People v. HowardPeople v. Howard
Lead Opinion
Murder is the unlawful killing of a human being, with malice aforethought. (
I
At 12:40 a.m. on May 23, 2002, California Highway Patrol Officer Gary Stephany saw defendant driving a Chevrolet Tahoe (a sport utility vehicle) without a rear license plate, and signaled him to pull over. Defendant stopped on the side of the road. But when Officer Stephany and his partner, Officer Wayne Bernard, got out of their patrol car, defendant restarted the engine and sped to a nearby freeway. The officers gave chase at speeds of up to 90 miles per hour and radioed for assistance. Defendant left the freeway and drove onto a surface street, turning off his car’s headlights. He ran two stop signs and a red light, and he drove on the wrong side of the road. His speed was 15 to 20 miles over the posted speed limit of 50 miles per hour. At some point, he made a sharp turn onto a small dirt road and escaped.
Minutes later, Officer Anthony Arcelus and his partner, Officer Bret Boss, who had been monitoring the pursuit on their car radio, saw the Tahoe with its headlights on again and took up the chase. Officer Arcelus, who was driving, estimated the Tahoe’s speed at more than 80 miles per hour, and he saw it run a stop sign and a traffic light. By then, the car’s headlights were again turned off. Up to that point, the chase had taken place in rural parts of Fresno County. When the Tahoe started heading toward downtown Fresno, Officer Arcelus gave up the pursuit, fearing that the high-speed chase might cause an accident.
About a minute after Officer Arcelus stopped chasing the Tahoe, he saw it run a red light half a mile ahead of him and collide with a car driven by Jeanette Rodriguez. Rodriguez was killed and her husband, a passenger in the car, was seriously injured. It turned out that the Tahoe that defendant was driving had been stolen earlier that day. Defendant, who was also injured in the crash, was arrested and charged with murder (
At trial, the prosecution called as a witness Laurie Bennett, defendant’s passenger during the chase. She was evasive about the events leading up to the accident. Ultimately, she admitted that she had told the truth when she explained to a police officer that five or six times during the chase she had begged defendant to let her get out of the car, and that defendant had run a red light at the intersection where the fatal accident occurred. An accident reconstruction expert testified that at the time of the accident the Tahoe was traveling over 80 miles per hour, and Rоdriguez’s car was traveling close to the posted speed limit of 35 miles per hour. John Mikkelson, a pipeline inspector working near the intersection where the accident occurred, said he looked at the signal immediately after hearing the crash of the two colliding cars and saw that it was green for cars traveling in Rodriguez’s direction (and thus presumably red for defendant).
Forensic toxicologist Roger Peterson, a witness for the defense, testified that defendant had a “high amount” of methamphetamine in his bloodstream at the time of the accident. A person under the influence of methamphetamine, Peterson said, might drive at excessive speeds, might have trouble staying in a single lane, and might not notice traffic lights and signs. Defendant also had marijuana in his bloodstream, but not enough to be under the influence. Victim Rodriguez’s bloodstream contained morphine (a metabolite of heroin) and benzoyleconine (a metabolite of cocaine). Based on this evidence, toxicologist Peterson expressed his opinion that Rodriguez was under the influence of heroin, and possibly cocaine when the accident occurred.
Defendant testified on his own behalf. He admitted stealing the Tahoe and fleeing from the Highway Patrol officers. He did so because his probation officer had told him he would go to prison if he was again caught in a stolen car. He could only remember bits and pieces of the chase. He described himself as a skilled driver; his cousin, a race car driver, had taught him to drive “sрrint cars” at a racetrack. He saw the victims’ car before the accident but could not recall hitting it. He could not remember what color the signal light was when he entered the intersection but admitted it was “most likely” red when the car he was driving crashed into the Rodriguez car.
The trial court instructed the jury: “Every person who unlawfully kills a human being during the commission of violation of California Vehicle Code
In his closing argument, defense counsel contended that defendant did not violate
During its deliberations, the jury sent the trial court this note: “It appears in the instructions if there is a guilty verdict in [section] 2800.2 then there must be a guilty verdict for [Penal Code section] 187, yes or no?” The court replied that it was “not in a position to say yes or no”; it then reread the instructions on felony murder and causation. The jury convicted defendant of all counts.
The Court of Appeal affirmed. As pertinent here, it rejected defendant’s contention that he could not be convicted under the second degree felony-murder rule because
We granted defendant’s petition for review on these two issues: “1. Whether the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (
Because the second degree felony-murder rule is a court-made rule, it has no statutory definition. This court has described it thusly: “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the . . . felonies enumerated in
Because the second degree felony-murder rule is “a judge-made doctrine without any express basis in the Penal Code” (People v. Dillon, supra,
“In determining whether a felony is inherently dangerous [under the second degree felony-murder rule], the court looks to the elements of the felony in the abstract, ‘not the “particular” facts of the case,’ i.e., not to the defendant’s specific conduct.” (People v. Hansen (1994)
Felonies that have been held not inherently dangerous to life include practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death (People v. Burroughs, supra,
m
In determining whether
Section 2800.1 states that any motorist who “with the intent to evade, willfully flees or otherwise attempts to elude” a peace officer pursuing on a motor vehicle or bicycle is, under specified circumstances, guilty of a misdemeanor.
“(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonmеnt in the state prison, or by confinement in the county jail .... The court may also impose a fine ... or may impose both that imprisonment or confinement and fine.
“(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”
In concluding that
Violations that are assigned points under section 12810 and can be committed without endangering human life include driving an unregistered vehicle owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving with a suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly more than 55 miles per hour when a higher speed limit has not been posted (§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a
The Court of Appeal here rejected defendant’s contention that because of the broad definition of the phrase “willful or wanton disregard for the safety of persons or property” in subdivision (b) of
The Attorney General cоntends that when the Legislature amended
Thus, the trial court here erred when it instructed the jury that it should find defendant guilty of second degree murder if it found that, while violating
Conclusion
Nothing here should be read as saying that a motorist who kills an innocent person in a hazardous, high-speed flight from a police officer should not be convicted of murder. A jury may well find that the motorist has acted with malice by driving with conscious disregard for the lives of others, and thus is guilty of murder. (See generally People v. Watson (1981)
We reverse the judgment of the Court of Appeal, which upheld defendant’s conviction for second degree murder, and remand the matter to that court for further proceedings consistent with this opinion.
George, C. J., Werdegar, J., Chin, J., and Moreno, J., concurred.
Notes
Unless otherwise stated, all further statutory citations are to the Vehicle Code.
Justice Baxter’s dissenting opinion stresses that the trial court’s instructions to the jury left the phrase “willful or wanton disregard for the safеty of persons or property” undefined, and did not mention the Legislature’s broad definition of that phrase in subdivision (b) of
Defendant asserts that when the Legislature enacted
Justice Baxter’s dissenting opinion argues forcefully that the trial court’s instructional error was harmless because (1) there was overwhelming evidence that defendant acted with implied malice, and (2) the jury implicitly found, based on the trial court’s instructions, that defendant acted with malice. (Dis. opn., post, at рp. 1144-1147.) We express no views on Justice Baxter’s arguments, which should be considered by the Court of Appeal on remand.
To the extent it is inconsistent with this opinion, we disapprove People v. Sewell, supra,
Concurrence Opinion
I concur with the majority’s holding that defendant’s conviction for second degree felony murder must be reversed and the case remanded for further proceedings. However, for the reasons set forth in my dissenting opinion in People v. Robertson (2004)
Here, defendant was convicted solely on a second degree felony-murder theory. The majority appears to acknowledge thе rule is constitutionally and analytically suspect: “Because the second degree felony-murder rule is ‘a judge-made doctrine without any express basis in the Penal Code’ [citation], its constitutionality has been questioned [citation]. And, as we have noted in the past, legal scholars have criticized the rule for incorporating ‘an artificial concept of strict criminal liability that “erodes the relationship between criminal liability and moral culpability.” ’ [Citation.] Therefore, we have repeatedly stressed that the rule ‘ “deserves no extension beyond its required application.” ’ [Citations.]” (Maj. opn., ante, at p. 1135.) I agree, but I would go farther and abrogate the rule entirely. (People v. Robertson, supra,
The majority concludes, based on a technical parsing of the provision’s grammar, that a violation of Vehicle Code
“[R]easonable judges can disagree about the legitimacy of contracting or expanding the statutory definition of a felony in order to conclude that a particular violation should be deemed inherently dangerous.” (People v. Robertson, supra,
Dissenting Opinion
I respectfully dissent. In early morning darkness, defendant, driving a stolen vehicle, led police officers on a perilous and extended chase over Fresno County roads. He ran three stop signs and a red light, and even proceeded on the wrong side of a divided highway, while operating the vehicle far in excess of posted speed limits. Finally, as he dashed on city streets toward downtown Fresno at speeds between 80 and 90 miles per hour, he ran a second red light and collided with another vehicle. Both occupants of that car were ejected onto the street. One perished.
The majority concede that defendant (1) violated
The majority invoke the premise that second degree felony murder only occurs in the commission of a felony which is inherently dangerous in the abstract—one which, by its very nature, cannot be committed without creating a substantial risk, or a high probability, that someone will be killed. (E.g., People v. Hansen (1994)
The majority focus upon subdivision (b) of
Hence, the principal reason noted by the majority for limiting the second degree felony-murder rule should not bar a felony-murder finding here. The statute’s express words placed defendant on notice that the particular conduct he was committing—recklessly unsafe driving to elude police pursuit—was both felonious and inherently dangerous, and thus a basis for murder liability if death resulted. This is a case where “ ‘society has declared certain inherently dangerous conduct to be felonious,’ ” and “ ‘defendant should [therefore] not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved.’ ” (Maj. opn., ante, at p. 1135, quoting People v. Patterson (1989)
Conversely, the principal reason for applying the felony-murder rule is present. The purpose of the felony-murder doctrine “ ‘is to deter those engaged in felonies from killing negligently or accidentally.’ ” (Hansen, supra, 9 Cal.4th 300, 308, quoting People v. Satchell (1971)
Those requirements are met here. It is appropriate to deter persons from killing negligently or accidentally—as did defendant—while engaged—as was defendant—in recklessly unsafe driving to elude police pursuit, a specific form of conduct made felonious by
Under such circumstances, it perverts reason to refuse to apply the felony-murder rule simply because subdivision (b) of
It is worth noting that, although the Legislature elected to include subdivision (b) as part of
However, neither the Legislature’s desire to create a felony of flight with “points” violations, nor its choice of methodology to accomplish this result, can deprive the reckless conduct described in subdivision (a) of all force as an inherently dangerous felony. If subdivision (a) described an inherently dangerous felony before the addition of subdivision (b) in 1996 (see Johnson, supra,
In sum, where the defendant committed inherently dangerous conduct expressly made felonious by subdivision (a) of
As I have indicated above, this is such a case. The prosecution avoided all reliance on subdivision (b) of
In his argument to the jury concerning
Most crucially, all reference to subdivision (b) was omitted from the jury instruction on
Thus, beyond doubt, the jury convicted defendant of murder based solely on proof that he fled police pursuit by driving with reckless indifference to safety, conduct which is both inherently dangerous and expressly felonious under subdivision (a) of
But even if
I find such a conclusion inescapable, for two reasons. First, a reasonable jury, properly instructed on an implied malice theory of second degree murder, could not have failed to find, on this evidence, the elements of malicious murder. Second, though this jury received no explicit instructions on malice, it necessarily did find, under the instructions which were given, that defendant killed maliciously.
“ ‘Implied malice, for which the second degree felony-murder doctrine acts as a substitute [fn. omitted], has both a physical and a mеntal component. . . .
In my view, the evidence that defendant acted with actual knowledge and conscious disregard of the lethal probabilities is conclusive. No other inference can be drawn from his decision to maintain his careening flight from the police over highways and streets carrying innocent travelers. During the high-speed chase, he swerved over a median boundary of a divided highway and travelled in lanes reserved for oncoming vehicles, risking a head-on collision. With equal purpose, he ran at least three stop signs and two red lights, forcing cross-traffic to yield and creating the obvious danger of crashes at these cоntrolled intersections. In his frantic efforts to outdistance his pursuers, he “fishtailed” into curves and comers, giving rise to the peril of spin-out accidents that could involve other vehicles. The fatal collision occurred in the midst of this course of conduct, as defendant, still trying to escape, ran a red light at high speed.
As a matter of law, I believe, these intentional acts went beyond mere gross negligence or reckless indifference. Defendant—by his own evaluation a skilled driver—must have acted with full awareness that he was thereby placing human life at risk. He cannot evade this responsibility through his inherently implausible testimony that he remembered only bits and pieces of the chase, and could not recall whether the traffic light was red at the fatal intersectiоn when he entered it.
In any event, this jury was told that the felony described in
Having concluded that defendant’s violation of
Defendant invokes the prinсiple that a special statute defining an offense preempts a more general statute encompassing the same conduct. (See, e.g., In re Williamson (1954)
Neither circumstance is present here. Both statutes permit punishment, without proof of malice, for fatalities caused by vehicular flight from the police, but the two statutes do not govern such killings identically. Section 2800.3—in defendant’s view, the more specific death-relаted statute— sanctions such a homicide regardless of the fleeing motorist’s degree of driving care. By contrast, to be convicted of felony murder under the more “general” statute,
Through an exhaustive analysis of legislative history, defendant argues that the Legislature’s “carefully crafted” scheme for punishment of pursuit-related fatalities precludes prosecution of such homicides as felony murder. His contention lacks merit. Vehicular flight from the police, with its potential for death, injury, and property damage, has been a growing problem. The Legislаture has responded over the years by expanding the punishment for such conduct under various circumstances. Among other things, it has provided in
For all these reasons, I would affirm the judgment of the Court of Appeal.
All further unlabeled statutory references are to the Vehicle Code.
This court has previously indicated that when a felony statute speaks in the disjunctive, describing discretе dangerous and nondangerous means of commission, the felony cannot be considered “inherently dangerous” for purposes of the second degree felony-murder rule. (People v. Burroughs (1984)
As the majority note, there was evidence that defendant was under the influence of methamphetamines during his reckless flight. But voluntary intoxication cannot negate implied malice. (