PEOPLE v. BUTLER

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Dennis Edward BUTLER, Defendant and Appellant.

No. D008448.

Decided: November 14, 1990

Jerome P. Wallingford, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harvey D. Mayfield, Sr. Asst. Atty. Gen., Lilia E. Garcia and Roy W. Hewitt, Deputy Attys. Gen., for plaintiff and respondent.

A jury convicted Dennis Edward Butler of two counts of second degree murder (Pen.Code,2 § 187), two counts of vehicular manslaughter not involving drugs or alcohol (§ 192, subd. (c)(1)), two counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), three counts of driving under the influence of alcohol and causing bodily injury (Veh.Code, § 23153, subd. (a)) and three counts of driving a vehicle while having a blood alcohol level of .10 percent or more and causing bodily injury (Veh.Code, § 23153, subd. (b)).  The trial court sentenced Butler to a indeterminate term of 15 years to life on the first murder count.   A similar sentence was imposed for the second murder count, to run concurrently.   Sentences on the other counts were stayed pursuant to section 654.   Butler appeals.

With respect to the murder counts, Butler's assignments of error are:  (1) he was denied due process during his motion to dismiss the murder charges based on discriminatory prosecution;  (2) a special jury instruction based on Taylor v. Superior Court (1979) 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854 either created an unconstitutional presumption of malice aforethought or an inference that violated due process requirements;  (3) the trial court improperly defined the mens rea for second degree murder in its voluntary intoxication instruction;  (4) the voluntary intoxication instruction was rendered meaningless by the special jury instruction;  (5) instructions given pursuant to CALJIC Nos. 8.11 and 8.31 incorrectly defined the law of implied malice;  (6) it was error to instruct the jury pursuant to CALJIC No. 2.03 concerning consciousness of guilt;  (7) incorrect jury instructions and verdict forms precluded the jury from considering manslaughter as a lesser-included offense of second degree murder;  and (8) inconsistent verdicts finding him guilty of both murder and vehicular manslaughter require the murder verdicts be modified to vehicular manslaughter.

Butler also contends (1) inconsistent verdicts finding him guilty of manslaughter with and without drugs or alcohol require the verdicts on the more serious manslaughter offense be set aside, as well as the verdicts on the Vehicle Code section 23153 violations, and (2) it was error to convict him of multiple counts of Vehicle Code section 23153 where all counts involved but one act of driving.

FACTS

At about 8 p.m. on February 8, 1987, Butler, driving a Camaro automobile at a high rate of speed, ran a red light and collided with a pickup truck, leaving two persons dead and several injured.   The collision occurred at the intersection of Mission Avenue and El Camino Real in Oceanside.   A blood sample drawn from Butler more than two hours later had an alcohol content of .13 percent.

Shortly before 5 p.m. that day, Oceanside Police Officer Cristobal Torres was patrolling Buddy Todd Park when he heard squealing tires and saw smoke coming from the rear of a Camaro leaving the park.   Torres saw the car turn, fishtail and then brake close to a vehicle in front of it.   Torres made a traffic stop of the Camaro and noticed the Camaro had left skid marks on the pavement of about 100 feet in length.   Butler was driving the Camaro.   He showed Torres a South Carolina driver's license and told Torres he had not received any traffic citations in about six years.   Torres cited Butler for exhibition of speed.   When Torres told Butler he could make an arrest for the offense, Butler laughed.   Torres told Butler to drive more carefully, as he could cause an accident.   Torres said Butler took the advice in a nonchalant manner and signed the citation.

At about 7 p.m. that evening Butler, accompanied by his friend Victor Donnan, drove the Camaro to the home of Melissa Morales, who joined the two men in the car.   The trio drove to a liquor store and Morales purchased a bottle of vodka in the two-dollar price range and some orange juice.   Butler next drove to a park in Vista, where Donnan mixed drinks.   Butler consumed at least one mixed drink.   Butler drove back to Morales's house in Oceanside where Morales telephoned her friend Tammy and asked her to meet Donnan.   Morales rejoined Butler and Donnan in Butler's Camaro, and Butler began to drive to Tammy's house.

While on highway 78, Butler drove fast, cutting closely in and out of traffic, sometimes leaving only a couple of feet between car bumpers.   Morales was frightened by Butler's driving and held onto her seat.   She asked Butler:  “Why are you driving like this?”   She repeated the question twice, but Butler did not respond.   Morales asked Donnan if Butler always drove in this fashion, and Donnan replied:  “Yes, but he'll be okay.”

Butler drove his Camaro eastbound on Mission Avenue in Oceanside at a high rate of speed.   The Camaro passed the right side of Anita Yeskis's automobile with only inches to spare, cut in front of her, cut into the center lane to pass another vehicle and then cut in front of that vehicle.   At the intersection of Mission Avenue and Foussat, the Camaro approached the rear of Max Wasserman's automobile at a high rate of speed.   There was a screech of brakes before the Camaro hit the rear bumper of Wasserman's vehicle, then continued eastbound on Mission Avenue.   Next, the Camaro passed Vanita Wachington's vehicle at a speed of approximately 80 miles per hour while proceeding in the center turn lane.   Wachington, who was slowing for a red light at the intersection of Mission Avenue and El Camino Real, said the Camaro did not appear to slow down for the red light just before she heard the sound of a collision.   She saw a white pickup truck airborne and another vehicle spinning as the intersection filled with smoke.

The occupant of the white pickup truck, Gary Nettleland, had been driving westbound on Mission Avenue and was in the left turn lane, waiting to turn south onto El Camino Real.   Apparently, Butler's Camaro had passed through the intersection, drifted across the median and collided, almost head-on, with Nettleland's truck, which then struck an Oldsmobile behind it.   Based on skid marks in the intersection, the speed of the Camaro was estimated to be a minimum of 114 miles per hour.

Donnan was dead at the scene;  cause of death was blunt force injury to the head.   Nettleland died later of injuries to the face, chest and abdomen.   Don Lattimore, the driver of the Oldsmobile, suffered neck and lower back injuries.   Both Butler and Morales were hospitalized for several months because of the injuries they suffered in the collision.   A sample of Butler's blood drawn between 10:15 p.m. and 10:30 p.m. showed a alcohol content of .134 percent, which when related back to the time of the collision indicated Butler's blood alcohol level could have been as high as .17 percent.

On the issue of malice, the prosecution presented the following evidence:

Marine Sergeant Wayne Cawley testified that on two occasions Butler challenged him to race on Interstate 5 and on another occasion Butler challenged a third individual to race while Cawley was a passenger in Butler's car.   Cawley also related stories told by Butler about his driving exploits, including a race on Interstate 5 in which Butler drove between 135 and 140 miles per hour.   Cawley testified that when Butler drove a car he was “possessed,” “totally different,” and that when he drove after drinking he was a “wild man.”

Tanya Kulik, a military police investigator at Camp Pendleton, testified she was operating a traffic radar unit on November 30, 1986, when she issued a speeding citation to Butler for driving 48 miles per hour in a heavily traveled 35–mile–per–hour zone.

D.J. Stuntbeck, who also worked with the military police at Camp Pendleton, testified he issued a citation to Butler on September 17, 1986, for driving 63 miles per hour in a 55–mile–per–hour zone.

On March 8, 1986, at approximately 1:50 a.m., Butler was involved in a single-car accident on highway 78 near El Camino Real.   Butler missed a curve and lost control of his car, which rolled five times before coming to rest upside down.   Butler told a California Highway Patrol officer he was a passenger, but the other occupants in the car said he was the driver.   Butler suffered a broken nose and his passengers suffered minor injuries.   Butler's demeanor at the accident scene indicated no concern for injuries suffered by his passengers;  rather he seemed upset about his car.   Butler was driving on a suspended South Carolina driver's license at the time.   Butler was arrested for driving under the influence of alcohol, but the charge was later dismissed.

Butler denied most of the prosecution testimony concerning his driving habits.   He denied he had ever driven in excess of 100 miles per hour in California.   He said his South Carolina driver's license was suspended once for failure to pay a fine.   He said his license was never revoked for poor driving.   Butler said he had been interested in the care and performance of cars for many years before the fatal collision.   He considered himself a good driver, capable of handling a car well enough to keep up with some of the best race car drivers.

DISCUSSION

I *

II

In a two-prong attack, Butler contends the following special jury instruction violated his due process rights:

“One who willfully 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.” 4

First, Butler contends this instruction created an unconstitutional presumption of malice aforethought in violation of Sandstrom v. Montana (1979) 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.   Second, Butler argues in the alternative that if the instruction did not create a presumption it created an impermissible inference that violated due process requirements.

A.

 We disagree that the questioned jury instruction created an presumption of malice.   As the United States Supreme Court stated in Sandstrom, supra, 442 U.S. 510, 514, 99 S.Ct. 2450, 2454:

“The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes.  [Citation.]   That determination requires careful attention to the words actually spoken to the jury, [citation], for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.”

Thus, we begin by examining the words of the challenged instruction.   First, we note there is no express indication that we are even dealing with a presumption, unlike the constitutionally infirm instructions discussed in Sandstrom, supra,5 and Francis v. Franklin (1985) 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344.6  Second, we observe the instruction is not cast in the language of a command.   Rather, the language “reasonably may be held” suggests a permissive inference.   We cannot accept the argument that a reasonable juror would have viewed this language as mandatory.7

B.

 While we reject Butler's argument that the challenged instruction created an impermissible presumption, we agree it described a permissive inference.

In Francis v. Franklin, supra, 471 U.S. 307, 105 S.Ct. 1965, the United States Supreme Court explained the difference between the two:

“A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts.   A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.”   (Id. at p. 314, 105 S.Ct. at p. 1971, fn. omitted.)

The question remains whether the permissive inference contained in the challenged instruction violated Butler's due process rights as he maintains it did.

 What is at stake here, of course, is the “ ‘bedrock, “axiomatic and elementary” [constitutional] principle’ ” that “ ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ”  (Francis v. Franklin, supra, 471 U.S. at p. 313, 105 S.Ct. at p. 1970, quoting In re Winship (1970) 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368.)

Thus, the inquiry should be whether the challenged instruction had the effect of relieving the State of the burden of proof beyond a reasonable doubt of any essential element of the crime.   The court in Francis, supra, 471 U.S. at page 315, 105 S.Ct. at page 1971, provided guidance for such an inquiry:

“Analysis must focus initially on the specific language challenged, but the inquiry does not end there.   If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole.   Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption.  [Citation.]”

Again, we must emphasize the instruction is not cast in mandatory language but instead uses the permissive “may.”   We do not foresee a reasonable juror interpreting the language of the instruction as an order or even a direction to find “conscious disregard of the safety of others,” given the predicate facts of Butler's drinking that evening and knowledge he was going to drive a motor vehicle.   Clearly, the language “leaves the trier of fact free to credit or reject the inference” (Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777), and a reasonable juror would not have interpreted it differently.

For purposes of analysis, the question remains whether a reasonable juror may have interpreted the instruction as a direction to find the requisite intent “unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than ‘some’ evidence—thus effectively shifting the burden of persuasion on the element of intent.”  (Sandstrom, supra, 442 U.S. at p. 517, 99 S.Ct. at p. 2456, original italics.)   We conclude it does not.   For one thing, the language does not connote this type of shift—there is no suggestion the defendant must come forward with some evidence to rebut the inference.   There simply is nothing in the language of the challenged instruction that a reasonable juror could have understood as creating a shift in the prosecution's burden of proof.   Nor do we find anything in the other instructions given that would lead a reasonable juror to interpret the challenged instruction in such a manner.8

Francis, supra, 471 U.S. 307, 105 S.Ct. 1965, went on to explain that an instruction containing a permissive inference is not necessarily infirm;  such an instruction “violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.”  (Id. at pp. 314–315, 105 S.Ct. at p. 1971, citing Ulster County Court v. Allen, supra, 442 U.S. 140, 157–163, 99 S.Ct. 2213, 2224–2228.)

In Ulster County Court, supra, 442 U.S. 140, 99 S.Ct. 2213, the high court stated the only way in which a permissive inference affects the prosecution's beyond-a-reasonable-doubt burden is when, under the facts of the case, there is no rational way the trier of fact could make the connection permitted by the inference.  “For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.”  (Id. at p. 157, 99 S.Ct. at p. 2225.)

Further, Ulster, supra, 442 U.S. 140, 99 S.Ct. 2213, made it clear that in analyzing a permissive inference, as opposed to a mandatory presumption, an evaluation of the inference as applied to the record in the case is appropriate.  (Id. at p. 160, 99 S.Ct. at p. 2226.)   As applied to the facts of this case, the inference is entirely rational.   The evidence established Butler drove 114 miles per hour on the wrong side of the road and through a red light while he had a blood alcohol level of at least .134 percent and after he had been warned repeatedly about his driving and had been in a hit-and-run collision as well as some near collisions.  “[C]ommon sense and experience tell us [Butler] must have known or been aware of the high probability” that his actions put the safety of others at high peril.   (Barnes v. United States (1973) 412 U.S. 837, 845, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380.)

Butler unmeritoriously argues on the basis of a Fifth District case, People v. McNiece (1986) 181 Cal.App.3d 1048, 226 Cal.Rptr. 733, disapproved on other grounds in People v. McFarland (1989) 47 Cal.3d 798, 805, 254 Cal.Rptr. 331, 765 P.2d 493, that the predicate facts of the challenged instruction—the accused consumed alcohol to the point of intoxication knowing he must then drive—cannot logically lead to a conclusion of conscious disregard for the safety of others.   In McNiece, the prosecutor argued to the jury that the defendant acted with gross negligence because he consumed alcohol and then drove a car.   The McNiece court reversed the conviction of vehicular manslaughter, stating “gross negligence deals with much more than intoxication.”  (Id. 181 Cal.App.3d at p. 1057, 226 Cal.Rptr. 733.)   Butler argues that if gross negligence entails “much more” than drunk driving, then conscious disregard for the safety of others must as well.   However, what Butler fails to state is that in two subsequent published opinions, the Fifth District clarified its holding in McNiece.  (People v. Pike (1988) 197 Cal.App.3d 732, 243 Cal.Rptr. 54 and People v. Leffel (1988) 203 Cal.App.3d 575, 249 Cal.Rptr. 906.)   The import of the latter cases is that the holding of McNiece depended upon the particular circumstances of that case.   (People v. Leffel, supra, 203 Cal.App.3d at p. 580, 249 Cal.Rptr. 906.) 9  Moreover, the principle advanced in the challenged language is the law of this state as enunciated on repeated occasions by our highest court (see Taylor, supra, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854 and Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279), and we are not in a position to question its validity.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.)

There is no doubt that when Justice Richardson penned the language in Taylor, supra, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854, and repeated it in Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, he did not intend it to be used verbatim in a jury instruction.   Nor do we believe the language makes the perfect jury instruction.   But as we have demonstrated, here it created a permissive inference that did not violate Butler's due process rights.

III

Butler contends that in instructing the jury voluntary intoxication was a defense to the second degree murder charges, the trial court erred by misstating the requisite mens rea for second degree murder.

The jury was instructed as follows:

“In the crime of second degree murder of which the defendant is accused in counts one and two of the information, a necessary element is the existence in the mind of the defendant of a knowledge his conduct endangered the life of another.

“If the evidence shows that the defendant was intoxicated at the time of the alleged offense, the jury should consider his state of intoxication in determining if the defendant had such mental state.

“If from all the evidence you have a reasonable doubt whether defendant formed such mental state, you must give the defendant the benefit of that doubt and find that he did not have such mental state.”

This instruction essentially follows the wording of CALJIC No. 4.21, which is designed to inform the jury that intoxication is a defense to specific intent crimes.10  CALJIC No. 4.21 reads as follows:

“In the crime of _ of which the defendant is accused [in Count [s] _ of the information], a necessary element is the existence in the mind of the defendant of the [specific intent to _] [mental state[s] of _].

“If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in determining whether defendant had such [specific intent] [mental state].

“If from all the evidence you have a reasonable doubt whether the defendant formed such [specific intent] [mental state[s]], you must find that [he] [she] did not have such [specific intent] [mental state[s]].”

 Butler maintains the instruction as given was incomplete since “knowledge his conduct endangered the life of another” does not fully describe the requisite mens rea or mental state for second degree murder.   The requisite mental state for murder is malice aforethought.  (§ 187.) 11  Malice aforethought may be implied when a defendant intentionally does an act that he knows involves a strong probability of death to another and his conduct is so reckless as to display a conscious disregard for human life.  (Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)   Thus, implied malice aforethought is comprised of two components:  knowledge of the life-threatening danger of the act;  and conscious disregard of this danger.   Is the failure of the voluntary intoxication instruction given here to include the second prong of implied malice error?   For the following reasons, we conclude the instruction was proper.

The intoxication instruction was given to the jury to present a possible defense for the two murder counts (see § 22), not for the purpose of defining the requisite mental state for second degree murder.   An examination of the entire charge to the jury demonstrates the jury was fully informed—on more than one occasion—of the requisite mens rea for second degree murder based on implied malice.   The jury was instructed pursuant to CALJIC No. 8.11 12 on implied malice and told of the two component parts required.   The jury also was instructed pursuant to CALJIC No. 8.31 13 on second degree murder and was informed of the requisite mental state and its component parts.   CALJIC No. 8.51, which distinguishes between murder and manslaughter, was also given to the jury;  this instruction repeats the necessary mental state of implied malice for murder is present when the defendant realizes the risk and acts in total disregard of the danger to life.   Finally, a special jury instruction derived from Watson, supra, 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279, was given that stated in part:

“Second degree murder based on implied malice has been committed when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

The intoxication instruction given informed the jury that voluntary intoxication could negate the knowledge component of implied malice.   There was nothing improper with this concept even in the context of drunk driving murder.  (See Watson, supra, 30 Cal.3d at p. 301, 179 Cal.Rptr. 43, 637 P.2d 279.)   In fact, we believe the intoxication instruction properly focused on the knowledge component.   The knowledge component is actually the predicate or operative component of the implied malice state of mind for it is only if the defendant has knowledge his conduct is dangerous to others that he can act in conscious disregard of the danger.   The reason voluntary intoxication is a defense in cases such as this is it is conceivable that, at some point, the level of intoxication could be so great that the defendant did not have the requisite knowledge of the risk.   In other words, the defendant was too intoxicated when he took the wheel to actually appreciate the risks associated with driving in such a state.

Butler also argues that the omission of the conscious disregard component of implied malice in the intoxication instruction exacerbated the error in giving the special jury instruction based on Taylor, supra, 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854, discussed in section II of this opinion.   Since we did not find error in giving the special jury instruction, we need not further consider this argument.   Nonetheless, we note that contrary to Butler's arguments, the intoxication instruction and the challenged special jury instruction do not contradict themselves.   The special jury instruction permitted the jury to infer conscious disregard if Butler willfully drank to the point of intoxication knowing he would drive in a vehicle capable of great force and speed.   In order for the jury to draw the inference, there must be the predicate knowledge.   The intoxication instruction allowed the jury to conclude Butler was too drunk to appreciate the danger;  in other words the instruction permitted the jury to find Butler's level of intoxication negated the knowledge that was necessary before there could be conscious disregard.   Under the issues presented in this case, we do not address any concern whether some form of bridging language to better coordinate the meaning of the two instructions would be appropriate.

IV–VIII **

DISPOSITION

The judgments of conviction in counts 3, 4, 7, 8, 9, 10, 11 and 12 are reversed.   The trial court is ordered to amend the abstract of judgment to strike the convictions for those offenses and the stayed sentences imposed for them and notify the Department of Corrections accordingly.   In all other respects, the judgment is affirmed.

FOOTNOTES

FN2. All statutory references are to the Penal Code unless otherwise specified..  FN2. All statutory references are to the Penal Code unless otherwise specified.

FOOTNOTE.   See footnote 1, ante.

4.   This instruction was given to explain the terms “conscious disregard of life” and “conscious disregard for human life” in two CALJIC instructions defining implied malice aforethought.The jury was instructed pursuant to CALJIC No. 8.11 (4th ed.) as follows:  “Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”The jury was instructed pursuant to CALJIC No. 8.31 (4th ed.) as follows:  “Murder of the second degree is the unlawful killing of a human being as the direct causal result of an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for human life.  [¶] When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being.”

5.   In Sandstrom, supra, a murder prosecution, the challenged instruction was as follows:  “ ‘[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.”  (442 U.S. at p. 513, 99 S.Ct. at p. 2453.)

6.   In Francis, supra, a murder prosecution, the challenged jury instructions were as follows:  (1) “ ‘[t]he acts of a person of sound mind and discretion are presumed to be the product of the person's will, but the presumption may be rebutted’ ”;  and (2) “ ‘[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.’ ”  (471 U.S. at p. 309, 105 S.Ct. at p. 1968.)

7.   We also find unavailing Butler's arguments that the fact the language was taken from Taylor v. Superior Court, supra, 24 Cal.3d at page 897, 157 Cal.Rptr. 693, 598 P.2d 854, supports his contention the instruction created a presumption.   Butler makes much of the fact that Taylor was a civil action that did not involve the concept of malice aforethought, but this point is not of much significance since the California Supreme Court quoted with approval the Taylor language in People v. Watson, (1981) 30 Cal.3d 290, 300–301, 179 Cal.Rptr. 43, 637 P.2d 279, the seminal case in second degree murder prosecutions stemming from drunk driving incidents.  Watson involved the dismissal of second degree murder charges by the trial court on a section 995 motion.   After making an independent review of the record, the Watson court used the language from Taylor to uphold the inclusion of the second degree murder counts in the information.  “We do not suggest that the foregoing facts conclusively demonstrate implied malice, or that the evidence necessarily is sufficient to convict defendant of second degree murder․   We merely determine that the evidence before us is sufficient to uphold the second degree murder counts in the information, and to permit the prosecution to prove, if it can, the elements of second degree murder.”  (Watson, supra, 30 Cal.3d at p. 301, 179 Cal.Rptr. 43, 637 P.2d 279.)We are by no means suggesting that Watson endorsed the use of the language from Taylor as a jury instruction.   However, Watson did make clear this language (1) is appropriate in an analysis of malice in the context of second degree murder prosecutions in drunk driving cases and (2) supports an inference that the drunk driver was aware of the hazards of driving while intoxicated for purposes of reviewing a section 995 motion.   (People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)   Contrary to what Butler argues, the fact the Watson court used the Taylor language as a presumption in its review of the lower court ruling is not persuasive for the proposition that the language used verbatim in an instruction creates a mandatory presumption for the jury.

8.   Butler contends for purposes of presenting the jury with a permissible inference the wording contained in CALJIC No. 12.61—“you may but are not required to infer”—is preferable to the “reasonably may be held” language in the challenged instruction.   Since CALJIC No. 12.61 was given in this case, Butler argues it would have been reasonable for jurors to have assumed the use of different language in the challenged instruction meant it was not to be used as a a permissible inference but rather as a burden-shifting presumption.   We cannot accept this argument, which at best is highly speculative.   First, it presupposes there is only one correct way in which to express a thought and incorrectly suggests that if an instruction is not included in CALJIC it is not an acceptable instruction.   Second, it ignores the use of the permissive “may” in the challenged instruction.   Third, it assumes, a reasonable juror, on his or her own, would introduce the concept of burden-shifting.   We think not, particularly in light of repeated instructions given here that the prosecution has the burden of proof.

9.   Furthermore, comparing gross negligence and implied malice presents a situation comparable to the proverbial problem of comparing apples and oranges.   Gross negligence is based on an objective determination, while implied malice is tested by a subjective standard.

10.   In People v. Ricardi (1990) 221 Cal.App.3d 249, 270 Cal.Rptr. 425, the Court of Appeal held it was error not to instruct in accordance with CALJIC No. 4.21.

11.   Hence, had the jury been instructed, “In the crime of second degree murder of which the defendant is accused in counts one and two of the information, a necessary element is implied malice ․,” the instruction would have comported exactly with CALJIC No. 4.21, and Butler could not have made this assignment of error.

12.   See footnote 4, ante.

13.   See footnote 4, ante.

FOOTNOTE.   See footnote 1, ante.

TODD, Associate Justice.

KREMER, P.J., and FROEHLICH, J., concur.