People v. Burroughs

678 P.2d 894, 35 Cal. 3d 824, 201 Cal. Rptr. 319, 1984 Cal. LEXIS 168

• Court: California Supreme Court
• Decided: April 19, 1984
• Docket: Crim. 23151
• Status: Published

Opinions

Opinion

GRODIN, J.

Defendant Burroughs, a 77-year-old self-styled “healer,” appeals from a judgment convicting him of unlawfully selling drugs, compounds, or devices for alleviation or cure of cancer (Health & Saf. Code, § 1707.1); felony practicing medicine without a license (Bus. & Prof. Code, § 2141.5, now § 2053); and second degree felony murder (Pen. Code, § 187) in the treatment and death of Lee Swatsenbarg.

Burroughs challenges his second degree murder conviction by contending the felonious unlicensed practice of medicine is not an “inherently dangerous” felony, as that term has been used in our previous decisions to describe and limit the kinds of offenses which will support application of the felony-murder rule. We conclude that while the felonious unlicensed practice of medicine can, in many circumstances, pose a threat to the health of the individual being treated, commission of that crime as defined by statute does not inevitably pose danger to human life. Under well-established principles it cannot, therefore, be made the predicate for a finding of murder, absent proof of malice. As a consequence, we must reverse defendant’s second degree felony-murder conviction.

The trial court did properly instruct the jury with respect to the unlawful selling of drugs, compounds, or devices for alleviation or cure of cancer, and felony practicing medicine without a license. There was substantial evidence presented from which the jury could have convicted defendant of these crimes. We affirm these convictions.

Lee Swatsenbarg had been diagnosed by the family physician as suffering from terminal leukemia. Unable to accept impending death, the 24-year-old Swatsenbarg unsuccessfully sought treatment from a variety of traditional medical sources. He and his wife then began to participate in Bible stiidy, hoping that through faith Lee might be cured. Finally, on the advice of a mutual acquaintance who had heard of defendant’s ostensible successes in healing others, Lee turned to defendant for treatment.

During the first meeting between Lee and defendant, the latter described his method of curing cancer. This method included consumption of a unique “lemonade,” exposure to colored lights, and a brand of vigorous massage administered by defendant. Defendant remarked that he had successfully treated “thousands” of people, including a number of physicians. He suggested the Swatsenbargs purchase a copy of his book, Healing for the Age of Enlightenment. If after reading the book Lee wished to begin defendant’s unorthodox treatment, defendant would commence caring for Lee immediately. During the 30 days designated for the treatment, Lee would have to avoid contact with his physician.

Lee read the book, submitted to the conditions delineated by defendant, and placed himself under defendant’s care. Defendant instructed Lee to drink the lemonade, salt water, and herb tea, but consume nothing more for the ensuing 30 days. At defendant’s behest, the Swatsenbargs bought a lamp equipped with some colored plastic sheets, to bathe Lee in various tints of light. Defendant also agreed to massage Lee from time to time, for an additional fee per session.

Rather than improve, within two weeks Lee’s condition began rapidly to deteriorate. He developed a fever, and was growing progressively weaker. Defendant counseled Lee that all was proceeding according to plan, and convinced the young man to postpone a bone marrow test urged by his doctor.

During the next week Lee became increasingly ill. He was experiencing severe pain in several areas, including his abdomen, and vomiting frequently. Defendant administered “deep” abdominal massages on two successive days, each time telling Lee he would soon recuperate.

Lee did not recover as defendant expected, however, and the patient began to suffer from convulsions and excruciating pain. He vomited with increasing frequency. Despite defendant’s constant attempts at reassurance, the Swatsenbargs began to panic when Lee convulsed for a third time after the latest abdominal massage. Three and a half weeks into the treatment, the couple spent the night at defendant’s house, where Lee died of a massive hemorrhage of the mesentary in the abdomen. The evidence presented at trial strongly suggested the hemorrhage was the direct result of the massages performed by defendant.

I.

Defendant’s conviction of second degree felony murder arose out of the jury’s determination that Lee Swatsenbarg’s death was a homicide committed by defendant while he was engaged in the felonious unlicensed practice of medicine. The trial court ruled that an underlying felony of unlicensed practice of medicine could support a felony-murder conviction because such practice was a felony “inherently dangerous to human life.”¹ Consequently, the trial judge instructed the jury that if the homicide resulted directly from the commission of this felony, the homicide was felony murder of the second degree.² This instruction was erroneous as a matter of law.

When an individual causes the death of another in furtherance of the perpetration of a felony, the resulting offense may be felony murder. (People v. Doyell (1874) 48 Cal. 85.) This court has long held the felony-murder rule in disfavor. “We have repeatedly stated that felony murder is a ‘highly artificial concept’ which ‘deserves no extension beyond its required application.’” (People v. Dillon (1983) 34 Cal.3d 441, 462-463 [194 Cal.Rptr. 390, 668 P.2d 697], quoting People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353]; accord, People v. Henderson (1977) 19 Cal.3d 86, 92-93 [137 Cal.Rptr. 1, 560 P.2d 1180], and authorities cited there.) For the reasons stated below, we hold that to apply the felony-murder rule to the facts of the instant case would be an unwarranted extension of this highly “anachronistic”³ notion.

At the outset we must determine whether the underlying felony is “inherently dangerous to human life.” (People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892].) We formulated this standard because “[i]f the felony is not inherently dangerous, it is highly improbable that the potential felon will be deterred; he will not anticipate that any injury or death might arise solely from the fact that he will commit the felony.” (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 4 [47 Cal.Rptr. 7, 406, P.2d 647].)

In assessing whether the felony is inherently dangerous to human life, “we look to the elements of the felony in the abstract, not the particular ‘facts’ of the case.” (Id., at p. 458, fn. 5; People v. Phillips, supra, 64 Cal.2d 574, 582; People v. Henderson, supra, 19 Cal.3d 86, 93; People v. Satchell (1971) 6 Cal.3d 28, 36-38, 39-42 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]; People v. Lopez (1971) 6 Cal.3d 45, 51-52 [98 Cal.Rptr. 44, 489 P.2d 1372].) This form of analysis is compelled because there is a killing in every case where the rule might potentially be applied. If in such circumstances a court were to examine the particular facts of the case prior to establishing whether the underlying felony is inherently dangerous, the court might well be led to conclude the rule applicable despite any unfairness which might redound to the defendant by so broad an application: the existence of the dead victim might appear to lead inexorably to the conclusion that the underlying felony is exceptionally hazardous. We continue to resist such unjustifiable bootstrapping.

In our application of the second degree felony-murder analysis we are guided by the bipartite standard articulated by this court in People v. Henderson, supra, 19 Cal.3d 86. In Henderson, we stated a reviewing court should look first to the primary element of the offense at issue, then to the “factors elevating the offense to a felony,” to determine whether the felony, taken in the abstract, is inherently dangerous to human life (id., at p. 94), or whether it possibly could be committed without creating such peril. (Ibid.; accord, People v. Lopez, supra, 6 Cal.3d 45.) In this examination we are required to view the statutory definition of the offense as a whole, taking into account even nonhazardous ways of violating the provisions of the law which do not necessarily pose a threat to human life. (People v. Satchell, supra, 6 Cal.3d at p. 40.)

The primary element of the offense in question here is the practice of medicine without a license. The statute defines such practice as “treating the sick or afflicted.” One can certainly conceive of treatment of the sick or afflicted which has quite innocuous results—the affliction at stake could be a common cold, or a sprained finger, and the form of treatment an admonition to rest in bed and drink fluids or the application of ice to mild swelling. Thus, we do not find inherent dangerousness at this stage of our investigation.

The next level of analysis takes us to consideration of the factors which elevate the unlicensed practice of medicine to a felony: “circumstances or conditions which cause or create a risk of great bodily harm, serious mental or physical illness, or death. ” That the Legislature referred to “death” as a separate risk, and in the disjunctive, strongly suggests the Legislature perceived that one may violate the proscription against the felonious practice of medicine without a license and yet not necessarily endanger human life. Our analysis of the other two categories of risk delineated in Business and Professions Code section 2053 further supports this conclusion.

“Great bodily harm” is not defined in section 2053, but the closely analogous term “serious bodily injury” is defined in Penal Code section 243— which establishes appropriate punishments for the crime of battery when committed under various circumstances—as “[a] serious impairment of physical condition, including, but not limited to the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement. ” Pursuant to this definition, a broken arm or leg would constitute serious bodily injury—and by implication, great bodily harm as well. While painful and debilitating, such bone fractures clearly do not, by their nature, jeopardize the life of the victim.

In addition, we acknowledge that “ ‘[sjerious bodily injury’ and ‘great bodily injury’ are essentially equivalent elements.” (People v. Corning (1983) 146 Cal.App.3d 83, 90-91 [194 Cal.Rptr. 27], citing People v. Kent (1979) 96 Cal.App.3d 130, 136-137 [158 Cal.Rptr. 35].) The term “great bodily injury,” defined for purposes of enhancement in Penal Code section 12022.7 as “significant or substantial physical injury,” has been held to include a broken jaw (People v. Johnson (1980) 104 Cal.App.3d 598, 609 [164 Cal.Rptr. 69]) and a broken hand (People v. Kent, supra). Obviously these injuries do not rise to the level of being inherently life-threatening.

There is no indication the Legislature intended to ascribe a different meaning to “great bodily harm,” as that term is used in section 2053, than is signified by “great bodily injury,” or, for that matter, “serious bodily injury,” in the Penal Code sections we have discussed. Thus, we must conclude that the risk of great bodily harm under section 2053 is likewise not inherently dangerous to human life.

The statute at issue can also be violated by administering to an individual in a manner which threatens risk of serious mental or physical illness. Whether risk of serious physical illness is inherently dangerous to life is a question we do not reach; however, we believe the existence of the category of risk of serious mental illness also renders a breach of the statute’s prohibitions potentially less than inherently dangerous to life.

As with the term “great bodily harm,” “mental illness” is not defined in section 2053. We have found no case in which a court of this state has made an attempt at such definition in the context of an adjudication pursuant to that statutory provision. Based on the meaning of “mental illness” in other contexts under California law, however, we are convinced this term encompasses a range of conditions, some of which are not inherently threatening to human life.

Under Civil Code section 232, subdivision (a)(6) (relating to proceedings to terminate parental custody under circumstances where a child’s “parents are, and will remain incapable of supporting or controlling the child . . . because of mental deficiency or . . . illness”), mentally ill persons have been judicially defined as people “ ‘(a) [w]ho are of such mental condition that they are in need of supervision, treatment, care, or restraint’ ” or “ ‘(b) [w]ho are of such mental condition that they are dangerous to themselves or to the person or property of others.’” (In re Carmaleta B. (1978) 21 Cal.3d 482, 490 [146 Cal.Rptr. 623, 579 P.2d 514], citing In re Baby Boy T. (1970) 9 Cal.App.3d 815, 820 [88 Cal.Rptr. 418].) This judicial definition tracks the language of former Welfare and Institutions Code section 5550, which defined mental illness for purposes of treatment of the mentally ill.

While conceding these definitions contemplate the possibility that mental illness may be inherently dangerous, we note they suggest there are occasions when this need not be the case. It is not difficult, for example, to envision one who suffers from delusions of grandeur, believing himself to be the President of the United States. An individual who purports without the proper license to be able to treat such a person need not be placing the patient’s life in jeopardy, though such treatment, if conducted, for example, without expertise, may lead to the need for more serious psychiatric attention.

Consequently, we are disinclined to rule today that the risks set forth in section 2053 are so critical as to render commission of this felony of necessity inherently dangerous to human life. Indeed, were we to interpret either the risk of great bodily harm or serious mental illness as being synonymous with the risk of death for purposes of the felony-murder rule, we would be according those terms a more restrictive meaning than that which the Legislature obviously meant them to have in the definition of the felony itself. Such a reading would require that an unlicensed practitioner of medicine actually perform treatment under circumstances or conditions which necessarily place the very life of the patient in jeopardy before such a practitioner could be susceptible to a conviction for felonious unlicensed practice. We possess grave doubts that the Legislature intended such a result.

Moreover, our analysis of precedent in this area reveals that the few times we have found an underlying felony inherently dangerous (so that it would support a conviction of felony murder), the offense has been tinged with malevolence totally absent from the facts of this case. In People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193], we held that poisoning food, drink, or medicine with intent to injure was inherently dangerous. The wilful and malicious burning of an automobile (located in a garage beneath an occupied home) was ruled inherently dangerous in People v. Nichols (1970) 3 Cal.3d 150, 162-163 [89 Cal.Rptr. 721, 474 P.2d 673]. Finally, we held kidnaping to be such an offense in People v. Ford, supra, 60 Cal.2d 772, 795, overruled on other grounds in People v. Satchell, supra, 6 Cal.3d 28, 35-41.

To hold, as we do today, that a violation of section 2053 is not inherently so dangerous that by its very nature, it cannot be committed without creating a substantial risk that someone will be killed, is consistent with our previous decisions in which the underlying felony has been held not inherently hazardous. We have so held where the underlying felony was felony false imprisonment (People v. Henderson, supra, 19 Cal.3d 86), possession of a concealable firearm by an ex-felon (People v. Satchell, supra, 6 Cal.3d 28), escape from a city or county penal facility (People v. Lopez, supra, 6 Cal.3d 45), and in other, less potentially threatening circumstances.⁴

Finally, the underlying purpose of the felony-murder rule, to encourage felons to commit their offenses without perpetrating unnecessary violence which might result in a homicide, would not be served by applying the rule to the facts of this case. Defendant was or should have been aware he was committing a crime by treating Swatsenbarg in the first place.⁵ Yet, it is unlikely he would have been deterred from administering to Lee in the manner in which he did for fear of a prosecution for murder, given his published beliefs on the efficacy of massage in the curing of cancer. Indeed, nowhere is it claimed that defendant attempted to perform any action with respect to Swatsenbarg other than to heal him—and earn a fee for doing so.

This clearly is a case in which conviction of felony murder is contrary to our settled law, as well as inappropriate as a matter of sound judicial policy. The instruction regarding felony murder was erroneous.

Accordingly, defendant’s second degree murder conviction is reversed.

II.

In addition to asserting the felonious unlicensed practice of medicine will not provide the predicate for a felony-murder conviction because felonious unlicensed medical practice is not inherently dangerous to human life, Burroughs claims the trial court erroneously refused to give an instruction, requested by defendant, on the purportedly lesser included offense of involuntary manslaughter. Our conclusion the felony of practicing medicine without a license is not inherently dangerous, of course, obviates the necessity of reaching this alternative basis for purposes of reversal. To provide guidance to the trial court should Burroughs be retried for the death of Lee Swatsenbarg, however, we now consider whether, on the facts alleged, Burroughs could properly be charged and convicted of involuntary manslaughter. We will conclude that while there was no evidence to suggest Swatsenbarg’s demise was the intended consequence of Burroughs’ treatment of the decedent, there was substantial evidence that this treatment, the administering of “deep abdominal massages” in particular, was performed “without due caution and circumspection,” and was the proximate cause of Lee Swatsenbarg’s death. Thus, on the evidence presented, Burroughs was susceptible to a possible conviction of involuntary manslaughter,⁶ and the jury should have been so instructed. (See, e.g., People v. Flannel (1979) 25 Cal.3d 668, 684 [160 Cal.Rptr. 84].)

Manslaughter is defined in Penal Code section 192 as “the unlawful killing of a human being without malice.”⁷ Manslaughter can be either voluntary or involuntary. Involuntary manslaughter is “the unlawful killing of a human being in certain unlawful ways without any intention of doing so.” (People v. McManis (1954) 122 Cal.App.2d 891, 898 [266 P.2d 134].) There is no allegation made, nor was there any evidence adduced at trial, that Burroughs at any time harbored any intent even to harm Swatsenbarg in the slightest fashion.⁸ The evidence was very substantial, however, that Lee Swatsenbarg’s death resulted directly from the abdominal massages administered by defendant Burroughs. Swatsenbarg died from massive hemorrhaging in the abdominal mysentary, soon after Burroughs boasted of how “deep” into the abdomen of the decedent his massages had gotten. There was substantial testimony from medical experts that leukemia victims such as Swatsenbarg are significantly more susceptible to hemorrhaging than are individuals who do not suffer from the disease. This testimony also included the conclusion that many portions of a leukemia victim’s body are extremely sensitive if subjected to physical contact—and that the bleeding in Swatsenbarg’s abdominal region was the result of severe trauma to that area. No other likely sources of this degree of trauma were suggested at trial. Assuming the jury found the cause of death to be the “therapy” administered to Swatsenbarg by Burroughs, defendant committed a homicide without malice, which falls explicitly under the rubric of manslaughter as defined in section 192.

Involuntary manslaughter is described in section 192 as a killing, without malice “in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” While a killing in the course of commission of a noninherently dangerous felony does not appear to be precisely within one of these descriptions, the court in People v. Morales (1975) 49 Cal.App.3d 134, 144 [122 Cal.Rptr. 157], held that as a matter of statutory construction, the noninherently dangerous felony of grand theft may support a conviction of involuntary manslaughter, if the felony is committed “without due caution and circumspection.” We agree that the only logically permissible construction of section 192 is that an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection. Thus, if the jury had concluded the activities performed by Burroughs in the course of the commission of the felonious unlicensed practice of medicine proximately caused the death of Lee Swatsenbarg, and that these activities were committed “without due caution and circumspection, ”⁹ the jury could properly have convicted Burroughs of involuntary manslaughter.

Indeed, while the descriptions listed in section 192 of the ways in which involuntary manslaughter is committed do not specifically detail circumstances identical to those involved in this case, the only rational interpretation of section 192 is that the Legislature intended felons situated as Burroughs is here be susceptible to conviction for involuntary manslaughter.¹⁰ “It would be anomalous to hold, although defendant’s unlawful act proximately caused the death, that he should bear no criminal responsibility for the homicide.” (People v. Morales, supra, 49 Cal.App.3d at p. 144.) More anomalous still would be a holding that while one who kills in the course of a lawful act without due caution and circumspection is guilty of involuntary manslaughter, one such as Burroughs, who allegedly commits a homicide while committing a noninherently dangerous felony, is guilty only, perhaps, of a battery. If Swatsenbarg died from the massages unlawfully administered by Burroughs, defendant certainly ought not benefit from the fact that those massages were felonious, rather than lawful.

“[T]he basic definition set forth at the outset of Penal Code section 192 is of controlling significance—‘Manslaughter is the unlawful killing of a human being, without malice.’ ” (Id., at p. 145.) The Legislature provided in section 192, subdivision 2, that a killing in the commission of a lawful act which might produce death if committed without due caution and circumspection is involuntary manslaughter. A fortiori, an unintentional homicide committed in the course of a noninherently dangerous felony (which might, nevertheless, produce death if committed without due caution and circumspection) ought be punishable under section 192 as well.¹¹

Thus, while Burroughs’ second degree felony-murder conviction must be reversed, if the decision again be made to prosecute him he is susceptible to a charge and possible conviction of involuntary manslaughter.

Mosk, J., Kaus, J., Broussard, J., and Reynoso, J., concurred.

1 Felony practicing medicine without a license violates section 2053 of the Business and Professions Code (formerly § 2141.5) which states: “Any person who willfully, under circumstances or conditions which cause or create a risk of great bodily harm, serious physical or mental illness, or death, practices or attempts to practice, or advertises or holds himself or herself out as practicing, any system or mode of treating the sick or afflicted in this state, or diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person, without having at the time of so doing a valid, unrevoked or suspended certificate as provided in this chapter, or without being authorized to perform such act pursuant to a certificate obtained in accordance with some other provision of law, is punishable by imprisonment in the county jail for not exceeding one year or in the state prison.”

2 Second degree felony murder was defined for the jury as, “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as a direct causal result of the commission of or attempt to commit a felony inherently dangerous to human life, namely, the crime of practicing medicine without a license under circumstances or conditions which cause or create risk of great bodily harm, serious mental or physical illness, or death, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the second degree, [¶] The specific intent to commit such felony, i.e., practicing medicine without a license under circumstances or conditions which cause or create risk of great bodily harm, serious mental or physical illness, or death, and the commission of or attempt to commit such crime must be proved beyond any doubt.” (CALJIC No. 8.32.)

3 People v. Phillips, supra, 64 Cal.2d 574, 583, footnote 6. “The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant’s commission of another but because it anachronistically resurrects from a bygone age a ‘barbaric’ concept that has been discarded in the place of its origin.” (Ibid.)

In People v. Dillon, supra, 34 Cal.3d 441, 462-472, we reaffirmed the first degree felony-murder rule despite serious reservations as to its rationality and moral vitality, because we regarded ourselves bound by the explicit statutory provision (Pen. Code, § 189) from which that rule derived. The second degree felony-murder rule, by contrast, is a creature of judicial invention, and as the Chief Justice’s concurring opinion suggests the time may be ripe to reconsider its continued vitality. We decline to do so here, however, since that issue has not been raised, briefed, or argued.

4 Including where the underlying felonies were grand theft by false pretenses (People v. Phillips, supra, 64 Cal.2d 574); and conspiracy to possess methedrine illegally (People v. Williams, supra, 63 Cal.2d 452).

5 He had been convicted of practicing medicine without a license in 1960.

6 By so ruling we do not mean to prejudice defendant should he be retried, only that on the evidence presented at trial, a jury could reasonably have convicted defendant of involuntary manslaughter.

7 “[M]alice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned or malignant heart.” (Pen. Code, § 188.)

8 Thus, while Burroughs may be criminally responsible for the death of Lee Swatsenbarg, he is not subject to a conviction for voluntary manslaughter—“a wilful act, characterized by the presence of an intent to kill . . . .” (People v. Bridgehouse (1956) 47 Cal.2d 406, 413 [303 P.2d 1018]; People v. Forbs (1965) 62 Cal.2d 847, 852 [44 Cal.Rptr. 753, 402 P.2d 825].)

9 “Due caution and circumspection” within the meaning of section 192 is equivalent to criminal negligence, which is conduct that is “ ‘such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or indifference to consequences.’” (People v. Penny (1955) 44 Cal.2d 861, 879 [285 P.2d 926].) In the instant case there was substantial testimony that a reasonably prudent physician would have known that administering “deep abdominal massage” to a leukemia victim such as Swatsenbarg would render the likelihood of hemorrhage very high. Burroughs’ treatment of Swatsenbarg, given defendant’s apparent indifference to, or lack of awareness of this common medical knowledge, is at the core of activity performed “without due caution and circumspection.”

10 It is a well settled rule of statutory construction that if possible, legislation is to be interpreted to lead to rational, rather than absurd outcomes. (Jersey Maid Milk Products v. Brock (1939) 13 Cal.2d 620 [91 P.2d 577].)

11 The mere conclusion that a homicide was the proximate result of a felony, absent a showing that defendant acted “without due caution and circumspection” is, however, insufficient to support an involuntary manslaughter conviction. For example, a person who steals a woman’s unattended purse while the “victim” stands across the street is not criminally responsible for the death of the woman resulting from her tripping and suffering a severe fall in pursuit of the thief.