PEOPLE v. WATSON

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Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Appellant, v. Robert Lee WATSON, Defendant and Respondent.

Cr. 10334.

Decided: July 28, 1980

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., and James T. McNally and Lisa Lewis Dubois, Deputy Attys. Gen., for plaintiff and appellant. Russell J. Swartz, Shasta County Public Defender, for defendant and respondent.

The People appeal, pursuant to Penal Code section 1238, subdivision (a)(1), from an order of the Shasta County Superior Court dismissing counts I and II (murder, in violation of Pen.Code, s 187) from the felony information against defendant Robert Lee Watson. The charges stem from a traffic accident in which two persons died. The People contend that Watson's reckless driving and intoxication are sufficient to constitute implied malice necessary to support a charge of second degree murder. (Pen.Code, s 189.)

The appeal tenders a single issue of first impression: whether evidence sufficient to establish gross negligence as an element of the offense of vehicular manslaughter, as defined in Penal Code section 192, subdivision 3(a), may also establish the element of implied malice supporting a charge of second degree murder under Penal Code section 189.

We shall conclude that conduct amounting to vehicular manslaughter may not be charged as second degree murder and shall affirm the order of the trial court.

I

According to the testimony at the preliminary hearing, Watson spent the evening of January 2, 1979, drinking beer with Bruce Dent at the Mini Gardens in Redding, California. They left at about 11:30 p. m.

At about 1 o'clock the next morning, Watson was observed driving his automobile at the intersection of Henderson and Cypress Streets in Redding. He failed to stop at a red light, spun out, then accelerated westbound on Cypress and, as he approached the intersection of Cypress and Athens, applied his brakes, started to skid, entered the intersection and collided with a vehicle driven by Penny Maillet going southbound on Athens. As a result of the collision, Ms. Maillet and her daughter, Michelle Maillet, were killed.

The speed limit at the location on the accident was 35 miles per hour. Expert witnesses testified that Watson was traveling at about 70 miles per hour at the point of impact with the Maillet car.

It was stipulated that Watson's blood alcohol level was .23 at about 1:30 a. m. on January 3, 1979, a level more than double that required to establish a presumption of driving under the influence of alcohol. (Veh.Code, s 23126.)

Watson was charged by complaint with two counts of murder (Pen.Code, s 187), two counts of vehicular manslaughter (Pen.Code, s 192, subd. 3(a), and one count of driving under the influence of alcohol upon a highway with injury (Veh.Code, s 23101, subd. (c)). After the preliminary hearing, he was held to answer on the vehicular manslaughter and drunk driving counts. The People filed an information charging three counts. Counts I and II charged defendant with the murder of Penny and Michelle Maillet. (Pen.Code, s 187.) Count III charged defendant with felony drunk driving. (Veh.Code, s 23101, subd. (a).)

The superior court dismissed counts I and II of the information pursuant to Watson's Penal Code section 995 motion. The People appeal the order of dismissal.

II

The facts show a paradigm case of vehicular manslaughter. “ ‘. . . It is well established . . . that a homicide proximately caused by the driving of an automobile while under the influence of intoxicating liquor is manslaughter,’ within the meaning of subdivision 3(a), section 192, of the Penal Code.” (People v. Shearer (1970) 9 Cal.App.3d 74, 77, 87 Cal.Rptr. 811 (quoting from People v. Hernandez (1966) 242 Cal.App.2d 351, 358, 51 Cal.Rptr. 385. See also People v. Costa (1953) 40 Cal.2d 160, 166, 252 P.2d 1; People v. Rocha (1978) 80 Cal.App.3d 972, 976, 146 Cal.Rptr. 81.)

The People seek to convert this offense into second degree murder by trading upon verbal similarities between the element of gross negligence in the offense of vehicular manslaughter (Pen.Code, s 192, subd. 3(a)) and the element of implied malice (Pen.Code, s 188) in the offense of second degree murder (Pen.Code, s 189).

Gross negligence, as used in Penal Code section 192, subdivision 3(a),1 has been defined as including “ ‘ ”that want of care which would raise a presumption of the conscious indifference to consequences. “ ‘ ” (People v. Costa, supra, 40 Cal.2d at p. 166, 252 P.2d at p. 5.)

The phrasing of gross negligence finds a verbal analogue in some interpretations of implied malice, an element of second degree murder. (Pen.Code, ss 187, 188, 189.)

Implied malice is statutorily defined as including “circumstances attending the killing (which) show an abandoned and malignant heart” (Pen.Code, s 188), a phrase described as an “obscure metaphor (which) invites confusion and unguided speculation.” (Fn. omitted.) (People v. Phillips (1966) 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353.)

Phillips warned that the statutory phrase, if embodied in jury instructions, might lead a jury to apply a standard “entirely obliterating the line which separates murder from involuntary manslaughter.” (Fn. omitted.) (Id., at p. 588, 51 Cal.Rptr. at p. 236, 414 P.2d at p. 364.)

“Considered too cryptic, (the malignant heart) instruction was superseded by one explaining that malice was evidenced by circumstances indicating that the killing was proximately caused by ‘ ”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.“ ‘ ” (People v. Sedeno (1974) 10 Cal.3d 703, 722-723, 112 Cal.Rptr. 1, 14, 518 P.2d 913, 926; 1 Witkin, Cal. Crimes (1963) s 319, at pp. 289-290; id. (1978 supp.) s 319, at pp. 308-309.)

Notwithstanding the revised formulation of implied malice and the general rule that a higher standard than gross negligence is necessary to support a murder conviction (Annot. (1968) 21 A.L.R.3d 116, 128-131), the verbal similarities between “ ‘ ”conscious indifference to consequences “ ‘ ” (People v. Costa, supra, 40 Cal.2d at p. 166, 252 P.2d 1) and “ ‘ ”conscious disregard for life“ ‘ ” (People v. Sedeno, supra, 10 Cal.3d at pp. 722-723, 112 Cal.Rptr. 1, 518 P.2d 913) lend themselves to the possibility that conduct, as here, amounting to vehicular manslaughter will be used to charge second degree murder. Such a result was not intended by the Legislature, as we shall now show.

III

An examination of the Penal Code's classification scheme for homicide and the legislative history of vehicular manslaughter shows a studied legislative intent to separately classify and punish vehicular manslaughter.

To begin with, homicides are separately classified as with and without malice. Murder is classified as with malice (Pen.Code, s 187) and all manslaughter, including vehicular manslaughter, is classified as without malice (Pen.Code, s 192). The offenses are separately and differently punished.

Whatever similarities may exist between elements of offenses separately classified, the scheme of classification and punishment shows an intention to grade culpability and to require separate treatment of offenses by virtue of the classification scheme. It follows that conduct amounting to vehicular manslaughter may not be charged as second degree murder. This conclusion is also derived from examination of the legislative history of vehicular manslaughter.

In 1935, as part of its first Vehicle Code, California enacted section 500, a specific vehicular homicide statute.2

In 1941, section 500 was amended to make clear that it supplanted the Penal Code provisions relating to involuntary manslaughter in all cases where a homicide was “caused by the driving of any vehicle.”3

In 1943, Vehicle Code section 500 was repealed and, in the same chapter, Penal Code section 193 prescribing the punishment for manslaughter was amended to include the following language: “(A) violation of subdivision 2 of Section 192 of this code (i. e., involuntary manslaughter) resulting from the operation of a vehicle is punishable by imprisonment in the county jail for not more than one year or in the State Prison for not more than five years.” (Stats.1943, ch. 421, s 2, p. 1959.) By including the repeal of Vehicle Code section 500 and the amendment of Penal Code section 193 as the only two items in a single bill, the Legislature's intent to reintegrate the “wilful indifference” standard into Penal Code section 192 governing manslaughter is manifest.

In the following legislative session (1945), this intent was embodied in the adoption of the present vehicular manslaughter statute Penal Code section 192, subdivision 3. (Stats.1945, ch. 1006, s 1, p. 1943.)

The People have placed primary reliance on dicta in People v. Fuller (1970) 86 Cal.App.3d 618, 150 Cal.Rptr. 515, involving a high-speed flight from police in an automobile. The Fuller court, however, relied upon dicta in People v. Satchell (1971) 6 Cal.3d 28, 36, fn. 16, 98 Cal.Rptr. 33, 489 P.2d 1361; to the effect that a defendant who commits a felony in a highly reckless manner may be “ ‘convicted of second degree murder independently of the shortcut of the felony murder rule’ ” by implying malice. (Id., at p. 34, fn. 11, 98 Cal.Rptr. at p. 37, fn. 11, 489 P.2d at p. 1365, fn. 11.) What the People neglect to note about Fuller is the existence of an underlying felony (burglary). (See also People v. Pulley (1964) 225 Cal.App.2d 366, 373, 37 Cal.Rptr. 376.)

Here there is no underlying felony. Drunk driving absent any injury is a misdemeanor. (Veh.Code, s 23102.) To the extent that Fuller implies that mere high speed flight from the police in an automobile without an underlying felony may support a second degree murder conviction, we disagree.

We conclude that the Legislature intended that conduct made culpable under the vehicular manslaughter provisions of Penal Code section 192 may not also constitute murder.

We do not hold that a charge of murder may never be founded upon facts involving the driving of a vehicle while under the influence of alcohol. For example, where drunken driving belies an underlying felony which is inherently dangerous, a charge of second degree murder may be justified through application of the felony murder doctrine. It is also clear that where an intent to kill is formed and the vehicle is used as an instrumentality in the killing, a charge of first or second degree murder may be made. In these cases, additional elements, not found in Penal Code section 192, take them out of the manslaughter and into the murder sections of the Penal Code. But conduct involving a vehicle and justifying a finding of malice must satisfy a higher standard of culpability than gross negligence. We find that such conduct is not present here.

Accordingly, we affirm the order of the trial court.

FOOTNOTES

1.  Penal Code section 192, subdivision 3(a), defines vehicular manslaughter as “the unlawful killing of a human being, without malice. . . . (P) 3. (i)n the driving of a vehicle (P) (a) (i)n the commission of an unlawful act, not amounting to a felony, with gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.”

2.  “When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any vehicle in a negligent manner or in the commission of an unlawful act not amounting to felony, the person so operating such vehicle shall be guilty of negligent homicide, a felony, and upon conviction thereof shall be punished by imprisonment in the county jail for not more than one year or in the State prison for not more than three years.” (Stats.1935, ch. 27, s 500, pp. 173-174.)

3.  The amendments are emphasized. “When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any vehicle with reckless disregard of, or wilful indifference to, the safety of others, the person so operating such vehicle shall be guilty of negligent homicide, a felony, and upon conviction thereof shall be punished by imprisonment in the county jail for not more than one year or in the State prison for not more than three years. Hereafter, the provisions of the Penal Code, defining involuntary manslaughter, shall not apply to homicide caused by the driving of any vehicle.” (Emphasis added.) (Stats.1941, ch. 279, s 1, p. 1414; see generally People v. Mitchell (1946) 27 Cal.2d 678, 684-685, 166 P.2d 10.)The amendments also reveal that the Legislature sought to remove from the jurisdiction of the Penal Code all conduct involving the driving of any vehicle “with reckless disregard of, or wilful indifference to, the safety of others.”

BLEASE, Associate Justice.

EVANS, Acting P. J., and REYNOSO, J., concur.