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Name: People v. Russell
Case #: D054408
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/23/2010

The felony murder escape rule applies to residential burglary, regardless whether the residence is occupied at the time, or whether the felon knowingly flees the police. At the time appellant burglarized a residence, no one was home. He stole a car from the garage, as well as other items. The burglary was not reported to the police. A short time later, and approximately 4 miles from the residence, a police officer observed the vehicle, driven by appellant stopped at a red light. The officer was in uniform and driving a marked patrol vehicle. Before the light changed, appellant accelerated rapidly and drove through the red light. The officer followed, with appellant reaching high rates of speed, running red lights, and driving erratically. Eventually, it crashed into a pick-up, killing the driver. At a court trial, appellant was convicted of first degree murder, residential burglary, and other offenses. The appellate court affirmed the murder charge on the basis of the felony murder escape rule. Under Penal Code section 189, all murder committed in the perpetration of residential burglary is first degree murder. There must be a causal and temporal relationship between the burglary and the killing; i.e., the killing and burglary are part of one continuous transaction. When the homicide occurs during the felon’s immediate flight from the crime, the homicide is in perpetration of the felony because the felony is not legally complete until the felon has reached a place of temporary safety (the escape rule). The court rejected appellant’s theories that the burglary is complete upon defendant’s exit from the residence; that the escape theory does not apply to burglary if the residence is not occupied, and that the escape rule does not apply unless it is shown that the felon was either chased from the scene of the crime or knew that police had been called. The court found that under the facts of the case, appellant had not reached a place of temporary safety when he began his flight from the officer, such that the felony murder escape rule supported the first degree murder conviction.