People v. Burroughs
678 P.2d 894, 201 Cal. Rptr. 319, 35 Cal. 3d 824 (1984)
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Rule of Law:
For the second-degree felony-murder rule to apply, the underlying felony, when viewed in the abstract, must be one that by its very nature cannot be committed without creating a substantial risk that someone will be killed. The crime of felonious unlicensed practice of medicine is not an inherently dangerous felony because its elements can be satisfied by conduct that does not threaten human life.
Facts:
- Lee Swatsenbarg, a 24-year-old, was diagnosed with terminal leukemia.
- After traditional medical treatments were unsuccessful, Swatsenbarg and his wife sought treatment from defendant Burroughs, a 77-year-old self-styled 'healer' with no medical license.
- Burroughs prescribed a 30-day treatment regimen consisting of a special lemonade, colored lights, and vigorous deep abdominal massages, instructing Swatsenbarg to avoid his regular physicians.
- Over the next few weeks, Swatsenbarg's condition rapidly deteriorated; he developed a fever, weakness, severe pain, vomiting, and convulsions.
- Burroughs continued to administer deep abdominal massages, reassuring the Swatsenbargs that this deterioration was part of the healing process.
- Approximately three and a half weeks into the treatment, shortly after Burroughs performed another deep massage, Swatsenbarg died of a massive hemorrhage of the mesentery in his abdomen.
- Trial evidence strongly suggested the fatal hemorrhage was a direct result of the massages performed by Burroughs.
Procedural Posture:
- The State prosecuted Burroughs in a California superior court (trial court).
- The jury convicted Burroughs of unlawfully selling drugs for cancer, felony practicing medicine without a license, and second-degree felony murder.
- The trial judge had instructed the jury that the felonious unlicensed practice of medicine was an inherently dangerous felony sufficient for a felony-murder conviction.
- Burroughs appealed the judgment to the California Supreme Court, challenging his second-degree murder conviction.
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Issue:
Is the felonious unlicensed practice of medicine an 'inherently dangerous felony' that can support a conviction for second-degree felony murder?
Opinions:
Majority - Grodin, J.
No. The felonious unlicensed practice of medicine is not an inherently dangerous felony that can support a conviction for second-degree felony murder. To determine if a felony is inherently dangerous, a court must look to the elements of the offense in the abstract, not the specific facts of the case. The statute defining felonious unlicensed practice of medicine is violated when treatment is rendered under circumstances creating a risk of 'great bodily harm, serious physical or mental illness, or death.' The Legislature's use of the disjunctive 'or' indicates that a risk of 'great bodily harm' or 'serious mental illness' is not necessarily equivalent to a risk of death. Since 'great bodily harm' can encompass non-life-threatening injuries like a broken bone, and 'serious mental illness' can include non-lethal conditions, the offense can be committed without creating a substantial danger to human life. Therefore, it is not inherently dangerous in the abstract and cannot serve as the predicate felony for a second-degree felony-murder conviction.
Dissenting - Richardson, J.
Yes. The unauthorized practice of medicine 'under circumstances or conditions which cause or create a risk of great bodily harm, serious physical or mental illness, or death' is an inherently dangerous felony that fully supports applying the second-degree felony-murder rule. The majority's distinctions between the various risks are hypertechnical and ignore the deterrent purpose of the rule. Unlike other felonies found not to be inherently dangerous, this statute explicitly requires a risk of significant personal harm. Knowledge that causing a death while engaging in such dangerous, unlicensed practice could result in a murder conviction would serve the rule's purpose of deterring such conduct. Improperly treating the sick and afflicted under the conditions specified in the statute is manifestly and almost synonymously 'inherently dangerous to life.'
Concurring - Bird, C. J.
No. While the concurring opinion agrees that felonious unlicensed medical practice is not an inherently dangerous felony, it argues the court should have reversed the conviction on the broader ground of abolishing the second-degree felony-murder rule altogether. This rule is a 'barbaric,' 'anachronistic,' and judicially created doctrine that erodes the fundamental principle of criminal law that liability should be based on an actor's mental state (mens rea). Since the second-degree felony-murder rule is a common law doctrine created by the courts and not by statute, this court has the power and responsibility to eliminate it. Justice would be better served by requiring prosecutors to prove malice for a murder conviction, as they can in nearly all cases where the rule might otherwise apply.
Analysis:
This decision significantly narrows the application of the second-degree felony-murder rule in California by strictly adhering to the 'in the abstract' test. It establishes that if a statute defines a felony using a disjunctive list of harms, and some of those harms are not inherently life-threatening, the felony as a whole cannot be deemed inherently dangerous. This precedent makes it more difficult for prosecutors to secure murder convictions for accidental deaths that occur during felonies not explicitly listed in the first-degree murder statute. The case reflects the judiciary's increasing disfavor with the felony-murder doctrine, pushing the law towards requiring proof of malice or, at minimum, criminal negligence for homicide convictions.
