F 8.21.2

F 8.21.2 n1 Temporary Safety Rule: Factors To Consider.

The determination of temporary safety must be based on an objective standard considering all the surrounding circumstances. (People v. Thongvilay (98) 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 following supplemental instruction “correctly states the objective standard….” (62 CA4th at 84):

“A burglary 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. [Para.] 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.”