3261. During Commission of Felony: Defined - Escape Rule

The People must prove that <insert allegation, e.g., the defendant personally used a firearm> during the commission [or attempted commission] of <insert felony or felonies>.

<Give one or more bracketed paragraphs below depending on crime[s] alleged.>

<Robbery>

[The crime of robbery [or attempted robbery] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety.

The perpetrator[s] (has/have) reached a temporary place of safety if:

(he/she/they) (has/have) successfully escaped from the scene; [and]

(he/she/they) (is/are) no longer being chased(; [and]/.)

[(he/she/they) (has/have) unchallenged possession of the property(; [and]/.)]

[(he/she/they) (is/are) no longer in continuous physical control of the person who is the target of the robbery.]]

<Burglary>

[The crime of burglary [or attempted burglary] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene[,] [and] (is/are) no longer being chased[, and (has/ have) unchallenged possession of the property].]

<Sexual Assault>

[The crime of <insert sexual assault alleged> [or attempted <insert sexual assault alleged>] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene[,] [and] (is/are) no longer being chased[, and (is/are) no longer in continuous physical control of the person who was the target of the crime].]

<Kidnapping>

[The crime of kidnapping [or attempted kidnapping] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene, (is/are) no longer being chased, and (is/ are) no longer in continuous physical control of the person kidnapped.]

<Other Felony>

[The crime of <insert felony alleged> [or attempted <insert felony alleged>] continues until the perpetrator[s] (has/have) actually reached a temporary place of safety. The perpetrator[s] (has/have) reached a temporary place of safety if (he/she/they) (has/have) successfully escaped from the scene and (is/are) no longer being chased.]

Bench Notes

Instructional Duty

Give this instruction whenever the evidence raises an issue over the duration of the felony and another instruction given to the jury has required some act "during the commission or attempted commission" of the felony. (See People v. Cavitt (2004) 33 Cal.4th 187, 208 [14 Cal.Rptr.3d 281, 91 P.3d 222].)

In People v. Cavitt (2004) 33 Cal.4th 187, supra at p. 208, the Court explained the "escape rule" and distinguished this rule from the "continuous-transaction" doctrine:

[W]e first recognize that we are presented with two related, but distinct, doctrines: the continuous-transaction doctrine and the escape rule. The "escape rule" defines the duration of the underlying felony, in the context of certain ancillary consequences of the felony [citation], by deeming the felony to continue until the felon has reached a place of temporary safety. [Citation.] The continuous-transaction doctrine, on the other hand, defines the duration of felony-murder liability, which may extend beyond the termination of the felony itself, provided that the felony and the act resulting in death constitute one continuous transaction. [Citations.] . . .

(Ibid. [italics in original].)

This instruction should not be given in a felony-murder case to explain the required temporal connection between the felony and the killing. Instead, the court should give CALCRIM No. 549, Felony Murder: One Continuous Transaction—Defined. This instruction should only be given if it is required to explain the duration of the felony for other ancillary purposes, such as use of a weapon.

Similarly, this instruction should not be given if the issue is when the defendant formed the intent to aid and abet a robbery or a burglary. For robbery, give CALCRIM No. 1603, Robbery: Intent of Aider and Abettor. For burglary, give CALCRIM No. 1702, Burglary: Intent of Aider and Abettor.

Authority

Escape Rule. People v. Cavitt (2004) 33 Cal.4th 187, 208-209 [14 Cal.Rptr.3d 281, 91 P.3d 222].

Temporary Place of Safety. People v. Salas (1972) 7 Cal.3d 812, 823 [103 Cal.Rptr. 431, 500 P.2d 7]; People v. Johnson (1992) 5 Cal.App.4th 552, 560 [17 Cal.Rptr.2d 23].

Continuous Control of Victim. People v. Thompson (1990) 50 Cal.3d 134, 171-172 [266 Cal.Rptr. 309, 785 P.2d 857] [lewd acts]; People v. Carter (1993) 19 Cal.App.4th 1236, 1251-1252 [23 Cal.Rptr.2d 888] [robbery].

Robbery. People v. Salas (1972) 7 Cal.3d 812, 823 [103 Cal.Rptr. 431, 500 P.2d 7]; People v. Cooper (1991) 53 Cal.3d 1158, 1170 [282 Cal.Rptr. 450, 811 P.2d 742].

Burglary. People v. Bodely (1995) 32 Cal.App.4th 311, 313-314 [38 Cal.Rptr.2d 72].

Lewd Acts on Child. People v. Thompson (1990) 50 Cal.3d 134, 171- 172 [266 Cal.Rptr. 309, 785 P.2d 857].

Sexual Assault. People v. Hart (1999) 20 Cal.4th 546, 611 [85 Cal.Rptr.2d 132, 976 P.2d 683]; People v. Hernandez (1988) 47 Cal.3d 315, 348 [253 Cal.Rptr. 199, 763 P.2d 1289].

Kidnapping. People v. Pearch (1991) 229 Cal.App.3d 1282, 1299 [280 Cal.Rptr. 584]; People v. Silva (1988) 45 Cal.3d 604, 632 [247 Cal.Rptr. 573, 754 P.2d 1070].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 139-142.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.01[2][b][v], 142.10[1][b] (Matthew Bender).

Related Issues

Temporary Place of Safety Based on Objective Standard

Whether the defendant had reached a temporary place of safety is judged on an objective standard. The "issue to be resolved is whether a robber had actually reached a place of temporary safety, not whether the defendant thought that he or she had reached such a location." (People v. Johnson (1992) 5 Cal.App.4th 552, 560 [7 Cal.Rptr.2d 23].)

(New January 2006)