Russell

Following a court trial, Karl Joseph Russell, Jr., was convicted of first degree murder (Pen. Code, 1 §§ 187, subd. (a), 189), evading an officer and causing serious bodily injury or death (Veh. Code, § 2800.3), residential burglary (§§ 459, 460), and vehicle theft (Veh. Code, § 10851, subd. (a)). The court also found true an allegation that Russell inflicted great bodily injury in the commission of the vehicle theft (§ 12022.7, subd. (a)).

Russell was sentenced to an indeterminate term of 26 years to life, composed of 25 years to life for first degree murder, plus one year for the use of a deadly weapon enhancement pursuant to section 12022, subdivision (b). The court stayed the terms for the remaining counts and enhancements pursuant to section 654.

Russell appeals challenging only his conviction for first degree murder. Russell contends that the felony-murder escape rule should not apply to flight during the commission of a burglary and that even if it does apply the evidence is insufficient to show that the death in this case occurred during an escape from the commission of a burglary. Russell also contends that a sentence of 26 years to life for first degree felony…

Dissenting. — I agree with the majority that the felony-murder escape rule applies to burglary. (People v. Bodely (1995) 32 Cal.App.4th 311, 313 [ 38 Cal.Rptr.2d 72 ]; People v. Fuller (1978) 86 Cal.App.3d 618, 623 [ 150 Cal.Rptr. 515 ].) However, neither the law nor the facts justify the majority’s extension of the escape rule to the circumstances of this case. The escape rule has never been applied where, as here, no one pursued Russell immediately following the burglary, no one alerted police that a burglary had taken place or that the Meurses’ Oldsmobile had been stolen, and about 15 minutes had elapsed between the time Creighton left the neighborhood and observed that the Meurses’ garage door was closed and the time Officer Williams spotted the Oldsmobile nearly five miles away stopped at a red light. Russell had completed his escape from the burglary and reached a place of temporary safety. Not mentioned by the majority is the fact that police did not connect the Oldsmobile with the Meurses’ burglary until well after the fatal crash. Subjectively, neither Russell nor Officer Williams had reason to believe Russell was fleeing from the scene of a burglary.

The majority relies…

HUFFMAN, Acting P. J.—

Following a court trial, Karl Joseph Russell, Jr., was convicted of first degree murder (Pen. Code, [1] §§ 187, subd. (a), 189), evading an officer and causing serious bodily injury or death (Veh. Code, § 2800.3), residential burglary (§§ 459, 460), and vehicle theft (Veh. Code, § 10851, subd. (a)). The court also found true an allegation that Russell inflicted great bodily injury in the commission of the vehicle theft (§ 12022.7, subd. (a)).

Russell was sentenced to an indeterminate term of 26 years to life, composed of 25 years to life for first degree murder, plus one year for the use of a deadly weapon enhancement pursuant to section 12022, subdivision (b). The court stayed the terms for the remaining counts and enhancements pursuant to section 654.

Russell appeals challenging only his conviction for first degree murder. Russell contends that the felony-murder escape rule should not apply to flight during the commission of a burglary and that even if it does apply the evidence is insufficient to show that the death in this case occurred during an escape from the commission of a burglary. Russell also contends that a sentence of 26 years to life for…