People v. Wilkins (2013) 56 Cal. 4th 333, 342, noted that the Bench Notes for CC 3261 maintain that an instruction on the “escape rule” should not be given in a case involving felony murder. However, in a felony murder case where the facts warranted it, the court must instruct the jury under CC No. 3261 that the felony continues only until the perpetrator has reached a place of temporary safety. (Id. at 343-344.)
The CC Committee responded in July, 2013, by deleting CC 549 in its entirety. It added a bench note in CC 540B and C, and CC 541B and C, to consult Cavitt and the discussion of Cavitt in Wilkins “[i]f the defendant was a nonkiller who fled, leaving behind an accomplice who killed.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013, at p. 3, referring to People v. Cavitt (2004) 33 Cal. 4th 187, and People v. Wilkins (2013) 56 Cal. 4th 333, 344.)
The committee explained the revisions as follows: “Wilkins held it was error to give [CC 549] on the ‘One Continuous Transaction’ rule in a felony murder case when the defendant had been away from the scene of the crime for hours before the homicide took place.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 2.. . .[¶].) “In discussing the ‘One Continuous Transaction’ rule the court limited the application of People v. Cavitt. [] That case found that it was not error to instruct on ‘One Continuous Transaction’ in the unusual circumstances of that case. [] It stands to reason, however, that Cavitt’s limited holding on unusual facts was never meant to be the basis for standard jury instructions on felony murder, although the original Task Force on Criminal Jury Instructions mistakenly interpreted it that way.” (Advisory Committee on Criminal Jury Instructions Report (July 15, 2013) at p. 2, referring to People v. Cavitt (2004) 33 Cal. 4th 187.) As described by the Committee, in Cavitt, “Three defendants plan to commit a burglary in the home of one defendant’s stepmother. The stepdaughter pretends to be a crime victim. Both ‘victims’ are bound and left on a bed. The stepmother is alive when the other two defendants flee, but she dies later, either from suffocation due to her bonds, or due to subsequent, deliberate acts by the stepdaughter.” (Advisory Committee on Criminal Jury Instructions report, supra, at pp. 2-3, fn. 4.)