35 Cal. 3d 824, 201 Cal. Rptr. 319, 678 P.2d 894 (1984)
In 1984 the Supreme Court of California reviewed the convictions of defendant Stanley Burroughs, a seventy-seven-year-old self-styled healer, arising from his treatment of Lee Swatsenbarg.1 Swatsenbarg, a twenty-four-year-old man diagnosed with terminal leukemia by his family physician, had unsuccessfully sought treatment from several traditional medical sources before turning to alternative approaches including Bible study.2 On the recommendation of an acquaintance familiar with Burroughs's claimed successes, Swatsenbarg and his wife contacted the defendant for care.3
During their initial meeting, Burroughs outlined a thirty-day regimen involving consumption of a special lemonade along with salt water and herb tea, exposure to colored lights from a specially equipped lamp, and periodic vigorous massages administered by Burroughs himself for additional fees.4 He instructed the Swatsenbargs to purchase his book Healing for the Age of Enlightenment and to avoid all contact with Swatsenbarg's physician during the treatment period.5 The couple complied with these conditions and began the program.6
Within two weeks, Swatsenbarg's health deteriorated sharply, marked by fever, progressive weakness, severe abdominal pain, frequent vomiting, and convulsions.7 Despite these symptoms, Burroughs continued the deep abdominal massages on successive days and urged postponement of a recommended bone marrow test.8 Three and a half weeks into the treatment, after spending the night at Burroughs's house, Swatsenbarg died from a massive hemorrhage of the mesentery in the abdomen, which medical evidence at trial linked directly to the massages.9
A jury convicted Burroughs of unlawfully selling drugs or devices for the cure of cancer, felony practicing medicine without a license, and second degree felony murder.10 The trial court instructed the jury that the unlicensed practice of medicine could serve as the predicate felony for second degree murder on the theory that it was inherently dangerous to human life.11 The court refused a defense-requested instruction on involuntary manslaughter.12 Burroughs appealed his convictions to the Supreme Court of California.13
Whether the felony of practicing medicine without a license under circumstances or conditions creating a risk of great bodily harm, serious physical or mental illness, or death is inherently dangerous to human life so as to support a conviction for second degree felony murder?14
The second degree felony-murder rule applies only when the underlying felony is inherently dangerous to human life.15 This determination is made by examining the elements of the felony in the abstract rather than the particular facts of the case.16 A felony is inherently dangerous if its commission inevitably poses a danger to human life.17
No. The primary element of the offense is treating the sick or afflicted, which can be committed in innocuous ways such as advising rest for a common cold.18 The factors elevating the offense to a felony include risks of great bodily harm, which encompasses injuries like bone fractures that are not life-threatening, and risks of serious mental illness, which can encompass conditions like delusions of grandeur that do not inherently threaten life.19 The statute lists these risks in the disjunctive and separately from the risk of death, confirming that the felony can be committed without creating peril to human life, as occurred when Burroughs treated Swatsenbarg under the statutory conditions.20
The felony is not inherently dangerous to human life, so the second degree felony-murder conviction must be reversed.21
Related opinions on this issue
Chief Justice Bird concurs in the judgment reversing the felony-murder conviction.22 She agrees that practicing medicine without a license is not an inherently dangerous felony. Bird would reverse on the broader ground that the second degree felony-murder rule itself should be abolished.23
She emphasizes that the rule is a judge-made doctrine without any express basis in the Penal Code.24 Bird argues that the rule erodes the fundamental relationship between criminal liability and moral culpability by eliminating the requirement of malice.25 Many writers and commentators have concluded that the common law doctrine of felony murder is of questionable origin.26
Bird concludes that the court should discard this anachronistic concept because no statutory provision prevents such action.27
Justice Richardson dissents and would affirm the second degree felony-murder conviction.28 He maintains that the unauthorized practice of medicine under the statutory conditions fully supports application of the felony-murder rule. Richardson contends that the statute explicitly requires a risk of actual harm or injury to a person.
He argues that the underlying conduct is manifestly inherently dangerous to life when viewed in the abstract.29 Richardson asserts that invocation of the rule serves the deterrent purpose of encouraging felons to avoid unnecessary violence.30 He compares the statute to other felonies previously held inherently dangerous, such as poisoning with intent to injure and burning a motor vehicle.31
Whether the trial court erred in refusing to instruct the jury on involuntary manslaughter as a lesser included offense to second degree felony murder on the facts presented?32
An unintentional homicide committed in the course of a noninherently dangerous felony may support a conviction for involuntary manslaughter if the felony is committed without due caution and circumspection and proximately causes death.33
Yes. There was substantial evidence that Swatsenbarg's death resulted directly from the deep abdominal massages administered by Burroughs.34 Leukemia victims are significantly more susceptible to hemorrhaging from such trauma.35 A reasonably prudent physician would have known the high likelihood of hemorrhage, rendering the treatment without due caution and circumspection.36
The trial court should have instructed the jury on involuntary manslaughter, and on retrial Burroughs could properly be charged with that offense.37