THE PEOPLE, Plaintiff and Respondent, v. MARK EDWIN TAYLOR, Defendant and Appellant.
No. G010516
Fourth Dist., Div. Three.
May 21, 1992.
1084
Jerry L. Steering and Guy N. Webster, under appointments by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Jeffrey J. Koch and John T. Swan, Deputy Attorneys General, for Plaintiff and Respondent.
WALLIN, J.-Mark Edwin Taylor appealed his second degree murder conviction, based on Adrian Obregon‘s death arising from Taylor selling him a few dollars’ worth of phencyclidine (PCP). We originally reversed, holding the statute upon which Taylor‘s felony-murder conviction was based (
The facts surrounding Obregon‘s death have not changed. However, we elaborate on the expert evidence concerning the dangers of PCP because it formed the basis for the trial court‘s ruling.
Adrian Obregon went to the beach with three friends. On their way, they purchased some beer. On arrival, they swam for a few minutes and drank some of the beer. Witnesses’ descriptions of the surf that day ranged from “pretty calm” to “a little big” to “real strong.” Obregon was a fairly good swimmer.
After smoking, Obregon sat facing the ocean and listening to the radio with headphones; he was “high.” He began scooting toward the water. At the water‘s edge, he turned around so his head was pointed toward the water. He allowed several waves to hit him and carry him, appearing to enjoy it. A wave broke over him and rolled him onto his stomach; he did not get up. The surf carried Obregon out to sea and neither the lifeguard nor others on the beach could find him.
Obregon‘s body turned up on the beach the next morning. An autopsy revealed a subdural brain hemorrhage, consistent with an impact against wet sand. Significant amounts of PCP were present in the blood, brain, and liver. The blood-alcohol level was .058 percent. The autopsy surgeon identified the cause of death as saltwater drowning, with PCP use and the subdural hemorrhage as contributing factors.
A complaint charged Taylor with one count of murder, seven counts of sale, furnishing, or transportation of PCP, and one count of possessing PCP for sale. At trial, Dr. Steven Lerner, the prosecution expert, testified that PCP was used experimentally as a general anesthetic in the 1950‘s. At the normal anesthetic dosage of .25 milligrams per kilogram of body weight, it would render the patient unconscious without medical risk. Vital signs would remain stable. It was discontinued because of side effects, such as assaultive and belligerent behavior in the recovery room.
Ninety to ninety-five percent of PCP users have a pleasant experience. Some chronic users have ingested the drug on a daily basis for years. They build up incredibly high tolerances, up to 250 milligrams per sitting, which is 10 to 15 times the general anesthetic dose for surgery.
Although not familiar with the legal standard, Dr. Lerner testified PCP is inherently dangerous to human life. Although the drug can be toxic, most people who die from the drug do not overdose, but succumb as a result of its “behavioral effects,” such as drowning or falls from heights. Users’ spatial perceptions are affected; they lose their sense of up and down, and where their limbs are. They can drown in shallow water and are unsafe drivers. The
Defense expert Dr. Orm Aniline testified PCP is not a toxic substance by nature, although any substance has some toxic properties depending on how it is used and the sensitivity of the user. PCP was used as an anesthetic because doctors did not need to worry about seizures or cardiac and respiratory problems as they did with other anesthetics. It is still widely used for “headlight surgery” in remote areas because of its high margin of safety, and on animals with sensitive respiratory systems, such as elephants.
PCP is not an inherently dangerous drug; one can be given PCP without creating a substantial risk of death. Concerns about death from an overdose do not arise until an individual has ingested 1,000 milligrams, over 50 times a high street dosage and over 40 times the average anesthetic level. The odds of dying from a dose of PCP are less than 1 in 10,000, and possibly much less. It approximates the risk of death from a shot of lidocaine in the dentist‘s office.
Dr. Aniline acknowledged there are potential negative side effects to PCP use. It can cause a coma, seizures, neurological problems (including difficulty with balance and movement), respiratory problems, and exacerbation of preexisting conditions (such as heart seizures and psychosis).
Montebello Police Officers1 Robert Carcano and Louis Ojeda had significant training on PCP and street experience with users. To their knowledge, although approximately 500 to 600 PCP arrests were made in their jurisdiction each year, no “PCP deaths” had ever occurred there.
The trial judge ruled that the sale of PCP is inherently dangerous to human life and allowed the murder charge to go to the jury. Taylor was found guilty on all counts and sentenced to 15 years to life on the murder count, terms being stayed on the companion drug offenses. On appeal, we reversed the murder conviction, reasoning under controlling authority that the felony-murder theory relied upon was invalid because the sale, transportation, or furnishing of PCP was not inherently dangerous to human life when “viewed in the abstract.” (People v. Taylor (May 9, 1989) G005345 [nonpub. opn.]; see also People v. Burroughs (1984) 35 Cal.3d 824, 829-830 [201 Cal.Rptr. 319, 678 P.2d 894]; People v. Henderson (1977) 19 Cal.3d 86, 93 [137 Cal.Rptr. 1, 560 P.2d 1180].)
The Supreme Court granted review and subsequently transferred the case here with directions to vacate our opinion and to reconsider the matter in
I
Before analyzing the trial court‘s finding that furnishing2 PCP poses a high probability of death, we must determine the correct standard of review. Neither of the parties tackles the issue, although Taylor seems to treat the issue purely as a matter of law,3 while the Attorney General seems to view it, at least partially, as an issue of fact.4 It is the former.5
“As has often been said, ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. [Citations.]’ [Citation.]” (Atlantic Richfield Co. v. State of California (1989) 214 Cal.App.3d 533, 538 [262 Cal.Rptr. 683].)
However, deference need not always be given to the trial court. For example, statutory interpretation is a question of law (Dean W. Knight &
Although second degree felony murder is not expressly set forth in the Penal Code, the courts have long held that certain felonies not listed in
One court has held that when the trial court receives extrinsic evidence concerning a statute‘s meaning, an appellate court will uphold any reasonable construction by it. (Atlantic Richfield Co. v. State of California, supra, 214 Cal.App.3d at pp. 538, 542 [trial court‘s interpretation of oil drilling term, “at the well,” was reasonable].) However, we do not agree such deference is proper.7 The Atlantic Richfield court forged its rule by stating the general rule on interpreting writings, such as contracts and deeds, contained in Witkin‘s treatise on California Procedure (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, §§ 292-295, pp. 303-306), and applying it to statutory interpretation, without discussion or citation to authority.
This position is at odds with the general proposition that appellate courts independently determine the meaning of statutes. (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228 [256 Cal.Rptr. 671].) Witkin recognizes as much, expressly categorizing statutory interpretation solely as a matter of law, and interpretation of an instrument or writing as a question of law or mixed question of fact and law. (9 Witkin, Cal. Procedure, supra, Appeal, § 242, at p. 247.)
This is not the type of question on which appellate courts traditionally defer to the discretion of the trial court, such as change of venue, inconvenient forum, injunction and receivership, and continuances. (See generally, 9 Witkin, Cal. Procedure, supra, Appeal, § 276, at pp. 286-287 [illustrating areas of trial court discretion]; see also Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019, 1023, 1025 [213 Cal.Rptr. 712], disapproved on other grounds in Shamblin v. Brattain (1988) 44 Cal.3d 474, 479, fn. 4 [243 Cal.Rptr. 902, 749 P.2d 339] [giving further illustrations].) All of those matters are extremely fact intensive and vary from case to case.
The issue of “inherently dangerous felonies” cries out for a uniform rule of law. To paraphrase Cardozo, it would not do to have PCP‘s “inherent dangerousness” decided different ways among different litigants. (See Cardozo, The Nature of the Judicial Process (1921) p. 33.) The only way to assure uniformity is for the appellate courts to decide the issue as a matter of law, without deference to the trial court‘s ruling.
Even if we viewed the matter as a mixed question of law and fact, we would independently review the question of inherent dangerousness. In People v. Louis, supra, 42 Cal.3d 969, the Supreme Court suggested it should independently review the question of due diligence in securing a witness‘s presence at trial. (Id. at p. 988.) In doing so the court engaged in an extensive analysis of the procedure for reviewing mixed questions.
” ‘[T]here are three distinct steps in deciding a mixed fact-law question. The first step is the establishment of the “basic, primary, or historical facts: facts ‘in the sense of a recital of external events and the credibility of their narrators . . .’ ” [Citations.] The second step is the selection of the applicable rule of law. The third step—and the most troublesome for standard of review purposes—is the application of law to fact or, in other words, the determination “whether the rule of law as applied to the established facts is or is not violated.” [Citation.]’ ” (42 Cal.3d at p. 985.)
” ‘The [trial] court‘s resolution of each of these inquiries is, of course, subject to appellate review. The appropriate standard of review for the first
” ‘Structurally, appellate courts have several advantages over trial courts in deciding questions of law. First, appellate judges are freer to concentrate on legal questions because they are not encumbered, as are trial judges, by the vital, but time-consuming, process of hearing evidence. Second, the judgment of at least three members of an appellate panel is brought to bear on every case. It stands to reason that the collaborative, deliberative process of appellate courts reduces the risk of judicial error on questions of law. Thus, de novo review of questions of law, like clearly erroneous review of questions of fact, serves to minimize judicial error by assigning to the court best positioned to decide the issue the primary responsibility for doing so. . . . [Further,] [u]nder the doctrine of stare decisis, appellate rulings of law become controlling precedent and, consequently, affect the rights of future litigants.’ ” (42 Cal.3d at p. 986.)
” ‘The appropriate standard of review for a [trial] judge‘s application of law to fact may be determined . . . by reference to the sound principles which underlie the settled rules of appellate review just discussed. If the concerns of judicial administration—efficiency, accuracy, and precedential weight—make it more appropriate for a [trial] judge to determine whether the established facts fall within the relevant legal definition, we should subject [the] determination to deferential, clearly erroneous review. If, on the other hand, the concerns of judicial administration favor the appellate court, we should subject the [trial] judge‘s finding to de novo review. Thus in each case, the pivotal question is [whether] the concerns of judicial administration favor the [trial] court or [whether] they favor the appellate court.’ ” (42 Cal.3d at pp. 986-987.)
” ‘If . . . the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo. . . . [T]he concerns of judicial administration will generally favor the appellate court, justifying de novo review. This is so because usually the application of law to fact will require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles.’ ” (42 Cal.3d at p. 987.)
By that reasoning, we should review de novo the question of inherent dangerousness. Repeatedly, the Supreme Court has expressed the
One might wonder why, if the issue is a question of law to be independently reviewed, the Supreme Court in People v. Patterson, supra, 49 Cal.3d 615 ordered the matter remanded to the trial court, and why we did the same here. The answer is that the determination of a “high probability of death” depends, at least somewhat, on evidence as to the dangerousness of the underlying felony in the abstract, evidence which is best garnered from testimony by experts. Appellate courts have often used evidence gathered by trial courts and referees as the basis for de novo legal rulings. (See, e.g., People v. Ledesma (1987) 43 Cal.3d 171, 219 [233 Cal.Rptr. 404, 729 P.2d 839] [incompetency of counsel]; McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 842 [231 Cal.Rptr. 518, 727 P.2d 711] [defamation]; People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961] [search and seizure]; People v. Kelly (1976) 17 Cal.3d 24, 31, 40-41 [130 Cal.Rptr. 144, 459 P.2d 1240] [reversing trial court determination that a scientific process was sufficiently reliable to yield admissible evidence].)
Here, the trial court and prosecution opted to rely upon the expert testimony presented at trial.8 The court made no determination of credibility or express findings of fact, but merely concluded there was “substantial evidence” that furnishing PCP creates a high probability of death. The only implied finding the court might have made was that Dr. Lerner‘s testimony that PCP is inherently dangerous was correct, and Dr. Aniline‘s testimony to the contrary was not.9
We need not give deference to such a finding because it was not factual. It dealt with the ultimate issue of dangerousness. Although experts are properly allowed to testify on such issues (
II
None of the cases since People v. Patterson, supra, 49 Cal.3d 615 have decided whether furnishing PCP (or any drug) carries a high probability of death. (See People v. Coleman (1992) 5 Cal.App.4th 646 [7 Cal.Rptr.2d 40] [kidnapping for robbery; high probability of death]; People v. Morse (1992) 2 Cal.App.4th 620, 646 [3 Cal.Rptr.2d 343] [reckless or malicious possession of a bomb; high probability]; People v. Lee (1991) 234 Cal.App.3d 1214, 1228-1229 [286 Cal.Rptr. 117] [child endangerment; not inherently dangerous]; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299 [280 Cal.Rptr. 584] [kidnapping; high probability]; People v. Ordonez (1991) 226 Cal.App.3d 1207, 1228 [277 Cal.Rptr. 382] [kidnap for ransom; high probability].) However, a number of pre-Patterson cases dealt with the issue, often with little analysis.
In People v. Poindexter (1958) 51 Cal.2d 142 [330 P.2d 763], a case credited with presaging the announcement of the second degree felony-murder rule (People v. Satchell (1971) 6 Cal.3d 28, 35-36 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]), the Supreme Court held furnishing heroin to a minor who died as a result supported a second degree murder conviction. (Id. at p. 149.) The court reasoned, “[There] was uncontroverted testimony that [the minor] died from narcotics poisoning, and that taking a shot of heroin was an act dangerous to human life.” (Ibid.)
Ureta v. Superior Court (1962) 199 Cal.App.2d 672 [18 Cal.Rptr. 873] relied on Poindexter, and held that death from injected morphine poisoning establishes the corpus delicti for murder because one might reasonably infer the morphine was illegally furnished. (Id. at p. 676.) Without analysis or citation to authority, the court stated, “It makes no difference whether deceased or another actually injected the narcotic. The person who furnished him the narcotic is liable even though deceased did the actual administering of it.” (Ibid.)
People v. Mayfield (1964) 225 Cal.App.2d 263 [37 Cal.Rptr. 340] distinguished Poindexter and Ureta, and held the defendant, who aided and
In People v. Williams (1965) 63 Cal.2d 452 [47 Cal.Rptr. 7, 406 P.2d 647] the Supreme Court held that conspiracy to possess methedrine was not inherently dangerous. (Id. at p. 458.) In doing so, the high court held for the first time that the felony in question must be viewed in the abstract. (Id. at p. 458, fn. 5.) Therefore, it ignored the facts of the stabbing in making its determination on inherent dangerousness. (Id. at pp. 454-455, 458.)
The court in People v. Cline, supra, 270 Cal.App.2d 328 relied on the bald statement in Ureta v. Superior Court, supra, 199 Cal.App.2d 672 that no distinction should be made between administering and furnishing a drug. (People v. Cline, supra, 270 Cal.App.2d at p. 332.) The court held furnishing phenobarbital was an inherently dangerous felony, ignoring the then-recent “felony in the abstract” rule of People v. Williams, supra, 63 Cal.2d 452. (People v. Cline, supra, 270 Cal.App.2d at p. 333.)
The Cline court reasoned as follows: “The trial judge found that defendant‘s act in furnishing a restricted dangerous drug to the deceased in violation of law was inherently dangerous to human life. His finding in this respect is amply supported by the evidence. It was the uncontroverted testimony of the pathologist that the consumption of phenobarbital in unknown strength was dangerous to human life. There was clear evidence that within a period of one-half hour this drug was consumed in considerable quantity by [the victim] in defendant‘s presence and with his knowledge. Even defendant admitted that the deceased consumed 15 of these pills within one-half hour.” (270 Cal.App.2d at p. 333.) The court also looked to legislative intent to declare the drug “dangerous to human life.” (Ibid.) It relied upon “all of [these] reasons” to find second degree felony murder was supported by furnishing a restricted dangerous drug without a prescription. (Id. at pp. 333-334.)
Despite the Cline court‘s reliance upon the facts of the case and legislative intent to reach its result, the court in People v. Taylor (1970) 11 Cal.App.3d 57 [89 Cal.Rptr. 697] cited Cline as authority for the proposition that furnishing drugs is inherently dangerous in the abstract. (Id. at p. 59.) The Taylor court noted that Cline “cited [People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353] [reiterating the ‘abstract’ rule] and the
Without protracted discussion or dispute, People v. Mattison, supra, 4 Cal.3d 177, 185-186 and People v. Calzada (1970) 13 Cal.App.3d 603, 605-606 [91 Cal.Rptr. 612] added administering methyl alcohol and driving under the influence of narcotics, respectively, to the list of inherently dangerous drug-related felonies. Then came the second People v. Taylor, supra, 112 Cal.App.3d 348. Relying without analysis on Mattison,11 Poindexter, Taylor, Cline, and Ureta, the court rejected the argument that administering heroin is necessary for application of the felony-murder rule, and held furnishing was sufficient. (Id. at p. 358.) Finally, in People v. Edwards (1985) 39 Cal.3d 107 [216 Cal.Rptr. 397, 702 P.2d 555], the Supreme Court alluded to the second Taylor and Cline, but based its reversal on the failure to instruct that the defendant might escape culpability if he merely aided or abetted a purchase of heroin, relying on People v. Mayfield, supra, 225 Cal.App.2d 263. (People v. Edwards, supra, 39 Cal.3d at pp. 113-116.)
Two notable observations can be made about these “drug related” second degree felony-murder cases. The first is obvious: By predating People v. Patterson, supra, 49 Cal.3d 615, none of the cases used the Patterson‘s “high probability of death” standard. Second, although People v. Taylor, supra, 11 Cal.App.3d 57 paid lip service to the need to look at the felony in the abstract (id. at p. 59), none of the cases actually performed an analysis of drug furnishing from that vantage point.12 As we shall discuss, these omissions yielded an improper conclusion.
While the “drug related” second degree felony-murder cases were evolving, other cases adhered to the rule that inherent dangerousness must be viewed in the abstract. (People v. Patterson, supra, 49 Cal.3d at p. 625; People v. Burroughs, supra, 35 Cal.3d at pp. 830-832 [practicing medicine without a license; not inherently dangerous]; People v. Henderson, supra, 19 Cal.3d at pp. 93-96 [false imprisonment; not inherently dangerous]; People v. Satchell, supra, 6 Cal.3d at pp. 36-41 [firearm possession by felon; not inherently dangerous]; People v. Lopez (1971) 6 Cal.3d 45, 51-52 [98 Cal.Rptr. 44, 489 P.2d 1372] [escape from penal facility; not inherently dangerous]; People v. Nichols (1970) 3 Cal.3d 150, 163 [89 Cal.Rptr. 721, 474 P.2d 673] [auto arson; inherently dangerous]; People v. Phillips (1966)
Patterson itself expressly distinguished furnishing from administering for analyzing “herent dangerousness.” (People v. Patterson, supra, 49 Cal.3d at pp. 624-625.) In People v. Burroughs, supra, 35 Cal.3d 824, the Supreme Court pointed out that the statute making the unlicensed practice of medicine a felony included circumstances where there was a risk of great bodily harm, serious mental or physical illness, or death. (Id. at p. 830.) Although the other conditions could involve a great risk of death under certain circumstances, the court held the felony would not support second degree murder because in the abstract, the statute could be violated without such risk. (Id. at pp. 830-831, 833.)
Similarly, in People v. Henderson, supra, 19 Cal.3d 86, the court reasoned that false imprisonment by fraud and deceit carried no great risk of death, and declined to focus on violent means of violating the statute. (Id. at pp. 93-95.) And, in People v. Lopez, supra, 6 Cal.3d 45, the court refused to consider the possibility of violent resistance in determining whether escape is inherently dangerous. (Id. at pp. 51-52.)
We apply this wisdom to Taylor‘s crime. Pursuant to the mandate of People v. Patterson, supra, 49 Cal.3d 615, we look only to the offense he committed within the purview of
Like the trial court, we do not understand the term “high probability” to mean greater than 50 percent. Very few activities in life, even noncriminal conduct, carry such a risk. And, for two reasons, we eschew relying solely on statistical comparisons of death rates from furnishing PCP and those involving furnishing other drugs or noncriminal activities such as driving, boating, and hang gliding.
However, a “high probability” is apparently greater than a ” ‘substantial risk.’ ” (People v. Patterson, supra, 49 Cal.3d at pp. 628-629 (conc. and dis. opn. of Lucas, C. J.) Because these terms lack analytical precision, we look to implied malice cases for guidance. Implied malice, which People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279] instructs must involve a high probability of death, has been found where the defendant: shot at a cup the victim was holding in front of her face (People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1]); initiated a gun battle (People v. Washington (1965) 62 Cal.2d 777, 782 [44 Cal.Rptr. 442, 402 P.2d 130]); used a robbery victim as a shield (Pizano v. Superior Court (1978) 21 Cal.3d 128, 136 [145 Cal.Rptr. 524, 577 P.2d 659]); and drove drunk at high speeds through city streets (People v. Watson, supra, 30 Cal.3d at pp. 300-301.) Thus, imminent deadly consequences must be inherent in the act.
Viewed in this context, furnishing or selling PCP does not carry a high probability of death in the abstract. Merely conveying the drug to another does not require that it be consumed; completion of the crime does not depend upon consumption.16 And, unlike a live explosive (see People v. Morse, supra, 2 Cal.App.4th 620), mere possession of PCP is not inherently dangerous.
By saying this, we do not condone the sale or use of illegal drugs in any amount. Some risk of death is always present. As usage continues, the probability of adverse consequences rises. And these consequences are not always death. Drug and alcohol abuse ruins untold lives of users and their loved ones. Relationships and job performance suffer from an activity that has no social utility. These are but a few of the reasons for drug laws, education concerning the danger of drug use, and other social measures aimed at ameliorating this serious problem.18
However, we decline to act as a superlegislature and enact the crime of murder for those rare and ofttimes strange instances when death results from
The judgment is reversed as to the conviction for second degree murder. The superior court is directed to dismiss the murder count. Within 30 days after the opinion becomes final, the district attorney may amend the information to include a count of involuntary manslaughter. If he does not do so, the total sentence is modified to five years. In all other respects, the judgment is affirmed.20
Sonenshine, J., concurred.
MOORE, Acting P. J., Dissenting.—I dissent from the majority‘s holding that furnishing phencyclidine (PCP) is not an inherently dangerous felony for purposes of second degree felony murder.1 Based on a combination of reasoning a fellow colleague recently characterized as prestidigitation,2 reliance on the now discredited decision in Hurtado v. Statewide Home Loan Co. (1985) 167 Cal.App.3d 1019 [213 Cal.Rptr. 712],3 and a misstatement of the holdings in several Supreme Court decisions, the majority concludes, using
A critical issue in this case is the standard of review to be applied. The majority spends most of its time and effort determining that the proper standard is de novo review. Yet, as is acknowledged, neither party raised nor addressed this issue in their briefs. Therefore, I believe under
Since it is clear the majority has an inaccurate understanding of the rules governing appellate review, I start with a summary of the applicable general principles. First, we always begin with the presumption that the judgment of the lower court is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193]; Walling v. Kimball (1941) 17 Cal.2d 364, 373 [110 P.2d 58]; People v. One Parcel of Land (1991) 235 Cal.App.3d 579, 583 [286 Cal.Rptr. 739]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 268, pp. 276-277.) Regardless of the standard of review employed, it is the appellant‘s obligation to establish that legal error occurred and that it was prejudicial to his or her cause. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [240 Cal.Rptr. 872, 743 P.2d 932]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [157 Cal.Rptr. 874, 599 P.2d 65]; Tupman v. Haberkern (1929) 208 Cal. 256, 263 [280 P. 970]; In re Marriage of Behrens (1982) 137 Cal.App.3d 562,
Of course, the appropriate standard of review will vary from case to case. Where an appellant challenges the sufficiency of the evidence to support the lower court‘s ruling we decide whether substantial evidence supports the judgment. (People v. Kelly (1992) 1 Cal.4th 495, 528 [3 Cal.Rptr.2d 677, 822 P.2d 385]; People v. Johnson (1980) 26 Cal.3d 557, 562, 576-577 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255].) In others, such as the interpretation of statutes or contracts where no conflicting extrinsic evidence has been presented, the question is one of law and we are not bound by the trial court‘s construction. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839]; 9 Witkin, supra, § 242, at pp. 247-249.) A third approach is the abuse of discretion standard. (Shamblin v. Brattain, supra, 44 Cal.3d 474, 478-479; 9 Witkin, supra, Appeal, § 275, p. 286.)
But in some cases, such as the present one, an appellate court is presented with a mixed question of law and fact.
“[T]he concerns of judicial administration—efficiency, accuracy, and precedential weight—make it more appropriate for a [trial] judge to determine whether the established facts fall within the relevant legal definition, [and] we should subject his determination to deferential, clearly erroneous review.” (People v. Louis, supra, 42 Cal.3d at pp. 986-987.) As Louis points out, the key to determining the standard of review that should be applied when mixed questions of law and fact are presented is to choose the standard under which the concerns of judicial administration will best be furthered. (Ibid.) “If application of the rule of law to the facts requires an inquiry that is ‘essentially factual,’ [citation]—one that is founded ‘on the application of the fact-finding tribunal‘s experience with the mainsprings of human conduct,’ [citation]—the concerns of judicial administration will favor the [trial] court, and the [trial] court‘s determination should be classified as one of fact reviewable under the clearly erroneous standard.” (Id. at p. 987, quoting United States v. McConney (9th Cir. 1984) 728 F.2d 1195, 1200-1203, fns. omitted.)
The majority cites authority for the proposition that an appellate court‘s deferral to trial court discretion is appropriate only in matters which are “extremely fact intensive. . . .” (Maj. opn., ante, p. 1092.) But, the matter we are faced with here is fact intensive. Two expert witnesses testified, one for the prosecution and one for the defense, and each rendered a markedly different opinion as to the ultimate issue of whether furnishing PCP is inherently dangerous. Much scientific and anecdotal evidence was cited in
Here, resolution of the conflicting expert testimony was an essential predicate to a determination of whether furnishing PCP creates a high probability of death and was a task best suited for the trial court. But, the majority attempts to sidestep these issues of fact and a presumption in favor of the judgment by finding that since both experts rendered an opinion regarding the ultimate issue in this case, neither opinion need be given deference. The majority then contradicts itself by stating that the experts’ conclusions did not deal with the precise question presented upon remand. (Maj. opn., ante, pp. 1094-1095.) This is illustrative of the majority‘s efforts to avoid having to characterize any of the findings made by the trial court as factual. However, notwithstanding the majority‘s opinion to the contrary, I believe the evidence here did present questions of fact which were resolved by the trial court. One expert testified PCP was inherently dangerous and one testified it was not. Each gave reasons for their opinions and placed their credibility in issue, and it was the trial court who was in the best position to judge credibility. (9 Witkin, supra, Appeal, § 278, at pp. 289-291.)
It is true that both questions of fact and law were presented. The issue of whether furnishing a substance can support a conviction for second degree murder is one of law. However, it is now settled the answer to that question is yes, if the substance that is furnished is one which is inherently dangerous to human life. Numerous cases have upheld convictions for second degree felony murder based upon the furnishing of dangerous drugs. Although these pre-Patterson cases (People v. Patterson (1989) 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549]) apply the “substantial risk to human life” standard5 instead of the “high probability [of] death” standard, they represent almost universal acceptance of the inherent dangerousness of furnishing dangerous drugs under the law as it existed prior to Patterson. The two standards appear to be different, but no case has seen fit to explain exactly how or to what
Instead, the majority ignores the trial court‘s findings, and opines that “Merely conveying the drug to another does not require that it be consumed . . . .” (Maj. opn., ante, at p. 1099.) However, such a statement defies experience. When one furnishes an illicit drug to another, it is with the realization that the drug will ultimately be consumed, if not by the buyer then by someone else. It does not take an expert to confirm this—just plain, ordinary common sense.
Oddly, the majority seems to inversely correlate the inherent dangerousness of PCP with the pleasure it induces in the vast majority of users. (Maj. opn., ante, at p. 1099, fn. 14.) If the determination of a drug‘s inherent dangerousness were dependent on whether it provides pleasure, most prohibited narcotics would have to be deemed inherently not dangerous since they presumably provide subjectively pleasurable sensations. It is the pleasure which fuels their demand. But for the pleasure, demand would cease, and thousands of drug dealers would join the rolls of the unemployed. And, though fatalities associated with PCP use may not be directly caused by ingestion of the drug, but instead from its hallucinogenic effects, this is no less a reason to determine that furnishing PCP carries a high probability of
Moreover, the drug is not inert and harmless when not being used. It can permeate through plastic and other packaging materials, can be absorbed through the skin by handling, and its vapors can be inhaled when it is nearby. It is thus capable of causing the aforementioned symptoms in a person who may have no intent to ingest the drug.
I would find substantial evidence supports the trial court‘s determination that furnishing PCP is an inherently dangerous felony.
Respondent‘s petition for review by the Supreme Court was denied August 13, 1992. Panelli, J., Baxter, J., and George, J., were of the opinion that the petition should be granted.
Notes
*Reporter‘s Note: Opinion (G008692) deleted upon direction of Supreme Court by order dated April 16, 1992.
We must also remember that the Supreme Court has previously equated “dangerous to life,” in the context of second degree felony murder, with “substantial risk to human life.” (People v. Burroughs, supra, 35 Cal.3d at p. 833.) The Burroughs standard (“substantial risk to human life“) sounds less stringent than the Patterson standard (“high probability [of] death“). But how can this be if, according to Dellinger, the Patterson standard means the same as, and is no more stringent than, the “dangerous to life” standard? I hope the Supreme Court will clarify this apparent conundrum.
This testimony shows that PCP can be dangerous in particular circumstances, and no prudent person should ingest it. But Dr. Lerner‘s opinion is far from saying all PCP use in the abstract inevitably carries a high probability of death. Although he pointed out that potential danger exists when any amount is consumed, his scenarios ending in death involved chronic users.