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A reviewing court should look first to the primary element of the offense at issue, then to the factors elevating the offense to a felony, to determine whether the felony, taken in the abstract, is inherently dangerous to human life or whether it possibly could be committed without creating such peril. In this examination the court is required to view the statutory definition of the offense as a whole, taking into account even nonhazardous ways of violating the provisions of the law which do not necessarily pose a threat to human life.
Lee Swatsenbarg, a cancer victim died after seeking treatment from defendant Burroughs, a 77-year-old self-styled "healer.” Defendant was convicted of unlawfully selling drugs, compounds, or devices for alleviation or cure of cancer, in violation of Cal. Health & Safety Code § 1707.1, felony practicing medicine without a license, in violation of Cal. Bus. & Prof. Code § 2053, and second-degree felony murder, in violation of Cal. Penal Code § 187. On appeal, defendant argued that the felonious unlicensed practice of medicine was not an inherently dangerous felony and could not serve as the predicate offense to support a conviction of felony murder.
Could the felonious unlicensed practice of medicine serve as the predicate offense to support a conviction of felony murder?
The court reversed the felony murder conviction and affirmed the other convictions. The court held that while the unlicensed practice of medicine could pose a threat to the health of an individual, commission of that crime as defined by statute did not inevitably pose danger to human life. The offense could not be made the predicate for a finding of murder, absent proof of malice. The jury should have been instructed on involuntary manslaughter because the evidence showed that the treatment was performed without due caution and circumspection and was the proximate cause of death.