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

IN RE: PETER F., a Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. PETER F., Defendant and Appellant.

Cr. 44825.

Decided: July 25, 1984

Lynne Reade, Whittier, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Howard J. Schwab, Stephen M. Kaufman, Deputy Attys. Gen., for plaintiff and respondent.

In this juvenile court proceeding a 17 year old minor was declared to be a ward of the court pursuant to Welfare and Institutions Code section 602 on the basis of conduct determined to constitute felony violations of Vehicle Code section 10851 (car theft), Vehicle Code section 20001 (hit and run) and Penal Code section 189 (second degree murder).   He was committed to the CYA.   The minor appeals.   We modify the judgment and affirm.

The determination of wardship was based on two separate and sequentially filed petitions.   The first alleged the car theft and hit and run, while the second alleged the murder.

The minor admitted the first petition but contested the murder allegation in the second petition.   The court found the latter to be true.

On appeal, the minor contends that the evidence was insufficient to support the allegation of murder and in any event Penal Code section 654, as amplified by the decision in Kellett v. Superior Court (1966) 63 Cal.2d 822, 48 Cal.Rtpr. 366, 409 P.2d 206, barred any proceedings on the second petition.

The facts are not in dispute.   Minor stole a car and in an attempt to avoid apprehension while driving the car, he led the police on a high-speed chase through the streets of Los Angeles.   During the chase, the minor drove at speeds of 80 mph and committed numerous traffic violations.   The chase ended when the minor collided with another vehicle—a collision which resulted in the death of a passenger in the other car.

At the time the first petition was filed and admitted by the minor, the victim of the collision had not yet expired.   The second petition was filed after the death of that individual.

We first dispose of the Penal Code section 654—“Kellett ” issue.   The rule aimed at preventing piecemeal and repetitive prosecution for several crimes committed by a single act or during a single course of conduct, requires the prosecution to join all such acts in a single prosecution.

 Assuming that the minor here was engaged in a single course of conduct which resulted in the commission of the three offenses, the fact remains that, as of the time of the filing of the first petition, the crime of murder had not been committed and could not have been joined since no death had yet occurred.   In short, minor's admission of the car theft and hit and run was no bar to the latter petition alleging murder.  (In Re Dennis B. (1976) 18 Cal.3d 687, 135 Cal.Rptr. 82, 557 P.2d 514;  People v. Snipe (1972) 25 Cal.App.3d 742, 102 Cal.Rptr. 6;  People v. Breland (1966) 243 Cal.App.2d 644, 52 Cal.Rtpr. 696.)

Turning now to the murder charge, the minor unquestionably was guilty of a criminal homicide.   The issue is the degree of his culpability which turns upon his state of mind and more specifically the presence or absence of malice.

 Malice, that state of mind which makes an unlawful killing murder, may be either express, implied or constructive.   It is express when there is manifested a deliberate intention to take human life.   It may exist constructively in the commission of a felony which in itself is dangerous to human life or it may be implied from the doing of an act with an indifferent awareness of probable death.

Since there is no evidence here that the minor intended to take life, and since auto theft is not itself a dangerous felony, we do not deal with either express or constructive malice, but solely with the issue of implied malice.

It is clear that an automobile can be an instrumentality for committing murder when used as a weapon to intentionally inflict injury or death.  (See People v. Mazza (1955) 135 Cal.App.2d 587, 287 P.2d 798;  People v. Brown (1921) 53 Cal.App. 664, 200 P. 727.)   The issue here, however, is whether the driver of a stolen car who, in attempting to escape arrest, drives at high speeds and commits a number of incidental traffic violations, can be said to have acted with malice aforethought in the unintentional death of an individual resulting from a vehicle collision.

The trial court in rendering its conclusion that the offense constituted murder stated:  “In going through my notes in this case I count a total of six intersections that have been testified to by the two officers in which the minor either ran a red light or failed to stop at a flashing light.   There may have been one stop sign that was disregarded.   So I must ask myself the question, ‘How many stop signs or red lights must a person go through or run through or disregard before his conduct becomes something more than gross negligence so that it becomes wanton, that it becomes a subjective disregard for human life?   ¶ Based on the evidence I heard in this matter, I find that the minor's conduct was reckless and wanton to the extent that malice can be implied from his conduct.   He had to realize sooner or later he was going to kill somebody, and he did.   So I find the People have established second-degree murder by their evidence in this matter.   The petition is sustained and found to be true as to second-degree murder.”

The court was understandably led to its conclusion by the following language in People v. Watson (1981) 30 Cal.3d 290, at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279:  “We have said that 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’ ” ․' [Citation.]   Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.”

The Supreme Court concluded, under the particular facts there present, that an intoxicated individual who drives at a high speed, violates various traffic laws and kills an individual can be required to stand trial for the crime of murder.   In attempting to distinguish between the term “gross negligence” as used in Penal Code section 192, subdivision (3)(a) (vehicular manslaughter) 1 and implied malice, the court constructed an “objective—subjective” test as follows:

“A finding of gross negligence is made by applying an objective test:  if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.  [Citation.]   However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.”  (People v. Watson, supra, 30 Cal.3d at pp. 296–297, 179 Cal.Rtpr. 43, 637 P.2d 279.)

Hence the trial court here resorted to counting up traffic violations as a way of reaching the conclusion that the minor subjectively became aware of the danger.

It is curious that in Watson no mention was made of the other element of vehicular manslaughter, to wit, “commission of an unlawful act not amounting to a felony.”   Nor was there any mention of Vehicle Code section 23103 which defines reckless driving.

Reckless driving is described and made a misdemeanor by Vehicle Code section 23103 as follows:  “Any person who drives any vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving ․”  (Emphasis added.)

Since the language of Vehicle Code section 23103 contains the terms “willful” and “wanton”, the state of mind of the reckless driver would seem to equate with the Supreme Court's description in Watson of “implied malice”, the ingredients of which are deliberate action (willful) with a conscious disregard for life (wanton).

Under traditional rules, prior to Watson and the 1983 amendments, reckless driving, a misdemeanor, resulting in a death formed the basis of liability for vehicular manslaughter.

Since the Supreme Court in Watson held that the gross negligence required for a vehicular manslaughter (Pen.Code, § 192(3)(a) falls short of describing that amorphous state of mind of “implied malice” which was found to exist in Watson, and since Penal Code section 192, subdivision 2 (involuntary manslaughter) 2 is specifically made inapplicable to acts committed in the driving of a vehicle, the logical conclusion would seem to be that driving which fits the definition of Vehicle Code section 23103 and which results in a death is either murder or it is nothing.

It appears to us, however, that while such conclusion is semantically defensible it is illogical and does violence to the traditional concepts of the law of homicide.   It is clearly contrary to the intent of the Legislature as it was expressed prior to 1983.

The dilemma created by Watson could have been resolved by confining that holding to the case of the drunk driver with the hope that the Supreme Court would rethink the position.3

The Legislature, however, as noted above (footnote 1), has, somewhat awkwardly, embraced the Watson rationale.   This effort appears to us to have raised questions which apparently were not contemplated by the Legislature.

The 1983 amendment to Penal Code section 192 left the traditional involuntary manslaughter (192.2) untouched and thus inapplicable to vehicular cases.   This same amendment also excluded the drunk driver (either alcohol or drugs) from vehicular manslaughter.

It would thus appear that every drunk driver involved in a fatal accident must henceforth be charged with murder or nothing at all.

As to the non-intoxicated driver, the statute now declares, in effect, that vehicular manslaughter is inapplicable to cases in which there exists that implied malice as described in Watson.

Since, as we have noted, the statutory definition of reckless driving is synonymous with that implied malice 4 one is hard pressed to conceptualize what type of driving is left for prosecution under the present language of the vehicular manslaughter statute.

It appears that the Supreme Court and the Legislature in their understandable zeal to solve the acknowledged problem of the drinking driver have, unwisely in our opinion, diluted the law of murder and created a situation where it is likely that less rather than more convictions will result.

The vice of attempting to apply the murder statute to what otherwise would be a vehicular manslaughter is that the lack of any precise guidelines leads the fact finder, as was the the case here, into a reasoning process which loses sight of the objective to be achieved.

In any homicide prosecution the objective is to determine the mental culpability of the slayer at the time of the acts causing the death.

Here the prosecution argued to the trial court and argues here on appeal that defendant, in an attempt to evade arrest, was acting out of a base, antisocial motive and that because of the numerous traffic violations committed and the evasive action taken, the defendant necessarily developed a subjective awareness of the danger which equated with implied malice.

The trial court, in attempting to follow that reasoning engaged in the process of adding up the number of traffic violations in reaching a conclusion of implied malice.   The total here was six instances of running red lights and one disregarding of a stop sign.   The speed as noted exceeded 80 mph.

The People make no contention that minor at any time deliberately intended to kill or injure another person.   The minor's culpable state of mind, however characterized, is made up of the ingredients of an intent to steal, and an intent to escape with knowledge that the escape required fast driving and the disregarding of traffic controls.

Anyone in full possession of his faculties knows beforehand that fast driving and violating traffic controls on heavily traveled city streets carries a risk of causing a fatal traffic accident.

Thus minor's state of mind was just as culpable when he started to flee as it was when his flight came to an end.   The above mentioned ingredients existed from the outset.   If minor had had the fatal collision at the first intersection instead of the sixth, the victim would be just as dead and the minor's state of mind exactly the same.

Since motive is irrelevant to a determination of the minor's guilt, the fact that the minor was fleeing police does not alter the picture.   Reckless driving is reckless driving whether the driver owns the car or has stolen it.

Thus we pose the question, would the judgment have been any different if the minor had driven only 70 mph or 60, or ran only five stop lights, or four?   To ask the questions is to expose the fallacy of the approach.

 There is no contention here, as there could not be, that the felony which the minor committed, to wit, the theft of an automobile, would give rise to an application of the felony-murder rule.   The rule is that the felony must, in the abstract, be of a dangerous type without regard to the circumstances of a particular case.  (People v. Williams (1965) 63 Cal.2d 452, 47 Cal.Rptr. 7, 406 P.2d 647;  People v. Phillips (1966) 64 Cal.2d 574, 51 Cal.Rptr. 225, 414 P.2d 353.)   Thus it is obvious that the minor's conviction of criminal homicide turns solely on the driving of the vehicle and his state of mind in so doing.

 To summarize then, the minor's conduct at the time of the fatal collision constituted reckless driving in violation of Vehicle Code section 23103, a misdemeanor.   That conduct also amounted to gross negligence for the purposes of former Penal Code section 192(3)(a).   Hence the minor was guilty of violating that latter statute.   There is insufficient evidence to support a conviction for murder.

The judgment is modified by striking any reference to a violation of Penal Code section 189 and by adding a finding that the minor committed a violation of former Penal Code section 192(3)(a), vehicular manslaughter.

As modified, the order of wardship is affirmed.


1.   Penal Code section 192, subdivision (3)(a) as it then read provided:  “Manslaughter is the unlawful killing of a human being, without malice.   It is of three kinds:  ․ In the driving of a vehicle—(a) In the commission of an unlawful act, not amounting to felony, with gross negligence;  or in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.”In 1983, after the decision in Watson and after the events in this case, the Legislature amended the statute so that it now reads:  “Vehicular—Driving a vehicle, not involving drugs or alcohol and in the commission of an unlawful act, not amounting to felony, and with gross negligence;  or driving a vehicle, not involving drugs or alcohol, and in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence․  ‘Gross negligence’, as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279.”

2.   Penal Code section 192, subdivision 2, provides:  “Involuntary—in the commission of an unlawful act, not amounting to felony;  or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection, provided that this subdivision shall not apply to acts committed in the driving of a vehicle.”  (Emphasis added.)

3.   It would seem that the drunken reckless driver probably has less of a subjective awareness of the danger of his conduct during the driving than does the sober reckless driver but the Supreme Court in Watson found that the defendant must have appreciated the danger of his conduct before he became intoxicated.

4.   CALJIC NO. 16.840 on Reckless Driving reads as follows:“Every person who drives a vehicle upon a [street or] highway in willful or wanton disregard for the safety of persons or property, is guilty of reckless driving, a misdemeanor.   ¶  The word ‘willful’, as used in this instruction, means an intentional disregard for the safety of others.   It is not necessary to establish an intent to injure some person or property.   ¶  The word ‘wanton’, as used in this instruction, includes the elements of consciousness of conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of the consequences.”  (Emphasis added.)

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.