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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Glen Edward FUGATT, Defendant and Appellant.

No. E006871.

Decided: April 11, 1991

John Y. Tremblatt, San Diego, for defendant and appellant. John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Rudolf Corona, Jr., Supervising Deputy Atty. Gen., and Rhonda L. Cartwright, Deputy Atty. Gen., for plaintiff and respondent.


Driving with a blood alcohol level of .35, defendant slammed into the rear end of a 1967 Ford Mustang, causing the car to erupt into flames, killing a family of four.   Two women in another car also were severely injured when the Mustang was forced into their car by the impact.

Defendant was tried and convicted of four counts of second degree murder (Pen.Code, § 187, subd. (a), 189), two counts of driving while under the influence causing bodily injury (Veh.Code, § 23153, subd. (a)) and two counts of driving with 0.10% or more by weight, of alcohol in his blood causing injury (Veh.Code, § 23153, subd. (b)).  He was sentenced to four consecutive terms of fifteen years to life for the second degree murder counts and an additional three years and eight months for the remaining counts.

On appeal he contends that (1) the court erred in not allowing him to introduce evidence regarding an allegedly defective gas tank in the car he struck;  (2) there is insufficient evidence to establish second degree murder;  (3) the jury instruction based on Taylor v. Superior Court (1979) 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854 created an unconstitutional presumption of implied malice;  (4) the prosecutor committed prejudicial misconduct in his closing argument;  (5) defendant was deprived of effective assistance of counsel;  (6) the trial court abused its discretion in imposing consecutive life sentences;  and (7) the sentence imposed constitutes cruel and unusual punishment.   We find no prejudicial error warranting reversal.



In the late afternoon of August 28, 1988, defendant drove to a friend's house in San Bernardino.   When he arrived his friend noticed that defendant had been drinking prior to his arrival.   He continued to drink beer after his arrival.   While he was there, his friend told defendant that he was too drunk to drive and that he was going to kill someone.   At some time, his friend offered to drive defendant home and he agreed, but thereafter, between 7 and 7:30 p.m. while the friend was cleaning up a beer defendant had dropped, defendant left the house and proceeded to drive away.   Defendant's friend saw defendant stop at a stop sign before losing sight of him.

Between 7:30 and 7:40 p.m., defendant, traveling between 49 m.p.h. and 53 m.p.h., ran a red light at the intersection of Highland and Mt. Vernon and rammed into the rear end of a Ford Mustang.   Upon impact, the Ford erupted into flames, killing the four passengers in the car.   The Ford also was forced into a Chevrolet Cavalier stopped in front of the Ford, causing injury to the driver and passenger of the Cavalier.

Other motorists ran to the cars and when they tried to pull defendant from his car, he held on to the steering wheel and refused to get out.   Eventually he was pulled out and laid down on the curb.   According to one witness, he appeared calm and quiet and did not appear to know what was going on around him.   An officer at the scene indicated that defendant appeared alert and conscious.   Defendant refused treatment of his facial lacerations by the fire department personnel at the scene of the accident and was eventually taken to the San Bernardino County Medical Center.   A blood sample taken at approximately 8 p.m. revealed his blood alcohol to be .35.

After hospital personnel completed suturing his facial lacerations, defendant was read his constitutional rights and was advised that he was being charged with felony drunk driving.   Defendant asked if that meant he had killed someone and the officer advised him that there were some fatalities from the accident.   Defendant appeared surprised and despondent and then said, “Boy, I sure fucked up this time.”   After the Miranda advice was completed, defendant said he understood his rights but he refused to talk, stating that he should wait and talk to a lawyer.

Defendant had prior driving under the influence convictions in 1980, 1982 and 1983.   The 1983 conviction involved an accident wherein defendant struck the rear end of another car, causing injuries to both the driver and the passenger of the other car.   His blood alcohol at that time was .28.   As a result of that conviction, defendant was required to participate in a 12–month program for multiple offenders which consisted of classes in alcohol education, group therapy and 12 A.A. meetings.   The classes also involved discussion regarding the consequences of driving while intoxicated in terms of injuries, deaths and property damage.1



Defendant's first complaint is that the trial court refused to allow him to present evidence regarding the defective gas tank in the Ford vehicle.   Defendant proposed to offer the testimony of Harry Krueper, an accident reconstructionist, who was prepared to testify that the immediate cause of the fire and therefore the cause of the deaths of the persons in the 1965 Ford Mustang was the manner in which the gas tank in the Mustang was constructed and the manner in which the back seat of the Mustang was constructed.   Defendant contends that such evidence was relevant both to the issue of proximate cause and to the issue of implied malice.   We disagree on both counts.

 Arguing that the issue of proximate cause is for the jury or trier of fact, first defendant contends that the jury could have determined from such evidence that the sole cause of the deaths of the four people in the Mustang was the defective gas tank and that the explosion and fire was a “remote, unforeseeable, and unnatural result” which relieved defendant of criminal liability.   Not so.

“A proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.”  (CALJIC Nos. 8.55 & 3.40 (5th ed. 1988).)  “There may be more than one proximate cause of the [death].   When the conduct of two or more persons contributes concurrently as a proximate cause of the [death], the conduct of each such persons [sic] is a proximate cause of the [death] if that conduct was also a substantial factor contributing to the result.   A cause is concurrent if it was operative at the moment of the [death] and acted with another cause to produce the [death].”  (CALJIC No. 3.41 (5th ed. 1988).)   Further, “[i]t is not a defense to a criminal charge that the deceased or some other person was guilty of negligence, which was a contributory cause of the death involved in the case.”  (CALJIC No. 8.56 (5th ed. 1988).)

Defendant concedes a cause in fact relationship between his act of driving while intoxicated and the resulting accident.   It is equally clear that the resulting fire was set in motion by defendant and that the fire would not have occurred but for defendant's rear-ending the car in his drunken state.   Thus, as a matter of law, defendant's act of driving while intoxicated was a substantial factor in causing the deaths.   Defendant apparently and mistakenly believes, however, that in order for him to be convicted it must have been reasonably foreseeable that the car he might strike while driving while intoxicated would have a gas tank installed in a manner not commonly used in cars of more recent vintage.   To the contrary, the foreseeability required for proximate cause is of “the risk of harm, not of the particular intervening act.”  (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 976, p. 367.)

“A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause.   If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve defendant of liability.  (Witkin, Cal. Crimes, supra, §§ 80, 82, 83.)   ‘(1) The consequence need not have been a strong probability;  a possible consequence which might reasonably have been contemplated is enough.  (2) The precise consequence need not have been foreseen;  it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.’ ”  (People v. Harris (1975) 52 Cal.App.3d 419, 427, 125 Cal.Rptr. 40.)

Thus it is not necessary that defendant foresee the exact type of harm which actually occurred or foresee that harm would occur in exactly the fashion that it did.   All that is required is that he foresee the possibility of some harm of the kind which might result from his act.   That driving while intoxicated creates a foreseeable risk of injury or death to others can no longer be disputed.   Accordingly, the court did not err in excluding the expert's testimony.

 The court also did not err in refusing to allow the evidence on the issue of implied malice.   Defendant correctly notes that implied malice is established when it is shown that the defendant's act carried a high probability that it would result in death.  (People v. Dellinger (1989) 49 Cal.3d 1212, 1219, 264 Cal.Rptr. 841, 783 P.2d 200.)   Defendant then mistakenly argues that this means that if defendant's “act” of causing a rear-end collision carried a low probability of death there is no implied malice.   Defendant continues by arguing that Mr. Krueper's testimony would have shown that there is a low probability of death in a rear-end collision.

However, defendant's act is not the limited act of causing a rear-end collision but rather the act of driving while intoxicated.   It is this act which carries a very real risk and high probability that it would result in death.  (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262, 198 Cal.Rptr. 145, 673 P.2d 732:  “[t]he drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California and the nation.”)

Defendant relies on State of California ex. rel. Dept. of Transportation v. Superior Court (1985) 37 Cal.3d 847, 210 Cal.Rptr. 219, 693 P.2d 804 for the proposition that evidence of other parties' wrongdoing is relevant to the issue of implied malice.   That case, however, simply held that a defendant charged with vehicular manslaughter and murder was entitled to discovery of reports of other accidents at the same location.   In explaining why the defendant had a “proper interest” entitling her to discovery of the reports, the court explained that “[r]eports of other accidents at the same location may well lead to the discovery of relevant and admissible evidence in her defense.”  (Id., at p. 856, 210 Cal.Rptr. 219, 693 P.2d 804.)   As an example the court stated that “[e]vidence of other unrelated accidents at the same site, attributable to highway conditions or similar factors, may raise a reasonable doubt on [the] issue” of implied malice.  (Ibid.)  The court did not elaborate on this statement but in footnote 11 the court explained that such evidence might be relevant to show that the accident was due to circumstances other than the intoxication or recklessness of the driver.   In our view such evidence regarding the cause of the accident pertains more to the issue of proximate cause than the issue of implied malice.   In any event, the issue before the court in that case was the defendant's right to discovery and the case does not hold that evidence of other accidents is always relevant and admissible at trial.   We decline to accept the court's comments, which were offered for illustrative purposes only, as any sort of binding precedent.





Defendant contends that an instruction based on Taylor v. Superior Court, supra, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854 created an unconstitutional presumption of malice.   The court instructed the jury that if they found “beyond a reasonable doubt that the defendant willfully consumed alcoholic beverages to the point of intoxication, knowing he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, he reasonably may be held to exhibit a conscience [sic] disregard of the safety of others.”   This language, although originally found in the Taylor case, a civil case involving the issue of punitive damages, was subsequently quoted with approval in People v. Watson (1981) 30 Cal.3d 290, 300–301, 179 Cal.Rptr. 43, 637 P.2d 279 wherein the court held that under facts similar to the present case, the defendant could be held to answer to the charge of second degree murder for drunk driving.   We believe the instruction is a correct statement of the law.

 Moreover we disagree with defendant's argument that the instruction created a mandatory presumption that defendant acted with implied malice.   An unconstitutional presumption arises from a jury instruction only if the instruction could reasonably have been understood as creating a mandatory presumption that relieves the state of its burden of proof or burden of persuasion.  (Francis v. Franklin (1985) 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344.)   Here, the language of the instruction did not require the jury to find malice and in fact used the word “may.”   The language in this instruction is significantly different from the language found objectionable in Yates v. Aiken (1988) 484 U.S. 211, 212, 108 S.Ct. 534, 535, 98 L.Ed.2d 546, where the jury was instructed that malice is implied or presumed from the use of a deadly weapon.   Here no such mandatory presumption was created by the instruction.   Here the instruction merely advised the jury that if the defendant wilfully became intoxicated knowing he would thereafter drive, the jury could find implied malice.   The instruction was not unconstitutional.

Although we have found that the instruction did not create an unconstitutional mandatory presumption, our discussion does not end.  “Language in an appellate court opinion which may be a good statement of law or of the reasoning of the appellate court does not necessarily make a good jury instruction.  [Citations.]”  (People v. Adams (1987) 196 Cal.App.3d 201, 204–205, 241 Cal.Rptr. 684.)   Instructions which embody recitals of fact drawn from the evidence so as to constitute an argument to the jury in the guise of a statement of law are improper.  (People v. Hill (1946) 76 Cal.App.2d 330, 342, 173 P.2d 26.)   Particularly to be avoided are instructions which bear on the weight to be attached to a particular piece of evidence.  (People v. Wright (1988) 45 Cal.3d 1126, 1135, 248 Cal.Rptr. 600, 755 P.2d 1049;  People v. Daniels (1991) 52 Cal.3d 815, 870–871, 277 Cal.Rptr. 122, 802 P.2d 906;  People v. Gordon (1990) 50 Cal.3d 1223, 1276, 270 Cal.Rptr. 451, 792 P.2d 251;  see also Pen.Code, § 1127.)

The court in Wright, supra, 45 Cal.3d 1126, 248 Cal.Rptr. 600, 755 P.2d 1049 explained, “We deal here with an instruction, not a judicial comment;  although such a comment may address matters of fact, an instruction may not.   ‘[I]t is not a matter of law for the judge to say that certain evidence might give rise to a reasonable doubt as to the affirmative of an issue required to be proven by the prosecution.   That is a comment on the evidence and any such comment should be identified as such.’  [Citation.]”  (Id., at p. 1136, 248 Cal.Rptr. 600, 755 P.2d 1049, fn. omitted.)

Here, likewise, the challenged instruction suggested that certain evidence would reasonably support a conclusion that the defendant possessed the mental state requisite to a conviction of second degree murder.   As a comment on the evidence, the instruction should not have been given.   Nonetheless, we conclude the error was not prejudicial.   The instruction was in fact a correct statement, “even if the legal principle should not have been reduced to a specific direction to the jury.  [Citations.]”  (People v. Smith (1989) 214 Cal.App.3d 904, 913, 263 Cal.Rptr. 155.)   Moreover, the instruction did not require the jury to draw any conclusion concerning defendant's guilt;  other instructions made it clear that the jury must first find no other reasonable conclusion from the evidence.   Further, the trial court could have commented on the evidence to make the same point.  (Pen.Code, § 1093, subd. (f).)

We also note that the jury was specifically advised to consider the effect of defendant's intoxication on the issue of whether he acted with implied malice, and that if defendant was unconscious as a result of voluntary intoxication and therefore did not harbor malice, his killing is one of the specified lesser included offenses.   The jury was further advised that the prosecution had the burden of proving implied malice beyond a reasonable doubt.   From all of the instructions it is clear the jury was properly advised that while it could infer malice from defendant's act of drinking, knowing that he must thereafter drive, it should consider the defense of voluntary intoxication on the issue of implied malice.

The erroneous instruction was not prejudicial.




Judgment affirmed.


1.   Additional evidence regarding the effects of alcohol will be addressed in our discussion of the sufficiency of evidence.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

HOLLENHORST, Associate Justice.

RAMIREZ, P.J., and DABNEY, J., concur.