People v. Bodely

Opinion

MIHARA, J.

The question presented by this case is whether a killing which occurs during the perpetrator’s flight from a burglary occurs “in the perpetration” of the burglary and therefore is felony murder. We conclude that such a killing is felony murder and affirm the judgment.

Facts

Defendant entered a supermarket, grabbed $75 out of a cash register and ran. Several supermarket employees pursued him. He ran out of the supermarket into the parking lot and got into his car. Joseph Andre, who was in the parking lot at the time, joined in the chase. Andre ran in front of defendant’s car and put his hands on the hood as if to stop the car. Andre then went to the driver’s side window of defendant’s car, put his arm inside the car and told defendant to stop. Defendant drove away, jerking the car sharply to the left. Defendant’s car hit Andre, knocking Andre onto the hood of the car. Andre then fell off of the hood and struck the back of his head on the pavement. This impact resulted in Andre’s death. Defendant sped up and drove away. Defendant was convicted of first degree murder (Pen. Code, § 189), burglary and an unrelated robbery

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and committed to state prison. On appeal, he challenges only the murder conviction.

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Analysis

“All murder . . . which is committed in the perpetration of, or attempt to perpetrate . . . burglary ... is murder of the first degree.” (Pen. Code, § 189.) Defendant claims that Andre’s death did not occur “in the perpetration of . . . burglary” because defendant had already left the burglarized structure when he caused Andre’s death. Defendant concedes that felony-murder liability continues throughout the flight of a perpetrator from the scene of a

robbery

until the perpetrator reaches a place of temporary safety. However, he claims that the perpetration of burglary “is over” when the burglar leaves the structure, because burglary, unlike robbery, does not require the perpetrator to asport any loot. Hence, in defendant’s view, the flight of the perpetrator from a burglary is not part of the perpetration of the offense. The only authority on point is