California Case About an Accomplice in a Robbery That Killed the Victim

In People v. Cavitt (2004) 33 Cal.4th 187, the third accomplice in a burglary/robbery killed the victim after co-defendants left the scene of the crime and arguably reached a place of temporary safety. One of the co-defendants requested burglary and robbery escape instructions, which were given with an additional concluding paragraph: " 'The perpetrators have not reached a place of temporary safety if, having committed the robbery or burglary with other perpetrators, any one of the perpetrators continues to exercise control over the victim. Only when all perpetrators have relinquished control over the victim, are in unchallenged possession of the stolen property, and have effected an escape can it be said that any one of them has reached a place of temporary safety.' " (Cavitt, supra, 33 Cal.4th at p. 208.) The co-defendant in Cavitt argued that the additional paragraph-instructing that all perpetrators must reach a place of temporary safety before any of them are deemed to do so-was a misstatement of the law. (Ibid.) Cavitt concluded that the continuous transaction instruction alone was proper and sufficient since the victim remained under the accomplice's control at the time of the homicide. (Cavitt, supra, 33 Cal.4th at pp. 208-209.) Cavitt further concluded that the escape instruction in its entirety was unnecessary but harmless because it did not provide an impermissible route to conviction. (Id. at p. 209.) Thus, while Cavitt noted support for the concept that a felony continues under the escape rule as long as one of the perpetrators retains control over the victim or is in flight from the crime scene, it fell short of announcing such a rule by concluding instead that the escape instruction was unnecessary. (Ibid.) Wilkins accepted the conclusion in Cavitt that the escape instruction was unnecessary when a victim remains under the control of and is killed by an accomplice after the defendant leaves the scene of a burglary, but distinguished Cavitt as addressing "the scope of accomplice liability in connection with the felony-murder rule." (People v. Wilkins (2013) 56 Cal.4th 333, 345.) Wilkins clarified that the rule in Cavitt does not stand for the proposition that the escape instruction is inapplicable in cases where the complicity aspect of the felony murder rule is not at issue. (Ibid.) In cases involving a single perpetrator, Wilkins reaffirmed the general rule that an underlying felony and a subsequent killing cannot be considered one continuous transaction when the sole perpetrator flees the scene of the crime and reaches a place of safety before the killing occurs. (Id., at p. 344.) Under that basic scenario, an escape instruction is needed "to test the sufficiency of the evidence that a killing occurred in the commission of a felony." (Ibid.)