1

Filed 3/7/13 

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S190713

v. )

) Ct.App. 4/3 G040716

COLE ALLEN WILKINS, )

) Orange County

Defendant and Appellant. ) Super. Ct. No. 06NF2339

____________________________________)

Defendant Cole Allen Wilkins was convicted of first degree murder under a 

felony-murder theory that the victim was killed during the commission of a 

burglary. The evidence at trial established that defendant burglarized a house 

under construction and loaded some large household appliances onto the back of a 

pickup truck. Sometime later, as he was driving on a freeway, an unsecured stove

stolen in the burglary fell off his truck. Another driver swerved to avoid the stove,

crashed into a large truck, and was killed. The trial court instructed the jury that in 

order for the felony-murder rule to apply, the burglary and the act causing the 

death must be part of one “continuous transaction.” (See CALCRIM No. 549.) It 

refused defendant’s request that the jury be instructed that, for purposes of felony 

murder, the felony continues only until the perpetrator has reached a place of 

temporary safety. (See CALCRIM No. 3261.) The Court of Appeal found no 

error in the trial court’s refusal to instruct the jury on the so-called “escape rule”

and affirmed. 
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We conclude that it was error to refuse the instruction on the escape rule 

and that the error requires reversal of defendant’s conviction. 

FACTS

In 2005, defendant entered into an arrangement with a former girlfriend, 

Kathleen Trivich, under which she purchased a piece of property in Palm Springs 

and defendant, as co-owner, was to oversee the construction of a house on that 

property. Trivich also purchased a truck for defendant’s use, but the title remained 

in her name. Defendant lived in Long Beach with his girlfriend Nancy Blake.

In 2006, Dennis Kane was building a home in Menifee, a city in Riverside 

County located roughly between Long Beach and Palm Springs. Kane had 

purchased a large number of appliances and other items for the house, including a 

stove, refrigerator, dishwasher, microwave, light fixtures, ceiling fans, door locks, 

and a sink. These items were last seen in the house about 8:00 p.m. on the evening 

of Thursday, July 6, 2006, when Kane’s brother-in-law locked up the house. 

Trivich testified at trial that on Friday, July 7, 2006, she twice spoke to 

defendant on the phone. The first time, at 12:45 a.m., he told her that he “got 

some big items for the kitchen.” He did not tell her exactly what the items were. 

The second time, at 1:12 a.m., he told her that he was on his way to Palm Springs. 

Shortly before 5:00 a.m. on Friday, July 7, 2006, defendant was driving 

Trivich’s pickup truck westbound on “the 91 freeway” just east of the Kraemer 

Boulevard exit in Anaheim. He was travelling about 60 to 65 miles per hour, 

heading in the direction of his home in Long Beach. He was about 62 miles 

northwest of the Kane home in Menifee. The bed and cab of the pickup truck 

were loaded with appliances that had been stolen from the Kane home. The 

tailgate of defendant’s truck was down and none of the items in the bed of the 

truck were tied down. 
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A stove fell off defendant’s truck onto the 91 freeway. A driver behind 

defendant’s truck, Danny Lay, struck the stove with his car. Lay attempted to get 

defendant to pull over by flashing his lights and honking his horn. Defendant 

slowed down and pulled over, but then accelerated again. Lay pulled up next to 

defendant’s truck, rolled down the window, and told defendant to get off the 

freeway. Defendant pulled over at the next exit and stopped. He got out of the 

truck and threatened Lay, but when Lay told him that something had fallen off his 

truck, defendant exclaimed, “Oh my God, it’s a thousand-dollar stove.” 

Defendant falsely told Lay that his name was Michael Wilkins. He gave 

Lay the name of the registered owner of the truck, Kathleen Trivich, but gave him 

several false telephone numbers. Defendant then continued on to his home in 

Long Beach. In the meantime, the stove was still on the four-lane 91 freeway, in 

either the fast lane or the lane just to the right of it. At 5:00 a.m., David Piquette, 

driving his car in the fast lane, suddenly swerved to the right, apparently to avoid 

hitting the stove. His car crossed the middle lanes and struck a big rig truck that 

was travelling in the far right lane. Piquette died. 

When defendant arrived home in Long Beach about 5:30 or 6:00 a.m. on 

Friday, July 7, 2006, he and his girlfriend, Nancy Blake, moved some of the stolen 

items into Blake’s trailer. The next day, he and Blake dropped the trailer off for 

repairs in Riverside, and drove the truck with the remaining stolen items to the 

home of defendant’s friend, Sean Doherty, in Palm Springs. They used the 

tiedowns that were kept in the pockets of the backseat of the truck to secure the 

load in the truck bed. Defendant stored the remaining items in Doherty’s garage. 

That same Friday morning, between 7:00 and 7:30 a.m., Kane received a 

telephone call advising him that the appliances were missing from his house in 

Menifee, and reported the matter to the police. The police subsequently recovered 
4

the items from Nancy Blake’s trailer and Sean Doherty’s garage, and arrested 

defendant. 

To trace defendant’s whereabouts, cell phone records were used. Cell 

phone company records indicated, in relevant part, that defendant made or 

received calls on his cell phone at 10:13 p.m. on Thursday night, July 6, 2006, and 

at 12:45 a.m., 1:12 a.m., and 4:30 a.m. on Friday morning, July 7, 2006. These

records showed which cell tower transmitted each call. Normally, a cell phone 

call is transmitted through the closest tower, which would be located between two

and 10 miles away from the caller’s location. Thus, defendant’s location at the 

time of the calls must have been within a few miles of the cell tower that 

transmitted each call. The 10:13 p.m. call was transmitted through a tower close 

to defendant’s home in Long Beach. The 12:45 a.m. call was transmitted through 

a tower located near the 91 freeway, east of Long Beach. The 1:12 a.m. call was 

transmitted through a tower approximately 10 miles farther east. The 4:30 a.m.

phone call was transmitted through a tower located near Riverside, and near the 

intersection of the 91 freeway and “the 215 freeway.” The Riverside tower was 

about 31 miles north of the scene of the burglary in Menifee, and 31 miles east of 

the location where the accident would occur a half-hour later. 

There was, however, no direct evidence of when the burglary took place. 

The prosecution’s theory was that when the cell phone calls were made to Trivich 

at 12:45 a.m. and 1:12 a.m., defendant was driving eastbound on the 91 freeway,

en route from his home in Long Beach to the Kane home in Menifee. After 

Trivich’s truck was loaded with the appliances, under the prosecution’s theory, at 

about 4:00 a.m. defendant got on the 215 freeway — which was the closest 

freeway to the Kane home — and drove north, placing him about 30 miles from 

Menifee at the time of the 4:30 a.m. call. He then took the westbound 91 freeway
5

where, half an hour and another 30 miles later, the accident occurred that killed

Piquette. 

Defendant testified in his own defense. He denied the burglary and 

testified that he did not take the appliances from the Kane home but that he bought 

them from an acquaintance named “Rick” at a Home Depot parking lot off the 91

freeway. After obtaining the appliances he drove eastbound on the 91 freeway 

toward Palm Springs, intending to leave the appliances at Sean Doherty’s house. 

However, Doherty was not at home and defendant discovered that he could not 

unload them safely by himself, so he went into the house and took a nap. A 

couple hours later, he drove back to Long Beach, with the appliances still in his 

truck. Around 4:30 a.m. he pulled off at a gas station and used a pay phone to call 

his own cell phone because he could not find it in the truck. After locating his cell 

phone, he called Nancy Blake to inform her he was coming home. 

DISCUSSION

1. The Escape Rule

Defendant was convicted of first degree murder under the felony-murder 

theory that the killing of David Piquette occurred in the commission of a burglary. 

The felony-murder rule provides that “[a]ll murder . . . which is committed in the 

perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, 

mayhem, [or] train wrecking . . . is murder of the first degree.” (Pen. Code, § 189,

italics added.) “Under the felony-murder rule, a strict causal or temporal 

relationship between the felony and the murder is not required; what is required is 

proof beyond a reasonable doubt that the felony and murder were part of one 

continuous transaction. [Citation.] This transaction may include a defendant’s 

flight after the felony to a place of temporary safety.” (People v. Young (2005) 34 

Cal.4th 1149, 1175.) “A killing committed by a robber during his or her flight 
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from the scene of the crime, and before reaching a place of temporary safety, 

comes within section 189.” (People v. Pulido (1997) 15 Cal.4th 713, 723, fn. 3, 

citing People v. Salas (1972) 7 Cal.3d 812, 820-824.) 

This principle, often referred to as the “escape rule,” originated in People v. 

Boss (1930) 210 Cal. 245, in the context of a felony murder in the perpetration of a 

robbery. Boss noted that “[r]obbery, unlike burglary, is not confined to a fixed 

locus, but is frequently spread over considerable distance and varying periods of 

time.” (Id. at p. 251.) Later cases, however, have extended the rule to burglary. 

(See People v. Fuller (1978) 86 Cal.App.3d 618, 623; People v. Bodely (1995) 32 

Cal.App.4th 311 (Bodely).) Bodely reasoned that although a burglary is complete 

for other purposes when the burglar leaves the structure, “application of the escape 

rule to burglary is consistent with the ‘one continuous transaction’ test.” (Bodely, 

supra, at p. 314.) Similarly, the escape rule has been extended to felony murder in 

the perpetration of rape even though rape itself is complete upon penetration, 

because “flight following a felony has also been considered as part of the same 

transaction.” (People v. Portillo (2003) 107 Cal.App.4th 834, 843.) 

The escape rule also has been extended to other contexts requiring proof 

that an act occurred in the commission of a crime — such as inflicting great bodily 

injury in the course of commission of a crime (People v. Carroll (1970) 1 Cal.3d 

581, 584-585), kidnapping for purposes of robbery (People v. Laursen (1972) 8 

Cal.3d 192, 199-200), and use of a firearm in the commission of a robbery (People 

v. Fierro (1991) 1 Cal.4th 173, 225-226). 

At trial, defense counsel requested that the jury be instructed on the escape 

rule, as set out in CALCRIM No. 3261. That instruction (as adapted to apply to a 

male perpetrator when the alleged crime is burglary) reads: “The crime of 

burglary continues until the perpetrator has actually reached a temporary place of 

safety. The perpetrator has reached a temporary place of safety if he has
7

successfully escaped from the scene, is no longer being chased[, and has 

unchallenged possession of the property].” (See CALCRIM No. 3261.) The trial 

court refused defendant’s request for this instruction because the bench note to the 

instruction states, “This instruction should not be given in a felony-murder case to 

explain the required temporal connection between the felony and the killing. . . . 

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.” (Judicial Council of 

Cal., Crim. Jury Instns. (2012) Bench Notes to CALCRIM No. 3261, p. 990 

(Bench Notes).)

The CALCRIM drafters relied on the following language in People v. 

Cavitt (2004) 33 Cal.4th 187, 208 (Cavitt): “[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 

(People v. Cooper (1991) 53 Cal.3d 1158, 1167), by deeming the felony to 

continue until the felon has reached a place of temporary safety. (E.g., People v. 

Bodely[, supra,] 32 Cal.App.4th 311, 313.) 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.” Based on this

language in Cavitt, the CALCRIM bench note provides that the instruction on the 

escape rule should not be given in a felony-murder case, and that a jury should be 

instructed about that rule only in other situations in which “another instruction 

given to the jury has required some act ‘during the commission or attempted 

commission’ of the felony.” (Bench Notes to CALCRIM No. 3261, supra, at 

p. 989.)
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The referenced language in Cavitt, however, should be understood in the 

context of the facts of that case. The opinion explains at the outset that the case 

involves the “complicity aspect” of the felony-murder rule: “[W]e are not 

concerned with that part of the felony-murder rule making a killer liable for first 

degree murder if the homicide is committed in the perpetration of a robbery or 

burglary. Rather, the question here involves ‘a nonkiller’s liability for the felony 

murder committed by another.’ [Citation].” (Cavitt, supra, 33 Cal.4th at p. 196.) 

In other words, Cavitt addressed the scope of accomplice liability in connection 

with the felony-murder rule. In that case, the two codefendants argued that they 

should not be responsible for a killing under the felony-murder rule if the third 

accomplice in the burglary, who had remained at the scene of the crime, killed the 

victim after the two codefendants had reached a place of temporary safety. 

Among other things, one defendant argued that the trial court had erred in 

modifying the instruction on the escape rule to specify that the rule would not 

apply to terminate liability for felony murder if any one of the perpetrators 

continued to exercise control over the victim. The above quoted comments come 

from the portion of the opinion in Cavitt that addressed this claim. In that context, 

Cavitt concluded the instruction on the escape rule need not have been given at all. 

(Cavitt, supra, at p. 208.) 

Cavitt does not support the conclusion that an instruction on the escape rule 

is inapplicable in a felony murder case like the present one, in which the 

complicity aspect of the felony-murder rule is not at issue and the question is

whether “a killer [is] liable for first degree murder if the homicide is committed in 

the perpetration of a . . . burglary.” (Cavitt, supra, 33 Cal.4th at p. 196.) Cavitt

notes that the escape rule applies “in the context of certain ancillary consequences 

of the felony.” (Id. at p. 208.) We have long recognized that one of those

ancillary consequences is the perpetrator’s liability under the felony-murder rule. 
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“[T]he traditional ‘escape rule’ has been applied to define the duration of robbery 

in the context of numerous statutes defining the ancillary consequences of 

robbery.” (People v. Fierro, supra, 1 Cal.4th at p. 226, citing, among other 

examples, People v. Salas (1972) 7 Cal.3d 812, 823-824 [applying escape rule in 

the context of felony murder].) Indeed, “[t]he escape rule originated in the context 

of the felony-murder doctrine in the landmark case of People v. Boss[, supra,] 210 

Cal. 245.” (People v. Cooper (1991) 53 Cal.3d 1158, 1166 (Cooper).)1 The 

escape rule is “used in felony-murder cases to determine when a killing is so 

closely related to an underlying felony as to justify an enhanced punishment for 

the killing.” (People v. Bigelow (1984) 37 Cal.3d 731, 753.)2 “Under this test . . . 

 1 Cooper, which was cited in Cavitt, clearly recognized the applicability of 

the escape rule to felony murder. Cooper drew a distinction between the rule used 

to determine when a robbery is complete for purposes of accomplice liability, and 

the rule used to determine when a robbery is complete for purposes of the felonymurder rule. Cooper concluded that a getaway driver is an accomplice, rather than 

an accessory after the fact, if he or she forms the intent to aid in the robbery before 

the perpetrator has reached a place of temporary safety with the stolen goods. 

(Cooper, supra, 53 Cal.3d at pp. 1169-1170.) Cooper recognized that under the 

traditional “escape rule,” as applied in felony-murder cases, the felony continues 

until the perpetrator reaches a place of temporary safety, regardless of whether he 

or she still has the stolen goods. (Id. at p. 1166.) 

Similarly, Bodely, supra, 32 Cal.App.4th at page 313, which also was cited 

in Cavitt, clearly recognized the applicability of the escape rule to felony murder. 

Bodely held that the escape rule applies to felony-murder cases involving burglary 

because the “immediate escape from the scene of a crime is no less a part of the 

same continuous transaction which includes the crime when the crime is burglary 

than when the crime is robbery.” (Ibid.)

2 The CALJIC instructions, which are still available, have provided, since at 

least 1979, that for purposes of the felony-murder rule, a robbery is complete 

“when the perpetrator has eluded his pursuers, if any; has reached a place of 

temporary safety and is in unchallenged possession of the stolen property after 

having effected an escape with such property.” (CALJIC No. 9.15 (4th ed. 1979); 

see id., Use Note at p. 369 [“This instruction is designed for use in connection 

(footnote continued on next page)
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the crime continues until the criminal has reached a place of temporary safety.” 

(Bigelow, at p. 753.)3 

Recognizing that the escape rule has long been applied to determine 

whether a killing has occurred in the commission of a felony, the Court of Appeal 

attempted to reconcile the above quoted language in Cavitt “with cases that have 

discussed temporary safety as a component of the felony-murder rule.” The Court 

of Appeal reached the conclusion that “for purposes of the felony-murder rule, a 

robbery or burglary continues, at a minimum, until the perpetrator reaches a place 

of temporary safety. . . . But reaching a place of temporary safety does not, in and 

of itself, terminate felony-murder liability so long as the felony and the killing are 

part of one continuous transaction.” 

That statement may be accurate in some circumstances, as in Cavitt, in 

which one perpetrator had escaped to a place of safety while another remained at 

the scene of the felony and the killing. However, in cases like the present one, 

involving a single perpetrator, we have never suggested that if the perpetrator flees 

the scene of the crime and reaches a place of temporary safety before the killing, 

 

(footnote continued from previous page)

with a charge of felony murder based on robbery or a charge of kidnapping for the 

purpose of robbery”].) The current CALJIC instructions continue to include the 

escape rule in the instructions designed for use in felony-murder cases based on 

robbery (CALJIC No. 8.21.1) and on other crimes, including burglary and rape. 

(CALJIC No. 8.21.2.) 

3 People v. Bigelow applied the escape rule to determine the scope of the 

special circumstance of murder committed to “ ‘perfect . . . an escape from lawful 

custody,’ ” and concluded that an escapee who had remained at liberty for 12 days 

and traveled over a thousand miles had reached a place of temporary safety. 

(People v. Bigelow, supra, 37 Cal.3d at p. 751; see id. at p. 754.) 
11

the killing and the felony could still be considered part of one continuous 

transaction. Respondent cites no case that so suggests. 

Rather, when the killing occurs during the flight from a felony, this court 

and the intermediate appellate courts have, both before and after the decision in 

Cavitt, consistently applied the escape rule to test the sufficiency of the evidence 

that a killing occurred in the commission of the felony. (See, e.g., People v. 

Young, supra, 34 Cal.4th at pp. 1175-1177 [jury could reasonably conclude that 

robbery was not complete when the killing occurred 120 to 150 feet from the 

scene of the robbery]; People v. Ford (1966) 65 Cal.2d 41, 56-57 [evidence did 

not establish felony murder because, during the four hours between the robbery 

and the killing, the perpetrator had driven “aimlessly over a great distance” and 

had reached “places of temporary safety”]; People v. Russell (2010) 187 

Cal.App.4th 981, 992 [evidence sufficient to support finding that defendant had

not reached a place of temporary safety when he fled from officers at high speed 

less than 12 minutes after burglary]; People v. Thongvilay (1998) 62 Cal.App.4th 

71, 80 [evidence sufficient to support a finding that defendants failed to reach a 

place of temporary safety before they caused the accident that took the victim’s 

life]; People v. Johnson (1992) 5 Cal.App.4th 552, 560-561 [evidence sufficient to 

support finding that defendant did not reach a place of temporary safety, but was 

in constant flight for the 30 minutes between the robberies and the fatal accident]; 

see also People v. Milan (1973) 9 Cal.3d 185, 195 [instruction on felony murder 

was proper when the jury could conclude “that defendant had not won a place of 

temporary safety when he shot” the victim].) 

“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 because the robbery and the accidental death, in such a case, are parts of a 

‘continuous transaction.’ ” (People v. Thongvilay, supra, 62 Cal.App.4th at p. 77.) 
12

Some acts may occur as part of the same transaction as the felony but before the 

perpetrator attempts to flee. (See, e.g., People v. Fields (1983) 35 Cal.3d 329, 

364-367 [defendant killed victim after maintaining control over her for several 

hours after robbing her]; People v. Carroll, supra, 1 Cal.3d at p. 584 [after robbing 

the victim of his wallet, finding no money, and disposing of the wallet, defendant 

shot the victim out of anger and for revenge].) When the killing occurs during 

flight, however, the escape rule establishes the “outer limits of the ‘continuoustransaction’ theory.” (People v. Portillo, supra, 107 Cal.App.4th at p. 846.) 

“Flight following a felony is considered part of the same transaction as long as the 

felon has not reached a ‘place of temporary safety.’ ” (People v. Fuller, supra, 86 

Cal.App.3d at p. 623, italics added, quoting People v. Salas, supra, 7 Cal.3d at 

p. 822.) This court did not intend to change this well-settled principle or to 

expand the scope of the felony-murder rule when it decided a related, but

different, issue in Cavitt. 

Respondent argues that the escape rule “defines the duration of the 

underlying felony” and that we have consistently held that the duration of felonymurder liability is not determined by considering whether the felony itself has 

been completed. (See People v. Ainsworth (1988) 45 Cal.3d 984, 1016; People v

Chavez (1951) 37 Cal.2d 656, 670.) Respondent’s argument fails because the 

escape rule does not define the duration of the underlying felony for purposes 

other than determining whether a killing or some other act has occurred in the 

perpetration or commission of the felony. In this context, courts often describe the 

escape rule as defining the duration of the felony. (See, e.g., People v. Fierro, 

supra, 1 Cal.4th at p. 226 [“the traditional ‘escape rule’ has been applied to define 

the duration of robbery in the context of numerous statutes defining the ancillary 

consequences of robbery.”].) In other contexts, however, the escape rule is not 

applicable and the scope of the felony is defined more narrowly. (See, e.g., 
13

People v. Montoya (1994) 7 Cal.4th 1027, 1045, fn. 9 [“the liability of an aider 

and abettor to burglary may not be based upon an intent to commit, encourage, or 

facilitate the commission of the offense, when such intent arises after the 

perpetrator has departed from the structure”]; Cooper, supra, 53 Cal.3d at p. 1165 

[robbery continues during escape, for purposes of determining whether a person 

has acted as an accomplice or as an accessory, only while the perpetrator still has 

possession of the loot]; People v. Failla (1966) 64 Cal.2d 560, 569 [burglary is 

complete for purpose of determining whether crime is an attempt or a completed 

crime when any part of the body of the intruder is inside the premises].) Thus, the 

escape rule does not, as respondent contends, artificially cut off liability based on 

considerations not relevant to the felony-murder rule. Rather, “ ‘the escape rule 

serves the legitimate public policy considerations of deterrence and culpability’ by 

extending felony-murder liability beyond the technical completion of the crime.” 

(Bodely, supra, 32 Cal.App.4th at pp. 313-314, quoting Cooper, supra, 53 Cal.3d 

at p. 1167.) 

Respondent argues that application of the escape rule to felony murder 

would result in treating cases differently depending on whether the killing 

occurred before or after the defendant reached a place of safety even though the 

defendant’s conduct may have been equally culpable. The felony-murder rule, 

however, does not take into account the relative culpability of the defendant’s 

actions or state of mind. Its application depends only on whether the murder was 

“committed in the perpetration of” the felony. (Pen. Code, § 189, italics added.) 

As we have noted, the “Legislature has said in effect that [the] deterrent purpose 

[of the felony-murder rule] outweighs the normal legislative policy of examining 

the individual state of mind of each person causing an unlawful killing . . . . Once 

a person perpetrates or attempts to perpetrate one of the enumerated felonies, then 

in the judgment of the Legislature, he is no longer entitled to such fine judicial 
14

calibration, but will be deemed guilty of first degree murder for any homicide 

committed in the course thereof.” (People v. Burton (1971) 6 Cal.3d 375, 388; see 

People v. Farley (2009) 46 Cal.4th 1053, 1121.) 

Respondent finally argues that there need be only a “causal nexus” between 

the burglary and the homicide. In the present case, respondent argues, there is a 

sufficient nexus between the burglary and the homicide because the homicide was 

caused by defendant’s act of driving away from the scene of the crime with his 

truck loaded with stolen items that were not secured. Our opinion in Cavitt made 

clear, however, that “the felony-murder rule requires both a causal relationship 

and a temporal relationship between the underlying felony and the act resulting in 

death.” (Cavitt, supra, 33 Cal.4th at p. 193.) The causal relationship is 

established by a “logical nexus” between the felony and the homicidal act, and

“[t]he temporal relationship is established by proof the felony and the homicidal 

act were part of one continuous transaction.” (Ibid.) Although, as discussed 

above, Cavitt addressed an accomplice’s liability under the felony-murder rule, 

respondent provides no rationale or authority for eliminating the required 

“temporal relationship” in cases involving the liability of a sole perpetrator. 

2. The Trial Court Erred in Refusing to Instruct on the Escape Rule

If the court has properly instructed on the required relationship between the 

felony and the murder, which relationship is an element of the crime, the trial 

court has no sua sponte duty to clarify or amplify the scope of that element if the 

evidence does not raise an issue as to whether that relationship exists. (Cavitt, 

supra, 33 Cal.4th at pp. 203-204 [because the evidence did not raise an issue as to 

the existence of a logical nexus between the felony and the homicide, the trial 

court had no duty to clarify this requirement sua sponte]; People v. Garrison 

(1989) 47 Cal.3d 746, 792 [trial court not required to instruct sua sponte on the 
15

principle that a murder does not occur in the commission of a felony if the felony 

is merely incidental to the murder, when the evidence raised no issue as to whether 

the felony was incidental to the murder]; People v. Guzman (1988) 45 Cal.3d 915, 

952 [trial court had no sua sponte duty to clarify the meaning of the phrase “while 

[defendant] was engaged in . . . the commission of” the felony, where defense did 

not rely on theory that the murder did not occur while the killer was engaged in the 

felony and the facts plainly established that it did].) 

When a legally correct instruction is requested, however, it should be given 

“if it is supported by substantial evidence, that is, evidence sufficient to deserve 

jury consideration.” (People v. Marshall (1997) 15 Cal.4th 1, 39.) In the present 

case, defendant requested an instruction on the escape rule (CALCRIM No. 3261), 

and there was substantial evidence supporting the instruction. There was no direct 

evidence of the precise time at which the burglary occurred. The property was last 

seen at the Kane house on Thursday, July 6, and was recovered days later. 

Defendant testified that after loading the truck with the appliances, he drove to 

Palm Springs, speaking to Trivich on the way and telling her that he had some 

large appliances. He testified that he arrived at a friend’s house in Palm Springs, 

but was unable to unload the truck by himself. After using the bathroom and lying 

down for a while he decided to return to Long Beach and got back on the freeway, 

stopping at a gas station to make a telephone call. 

Even under the prosecution’s theory of events, defendant was 62 miles 

away from the scene of the burglary when the stove fell off his truck and he had 

been driving on the freeway at normal speeds for about an hour. There was no 

evidence that anyone was following him or that anyone was even aware of the 

burglary. A jury could have concluded that the fatal act occurred when the stove 

fell off the truck and that defendant had reached a place of temporary safety before 

the fatal act occurred. Indeed, the trial court implicitly concluded that an 
16

instruction clarifying the relationship between the felony and the killing was 

necessary, because it chose to instruct the jury with CALCRIM No. 549, the 

instruction designed to be used “[i]f the evidence raises an issue of whether the 

felony and the homicide were part of one continuous transaction.” (Bench Notes 

to CALCRIM No. 549 (2012) p. 335.)4

3. Standard of Prejudice

The parties disagree on what standard of prejudice applies to this 

instructional error. When the jury is “misinstructed on an element of the offense 

. . . reversal . . . is required unless we are able to conclude that the error was 

harmless beyond a reasonable doubt.” (People v. Hayes (1990) 52 Cal.3d 577, 

628 [misinstruction on “immediate presence” element of robbery required reversal 

under Chapman standard]; see also People v. Harris (1994) 9 Cal.4th 407 

[misinstruction on “immediate presence” element of robbery was harmless beyond 

a reasonable doubt].) Defendant contends that the trial court’s failure to instruct 

on the escape rule amounted to misinstruction on an element of the offense and 

violated his federal constitutional rights to due process and a trial by jury. 

 4 We note that had the court simply given CALCRIM No. 3261 in addition to 

CALCRIM No. 549, the result may have been confusing or misleading because 

the two instructions were not drafted in contemplation that they would be given 

together. CALCRIM No. 3261 defines the escape rule in terms of the duration of 

the burglary (“[t]he crime of burglary continues until the perpetrator has actually 

reached a temporary place of safety”), while CALCRIM No. 549 defines the scope 

of felony murder by reference to whether the burglary and the act causing death 

were part of one continuous transaction. Without attempting to prescribe the exact 

instructions that should have been given here or should be given in similar cases, 

we reiterate the court had a duty to provide instructions that correctly state the law. 

It could have done so by informing the jury that a killing committed after a fleeing 

felon has reached a place of temporary safety does not occur in the commission of 

the felony. 
17

Consequently, defendant argues, the federal harmless error standard applies and 

his conviction must be reversed unless this court concludes that the instructional 

error was harmless beyond a reasonable doubt. (See Chapman v. California

(1967) 386 U.S. 18, 24.) 

Respondent argues that even if the trial court erred, its error was one of 

state law only — a refusal to give a pinpoint instruction. Pinpoint instructions 

“relate particular facts to a legal issue in the case or ‘pinpoint’ the crux of a 

defendant’s case, such as mistaken identification or alibi. (See People v. Rincon–

Pineda[ (1975)] 14 Cal.3d [864,] 885.) They are required to be given upon 

request when there is evidence supportive of the theory . . . .” (People v. Saille

(1991) 54 Cal.3d 1103, 1119.) For such a state law error, reversal is required only 

if “it is reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of the error.” (People v. Watson (1956) 

46 Cal.2d 818, 836.) 

The error in this case amounted to more than a failure to give a pinpoint 

instruction because the instruction that the court gave on the “continuous 

transaction” element of felony murder was — in absence of an instruction on the 

escape rule — incomplete and misleading. The trial court instructed as follows: 

“In order for the People to prove that defendant is guilty of murder under a theory 

of felony murder, the People must prove that the burglary and the act causing the 

death were part of one continuous transaction. The continuous transaction may 

occur over a period of time in more than one location. In deciding whether the act 

causing the death and the felony were part of one continuous transaction, you may

consider the following factors: [¶] 1. Whether the felony and the fatal act 

occurred at the same place. [¶] 2. The time period, if any, between the felony and 

the fatal act. [¶] 3. Whether the fatal act was committed for the purpose of aiding 

the commission of the felony or escape after the felony. [¶] 4. Whether the fatal 
18

act occurred after the felony but while the perpetrator continued to exercise control 

over the person who was the target of the felony. [¶] 5. Whether the fatal act 

occurred while the perpetrator was fleeing from the scene of the felony or 

otherwise trying to prevent the discovery or reporting of the crime. [¶]

6. Whether the felony was the direct cause of death. [¶] And [¶] 7. Whether the 

death was a natural and probable consequence of the felony. [¶] It is not required 

that the People prove any of these factors or any particular combination of these 

factors. The factors are give[n to] assist you in deciding whether the fatal act and 

the felony were part of one continuous transaction.” (See CALCRIM No. 549.) 

As noted, the jury was told that it could consider “[w]hether the fatal act 

occurred while the perpetrator was fleeing from the scene of the felony or 

otherwise trying to prevent the discovery or reporting of the crime.” Nothing in 

the instruction, however, informed the jury that there was any rule it must apply in 

determining whether the felony and the fatal act were part of one continuous 

transaction or in determining whether defendant’s flight had ended. Furthermore, 

the jury was told that the listed factors were simply ones that the jury “may 

consider,” and that the People need not “prove any of these factors or any 

particular combination of factors.” Under these instructions, even a juror who 

believed that defendant had reached a place of temporary safety before the fatal 

act occurred would have no reason to conclude that he or she must find the 

defendant not guilty of first degree murder. The instructions given, therefore, 

amounted to misinstruction on an element of the offense of first degree murder.5 

Accordingly, the federal harmless error standard applies.

 5 We express no opinion on whether CALCRIM No. 549 would be correct or 

complete when given in a case that did not raise an issue of the applicability of the 

escape rule. 
19

4. Assessment of Prejudice

“In deciding whether a trial court’s misinstruction on an element of an 

offense is prejudicial to the defendant, we ask whether it appears ‘ “ ‘beyond a 

reasonable doubt that the error complained of did not contribute to the verdict 

obtained.’ ” ’ ” (People v. Hudson (2006) 38 Cal.4th 1002, 1013, quoting People 

v. Hagen (1998) 19 Cal.4th 652, 671.) In People v. Hayes, supra, 52 Cal.3d 577, 

this court reversed a robbery conviction because the jury had been misinstructed 

on the meaning of “ ‘immediate presence’ ” for the purposes of robbery’s 

requirement that the property be taken from the victim’s immediate presence. We 

noted that the evidence did not establish immediate presence as a matter of law. 

“The room in which [the victim] was assaulted and killed was stipulated to be 107 

feet from the stolen property’s location, namely, the motel office and living 

quarters, and both were on the same motel premises. Under these circumstances, a 

reasonable finder of fact could conclude either that the property was not so distant 

as to be beyond the victim’s control and protection, or that it was too distant to be 

in the victim’s immediate presence at the time the force was used. Because the 

issue of immediate presence could reasonably have been decided either way, we 

are unable to declare that the misinstruction on this element of robbery was 

harmless beyond a reasonable doubt.” (Id. at pp. 628-629.) 

This case is analogous to Hayes in that a reasonable trier of fact could have 

concluded either that defendant had reached a place of temporary safety before the 

fatal act occurred, or that he had not. Even under the prosecution’s view of the 

facts, a properly instructed jury could have concluded that the fatal act was 

defendant’s act of driving in a manner that caused the stove to fall off of his truck, 

and it could have concluded that defendant had reached a place of temporary 

safety at the time of the fatal act because he had been driving for about an hour at 

normal speeds and was not being followed. Furthermore, although the jury clearly 
20

disbelieved defendant’s testimony that he had not stolen the property from the 

Kane home, it could have believed other portions of his testimony that he had 

stopped to make a phone call, or that he had stopped at Sean Doherty’s house 

before the accident. Finally, given the lack of evidence regarding exactly when 

the burglary took place, the jury could have reasonably concluded that the 

prosecution failed to prove beyond a reasonable doubt that defendant had not 

reached a place of temporary safety before the fatal act.

Even were we to conclude that the instructional error in this case did not 

amount to federal constitutional error subject to review under Chapman, reversal 

would be required under the standard applicable to state law instructional errors. 

“Under the Watson standard, prejudicial error is shown where ‘ “ ‘after an 

examination of the entire cause, including the evidence,’ [the reviewing court] is 

of the ‘opinion’ that it is reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the error.” [Citation.] 

“We have made clear that a ‘probability’ in this context does not mean more likely 

than not, but merely a reasonable chance, more than an abstract possibility.” 

[Citation.]’ ” (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050.) 

There is more than an abstract possibility that the instructional error 

affected the verdict in this case. Nothing in counsel’s arguments at trial helped to 

clarify the law for the jury. The prosecutor argued, among other things, that the 

burglary and the killing were part of a single transaction because defendant was 

still driving away with the stolen property. He addressed the factors listed in the 

instruction, arguing that almost all of them applied, but emphasized that the jurors 

could use other factors and their own common sense. Defense counsel argued that 

the burglary was over before the time of the killing because defendant left the 

scene of the crime and no one was following him or was aware of the crime — but 

there was no solid legal basis for his argument in the instructions. As noted above, 
21

even if the jury rejected all of defendant’s testimony, the prosecution did not 

dispute that at the time of the accident the burglary had not yet been discovered,

and defendant was at least 60 miles and one hour from the crime scene, had made 

a telephone call a half-hour earlier, and had been driving at a normal speed. Given 

the evidence, there is a reasonable probability that a jury properly instructed on the 

escape rule would have concluded that defendant had reached a place of temporary 

safety before the fatal act occurred and was not guilty of felony murder.6 

DISPOSITION

The judgment of the Court of Appeal upholding defendant’s conviction for 

first degree murder is reversed, and the matter is remanded for further proceedings 

consistent with this opinion. 

CANTIL-SAKAUYE, C. J.

WE CONCUR:

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

LIU, J.

 6 Defendant does not argue that the evidence was insufficient to support a 

conviction for felony murder. Consequently, there is no bar to his being retried for 

felony murder. (See People v. Hernandez (2003) 30 Cal.4th 1, 6.)
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Wilkins

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 191 Cal.App.4th 780

Rehearing Granted

__________________________________________________________________________________

Opinion No. S190713

Date Filed: March 7, 2013

__________________________________________________________________________________

Court: Superior

County: Orange

Judge: Richard F. Toohey

__________________________________________________________________________________

Counsel:

Richard A. Levy, under appointment by the Supreme Court, and Sharon M. Jones, under appointment by 

the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gary W. Schons and Julie L. Garland, Assistant Attorneys General, Teresa Torreblanca, 

Steven T. Oetting and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard A. Levy

3868 W. Carson St., Suite 205

Torrance, CA 90503-6706

(310) 944-3311

Steven T. Oetting

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2206