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

PEOPLE of the State of California, Plaintiff and Respondent, v. Stephen Martin WHITFIELD, Defendant and Appellant.

No. E009582.

Decided: December 14, 1992

Stefanie A. Sada, San Diego, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Senior Asst. Atty. Gen., Robert M. Foster and Janelle B. Davis, Supervising Deputy Attys. Gen., for plaintiff and respondent.


Defendant Stephen Martin Whitfield was charged in an information in count I with second degree murder (Pen.Code, § 187), in count II with driving under the influence with three prior convictions (Veh.Code, § 23152, subd. (a)), in count III with driving with a blood alcohol level of .08 percent or greater with three prior convictions (Veh.Code, § 23152, subd. (b)), and in count IV with driving with a license which was suspended or revoked for an alcohol-related vehicle offense (Veh.Code, § 14601.2, subd. (a)).  The jury found Whitfield guilty as charged and found true the allegations of three prior convictions for driving under the influence.

The court sentenced Whitfield to a three-year upper term for count II and stayed sentence for count III under Penal Code section 654.   The court imposed a consecutive term of 365 days in local custody for count IV.   Consecutive to the determinate term, the court imposed a term of 15 years to life for count I.

On appeal, Whitfield contends (1) the trial court erred in failing to hold a Marsden 1 hearing;  (2) the trial court erred in refusing requested defense instructions on the lesser offense of involuntary manslaughter;  (3) the instructions erroneously permitted a conviction of second degree murder even if he did not appreciate the risk to others at the time of the accident;  (4) the instructions failed to inform the jury that the intentional act required to support a finding of implied malice must involve a high probability of death;  and (5) the court committed sentencing error, including failing to stay the sentences for counts II and IV under Penal Code section 654.


After drinking four 16–ounce cans of malt liquor in an hour, Whitfield was driving home along Van Buren Boulevard, a four-lane street in Riverside.   Witnesses noted he was driving 45 to 51 miles per hour in a 55 miles per hour speed zone, and cars were backing up behind him.   He was swerving in and out of the fast lane, partially crossing the double yellow line into the lane for oncoming traffic.   He eventually began driving in the slow lane, but continued to weave into the other lane and to drive at a speed below the posted limit despite a faster flow of traffic.   The erratic driving continued for about two miles.

Witnesses saw his car cross the double yellow dividing line and almost collide with a car coming in the opposite direction.   He returned to his own lane briefly.   He then crossed the yellow line again and, at a speed of about 51 miles per hour, collided with a car driven by Lawrence Kinsey.   Kinsey was killed as a result of the collision.

Witnesses who approached Whitfield's car shortly after the accident noticed a strong odor of alcohol emanating from the car.   Whitfield was lying across the front seat, and cans of malt liquor were found on the car floor.

A blood sample was drawn while Whitfield was in the emergency room about an hour and a half after the accident.   While the blood was being drawn, Whitfield stated, “Take me straight to the gas chamber, I have killed someone.”   The alcohol content of the sample measured .24 percent.   Based on the burn-off rate for alcohol, Whitfield's blood alcohol percentage was .27 percent at the time of the accident.   A person with a blood alcohol level of .25 percent or greater may be in a stupor or unconscious.

Whitfield had been convicted of driving under the influence in 1987, 1989, and 1990.   After the 1989 conviction, he had enrolled in a second-offender program, during which he had attended two group sessions and three individual sessions.   He had also seen a film which discussed the numbers of people killed and injured annually by intoxicated drivers.   He was dismissed from the program for failing to attend Alcoholics Anonymous meetings and for otherwise failing to comply with the program.   His license had been suspended at the time of the accident.

Defense.  A witness testified that Whitfield's head was nodding shortly before the collision as if he were fighting off sleep.   When paramedics arrived, Whitfield was unconscious and was completely unresponsive to verbal and pain stimuli.   Several minutes later, he regained consciousness, but he did not appear to comprehend questions, and his speech was incoherent.   Whitfield told a paramedic at the accident scene he could not remember what had happened and did not know where he was going or where he had come from.   The only things Whitfield knew were his name and age.   There were no pre-impact skid marks at the accident scene.   He showed no signs of concussion or major head injuries.   His condition was consistent with alcohol intoxication.

In the emergency room after the accident, Whitfield exhibited a depressed level of consciousness.   Hospital laboratory tests showed a blood alcohol level of .395 percent.   A defense test of the prosecutor's sample of Whitfield's blood measured the blood alcohol content as .26–.27 percent.

A defense expert testified that stupor occurs in a majority of people at a blood alcohol level of .25 to .40 percent.   At this stage, a person's eyes might be open, and the person might be walking around and even operating a car, although the person would be unconscious.   At a blood alcohol level of .35 percent, coma frequently occurs.

Rebuttal.  The hospital's testing method resulted in a blood alcohol level up to 15 percent higher than if whole blood had been tested.

Detective Berg testified he interviewed Whitfield in the hospital after giving him Miranda 2 advisements two days after the accident.   Whitfield told Berg he had a drinking problem which had become progressively worse for the last year and a half.   Whitfield said he could not remember driving.   He recounted what he had done that day from about 10:30 a.m., but could not recall anything that had happened after about noon.   He did not remember driving on Van Buren Boulevard and did not remember the impact of the accident.   He had left his mother's house about noon, and the next thing he remembered was being sewn up at the hospital.   He had drunk two 16–ounce cans of malt liquor at about 10:30 a.m.   He later bought and drank two more cans.

In another conversation, he told Berg he recalled picking up a hitchhiker and dropping him off.   He had run out of gas and had obtained help at a welding shop.   He could not recall any further driving.


IMarsden Hearing **


Instructional Error

The defense theory at trial was that Whitfield was intoxicated to the point of unconsciousness and thus could not have formed the mental state required for second degree murder.   To support this theory, defense counsel asked the court to instruct the jury as follows:  “If you find that a defendant, while unconscious as a result of voluntary intoxication, killed another human being without intent to kill and without malice aforethought, the crime is involuntary manslaughter.  [¶]  When a person voluntarily induces [his] [her] own intoxication to the point of unconsciousness, [he] [she] assumes the risk that while unconscious [he] [she] will commit acts inherently dangerous to human life or safety.   Under such circumstances, the law implies criminal negligence.”  (CALJIC No. 8.47.)

The court refused to give the instruction, and Whitfield contends the court erred.   In a related argument, Whitfield contends other instructions erroneously implied the only mental state relevant to the murder charge was that which existed when Whitfield decided to drive while intoxicated.   He asserts the jury should have been instructed to consider his mental state when the collision occurred.   We consider this contention first.

A. Relevance of Whitfield's Mental State While Driving.

 A killing resulting from driving an automobile while intoxicated may be either second degree murder or gross vehicular manslaughter.   A conviction of second degree murder depends on a finding of implied malice.   That finding “depends upon a determination that the defendant actually appreciated the risk involved, ․”  (People v. Watson (1981) 30 Cal.3d 290, 296–297, 179 Cal.Rptr. 43, 637 P.2d 279.)   Thus, the essential distinction between gross vehicular manslaughter and second degree murder based on implied malice is the use of subjective rather than objective criteria to evaluate the defendant's state of mind.  (Ibid.;  see also §§ 187, 191.5.) 6  If the defendant commits an act which endangers life without realizing the risk involved, he is guilty of manslaughter.   If he did realize the risk, but acted in disregard of the danger, he is guilty of second degree murder based on implied malice.  (Watson, supra at pp. 296–297, 179 Cal.Rptr. 43, 637 P.2d 279;  People v. Cleaves (1991) 229 Cal.App.3d 367, 379, 280 Cal.Rptr. 146.)

 At trial, the court commented, “[T]o form implied malice it is the condition at the time a person elects to drive the automobile and not their condition at the time of the collision that prevails in implied malice.”   Whitfield contends the court erred in its interpretation of the law.

In People v. Bennett (1991) 54 Cal.3d 1032, 2 Cal.Rptr.2d 8, 819 P.2d 849, the court considered an appeal from a conviction of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)).  For that crime, the required mental state was gross negligence rather than implied malice.   The defendant argued that the trial court had erred in instructing the jury under CALJIC No. 8.94 that it could find gross negligence from “ ‘the overall circumstances of the defendant's intoxication or the manner in which he drove, or both․’ ”  (Id. at p. 1035, 2 Cal.Rptr.2d 8, 819 P.2d 849.) 7  The Supreme Court found no error in the instruction as given, but suggested use of the following jury instruction in the future:  “ ‘The mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence.   You must determine gross negligence from the level of the defendant's intoxication, the manner of driving, or other relevant aspects of the defendant's conduct resulting in the fatal accident.’ ”  (Id. at p. 1039, 2 Cal.Rptr.2d 8, 819 P.2d 849.)

The Supreme Court explained, “When the Legislature enacted section 191.5, it stated:  ‘The Legislature finds and declares that traffic accidents are the greatest cause of violent death in the United States and that over one-half of the ensuing fatalities are alcohol related․  In view of the severe threat to public safety which is posed by the intoxicated driver, there is a compelling need for more effective methods to identify and penalize those who voluntarily consume alcoholic beverages to the point of legal intoxication and thereafter operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of exerting great force and speed and causing severe damage and death.’  (Stats.1986, ch. 1106, § 1, pp. 3880–3881.)

“Thus the Legislature sought to punish severely those who operate a vehicle when their physical and mental faculties are impaired by voluntary alcohol consumption.   To separate the gross negligence inquiry from the question of the defendant's intoxication would undercut the Legislature's goal of preventing drunk driving.”  (Bennett, supra, 54 Cal.3d at pp. 1038–1039, 2 Cal.Rptr.2d 8, 819 P.2d 849.)   The court concluded, “The jury should therefore consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence.  [Citations.]”  (Id. at p. 1038, 2 Cal.Rptr.2d 8, 819 P.2d 849.)

In discussing vehicular murder, the Supreme Court has stated in language similar to that of the Legislature, “ ‘One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.’ ”  (Watson, supra, 30 Cal.3d at pp. 300–301, 179 Cal.Rptr. 43, 637 P.2d 279.)   However, the Watson court in fact looked to numerous additional factors in combination to conclude that a jury could find implied malice:  “Defendant drove at highly excessive speeds through city streets, an act presenting a great risk of harm or death.   Defendant nearly collided with a vehicle after running a red light;  he avoided the accident only by skidding to a stop.   He thereafter resumed his excessive speed before colliding with the victims' car, and then belatedly again attempted to brake his car before the collision (as evidenced by the extensive skid marks before and after impact) suggesting an actual awareness of the great risk of harm which he had created.   In combination, these facts reasonably and readily support a conclusion that defendant acted wantonly and with a conscious disregard for human life.”   (Id. at p. 301, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis added.)

Other vehicular homicide cases have not pinpointed any single moment at which the driver acquires the implied malice necessary for a murder conviction.   In People v. Brogna (1988) 202 Cal.App.3d 700, 248 Cal.Rptr. 761, the court noted, “Watson and its progeny make clear that drinking and driving is but one factor which the jury may consider in determining the existence of implied malice.   It is to be viewed in combination with other actions and/or omissions which may necessarily show that the defendant possessed a culpable state of mind.”  (Id. at p. 709, fn. 5, 248 Cal.Rptr. 761.)   Numerous cases have held that a pattern of reckless driving immediately preceding the fatal accident may indicate malice.  (People v. Ricardi (1992) 9 Cal.App.4th 1427, 12 Cal.Rptr.2d 364, (hereafter, Ricardi II);  People v. McCarnes (1986) 179 Cal.App.3d 525, 533, 224 Cal.Rptr. 846;  People v. Albright (1985) 173 Cal.App.3d 883, 887, 219 Cal.Rptr. 334;  People v. Olivas (1985) 172 Cal.App.3d 984, 989, 218 Cal.Rptr. 567.)

We conclude that in vehicular murder cases, as well as in vehicular manslaughter cases, the jury should be instructed to consider all the relevant aspects of the defendant's conduct when determining if the defendant had the required mental state.  (Bennett, supra, 54 Cal.3d at p. 1039, 2 Cal.Rptr.2d 8, 819 P.2d 849.)   The Bennett court found no error in giving an instruction similar to that given here, although the court recommended that a broader instruction be used in the future.   Similarly, we find no reversible error in this case.

B. Failure to Give CALJIC No. 8.47.   We next consider whether the court erred in refusing Whitfield's request to instruct the jury with CALJIC No. 8.47.   The court indicated it believed that CALJIC No. 4.21 adequately covered voluntary intoxication, and CALJIC No. 8.47 was therefore unnecessary.   CALJIC No. 4.21 informed the jury intoxication could negate implied malice, but the instruction did not address the issue of unconsciousness caused by intoxication.   Specifically, CALJIC No. 4.21 did not instruct the jury that the crime was involuntary manslaughter if the defendant killed another without malice aforethought and while unconscious as a result of voluntary intoxication.8

 1.   Second Degree Implied Malice Murder as a Specific Intent Crime.   The fundamental premise of Whitfield's argument concerning intoxication instructions is that second degree implied malice murder is a specific intent crime.

With little discussion or analysis, the courts in People v. Alvarado (1991) 232 Cal.App.3d 501, 283 Cal.Rptr. 479 and People v. Ricardi (1990) 221 Cal.App.3d 249, 256, 261, 270 Cal.Rptr. 425 (hereafter, Ricardi I) stated that murder is a specific intent crime, even when based on implied malice.   The Alvarado court stated, “Malice may be established by showing the specific intent to commit an act from which malice may be implied.   [Citations.]”  (Alvarado, supra, 232 Cal.App.3d at p. 505, 283 Cal.Rptr. 479.)  “Although murder is a ‘specific intent’ crime, the specific intent to kill is not an independent element of the crime.”  (Id. at p. 504, 283 Cal.Rptr. 479.)   In our view, Alvarado and Ricardi I are inconsistent with the development of the law concerning implied malice second degree murder.

“A general intent crime is one that only requires the actor intend the act which constitutes the crime.  [Citation.]  A specific intent crime is one that requires the actor intend not only the proscribed act, but also that he intend some further act or additional consequence.  [Citation.]  A general intent crime may also involve a specific mental state, such as knowledge.   [Citations.]  [¶]  First degree murder and second degree murder premised on express malice involve the specific intent to kill, whereas second degree murder premised on implied malice involves a general intent to do the act and the mental state of knowledge and conscious disregard for the risk to human life.  (See People v. Murtishaw (1981) 29 Cal.3d 733, 764–765 [175 Cal.Rptr. 738, 631 P.2d 446].)”  (Cleaves, supra, 229 Cal.App.3d at p. 380, 280 Cal.Rptr. 146.)

The fact that second degree implied malice murder includes a requirement of knowledge does not make that crime a specific intent crime.  “A requirement of knowledge is not a requirement that the act be done with any specific intent.   [Citations.]  The word ‘knowing’ as used in a criminal statute imports only an awareness of the facts which bring the proscribed act within the terms of the statute.  [Citation.]”  (People v. Calban (1976) 65 Cal.App.3d 578, 584, 135 Cal.Rptr. 441.)   We conclude the Alvarado and Ricardi I courts erred in stating that second degree implied malice murder is a specific intent crime.

 2. Negation of Implied Malice.   Whitfield argues that intoxication may reduce second degree murder to manslaughter based on driving under the influence if intoxication negated implied malice.   To support this argument, he cites Ricardi I, supra, 221 Cal.App.3d at pages 255–260, 270 Cal.Rptr. 425.   The Ricardi I court held that because implied malice requires an actual appreciation of the risk, a defendant is entitled to an instruction that voluntary intoxication may negate the required malice.  (Id. at p. 256, 270 Cal.Rptr. 425.)

In Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, the California Supreme Court held that a defendant could be prosecuted for second degree murder based on implied malice when he “ ‘wilfully consume[d] alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed,’ ” thus exhibiting a “ ‘conscious disregard of the safety of others.’ ”  (Watson, supra, 30 Cal.3d at pp. 300–301, 179 Cal.Rptr. 43, 637 P.2d 279.)   The Watson court declined to consider whether a defendant's intoxication could render him incapable of entertaining malice.   Rather, the court indicated that such an argument would relate to a diminished capacity defense which should be raised at trial.  (Watson, supra, 30 Cal.3d at p. 301, 179 Cal.Rptr. 43, 637 P.2d 279.)

Recently, however, in People v. Saille (1991) 54 Cal.3d 1103, 2 Cal.Rptr.2d 364, 820 P.2d 588, the court held that after legislation abolishing the diminished capacity defense, this state no longer permits a reduction of what otherwise would be murder to nonstatutory voluntary manslaughter due to voluntary intoxication or mental disorder.  (Id. at p. 1114, 2 Cal.Rptr.2d 364, 820 P.2d 588.)   The court clarified that intoxication, although not a defense, is nonetheless relevant “to the extent that it bears on the question of whether the defendant actually had the requisite specific mental state.”   (Id. at p. 1119, 2 Cal.Rptr.2d 364, 820 P.2d 588.)

This holding was based on Penal Code sections 22 and 28.  Penal Code section 22 provides that evidence of voluntary intoxication is inadmissible to negate the capacity to form any mental state.   However, such evidence is admissible “solely on the issue of whether or not the defendant actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.”   (Pen.Code, § 22, subd. (b), emphasis added.)  Penal Code section 28 establishes the same criteria for admissibility of evidence of mental illness.

As discussed above, we have concluded that second degree implied malice murder is not a specific intent crime.  Penal Code section 22 allows evidence of intoxication to be used to show the lack of a required mental state only “when a specific intent crime is charged.”  (See also People v. Bobo (1990) 229 Cal.App.3d 1417, 1442, 3 Cal.Rptr.2d 747 [noting that Penal Code section 28 “is a general statute covering all specific intent crimes.”].)

As a consequence, the trial court committed no error in refusing to instruct with CALJIC No. 8.47.   Rather, the court should not have instructed the jury in CALJIC No. 3.31 that the crime charged in count I was a specific intent crime and should not even have given CALJIC No. 4.21.9  These errors only could have benefited Whitfield in that they elevated the People's burden of proof.   Thus, there was no reversible error in the instructions on intoxication.

 C.  CALJIC Nos. 8.11 and 8.31.   The jury was instructed with CALJIC Nos. 8.11 and 8.31, both of which define implied malice as existing when a killing results from an intentional act, the natural consequences of which are dangerous to human life, when that act is deliberately performed with conscious disregard for human life.   Over Whitfield's objection, the court also gave a special prosecution instruction, as follows:  “[T]he state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.’ ”   Whitfield contends these instructions were deficient in that they failed to inform the jury that the defendant's act must carry a high probability of death.   To form the basis for a second degree murder conviction, the defendant's intentional act must involve a high probability of death.  (Albright, supra, 173 Cal.App.3d at p. 887, 219 Cal.Rptr. 334.)

Nonetheless, the language of CALJIC Nos. 8.11 and 8.31 finds support in prior case law.   In People v. Dellinger (1989) 49 Cal.3d 1212, 1218, 264 Cal.Rptr. 841, 783 P.2d 200, the court approved the current versions of CALJIC Nos. 8.11 and 8.31.   In Cleaves, supra, 229 Cal.App.3d 367, 280 Cal.Rptr. 146, the court found that an act creating a high probability of death was synonymous with one whose natural consequences are dangerous to human life.   In McCarnes, supra, 179 Cal.App.3d 525, 224 Cal.Rptr. 846, this court approved the use of the phrase “dangerous to human life” in CALJIC No. 8.11.

Whitfield argues that Dellinger did not address the specific language he challenges, but instead focused on the use of the phrase “conscious disregard” in place of the phrase “wanton disregard” in an earlier version of the instructions.  (Dellinger, supra, 49 Cal.3d at pp. 1221–1222, 264 Cal.Rptr. 841, 783 P.2d 200.)   Whitfield contends his argument is thus not foreclosed by the holding in Dellinger.   However, the Dellinger court approved of CALJIC No. 8.11 in its entirety.  (Id. at p. 1222, 264 Cal.Rptr. 841, 783 P.2d 200.)

Whitfield also argues that Cleaves and McCarnes were wrongly decided.   He contends the courts ignored the plain meaning of the two definitions.   He also notes that when McCarnes was decided, both CALJIC Nos. 8.11 and 8.31 referred in the disjunctive to a “high probability of death.”   We believe that McCarnes and Cleaves properly analyzed the issue and reached the right conclusion.   We find no error in giving CALJIC Nos. 8.11 and 8.31.


Sentencing Error ***


The sentences for counts II and IV shall be stayed under Penal Code section 654, the stay to become permanent upon completion of the sentence imposed for count I.   In all other respects, the judgment is affirmed.


1.   From People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44.

2.   From Miranda v. Arizona (1966) 384 U.S. 436, [86 S.Ct. 1602, 16 L.Ed.2d 694].

FOOTNOTE.   See footnote *, ante.

6.   The Watson court stated, “A prosecution for murder under section 187 requires a finding of malice, while section 192 specifically defines manslaughter as a killing without malice.   Moreover, in light of the malice requirement, a violation of the vehicular manslaughter statute would not necessarily or commonly result in a violation of the general murder statute.”  (Watson, supra, 30 Cal.3d at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279.)

7.   The jury here was also instructed with CALJIC No. 8.94.

8.   The jury was given the following instructions concerning the defendant's mental state.The jury was instructed, based on CALJIC No. 3.31, “In the crime charged in Count I of the Information, namely, 187 of the Penal Code, murder, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.   Unless such specific intent exists, the crime to which it relates is not committed.  [¶]  The specific intent or mental state required is included in the definition of the crime charged.”  (Emphasis added.)The jury was further instructed, based on CALJIC No. 4.21, “In the crime of 187 Penal Code, murder, of which the defendant is accused in Count I of the Information, a necessary element is the existence in the mind of the defendant of the specific intent or mental state which is contained in the definition of implied malice.  [¶]  If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider the fact of intoxication, including the degree of intoxication, in determining whether defendant had such specific intent mental state.”   (Emphasis added.)At the People's request, the jury was instructed, “The intentional act required for ‘implied malice’ underlying ․ vehicle murder is not the traffic violation which may precede a collision, but whether the defendant was driving under the influence with a conscious disregard for human life.”   This instruction was based on language from Brogna, supra, 202 Cal.App.3d at p. 708, 248 Cal.Rptr. 761.In addition, the court gave the following special defense instruction:  “In order to convict defendant of second-degree murder you must examine defendant's state of mind at the time of the act.   This is referred to as ․ a subjective test.   Second-degree murder based on implied malice requires that defendant acted deliberately, that defendant acted with knowledge of the danger to human life, and that defendant acted in conscious disregard for human life.”

9.   We note our further disagreement with Ricardi I and Ricardi II on this point.   Both cases held that CALJIC No. 4.21 was required in the second degree implied malice murder prosecution based on the defendant's driving while intoxicated.

FOOTNOTE.   See footnote *, ante.

DABNEY, Associate Justice.

McKINSTER, and McDANIEL†, JJ., concur.