414 P.2d 353 (Cal. 1966)
In June 1961, Linda Epping's mother observed a swelling over the eight-year-old girl's left eye.1 Linda was taken to Dr. Straatsma at the UCLA Medical Center, admitted on July 17 suffering great pain, and underwent an exploratory operation whose biopsy confirmed a rare and fast-growing form of eye cancer.2 Dr. Straatsma advised immediate surgical removal of the affected eye, and after initial reluctance the Eppings gave oral consent on the morning of July 21.3
While waiting at the hospital that afternoon the Eppings met Mrs. Eaton, who told them defendant had cured her son of a brain tumor without surgery.4 Mrs. Epping called defendant, who repeatedly assured the parents he could cure Linda without surgery, urged them to remove her from the hospital, and claimed the UCLA doctors would use her as a human guinea pig.5 In reliance on those statements the Eppings took Linda out of the hospital that day and placed her under defendant's care.6
Defendant treated Linda from July 22 to August 12, 1961, charging an advance fee of $500 for three months plus more than $200 for pills and medicines.7 Linda's condition did not improve, and on August 13 the Eppings dismissed defendant.8 They subsequently tried a Mexican herbal drug and Christian Science treatment but never returned Linda to the hospital for surgery.9 Linda died on December 29, 1961.10
At trial in the Superior Court of Los Angeles County defendant testified that he knew he could not cure cancer, had urged the Eppings to return Linda to the hospital, and had provided only supportive care to build her general health.11 The prosecution introduced medical testimony that surgery on July 21 would have prolonged or saved Linda's life.12 The jury convicted defendant of second-degree murder after receiving a felony-murder instruction predicated on grand theft by false pretenses, and defendant appealed the judgment.13
Whether defendant's conduct proximately caused Linda Epping's death?14
Yes. Dr. Straatsma testified with reasonable medical certainty that surgery on July 21 would have extended Linda's life by a minimum of two months and could have effected a complete cure.18 Defendant's repeated assurances that he could cure Linda without surgery caused the Eppings to remove her from the hospital that afternoon, preventing the scheduled operation during the period when the tumor grew dramatically.19 The Eppings' later attempts at herbal and Christian Science treatment did not break the chain of causation.
The delay attributable to defendant's conduct measurably reduced the period by which surgery would have extended her life and diminished her chances for recovery.20
Defendant's conduct proximately caused Linda Epping's death.21
Whether section 1714 of the Health and Safety Code preempted a felony prosecution for grand theft by false pretenses and thereby precluded a felony-murder instruction?22
A misdemeanor statute condemning false representations of cancer cures supplements rather than supplants the felony of grand theft by false pretenses when the elements of reliance and parting with value are present.23 The Legislature intended to facilitate punishment of fraudulent cancer cures without immunizing conduct previously punishable as grand theft.24
No. Section 1714 requires no proof that the victim relied on the representation or parted with value, whereas grand theft demands both elements.25 The Legislature therefore provided a misdemeanor route for cases lacking those elements while preserving felony liability under Penal Code section 484 when reliance and value are shown.26 Defendant charged an advance fee of five hundred dollars. He collected additional charges exceeding two hundred dollars for pills.
These facts satisfied the grand theft elements, so the misdemeanor provision did not foreclose the felony prosecution or the felony-murder instruction on that ground.27
Section 1714 of the Health and Safety Code did not preempt the felony prosecution or preclude the felony-murder instruction.28
Whether grand theft is an inherently dangerous felony that can support a second-degree felony-murder instruction?29
Only felonies that are inherently dangerous to human life in the abstract, judged by their statutory elements rather than the particular facts of the case, may support application of the second-degree felony-murder rule.30 The doctrine expresses an artificial concept that receives no extension beyond its required application.31
No. Grand theft by false pretenses is not inherently dangerous to life when viewed in the abstract.32 The prosecution's attempt to redefine the offense as grand theft medical fraud by incorporating the factual context of cancer treatment would abandon the statutory definition.33 It would permit the felony-murder rule to apply whenever any felony is committed in a manner dangerous to life.34 The court has repeatedly rejected that result.35
No reported decision in Anglo-American law has ever invoked the felony-murder doctrine for a death resulting from a course of conduct involving felonious fraud.36
Grand theft is not an inherently dangerous felony and cannot support a second-degree felony-murder instruction.37
Whether the felony-murder instruction prejudiced defendant by removing the issue of malice from the jury's consideration?38
An instruction that permits conviction of murder without requiring the jury to find malice, whether express or implied through conscious disregard for life, denies the defendant the constitutional right to a jury determination of every material element.39 Such an error constitutes a miscarriage of justice unless the record establishes malice as a matter of law.40
Yes. The felony-murder instruction allowed conviction upon a bare showing that Linda's death proximately resulted from conduct amounting to grand theft, without any finding that defendant acted with conscious disregard for life.41 Although the prosecution argued that the jury must have found knowing or reckless falsehoods, such a finding does not establish as a matter of law the subjective appreciation of peril required for implied malice.42 The record contains evidence from which the jury could have concluded that defendant believed his supportive treatment would be as efficacious as surgery in prolonging life, so the court cannot infer malice from the verdict.43
The felony-murder instruction prejudiced defendant by removing the issue of malice from the jury's consideration.44
Related opinions on this issue
Joined by Mccomb, J., And Schauer, J.
Justice Burke dissented from the reversal, contending that any error in giving the felony-murder instruction did not result in a miscarriage of justice under article VI, section 4½ of the California Constitution.45 He emphasized the overwhelming evidence that defendant, motivated by mercenary greed shown by the five-hundred-dollar advance fee and one-hundred-percent markup on pills, acted with conscious disregard for Linda's life.46 Burke noted defendant's own testimony acknowledging the extreme danger of the fast-growing cancer, the slender hope offered by early surgery, and his repeated recognition that the child required medical attention he could not provide.47
In Burke's view, this testimony rendered any possibility that defendant believed his treatment would be as efficacious as surgery so remote as to be virtually nonexistent, establishing malice as a matter of law and rendering the instructional error harmless.48
Whether the trial court's remaining instructions on the other bases for second-degree murder were proper?49
The instruction that an unlawful killing with malice aforethought is second-degree murder when the killing proximately results from an unlawful act whose natural consequences are dangerous to life, deliberately performed by one who knows the conduct endangers life, correctly states implied malice provided the word unlawful is understood to require absence of justification or excuse.50 The abandoned-and-malignant-heart formulation is superfluous and risks inviting the jury to apply an objective standard or to convict on character rather than conduct.51
Yes. The first subdivision properly captures the requirement of conscious disregard for life when the act is performed with knowledge of danger, though the court suggested rephrasing to eliminate any implication that an independent crime must be proved.52 The abandoned-and-malignant-heart language adds nothing to the jury's understanding. It may encourage conviction of a bad person rather than analysis of subjective mental state.
It risks blurring the line between murder and manslaughter by permitting an objective standard.53 The trial court therefore did not err in giving the instructions, but future charges should employ the more precise conscious-disregard formulation.54
The trial court's remaining instructions on the other bases for second-degree murder were proper, subject to suggested refinements for clarity.55