Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA077691, Charles E. Horan, Judge.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Peggy Johnson, 61 years old, was a happy, physically active woman. One night, appellant Martin Rios Talavera and his accomplice burglarized Johnson’s home while she and her fiancé, Sylvester Flood, slept. Appellant raped and repeatedly stabbed Johnson while appellant’s accomplice repeatedly stabbed Flood beside her. Flood had been killed. Johnson’s stab wounds would have killed her absent the prompt medical treatment she received, and they eventually healed. As a result of the attack upon her, however, Johnson’s physical and mental condition deteriorated. She eventually became self destructive, and about 14 months after the attack there was evidence she was psychotic. After she was involuntarily admitted to a psychiatric ward, Johnson struck herself in her pelvic region and legs. The resulting injuries caused the formation of a pulmonary embolism which killed Johnson two days after she was admitted to the ward.
Appellant was charged with the murders of Johnson and Flood. The court gave the CALJIC No. 3.40 instruction on proximate cause which stated, inter alia, that a cause of death is an act that sets in motion a chain of events that produces the death as a direct, natural, and probable consequence. The court also delivered the CALJIC No. 3.41 instruction on concurrent causation. The jury convicted appellant of the first degree murder of Flood (count 1), and of the first degree willful, deliberate, and premeditated murder of Johnson (count 2), implicitly finding her death was the natural and probable consequence of appellant’s acts.
Appellant claims there is insufficient evidence that he proximately caused Johnson’s death in count 2. However, we view the evidence in the light most favorable to the guilty verdict to determine whether any rational trier of fact could have found beyond a reasonable doubt the element of proximate causation as to count 2. Employing that standard, we hold there was sufficient evidence that appellant proximately caused Johnson’s death. We conclude that appellant’s horrific attack upon Johnson caused her to become mentally disordered with the result that she did not know what she was doing and did not freely choose to act when she injured her pelvic area and legs; therefore, appellant proximately caused those injuries and her resulting death.
Appellant also claims that CALJIC Nos. 3.40 and 3.41 erroneously failed to instruct that he was not liable for Johnson’s death unless it was reasonably foreseeable that she would die of unrelated wounds 14 months after his attack. However, Johnson’s self-inflicted wounds were related to appellant’s attack upon her. Moreover, we hold that the trial court correctly gave those instructions, which adequately instructed on foreseeability and proximate causation. Finally, we reject appellant’s claim there was insufficient evidence supporting various special circumstance findings pertaining to count 2.
Talavera appeals from the judgment entered following jury verdicts convicting him on count 1 – first degree murder, and on count 2 – first degree willful, deliberate, and premeditated murder with, as to each count, multiple murder, robbery, and residential-burglary special-circumstance findings, and with, as to count 2, a rape special circumstance finding and personal use of a deadly or dangerous weapon. The court sentenced appellant to prison for two consecutive terms of life without the possibility of parole, plus one year. We affirm the judgment.
FACTUAL SUMMARY
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that prior to January 10, 1986, Peggy Johnson, 61 years old, was an active person in excellent health and would frequently take 10-mile walks. She was engaged to Sylvester Flood and they were a very happy couple. At approximately 1:00 a.m. on January 10, 1986, appellant and a companion identified only as Fernando broke into the home Johnson and Flood shared.
Fernando had planned the break-in. He had gone to the victims’ home earlier and removed a glass louver near the door, which enabled him to reach inside and unlock the door. Fernando and appellant intended to steal money and jewelry from the home. Before appellant and Fernando entered, Fernando cut the phone lines to prevent the victims from calling for help.
Appellant and Fernando wore dark clothing and masks when they entered the home and bedroom. They were armed with knives. The victims were asleep in bed. Appellant raped Johnson, and stabbed her seven or eight times on her chest, abdomen, arms, and hands. One stab lacerated her liver. Fernando stabbed Flood about nine times, and he died at the scene (count 1). The attackers yelled, “Shut up” and “I’ll kill you, ” during the attack. They stole some items and left the house.
Johnson was taken to the hospital. A sexual assault examination was also performed. Johnson’s injuries would have been fatal but for prompt medical treatment she received after she was taken to the hospital. Her stab wounds eventually healed.
Marlene Seidel (Marlene), Johnson’s friend, testified that after the January 1986 attack, Johnson’s emotional state changed, her health deteriorated, and she became a completely different person. Marlene visited Johnson at the hospital where Johnson, crying, told Marlene what had happened.
After Johnson was released from the hospital, she spent two weeks in a convalescent hospital. She was very sad, wept frequently, and mourned the loss of Flood. Thereafter, some friends, Marlene and Richard Seidel, took Johnson in for the next four or five months. Johnson remained depressed and would again say that she missed Flood. During this time, Johnson’s twin sister also died. Johnson also mourned this loss. Johnson’s condition deteriorated to the point where she could not take a shower by herself and would sometimes lose control of her bowels. Johnson was withdrawn, tired all the time, and depressed. She had trouble walking and would no longer take long walks. Marlene never saw Johnson harm herself, and Johnson never expressed negative feelings about herself.
Johnson became too much for the Seidels to handle and she then moved in with other friends, Jose and Marlene Cabrera. Jose Cabrera (Cabrera) described Johnson’s condition as “extremely deteriorated.” Johnson’s equilibrium was bad; she needed to use a wall or cane to walk straight. She was very depressed and would sometimes discuss the attack. She would talk about Flood every day; she was in despair over his loss. Cabrera testified that Johnson would talk about “the attack” and “just start telling me this happened to me and this happened to [Flood].” (Italics added.) Jose Cabrera saw some evidence of self harm – Johnson would pick at her arms and pinch herself. Cabrera believed this was out of frustration. Johnson would also occasionally pound her hands on the table in frustration. Johnson’s physical condition continued to deteriorate. She reached the point where her balance was so bad that one of the Cabreras would have to be with her all the time or she would fall. The Cabreras could no longer take care of her.
On March 2, 1987, Johnson was admitted to the psychiatric ward of the hospital because “she was apparently exhibiting violent behavior, particularly self-damaging behavior.” The record is unclear as to Johnson’s precise behavior, although it apparently included throwing herself against the wall. Two days later, Johnson collapsed and died.
The coroner’s investigation report reflects as follows. On March 2, 1987, police caused Johnson to be admitted to the hospital pursuant to the Health and Safety Code because of self-destructive behavior. Johnson reportedly had been drinking toxic liquids and throwing herself against a wall. While Johnson was in Ward B (the psychiatric ward), she was not talking or properly eating. About 5:30 p.m. on March 4, 1987, Johnson became unresponsive and, about 15 minutes later, she was dead (count 2). The report listed the cause of death as “[a]cute pulmonary embolism, minutes.” The coroner’s investigation report was admitted in evidence without objection.
Dr. Gregory Reiber, a qualified forensic pathologist, conducted Johnson’s autopsy, and his autopsy report reflects as follows. Johnson reportedly had no history of psychiatric illness prior to the January 1986 attack. Reiber found first that, Johnson had an “[a]cute pulmonary thromboembolism, massive.” Second, he found that she had “[m]ultiple injuries (probably associated with psychotic behavior, clinical).” As to the second point, Reiber listed two subcategories: blunt head injury and “multiple cutaneous contusions of trunk and extremities, recent.” Third, he found that Johnson had a history of multiple stab wounds on her chest and abdomen. Reiber listed the cause of death as “[a]cute pulmonary embolism, minutes. Contributing Cause: [b]lunt injury of lower extremities.” The autopsy report was admitted in evidence without objection.
Dr. Frank Sheridan, a medical doctor and the San Bernardino County Chief Medical Examiner, testified as follows. Sheridan reviewed Johnson’s medical records from the 1986 attack, summaries of interviews of Marlene Seidel and Cabrera, the coroner’s investigation report, the autopsy report pertaining to Johnson, and her autopsy photographs. On March 2, 1987, Johnson was involuntarily admitted to the psychiatric ward for acute psychiatric care.
Sheridan was board certified in forensic pathology, and in neuropathology, which pertains to disease and injury of, inter alia, the brain, nervous system, and spinal cord. Sheridan had conducted over 6, 000 autopsies, had reviewed autopsies performed by other pathologists, and had testified in superior court as an expert over 300 times.
Sheridan testified concerning the autopsy photographs that depicted Johnson’s pelvic area, upper thighs, and a number of injuries. The photograph depicted a blunt force injury, i.e., a large round bruise in the pubic area, with some abrasion. The injury to the pubic area appeared to be fresh. There were several abrasions on the front of Johnson’s upper thighs, similar to those in the pubic area. Most of the abrasions appeared to be generally fresh, i.e., they occurred shortly before Johnson’s death. Additional photographs depicted the lower part of Johnson’s legs, with scattered bruises.
Sheridan agreed with Reiber’s conclusion as to the cause of Johnson’s death, and testified that Reiber’s conclusion was “very definite.” Based on Sheridan’s review of Johnson’s medical records, the statements of Marlene and Cabrera, Johnson’s psychiatric history, her commitment to the psychiatric ward, and various other factors to which Sheridan testified, he opined at trial that Johnson’s case was a homicide because there was a “chain of causality” starting with the January 1986 attack and leading to Johnson’s death.
According to Sheridan, the January 1986 attack caused the mental state which Johnson harbored when she inflicted the injuries to her pelvis and legs as depicted in the photographs. Those injuries caused the formation of a blood clot in the area of the pelvis or legs, and the blood clot travelled through the bloodstream to the lungs, causing a pulmonary embolism which was the immediate cause of death. Sheridan’s opinion that Johnson’s death was a homicide was partially based on the fact the injuries depicted on Johnson were self-inflicted due to her deteriorating condition.
Appellant was not arrested for this crime for a number of years. In 2007, appellant’s DNA was matched with the semen sample recovered from Johnson’s rape kit. The police then interviewed appellant. Although he initially denied any involvement in the crime, he ultimately confessed to raping and stabbing Johnson while Fernando stabbed Flood.
Appellant presented no defense evidence.
ISSUES
Appellant claims (1) there is insufficient evidence as to count 2 that he proximately caused Johnson’s death, (2) the trial court erred as to count 2 by giving CALJIC Nos. 3.40 and 3.41, and (3) there is insufficient evidence supporting the special circumstance findings as to count 2.
DISCUSSION
1. There Is Sufficient Evidence that Appellant’s January 1986 Attack Upon Johnson Proximately Caused Her Death.
Proximate causation involves two elements: (1) cause in fact and (2) legal causation. (PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315-316.) “An act is a cause in fact if it is a necessary antecedent of an event.” (Id. at p. 315.) With regard to legal causation however, “[t]o simply say... that the defendant’s conduct was a necessary antecedent of the injury does not resolve the question of whether the defendant should be liable.... [T]he law must impose imitations on liability other than simple causality. These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.” (Id. at pp. 315-316.)
“ ‘ “ ‘Legal cause’ exists if the actor’s conduct is a ‘substantial factor’ in bringing about the harm and there is no rule of law relieving the actor from liability. [Citations.]” ’ (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1235 [32 Cal.Rptr.2d 136], quoting Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 427 [20 Cal.Rptr.2d 97].)” (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 665-666.) Legal causation limits liability. In some situations where a defendant’s conduct constitutes the actual, cause in fact of harm, the defendant will be absolved from liability because of the manner in which the injury occurred. “ ‘ “Thus, where there is an independent intervening act which is not reasonably foreseeable, the defendant’s conduct is not deemed the ‘legal’ or proximate cause.” ’ ” (Id. at p. 666.)
a. Appellant’s January 1986 Attack Upon Johnson Was An Actual Cause of Her Death.
We first address the issue of whether appellant’s rape and stabbing of Johnson was an actual cause of her death. Principles of causation in tort law apply equally to criminal law. (People v. Jennings (2010) 50 Cal.4th 616, 644, fn. 13.) Our Supreme Court has relied on tort cases for authority on the issue of causation in a homicide case. (People v. Roberts (1992) 2 Cal.4th 271, 317-319 (Roberts).)
There are two widely recognized tests for establishing actual cause. One is the “but for” rule, which asks whether the injury would not have occurred but for the defendant’s conduct. The other is the substantial factor test, which asks whether the defendant’s conduct was a substantial factor in bringing about the injury. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049, 1052 (Mitchell).) The “but for” test should not be used when two causes concur to bring about an event and either one of them operating alone could have been sufficient to cause the result. (Id. at p. 1049.)
In the present case, there was substantial evidence that prior to the January 1986 attack upon Johnson, she was a happy, active, outgoing person who enjoyed excellent health and had no history of psychiatric illness. After the attack, she was a different person. Her physical and mental condition continually deteriorated to the point that, 14 months after the attack, she needed acute psychiatric care and there was evidence she was psychotic. In that deteriorated mental condition, she injured her pelvic area and legs, thereby causing a pulmonary embolism that killed her.
It is true that Johnson also suffered from the loss of Flood. However, during the period that followed the attack, Johnson repeatedly expressed the fact that harm had been inflicted upon both herself and Flood. There was also evidence that Johnson was sad about her sister’s death, but there was no testimony that Johnson’s grief over her sister’s death contributed to Johnson’s mental state at the time she inflicted her pelvic and leg injuries on herself. Therefore, even if the attack on Flood or Johnson’s grief about the loss of her sister were substantial factors in bringing about Johnson’s death, that does not change the fact that appellant’s attack on Johnson was also a substantial factor.
The jury had all of this evidence before them and decided that appellant’s conduct was the actual cause of Johnson’s death. We conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant’s attack on Johnson was a substantial factor bringing about her death.
b. Appellant’s January 1986 Attack Upon Johnson Was the Legal Cause of Her Death.
We next address whether appellant’s rape and repeated stabbing of Johnson was the legal cause of her death. Appellant does not expressly dispute that Johnson’s pelvic and leg wounds caused her death by way of the pulmonary embolism. Our task therefore is simply to determine whether appellant was the legal cause of Johnson’s infliction of those wounds, and specifically, whether some rule of law relieves appellant of liability for Johnson’s infliction of those wounds.
(1) Applicable Law.
(a) General Principles.
Just as in tort law, a criminal defendant’s act must be the legal cause of the injury, death or other harm which constitutes the crime. Similarly, California criminal law relies on civil law formulations of concurrent and superseding cause. (People v. Brady (2005) 129 Cal.App.4th 1314, 1324.)
Our Supreme Court has stated “[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus.” (Roberts, supra, 2 Cal.4th at p. 320, fn. 11.) People v. Cervantes (2001) 26 Cal.4th 860 (Cervantes) suggests that when a court is deciding whether no rational trier of fact could find the needed nexus, the policy limitations which proximate causation principles impose upon the broad field of actual causation are based in part upon notions of fairness and justice. (Id. at pp. 871-872.) We also note that moral culpability is the foundation of modern penal law. (Roberts, at p. 316.) As one court discussing proximate cause wryly put it, “[j]udges, even learned ones, attorneys, and law students have struggled with the concept. It has not been any easier for jurors although they usually have the advantage of common sense.” (Maupin v. Widling (1987) 192 Cal.App.3d 568, 573.)
A defendant may be criminally liable for a result directly caused by his or her act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of the defendant’s original act, the intervening act is dependent and not a superseding cause, and will not relieve the defendant of liability. (People v. Pike (1988) 197 Cal.App.3d 732, 749.) Even if the death occurs in an unanticipated manner, a defendant is still liable unless a superseding intervening act breaks the chain of causation. (People v. Fiu (2008) 165 Cal.App.4th 360, 371 (Fiu).) To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence. The defendant remains criminally liable if the defendant might reasonably have contemplated or foreseen the possibility of harm of the kind that could result from the defendant’s act. (People v. Crew (2003) 31 Cal.4th 822, 847.)
Finally, a defendant may be liable for homicide when the defendant’s acts were the proximate cause of the victim’s death, even though the defendant did not administer the fatal wound. (People v. Gardner (1995) 37 Cal.App.4th 473, 479.)
(b) Proximate Causation and Self-Destructive Behavior.
Professor Wayne LaFave discussed causation issues which arose when intentional crimes occurred in an unintended manner due to intervening causes. He observed, “[w]hat, then, of suicide by the victim? If A wounds B with intent to kill, but thereafter C shoots B with intent to kill and does kill him instantly, we know that A is not the cause of B’s death. If, instead, B takes his own life, we again have a deliberate act directed toward killing B which has intervened, so one might expect the same result. Such a result is certainly appropriate when B commits suicide from some motive unconnected with the fact that he is wounded, but suicide is not abnormal when B acts out of the extreme pain of wounds inflicted by A or when the wound has rendered him irresponsible.” (1 LaFave, Substantive Crim. Law (2d ed. 2003) § 6.4(f), pp. 484-485, fns. omitted, italics added.)
LaFave discussed Stephenson v. State (1932) 205 Ind. 141 [179 N.E. 633] (Stephenson), where the Illinois Supreme Court discussed mental irresponsibility leading to suicide. In Stephenson, the defendant and accomplices forced the victim to drink alcohol. The victim tried to escape and make phone calls for help, but was unsuccessful. (Id. at p. 649.) The defendant later forced the victim to board a train and there attempted to rape her. (Id. at pp. 642, 649.) The victim did not remember all that happened, but “[s]he did remember that he chewed her all over her body; bit her neck and face; chewed her tongue; chewed her breasts until they bled and chewed her back, her legs and her ankles and mutilated her all over her body.” (Id. at p. 642.)
The next morning, the victim and defendant went to a hotel room where the victim, apparently as a ruse, told the defendant she wanted to buy something at a store. At one store she bought a box of bichloride of mercury tablets, returned to the hotel, and took several of the tablets. (Stephenson, supra, 179 N.E. at pp. 642-643.) About a month after the sexual assault, the victim died of poisoning from the tablets and from related causes. (Id. at p. 647.)
The defendant, convicted by jury of second degree murder (Stephenson, supra, 179 N.E. at p. 637) moved for a new trial based on insufficiency of the evidence. (Id. at p. 641.) He claimed there was insufficient evidence of murder on the ground the victim committed suicide, that the taking of the poison was an intervening event, and the taking of the poison, and not the defendant’s acts, was the proximate cause of her death. (Id. at p. 647.)
Stephenson discussed two English cases. In the first, a would-be attacker tried to enter a woman’s bedroom but she escaped by jumping out a window and the would-be attacker was held criminally responsible for her injury. In the second case, after a man had unlawful sexual intercourse with a minor in an apartment, the minor jumped out a window to escape and fell to her death, and the man was convicted of murder. (Stephenson, supra, 179 N.E. at pp. 648-649.)
Stephenson then stated, “Bishop, in his work on Criminal Law, vol. 2, (9th Ed.) page 484, says, ‘When suicide follows a wound inflicted by the defendant his act is homicidal, if deceased was rendered irresponsible by the wound and as a natural result of it.’ See, also, People v. Lewis (1889) 124 Cal. 551, ... We do not understand that by the rule laid down by Bishop, supra, that the wound which renders the deceased mentally irresponsible is necessarily limited to a physical wound. We should think the same rule would apply if a defendant engaged in the commission of a felony such as rape or attempted rape, and [if a defendant inflicted] upon his victim both physical and mental injuries, the natural and probable result of which would render the deceased mentally irresponsible and suicide followed, we think he would be guilty of murder.” (Stephenson, supra, 179 N.E. at p. 649, italics added.)
The Stephenson court concluded that the evidence was sufficient for the jury to find that the defendant’s acts caused the decedent to be “distracted and mentally irresponsible” (Stephenson, supra, 179 N.E. at p. 649), and that since that was the natural and probable consequence of the defendant’s acts, he was guilty of murder in the second degree. (Ibid.)
In Tate v. Canonica (1960) 180 Cal.App.2d 898 (Tate), a trial court sustained a demurrer as to a cause of action which alleged that the defendant negligently committed acts causing the plaintiff to suffer a mental condition which resulted in suicide. (Id. at pp. 900, 918-919.) An issue was whether a cause of action could be predicated upon negligent infliction of mental distress, culminating in the suicide of the victim. (Id. at p. 900.)
Tate, relying on Restatement of Torts, section 455, and Prosser, Law of Torts (2d ed.), stated that the modern rule was that “where the negligent wrong only causes a mental condition in which the injured person is able to realize the nature of the act of suicide and has the power to control it if he so desires, the act then becomes an independent intervening force and the wrongdoer cannot be held liable for the death. On the other hand, if the negligent wrong causes mental illness which results in an uncontrollable impulse to commit suicide, then the wrongdoer may be held liable for the death.” (Tate, supra, 180 Cal.App.2d at p. 915.) Tate later stated, “[i]f defendant is to avoid liability, the decedent’s act must be voluntary... in the sense that he could, in spite of his mental illness, have decided against suicide and refrained from killing himself.” (Ibid., italics added.)
Tate expressly refrained from deciding whether a defendant might be held criminally responsible for a suicide which was truly voluntary and therefore an independent intervening act if, under the circumstances, it was nonetheless a reasonably foreseeable result of the defendant’s wrongdoing. (Tate, supra, 180 Cal.App.2d at p. 918.)
Tate relied in part on Faber v. Bd. of Pension Commrs. (1943) 56 Cal.App.2d 825 (Faber). In Faber, a policeman suffered a severe head injury in the course of duty which caused him to become insane. (Id. at pp. 826-828.) Nine years later, while still insane, he shot himself in the head. (Id. at p. 831.) Faber involved the issue of whether the policeman was killed as a result of an injury received during the performance of his duty and therefore whether his widow was entitled to a pension. (Id. at p. 826.)
Faber noted that the deceased’s “mental condition first manifested itself almost immediately after he received the head injury.... This condition of mental aberration continued, accompanied by some physical deterioration, down to the time of his death.” (Faber, supra, 56 Cal.App.2d at p. 827, italics added.) The deceased, admittedly insane (ibid.), sometimes conducted himself rationally but at other times brandished and fired a gun in an insane manner. (Id. at pp. 831-832.) The trial court found that at the time the deceased shot himself in the head, he lacked consciousness of what he was doing. Faber concluded that this finding indicated that the self-destruction was the act of an insane man and involuntary. (Id. at p. 829.) Faber also concluded that the trial court’s finding was sufficient to determine the issue of proximate cause, i.e., that the act was irrational and involuntary. (Id. at p. 831.) Thus, the Faber court found that the widow was entitled to a pension. (Id. at p. 834.)
Tate held that the demurrer in its case was properly sustained, but remanded the matter with leave to amend the complaint to properly allege that the “decedent’s mental disturbance was such that in committing suicide he was acting under an uncontrollable impulse.” Based on Tate, a victim’s mental disorder can affect: (1) knowledge of one’s acts, (2) choice of one’s acts, and (3) the ability to conform one’s conduct to one’s choice. (Tate, supra, 180 Cal.App.2d at p. 918.)
Tate was cited in Grant v. F. P. Lathrop Constr. Co. (1978) 81 Cal.App.3d 790 (Grant), a case in which the defendant’s negligence rendered a man paraplegic and he committed suicide 17 months later by taking barbiturates. (Id. at pp. 794-795.) Grant cited Orcutt v. Spokane County (1961) 58 Wn.2d 846 [364 P.2d 1102] (Orcutt), a case in which the defendant negligently caused the decedent to suffer brain damage and become mentally disordered, resulting in the decedent’s suicide 22 months later.
In light of the LaFave analysis and the Stephenson, Tate, and Faber cases, we find that when (1) a defendant commits multiple violent felonies against a victim and with intent to kill inflicts wounds which but for prompt medical treatment would have been fatal, (2) as a proximate result, the victim becomes mentally disordered and, while in that mental state, engages in self-harming conduct that causes the victim’s death, and (3) said mental state prevents the victim from knowing what the victim is doing, freely choosing what the victim will do, and/or conforming the victim’s conduct to the victim’s choice, the defendant’s criminal acts contributed as a substantial factor to the victim’s death and the victim’s self-harming conduct is not a superseding cause that relieves the defendant of criminal responsibility for the victim’s death. Instead, the defendant’s criminal acts have proximately caused the victim’s death. In such circumstances, the victim’s conduct may be viewed as foreseeable and as a dependent intervening cause bringing about a foreseeable result of death.
(2) Application of the Law to this Case.
Prior to the January 1986 attack, Johnson was a happy person in excellent health with no history of psychiatric illness. Even after her sister had a stroke, Johnson had a happy life with Flood. Then came appellant’s attack. As appellant concedes, it was horrendous. Appellant not only burglarized Johnson’s residence in the middle of the night while she slept, he robbed her, raped her, and stabbed her repeatedly while he and his accomplice were yelling they would kill her.
Johnson’s mental and physical condition began deteriorating and continued deteriorating as a result of the attack and she never recovered. Physically, Johnson became lethargic, lost control of her bowels, and could not shower by herself. Her physical condition deteriorated to the point that her equilibrium was poor, she sometimes used a cane, and people had to help her walk. Her mental condition deteriorated. Johnson frequently cried, became reclusive and depressed, was sad and in despair, and repeatedly talked with Cabrera about appellant’s attack and what happened to her. This, of course, included appellant’s rape and stabbing of her. While living with the Cabreras, Johnson engaged in alarming, bizarre, self-harming behavior, picking at her arms, pinching herself, and pounding her hands on the table.
On March 2, 1987, Johnson was involuntarily admitted into a psychiatric ward because of her violent, self-destructive behavior. The coroner’s investigation report, which was admitted in evidence, stated that Johnson reportedly had been drinking toxic liquids and throwing herself against a wall. There is no testimony that Johnson knew she was drinking toxic liquids or knew she was throwing herself against a wall. A few days before her death, she inflicted injuries to her pelvic area and legs.
Reiber’s autopsy report, which was also admitted into evidence, stated that the injuries to Johnson’s head, trunk and extremities were “probably associated with psychotic behavior, clinical.” (Italics added.)
According to Sheridan, the chief medical examiner for San Bernardino County, Johnson was admitted to the psychiatric ward in need of acute psychiatric care. Sheridan expressed no disagreement with Reiber’s tentative diagnosis that the injuries to Johnson’s pelvic area and legs were associated with clinical psychotic behavior.
Sheridan, who frequently reviewed decedents’ mental health issues when determining cause of death, effectively opined that appellant’s conduct caused Johnson to harbor a mental state that caused her to inflict injuries upon herself and die. We find that the jury could reasonably conclude, based upon all of the evidence, that Johnson had become mentally disordered by the time she inflicted injuries to her pelvic area and legs.
Appellant, although disputing his liability, appears to concede that his attack upon Johnson caused her to suffer from a mental disorder. He asserts in his supplemental letter brief, “[t]o find appellant guilty of murder on this set of facts would mean that any time a defendant attacks a victim, the defendant can be convicted of murder if the victim dies sometime in the future from unrelated wounds arising from a mental disorder.” (Italics added.)
Moreover, insofar as Johnson’s mental condition and infliction of injuries to her pelvic area and legs may be viewed as an intervening cause, we find not only that appellant’s attack upon Johnson factually caused that mental condition and self-harm, but that said mental condition and self-harm, and the death resulting from them, were reasonably foreseeable at the time appellant sought to rape and kill her. It takes no imagination to conceive of self-harm, self-destructive behavior, or suicide as a foreseeable result of the horrendous conduct appellant committed upon Johnson. Whether Johnson’s mental disorder caused her to inflict injuries upon herself of a sexual nature is not dispositive. Nor do we believe, looking back from Johnson’s death to appellant’s conduct, that her response was abnormal or extraordinary.
We note that Johnson’s mental disorder might have been caused in part by her witnessing of the murder of Flood or, by the death of her sister. However, as previously discussed, a defendant can be criminally liable for a result directly caused by his or her act, even though there is another contributing cause. (People v. Jennings, supra, 50 Cal.4th at p. 643.) It was up to the jury to determine what led to Johnson’s death. Moreover, we see no reason to immunize appellant from criminal responsibility for his attack upon Johnson simply because he was complicit in the murder of Flood.
The fact that about 14 months elapsed from appellant’s attack to the time Johnson inflicted the ultimately fatal injuries upon herself does not compel a contrary conclusion. Lapse of time alone does not necessarily interrupt the chain of proximate causation. (Mitchell, supra, 54 Cal.3d at p. 1050 [“ ‘proximity in point of time... is no part of the definition [of proximate cause]... except as it may afford evidence for or against proximity of causation[.]’ ”]) We decline to relieve appellant of responsibility for his vicious felonious conduct on the ground that Johnson, whose mental and physical condition continually deteriorated during the 14 months following appellant’s attack upon her, did not kill herself sooner.
In addition, we already have cited cases in which there was a lapse of time of more than 14 months between the defendant’s misconduct and the victim’s self-inflicted injury and death, i.e., Faber (nine years), Grant (17 months), and Orcutt (22 months). Twelve jurors applying properly given instructions and common sense to the facts of this case, which involves a 14-month delay from the time of appellant’s conduct to the time of Johnson’s self-inflicted wounds, implicitly concluded that Johnson’s death was a direct, natural, and probable consequence of appellant’s conduct. Sufficient evidence supports that verdict. Proximate causation principles do not require proof that appellant reasonably should have foreseen the precise way in which the events were to unfold.
We believe Grant and Orcutt are sufficiently analogous to the present case even though, unlike the situation in those cases, the physical wounds actually inflicted by appellant on Johnson healed before her mental disorder caused her self-inflicted wounds.
We note that Dr. Reiber’s conclusion that Johnson’s injuries were probably associated with psychotic behavior pertained in part to Johnson’s pelvic and leg injuries which she sustained shortly before, and which were the cause of, her death. Moreover, the jury reasonably could have concluded that those pelvic and leg injuries occurred on or about March 2, 1987, when Johnson was involuntarily admitted to the psychiatric ward. In sum, the jury reasonably could have concluded that after 14 months, Johnson’s mental deterioration reached its nadir on or about March 2, 1987, culminating in mental disorder concurrently expressed in psychotic behavior, i.e., her self-infliction of the pelvic and leg wounds. We express no opinion as to how long Johnson, having reached that nadir, could have continued in that state before appellant’s connection with any self-infliction of wounds by her would have become too attenuated to hold appellant responsible for them.
In this case, there was substantial evidence that as a result of appellant’s attack, Johnson’s mental condition continually spiraled downward until she became mentally disordered at the time of her self-inflicted pelvic and leg injuries. Moreover, this is not a case in which the record demonstrates that, during the 14 months after appellant’s attack upon Johnson but before Johnson’s self-inflicted harm to her pelvic region and legs, Johnson’s mental health fluctuated between normality and abnormality, or she had lucid intervals during which she knowingly and freely inflicted harm upon herself. Nor is this a case in which there is any evidence of malingering by Johnson during that 14-month period.
We conclude there was sufficient evidence to convince a rational trier of fact, beyond a reasonable doubt, that appellant’s 1986 attack upon Johnson, during which, with intent to kill, he inflicted on her potentially fatal wounds, proximately caused her to become mentally disordered. We also conclude that, while in that state, she inflicted self-harming injuries which caused her death. We find that Johnson’s mental state prevented her from knowing what she was doing or freely choosing what she would do. Therefore, appellant is not relieved of responsibility for her death, to which his misconduct contributed as a substantial factor, and we find that his misconduct proximately caused her death. We also find that at the time appellant engaged in his horrific attack upon Johnson, it was reasonably foreseeable that as a result she might not merely harm herself but become mentally disordered and harm herself, and that such harm might result in her death. Holding appellant criminally responsible for Johnson’s death is consistent not only with appellant’s moral culpability but with the time-honored principle that “a wrongdoer in criminal cases as in civil torts takes his victim as he finds him.” (People v. Cameron (1975) 53 Cal.App.3d 786, 790.)
We note there is ample out-of-state authority concluding that if a defendant is criminally responsible for a victim’s injuries, and (as here) the injuries cause a pulmonary embolism that kills the victim, the defendant has proximately caused the victim’s death. (Bishop v. Kelso (1990) 914 F.2d 1468, 1469-1471, and see cases cited.)
(3) Our Conclusion Is Consistent with Roberts and Cervantes.
Our analysis is consistent with our Supreme Court’s pronouncements on criminal proximate causation. For example, in Roberts, supra, 2 Cal.4th 271, our Supreme Court found there was sufficient evidence of proximate causation. Roberts involved a third party victim killed in an unintended manner. In Roberts, the defendant and other prison inmates stabbed an inmate, causing him to fall rapidly into shock and become an unconscious agent. (Id. at pp. 295-296.) The wounded inmate picked up a knife which an assailant had left on the floor, staggered in pursuit of the defendant’s accomplice, but ultimately engaged in a purely reflexive struggle with a prison guard whom the wounded inmate stabbed and killed. (Id. at pp. 295, 321.)
Roberts concluded the defendant proximately caused the guard’s death, i.e., his death was a natural and probable result of the defendant’s conduct, “because [the guard] was in the area in which harm could foreseeably occur as a result of a prison stabbing.” (Roberts, supra, 2 Cal.4th at p. 321.) Roberts also observed, “[i]t is foreseeable that a wounded inmate might try to arm himself with a weapon abandoned at the scene of a prison melee and pursue his attackers a short distance. The jury was entitled to find that the distance [the wounded inmate] pursued [defendant’s accomplice] was not so great as to break the chain of causation.” (Ibid.) Roberts thus effectively concluded that the wounded inmate’s attack on the guard was foreseeable and that even if the defendant did not intend to harm the guard, the guard was a foreseeable victim at the time of the defendant’s conduct.
The present case presents a stronger case for criminal responsibility than Roberts. Roberts involved the issue of a defendant’s liability to a third party (the guard), a situation involving an invasion of the bodily security interest of a person other than the defendant’s intended victim, and presenting the possibility of expansive liability for defendants. The present case does not involve the issue of liability to a third party.
Roberts itself suggested that cases such as Roberts, involving liability to a third party, are distinguishable from cases such as this one involving a defendant causing a victim to injure himself or herself, causing the victim’s death. In People v. Lewis (1899) 124 Cal. 551 (Lewis), the defendant mortally wounded a victim who, before he died, inflicted a mortal wound on himself, and both wounds contributed to the victim’s death. In a footnote, Roberts, distinguishing cases which were inapposite to its analysis, stated, Lewis “analyzed liability for death from concurrent causes, including the defendant’s gunshot and the dependent intervening act of the victim’s suicide, and also is inapposite.” (Roberts, supra, 2 Cal.4th at p. 316, fn. 10, italics added.)
Moreover, the defendant in Roberts never personally inflicted injury on the third party. By contrast, appellant personally inflicted grievous injury upon Johnson when he raped and stabbed her. Further, as mentioned, consideration of the defendant’s moral culpability informs proximate causation analysis. The defendant in Roberts never intended to kill the third party. In the present case, appellant intended to kill Johnson when he repeatedly stabbed her.
It is true that, in Roberts, the defendant and third party were within physical proximity of one another when the wounded inmate inflicted fatal harm upon the third party. Although appellant and Johnson were not in physical proximity when Johnson inflicted fatal harm upon herself, appellant and Johnson were obviously in physical proximity when he tried to kill her.
In addition, Roberts did not involve a situation in which a defendant feloniously assaults a victim, causing the victim to become mentallydisordered. Roberts indicated that the wounded inmate “engaged in a purely reflexive struggle” (Roberts, supra, 2 Cal.4th at p. 321) with the guard and stabbed him. (Ibid.) Roberts reviewed cases finding criminal liability for the death of a third party from a second person’s “impulsive reaction” to the defendant’s dangerous act (id. at p. 317) and observed that, in those cases, physical proximity allowed the trier of fact to find the third party’s death to be the natural and probable, and therefore proximate, result of the defendant’s act. (Ibid.)
The wounded inmate in Roberts acted impulsively and purely reflexively when he stabbed the guard, a motivation which, by its very nature, the defendant in that case reasonably could not have foreseen would be lengthy in duration. Appellant caused Johnson to become mentally disordered, a personal mental condition. Appellant reasonably could have foreseen that a mental disorder might be lengthy in duration. In short, Johnson was a reasonably foreseeable victim with respect to reasonably foreseeable self-destructive harm even though she was not in close physical proximity to appellant at the time she harmed herself.
In Cervantes, supra, 26 Cal.4th 860, our Supreme Court decided a proximate cause issue in a “provocative act” murder case. The court decided that a member of a street gang who committed a nonfatal shooting that provoked a revenge killing by members of an opposing gang was not guilty of murder. (Id. at pp. 862-863.)
Cervantes also discussed Lewis and stated, “[w]e held Lewis was properly convicted of manslaughter because the victim’s response, though suicidal, was natural and understandable; hence it was not an independent intervening cause of death. Even ‘if the deceased did die from the effect of the knife wound alone, no doubt the defendant would be responsible, if it was made to appear, and the jury could have found from the evidence, that the knife wound was caused by the wound inflicted by the defendant in the natural course of events.’ ([Lewis, supra, 124 Cal.] at p. 555.) By contrast, we posed, ‘Suppose one assaults and wounds another intending to take life, but the wound, though painful, is not even dangerous, and the wounded man knows that it is not mortal, and yet takes his own life to escape pain, would it not be suicide only?’ (Id. at p. 556.) The answer would be yes, and there would be no homicide liability, if ‘[t]he wound induced the suicide, but the wound was not, in the usual course of things, the cause of the suicide’ (ibid.)[.]” (Cervantes, supra, 26 Cal.4th at p. 869.)
This is not a case in which the defendant committed a simple assault and wounded Johnson with intent to kill her and then Johnson, knowing the wound was not fatal, took her life to escape the pain. This is a case in which appellant brutally raped Johnson and assaulted her by repeatedly stabbing her, intending to kill her, and leaving painful wounds which would have been fatal but for prompt medical treatment. Moreover, even though those physical wounds eventually healed, the attack left her 14 months later with a mental disorder which the jury reasonably could have concluded either caused her to become psychotic and lose touch with reality and/or interfered with her free choice, rendering moot any inquiry into what, if anything, she knew or whether she sought to escape pain.
(4) None of Appellant’s Arguments Compel Reversal of the Judgment.
None of appellant’s arguments compel a conclusion contrary to ours. Appellant argues there was insufficient evidence that Johnson’s pelvic and leg injuries were self inflicted. He also argues that Sheridan’s opinion that Johnson inflicted the injuries was medically unsound because it was based solely on (1) the statements of the Seidels and Cabrera that Johnson mentally deteriorated after the attack and (2) Johnson’s admission to the hospital in March 1987 because of undefined self-destructive behavior. He further argues there is no evidence in the medical records that Johnson inflicted the above injuries.
We agree with respondent that appellant waived the issue of whether Sheridan’s opinion was properly based by failing to raise that issue below. (Evid. Code, §§ 353, subd. (a), 801, subd. (b), 803.) Moreover, as mentioned, the coroner’s investigation report contained evidence that Johnson engaged in particular self-destructive behavior, i.e., drinking toxic liquids and throwing herself against a wall. Reiber’s autopsy report contained evidence that Johnson injured her pelvic area and legs while in a psychotic state. Sheridan relied on both reports for his opinion as to the cause of death, and both reports were admitted in evidence without objection. Sheridan, as an expert, was entitled to rely on that information, as well as on any statements of the Seidels and Cabrera on the issue. (Evid. Code, § 801.) The jury heard the testimony of the Seidels and Cabrera. We reject appellant’s arguments.
To the extent appellant claims that proximate causation principles required that the embolism “come from the site of one of the injuries caused by appellant, ” i.e., from one of the stab wounds he inflicted upon Johnson, we reject his claim. It is inconsistent with dependent intervening causation, the principle that a defendant may be liable for a killing when the defendant’s acts were the proximate cause of death even though the defendant did not administer the fatal wound, and with such cases as Roberts.
2 CALJIC Nos. 3.40 and 3.41 Properly Instructed on Proximate Causation as to Count 2.
The court, without pertinent objection, gave to the jury a modified CALJIC No. 3.40 and a modified CALJIC No. 3.41. Appellant claims the modified instructions were inadequate because they failed to adequately instruct on proximate cause, concurrent causation, and dependent and independent intervening causes, and because the modified instructions failed to instruct that appellant proximately caused Johnson’s death only if her intervening actions were reasonably foreseeable. However, appellant did not request clarifying or amplifying language as to the above issues and as we discuss below the instructions correctly stated the law; therefore, he waived the issue of instructional error. (Fiu, supra, 165 Cal.App.4th at p. 370.)
The modified CALJIC No. 3.40, pertaining to “cause--‘but for’ test” (capitalization omitted) read: “[t]o constitute the crime of murder, there must be in addition to the death [be] (sic) an unlawful act which was a cause of the death. [¶] The criminal law has its own particular way of defining cause. A cause of the death is an act that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act the death and without which the death would not occur.”
As to the merits, appellant concedes that “CALJIC [No.] 3.41 defines concurrent causes.” Moreover, in Fiu, the court held that foreseeability is an important element of causation but that CALJIC 3.40, which requires an injury or death to be a direct, natural, and probable consequence of the defendant’s act, necessarily requires that the consequences be reasonably foreseeable. People v. Temple (1993) 19 Cal.App.4th 1750 (Temple) held that CALJIC No. 3.40 adequately stated the law and there was no need to amplify the instruction with “foreseeability” language. (Temple, at pp. 1755-1756.)
Fiu noted that our Supreme Court has cited Temple with approval, the CALJIC instructions as given here conform to our Supreme Court’s precedent faulting earlier versions that used the term “proximate cause, ” and our Supreme Court appears to have endorsed the “natural and probable” language of CALJIC No. 3.40 (Fiu, supra, 165 Cal.App.4th at p. 372.) The instructions challenged here correctly stated the law.
Moreover, in light of our earlier analysis, there was no independent or superseding intervening act which exonerated appellant from criminal responsibility for Johnson’s death. No instructional error occurred. (Fiu, supra, 165 Cal.App.4th at pp. 370-374.)
Finally, the claimed instructional error was harmless beyond a reasonable doubt. If there had been a superseding intervening act which exonerated appellant from responsibility, Johnson’s death would not have been as CALJIC No. 3.40 requires, a “direct, natural and probable consequence” of a chain of events set in motion by appellant’s actions. We find that Johnson’s self-inflicted harm to her pelvis and legs was reasonably foreseeable; therefore, her death was a direct, natural, and probable consequence of appellant’s actions. We presume that the jury followed the instructions (cf. People v. Sanchez (2001) 26 Cal.4th 834, 852); therefore, if the jury had concluded there was a superseding intervening act, they could not have convicted appellant on count 2. Moreover, this is not a case in which the stab wounds appellant inflicted upon Johnson and her self-inflicted pelvic and leg wounds were concurrent causes, i.e., operative at the time, of her death. The stab wounds had healed by the time Johnson inflicted upon herself the pelvic and leg wounds. No reversible instructional error occurred. (Cf. Fiu, supra, 165 Cal.App.4th at pp. 374-375.)
3. Sufficient Evidence Supported the Special Circumstance Findings Pertaining to Count 2.
Appellant claims there is insufficient evidence supporting the true findings as to the robbery, burglary, and rape special circumstance allegations pertaining to count 2. He argues that because Johnson died 14 months after the felonies he committed were completed, those felonies and her death were not part of the requisite continuous transaction.
A murder is of the first degree when “committed in the perpetration of” any of several enumerated felonies (People v. Earp (1999) 20 Cal.4th 826 (Earp); Pen. Code, § 189), including robbery, burglary, and rape. (Pen. Code, § 189.) A killing is committed in the perpetration of an enumerated felony if the killing and the felony are parts of one continuous transaction. (Earp, at p. 888.) Each of the above three felonies also triggers application of a special circumstance. (Pen. Code, § 190.2, subd. (a)(17).) The reach of first degree felony murder and the reach of a felony-murder special circumstance are equally broad. (Earp, at p. 888.)
In People v. Sakarias (2000) 22 Cal.4th 596, our Supreme Court noted “that our law of felony murder does not require a ‘ “strict causal relationship” ’ between the felony and the murder, that it requires no ‘ “technical inquiry concerning whether there has been a completion... of the felony before the homicide was completed, ” ’ and that the homicide is considered to be committed in the perpetration of the felony if the two were parts of ‘ “one continuous transaction.” ’ [Citation.]” (Id. at p. 624.)
The court in the present case, using CALJIC No. 8.21, instructed the jury on first degree felony murder. That instruction told the jury that “[i]n law, a killing occurs during the commission... of a felony, so long as the fatal blow is struck during its course, even if death does not then result.” (Italics added.) Appellant does not challenge the validity of this instruction. Appellant repeatedly stabbed Johnson during the commission of robbery, burglary, and rape (and we already have concluded that that conduct proximately caused her death). Appellant cites no authority holding that (1) the felonious conduct of appellant towards Johnson, including the stabbing and (2) her death, had to occur prior to the completion of his felonies in order for the continuous transaction requirement to be satisfied. We reject his claim.
Although the trial court gave neither CALCRIM No. 549 nor CALCRIM No. 730 in this case, they are illuminating. CALCRIM No. 549, defining “one continuous transaction” for purposes of felony murder and felony murder special circumstances, permits consideration of, inter alia, the following two factors by the jury as they decide “whether the act causing the death and the felony were part of one continuous transaction” (italics added), i.e., “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[.]” (Italics added.) CALCRIM No. 730, which instructs on felony murder special circumstances, requires that the “act causing the death and the [felony] be] part of one continuous transaction[.]” (Italics added.)
DISPOSITION
The judgment is affirmed.
I concur: KLEIN, P. J.
CROSKEY, J., dissenting.
I believe that the evidence is not, in the light most favorable to the jury’s verdict, sufficient as a matter of law to establish that defendant proximately caused Peggy Johnson’s death. I therefore respectfully dissent.
1. Standard of Review
“When reviewing a claim of insufficiency of evidence, we must view the evidence in the light most favorable to the verdict and presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from that evidence. The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. We must determine whether a reasonable trier of fact could have found the prosecution sustained its burden of proof beyond a reasonable doubt of each essential element of the offense. Substantial evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 584-585.)
2. Causation of Death
This case is concerned with whether defendant’s attack caused Johnson’s death. It is proximate, not actual, cause which, together with the mens rea of malice, determines liability for murder. (People v. Sanchez (2001) 26 Cal.4th 834, 845.) The criminal law “is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant’s act.” (People v. Roberts (1992) 2 Cal.4th 271, 319.)
“ ‘It is, therefore, clear that a defendant may be liable for [criminal homicide] for a killing when his acts were the “proximate cause” of the death of the victim, even though he did not administer the fatal wound.’ [Citation.] ‘Thus, in homicide cases, a “cause of the [death of the victim] is an act or omission that sets in motion a chain of events that produces as a direct, natural and probable consequence of the act or omission the [death] and without which the [death] would not occur.” [Citations.]’ [Citation.]” (People v. Hansen (1997) 59 Cal.App.4th 473, 479.)
Whether an intervening cause breaks the chain of causation depends upon whether the intervening cause is dependent or independent. A dependent intervening cause is one which is a normal and reasonably foreseeable result of the defendant’s act; it will not relieve a defendant from liability. (People v. Hansen, supra, 59 Cal.App.4th at p. 479.) An independent intervening cause, by contrast, is unforeseeable. It is an extraordinary and abnormal occurrence which rises to the level of an exonerating, superseding cause. (People v. Funes (1994) 23 Cal.App.4th 1506, 1523.) “To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence. [Citation.] The defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his act. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 847.)
In 1899, the California Supreme Court addressed the question of whether a shooting victim who, shortly thereafter, took his own life, committed a independent intervening act which broke the chain of causation. (People v. Lewis (1899) 124 Cal. 551 (Lewis).) In that case, the wound inflicted by the defendant was “necessarily mortal, ” and the evidence indicated that the victim simply hastened his own death by his actions. (Id. at p. 554.) The Supreme Court determined the dispositive fact was that the jury could have concluded that the victim’s self-inflicted wound “was caused by the wound inflicted by the defendant in the natural course of events.” (Id. at p. 555 (emphasis added).) The court distinguished the hypothetical situation in which the defendant, intending to kill the victim, caused a wound which was not even dangerous, and the wounded victim knew that the injury was not mortal but took his own life to escape the pain. The court concluded that in this situation, “[t]he wound induced the suicide, but the wound was not, in the usual course of things, the cause of the suicide.” (Id. at p. 556.)
The Supreme Court discussed the rationale of Lewis in People v. Cervantes (2001) 26 Cal.4th 860, 869 (Cervantes). The court explained, if a defendant shoots a victim, inflicting a fatal wound “sending him toward a painful and inevitable death, ” which the victim then hastens by suicide, the defendant is still liable because the suicide “was natural and understandable; hence it was not an independent intervening cause of death.” However, if the defendant, intending to kill the victim, inflicts a non-fatal wound which the victim knows is not fatal, and the victim nonetheless takes his life to escape the pain, the court stated that the defendant would not be liable for murder “if death would not have inevitably followed and instead occurred through the independent intervening cause of the victim’s own will to die.” (Ibid.) In other words, a victim’s suicide is a dependent act which does not break the chain of causation if the victim was already going to die; if the wound inflicted by the defendant was not fatal, however, the victim’s suicide constitutes an independent intervening act.
These cases govern the situation of a victim’s intentional act as an intervening cause of death – and whether that cause is independent or dependent – they do not address the situation of a victim’s involuntary act. Our Supreme Court addressed such a situation in People v. Roberts (1992) 2 Cal.4th 271 (Roberts). In Roberts, the defendant and another inmate stabbed a third inmate, Gardner. Before Gardner died, he picked up a knife left on the ground by an assailant, and, in a purely reflexive act, plunged the knife into the chest of a prison guard, killing him. (Id. at pp. 294-295, 321.) The Supreme Court considered whether the defendant could be convicted of murdering the guard. The court concluded that he could. As long as Gardner’s act was impulsive and unreasoning, it was a dependent act which did not break the causal chain. (Id. at p. 315.) However, Gardner’s act must also have been foreseeable; if it was too remote to constitute the natural and probable consequence of the defendant’s act, the defendant could not be criminally liable for the guard’s death. (Id. at p. 321-322.)
Stephenson v. State (Ind. 1932) 179 N.E. 633 reached a similar conclusion in the case of a kidnapping and rape victim who, within hours of the attack, took poison. The victim’s suicide was not considered an independent intervening act when the victim was, by the attack “rendered... distracted and mentally irresponsible.” (Id. at p. 649.) Thus, Stephenson is not an intentional suicide case, but an involuntary act case.
The Roberts court reviewed the development of the doctrine of proximate cause in criminal law, as applied in circumstances where the initial victim has an impulsive reaction which causes the death of a second victim. (Id. at pp. 317-319.) The court noted that in those cases, “physical proximity allowed the trier of fact to find the victim’s death to be the natural and probable consequence of the defendant’s violence and hence proximately caused by the defendant’s act.” (Id. at p. 317.) Thus, for example, a manslaughter conviction was upheld when the defendant shot at an intended victim driving a car, who, while attempting to dodge the bullets, rapidly accelerated and killed a pedestrian. (Id. at p. 319.) “The criminal law thus is clear that for liability to be found, the cause of the harm not only must be direct, but also not so remote as to fail to constitute the natural and probable consequence of the defendant’s act.” (Ibid.) The court explained, “Shots that cause a driver to accelerate impulsively and run over a nearby pedestrian suffice to confer liability [citation]; but if the driver, still upset, had proceeded for several miles before killing a pedestrian, at some point the required causal nexus would have become too attenuated for the initial bad actor to be liable even for manslaughter, much less for first degree murder.” (Id. at p. 321.)
“ ‘[T]here is no bright line demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus.’ ” (Cervantes, supra, 26 Cal.4th at pp. 871-872.) Put another way, “the intervening act may be so attenuated, due to the passage of a significant period of time, that a defendant’s act is no longer considered the proximate cause of the victim’s death, for ‘ “at some point the required causal nexus would have become too attenuated....” ’ [Citations.]” (People v. Fiu (2008) 165 Cal.App.4th 360, 371, fn. 12.)
I believe this is such a case. Johnson’s death – by intentional act accidentally leading to death – does not fall squarely within the framework established by either the intentional suicide cases or the involuntary act cases, but both guide what I believe to be the proper analysis. To the extent Johnson’s act was intentional, her self-harm constitutes an independent intervening act under Lewis and Cervantes, because it was an act of will long after she was no longer at any risk of death from the wounds defendant had inflicted. To the extent her act was unintentional and could be said to be impulsive, it was so far physically and temporally removed from the defendant’s attack – fourteen months later – that it cannot be considered the natural and probable result of the attack under Roberts.
The majority opinion accepts the People’s argument that Johnson was brutally sexually assaulted by defendant, and that it was foreseeable that a victim of such an assault might engage in self-harm even many months after the attack. I disagree. While a rape victim’s self-harm might be foreseeable in the abstract, I would nonetheless conclude that the physical and temporal remoteness of Johnson’s self-harm and subsequent death are sufficient to break the causative chain in this case as a matter of law.
Moreover, the speculative nature of this theory, on the record of this case, presents a larger problem. Beyond an inference drawn from the location of the injuries themselves, there is no evidence that Johnson’s self-harm was a result of the rape, as opposed to frustration over the loss of Flood. There was certainly no testimony from the Seidels or Cabreras that Johnson attempted self-harm because of the rape, dwelled on the rape, or even spoke specifically about the rape. There is no evidence that she engaged in acts of self-harm at all during the months immediately following the attack when she lived with the Seidels. While Jose Cabrera subsequently witnessed Johnson picking at her arms, pinching herself, or pounding her hands on the table, there is no evidence that these acts were related to the rape. Jose Cabrera, the only witness to any acts of self-harm, attributed them only to “frustration.” There was no psychological or psychiatric testimony suggesting that Johnson self-harmed due to the rape. There was no expert testimony whatsoever that the injuries on her pelvis and thighs were the sort of self-injury one sees in rape victims. Even if attempts to self-harm in the genital area can be interpreted by a lay jury to reflect depression caused by a previous rape, there is no evidence that the inference is appropriate in a case where, as here, there have been other, non-sexual, attempts at self injury.
While there was some evidence that Johnson would discuss “the attack, ” there was no testimony elicited that she ever discussed the rape specifically.
To the extent that the jury could infer the cause of Johnson’s self-injury by the topics on which her conversation dwelled, the undisputed evidence was that she missed Flood, spoke about him every day, and was overwhelmed by grief over his loss. Regardless of the boundaries of a defendant’s criminal liability for the results of emotional injuries inflicted on a rape victim, I believe that the doctrine of proximate cause simply cannot be stretched to hold a defendant liable for the murder of a second victim, when the second victim dies of self-inflicted injuries caused by depression over the death of the first victim. There is no doubt that grief is reasonably foreseeable; but all-encompassing grief leading to substantial physical self-harm that causes death is unforeseeable and extraordinary, and constitutes an independent intervening act.
I would therefore reverse defendant’s conviction for murdering Johnson, and modify it to attempted premeditated murder. (Pen. Code, § 1181, subd. 6.)
The modified CALJIC No. 3.41, pertaining to “more than one cause/concurrent cause” (capitalization omitted) read: “[t]here may be more than one cause of a death. When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death. [¶] If you find that the defendant’s conduct was a cause of death to Peggy Johnson, then it is no defense that the conduct of some other person, even the deceased person, contributed to the death.”