includes two elements: an element of physical or logical causation, known as cause in fact, and a more normative or evaluative element, which the term “proximate” imperfectly conveys.
As can be seen, causation analysis combines and dissects physical, logical, normative-evaluative factors which call for recurrence to first principles of philosophy, morality, logic, physics, medicine and justice.
As recently as People v. Funes (1994) 23 CA4th 15-6. 1522-1524; 38 CR2d 758 at 768-769, the Court of Appeal noted with some wonder:
Apparently, no California case has addressed the issue presented by this case. We conclude that on the facts of this case the decision to withhold antibiotics was, as a matter of law, not an independent intervening cause. Instead, it was a normal and reasonably foreseeable result of defendant’s original act.
In People v. Roberts (1992) 2 Cal4th at 313 et seq., 6 CR2d 276 at 297 et seq.), the California Supreme Court analyzes the major causation question in that case in terms of Palsgraf vs. Long Island R.R. Co. (1928) 248 NY 339, 162 NE 99, 59 ALR 1253. The court contradicts a 1938 analysis lamenting Palsgraf’s negligible influence on criminal law:
But Focht is wrong: in fact, the courts, though using the terminology of natural and probable consequences, were applying a Palsgraf–type analysis before Palsgraf, and have continued to do so since. Roberts, supra,6 CR2d 302.
The Roberts court sets forth its distillation of causation as:
The criminal law thus is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant’s act.
. . . Moreover, if one aim of the criminal law is to punish in proportion to moral culpability, little purpose is served by imposing the same punishment for direct but remote consequences of a violent act as for natural and probable direct consequences
If the actions of the alleged causal agent are not the direct cause of the harm inflicted, there is no criminal liability because no causation.
If Ms. T had been rendered brain dead or in a persistent vegetative state, as occurred in Funes, by a proven direct blow or blows administered by the defendant, the decision not to resuscitate her from pneumonia or even the medical negligence which arguably allowed the onset of terminal bilateral pneumonia would not necessarily (and did not in Funes) constitute a supervening or independent cause, thereby cutting off liability for direct causation.
In Funes, the victim lingered 46 days after severe closed head injury and remained in a persistent vegetative state. The victim could have been kept ‘alive’ with antibiotic treatment for up to five years, but he eventually would have succumbed to pneumonia. The decision to withhold antibiotic treatment caused him to succumb to “acute bronchial pneumonia caused by head injuries.”
The important first question here is this: did Ms. T die as a direct result of a blow administered to her head by defendant? This question cannot be answered affirmatively, based upon this transcript. The prosecution may assert that it doesn’t matter whether defendant directly caused this head injury, because the felony murder rule confers criminal liability as long as the defendant’s acts were a substantial factor (CALJIC 3.41) in the death. People v. Pock (1993) 19 CA4th 1263, 1274; 23 CR2d 900.
This argument proceeds that, even if defendant tied up Ms. T and left her otherwise unharmed on her bed (or next to it), the fact that Ms. T may have rolled off the bed and struck her head, or that she might bang her head trying to attract attention while bound on the floor, are direct, i.e., foreseeable, or natural and probable consequences of the act of binding the victim and leaving her there.
The fact, if it is the case, that the intruder tied up Ms. T for the purpose of effecting his escape and never considered the possibility or likelihood that she might injure herself while left in that condition distinguishes this case from cases where the victim is deliberately injured and left to die.
The distinction between one who directly administers a damaging blow and one who abandons his victim to her fate in dangerous circumstances evokes the normative element of Justice Kennard’s proximate cause analysis. In Palsgraf terms, the causation is somewhat attenuated or rendered more remote as the acts of the accused agent move from direct infliction of harm to abandonment of a vulnerable victim. In moral terms, we recognize that both sets of actions are seriously culpable, but that the person who directly inflicts deadly force is a significantly more serious wrongdoer than one who abandons a vulnerable victim to her fate without consideration of the foreseeable consequences. An act of false imprisonment does not equate on a moral scale with a homicidal attack.
The argument for murder culpability for he who abandons his victim to her fate depends wholly upon the reasonably foreseeable consequences of the act. However expansive the felony murder doctrine may be in other contexts, it is a substitute for intent/malice murder, not a substitute for the issue of causation. The robbery/burglary acts must have proximately caused the death of Ms. T or there is no murder.
Causation exists where the obese robbery victim has a heart attack twenty minutes after the robbery events, People v. Stamp (1969) 2 CA3d 203, 82 CR 598:
So long as a victim’s predisposing physical condition, regardless of its cause, if not the only substantial factor bringing about his death, that condition, and the robber’s ignorance of it, in no way destroys the robber’s criminal responsibility for the death.
2 CA3d at 210.
Occasionally,however,the preexisting condition is regarded as the only substantial factor in bringing about the death, and the defendant’s act as a remote cause. (See 1942 A.S. 769 [victim with defective heart struck by beverage bottle, died 4 days later; conviction reversed for failure to give proper instructions]; 1952 A.S. 152 [victim with high blood pressure seized and shaken, died 2 1/2 months later of pneumonia and stroke]; 47 A.L.R.2d 1072)
Witkin §129 Preexisting Condition
The first step in the foreseeability equation is to determine whether or not it was reasonably to be expected that a bound Ms. T would strike her head if left unattended on or near her bed.
The answer to this issue is that some, even significant harm, was reasonably foreseeable. Had Ms. T rolled off the bed, striking her head, fracturing her skull causing massive blood loss and death, we would likely find such a result a homicide. However, if Ms. T’s laceration of the forehead and subdural hematoma did not cause her death, but only provided the ‘but for’ context in which, seven weeks later, while clearly recovering from the head wound without necessity of surgical intervention and with no evidence that the subdural hematoma was threatening her life in fact, she suddenly dies of untreated pneumonia, then causation is substantially attenuated and a finding of direct causation fails. If she never would have died with only the head wound, then her death from bilateral terminal pneumonia and heart disease fifty (50) days later in the context of arguable medical neglect, is not the direct result of any act or omission of defendant. In this context, even if we assume as a fact that Ms. T was struck on the head by defendant with the phone receiver, while the normative blameworthiness increases, the direct physical causation of death is too remote from the relatively minor head injury to affix upon the assailant the label of murderer.
In foreseeability terms, cause in fact has failed as an element. Granted the foreseeability of a minor head wound, it was not a natural and probable consequence of that head wound that she would, after four weeks of apparent progressive recovery, be released from a hospital while still showing signs of pneumonia and then be so attended at a convalescent facility that many days of developing terminal pneumonia should occur before the belated transfer to HMH and the ‘do not resuscitate’ order and her death the next day.
Negligent medical treatment is a dependent (concurrent) cause and does not terminate criminal liability if the wound is of a type calculated to produce death. However, if the wound is not mortal, the negligent acts of medical personnel or other independent medical causes constitute supervening, independent cause of death and constitute a good defense to homicide causation liability. Witkin §134, Negligent Medical Treatment.
FELONY MURDER AND ‘BUT FOR’ CAUSATION
The drafters of CALJIC 3.40 have bestowed the heading:
‘Cause – “But For” Test.’
Defendant asserts that, in light of the Roberts analysis above set forth, and the language of the actual instruction (direct, natural and probable consequence of the act or omission and without which the [death] would not occur”), the use of the term “but for” causation is misleading.
In fact the quoted language is the language of Palsgraf, supra; Justice Kennard in Mitchell v. Gonzalez, supra; and the Roberts court. This is the language of proximate causation.
CALJIC 3.40 appears to be an amalgam of what has been characterized herein as proximate causation and ‘but for’ causation.
The language of ‘but for’ causation is slippery and tending to overbreadth in its condemnation/finding of causation. ‘But for’ causation is dangerously close to and easily falls into the logical fallacy, “post hoc, ergo propter hoc“, or “after this, therefore because of this.”
There is a natural and immemorial human tendency to reduce the moral and logical dimensions of proximate causation to (in this instance):
1. there was a robbery/burglary;
2. victim was injured during the event;
3. she was hospitalized and never fully
recovered from her initial injury;
4. she died 50 days later;
5. but for the hematoma, she’d be alive;
6. defendant is criminally liable for
her death.
This formulation avoids the question of, did she die as a direct and proximate result of defendant’s actions? It allows an inductive leap from ‘but for’ the fact of her injury, she isn’t in the hospital, to, therefore, the head injury was a substantial factor (Pock, supra) and concluding that, even if her death was from preexisting serious medical conditions, the effects of time, the negligence of caretakers or other factors, a substantial factor amounts to proximate causation.
This reasoning may be illustrated by an example:
A bus driver in downtown Los Angeles knows each day that he starts up that bus, that if he continues this activity, sooner or later, he will be involved in a serious injury accident or other life threatening emergency. This bus driver also knows that he will be a direct causative agent, ‘but for’ whose transportation of thousands of people on treacherous streets, a serious and foreseeable injury or death would not have occurred. This society does not condemn the bus driver to criminal liability for such direct and natural and probable consequences of the acts of a bus driver because we deny that he is the proximate cause of said injury while admitting that he is a ‘but for’ causal agent.
We say that, unless the driver was at fault in his driving of the bus or caretaking of his passengers, the traffic accident, slip and fall, stroke or heart attack which will inevitably occur while he is operating this huge metal compartment is an independent, intervening, supervening cause which cuts off or exonerates him from causal liability.
It is not sufficient to assign proximate causation, in short, whout addressing the normative-evaluative component of causation. It is morally and logically insufficient to claim that because an actor is in the chain of ‘but for’ causation, we need not assess the blameworthiness of his proven conduct nor decide whether or not the injury inflicted was a direct, physically demonstrable cause of death.
In the chaos of cause and effect which is our universe and our lives, we know that all past events have some potentially or logically demonstrable effects on present and future events. As moral agents, we assign blame based upon responsibility, and the first question about responsibility is causation. We would not condemn to punishment a telephone company on a logic exemplified by the observation (once claimed to be true) that the incidence of teen pregnancies was highly positively correlated with the concentration of telephone poles within a community.
‘But for’ causation in this sense is the avoidance of the ultimate assignment of a degree of blameworthiness, based upon the direct, personal, proximately causative nature of the acts in question. It amounts to an acceptance of the logical fallacy: after this injury, therefore because of this injury.
For fifty days, Ms. T was subject to many actual intervening causative events which contributed to her death in a ‘but for’ sense.
The prosecution may posit that this form of ‘but for’ causation may be legitimate and dispositive when considered in combination with the felony murder rule (Penal Code §189).
In its discussion of an overbreadth constitutional challenge to the California felony murder special circumstance, Forecite at Exhibit B (§F 8.81.17 Note #12 [Supplement 5/94, page 2]), the author asserts that People v. Pock (1993) 19 CA4th 1263, 23 CR2 900, supports the concept that there need not even be a causal relationship between the felony and the homicide. While most of the overbreadth argument therein set forth is fully incorporated into this argument, that assertion vastly overstates the operative effect of the language of Pock in the context of its facts. The issue in Pock is which of four home invasion robbers’ guns fired the fatal shot at the crime scene. There was no supervening causation issue and the court found that CALJIC 3.40 and CALJIC 8.55 need not have been given on the facts of Pock. Because two of the four home invasion robbers shot Mr. Mean acting in concert with each other, all four are arguably guilty of first degree felony murder as substantial factor, major participants, per Tison v. Arizona (1987) 481 US 137, 107 S.Ct. 1676, 95 LE2d 127. Pock at 23 CR2d p. 906-909.
Pock does contain the following infelicitous sentences:
It is settled that with respect to the theory of felony murder, there is no strict causal relationship between the felony and the homicide. Rather, the focus is on the underlying felony, that is, whether the felony has been completed, abandoned, stopped or is ongoing. Pock, 23 CR2d at 909.
Confined to the facts of Pock, this statement is explicable, since there simply was no proximate cause issue as to any of the four home invaders. Each was fully and proximately causing the death of Mr. Mean in a normative sense, as well as a ‘but for’ sense.
As an independent assertion that causation is not an issue in felony murder, this statement is flatly wrong. If Ms. T had been poisoned in her hospital bed by a relative anxious to get her assets, John Doe would not be the cause of her death and his liability for her death could not be predicated on the ‘but for’ logic of ‘if she hadn’t been injured, she wouldn’t be hospitalized and her relative would not have been tempted to kill her for her money.’
The necessary limit of the felony murder rule is that it cuts off issues of intent to kill and malice aforethought. To allow the concept of felony murder to eliminate the issue of proximate causation in a case such as Ms. T’s actual last 50 days would be morally unsound as well as far from settled in the criminal law.
In this case it is only legitimate to charge the murder of Ms. T, based upon proof that the hematoma proximately caused her death.
To elevate this first degree felony murder to death eligibility where proof of proximate causation is legally insufficient would bring this case squarely within the failure to constitutionally narrow death eligibility language (wanton or freakish imposition of the death penalty) set forth in the Exhibit B at F.8.81.17, note 12.
…
Dated:5/17/99 Respectfully submitted,
TERRENCE J. BENNETT,
Attorney for John Doe
