PEOPLE v. MAYS (1988)

Defendant Kenneth Ray Mays was convicted by a jury of second degree murder (Pen.Code, § 187) arising from a vehicular homicide ¹ and sentenced to prison for a term of 15 years to life.   On appeal from the judgment and sentence, defendant argues insufficiency of the evidence, instructional error and other procedural claims.   We modify the judgment and affirm the judgment as so modified.

FACTS

Viewing the record in a light supportive of the judgment, the following salient facts are revealed:

Around noon on Friday, September 7, 1984, defendant Kenneth Ray Mays drove his four-wheel drive Ford pickup truck to the home of Vince Farrington, a sheet metal worker who intended to assist defendant in obtaining his former job in Santa Rosa.   The two men proceeded to drive in defendant's truck to several work sites in Healdsburg and elsewhere.   Soon after they had started, defendant made several unsafe passes, according to Farrington's testimony:  once, passing on the right gravel shoulder;  and at another time passing on the left of a car slowing to make a left hand turn.   Farrington commented on defendant's erratic driving, the latter responding, “no guts, no glory.”   Several times throughout the afternoon Farrington commented on defendant's speed and unsafe driving.

The two men drank several cans of beer over the course of the afternoon as they drove from Napa to Healdsburg, then to Santa Rosa and to Rohnert Park to visit various construction sites and the sheet metal shop.   At trial defendant admitted consuming approximately seven beers;  however, in his postarrest statement, he said he only had three.

Finally, around 6 p.m., they started their return to Napa from Rohnert Park over State Highway 121, a narrow, predominantly two-lane, curving hilly country road.   Just over the Sonoma–Napa County line, past Stornetta's Dairy, defendant overtook another vehicle prompting Farrington to ask to be let out.   After several more passing maneuvers, all dangerous according to Farrington, defendant suddenly came upon a slower moving white Volkswagen squareback as he pulled back into his eastbound lane.   Defendant slammed on his brakes, swerved across the center dividing line, crashed into a blue Volkswagen beetle in the westbound lane, and eventually came to a stop back on the eastbound shoulder.   The collision impact instantly killed Kristen Vantine, the 22–year–old college student driving the blue Volkswagen.

Other witnesses testified to defendant's dangerous driving and passing maneuvers preceding the collision.   The occupants of the slower moving car immediately ahead of defendant denied suddenly pulling out in front of him or driving too slowly.

Police officers at the scene observed defendant's glazed eyes, slow speech and detected an odor of alcohol.   Upon his failure to perform the supervised field sobriety tests adequately, defendant was placed under arrest and taken into custody.   Test results of a blood sample withdrawn from defendant one and one-half hours later revealed a blood alcohol level of .10 percent.  (A breath test administered at defendant's request disclosed a level of .09 percent.) ²

Defendant testified at trial essentially denying he had been driving in an unsafe or dangerous manner.   Defendant stated he was slowing down when he saw the Volkswagen squareback in front of him, slammed on his brakes and tightly held the steering wheel.   Defendant believed he had struck the white Volkswagen.   Defendant denied being under the influence of alcohol.

DISCUSSION

I.

Defendant first contends the evidence is insufficient to sustain the finding of guilt of second degree murder.³

It is well established that an appellate court reviewing a “criminal conviction challenged as lacking evidentiary support ․ must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.”  (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738.)   “ ‘Substantial evidence’ means that evidence which, when viewed in light of the entire record, is of solid probative value, maintains its credibility and inspires confidence that the ultimate fact it addresses has been justly determined.  [Citations.]”  (People v. Conner (1983) 34 Cal.3d 141, 149, 193 Cal.Rptr. 148, 666 P.2d 5.)   Here, defendant specifically challenges the finding of implied malice necessary for second degree murder, arguing that the evidence is insufficient as a matter of law.

 The issue of implied malice as relevant to vehicular homicide is carefully explained in People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, wherein the Supreme Court reinstated a charge of second degree murder after dismissal of that count by the trial court.

“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’ ”․'  (People v. Sedeno, supra, 10 Cal.3d [703] at p. 719 [112 Cal.Rptr. 1, 518 P.2d 913], quoting from People v. Phillips, supra, 64 Cal.2d 574, 587 [51 Cal.Rptr. 225, 414 P.2d 353].)”

(Id., at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)   Thus, in order to be convicted of second degree murder, defendant must have intentionally committed an act with a high probability that it would result in death, and he must have subjectively appreciated the risk created by his act.  (See State of California ex. rel. Dept. of Transportation v. Superior Court (1985) 37 Cal.3d 847, 856, 210 Cal.Rptr. 219, 693 P.2d 804.)

 As noted, the evidence favorable to the judgment discloses a pattern of unsafe passing maneuvers and reckless driving conduct, accompanied by periodic consumption of alcohol and a seemingly indifferent attitude concerning the potential risks involved.   But the crucial issue presented is whether the totality of the evidence sufficiently supports a finding of implied malice, a deliberate course of conduct with knowledge that such conduct endangers the life of others manifesting a conscious disregard for life.  (See People v. Phillips (1966) 64 Cal.2d 574, 587, 51 Cal.Rptr. 225, 414 P.2d 353.)

In support of his argument, defendant contrasts his less culpable conduct with the more egregious facts in cases cited by the People, e.g., People v. Olivas (1985) 172 Cal.App.3d 984, 218 Cal.Rptr. 567 and People v. Albright (1985) 173 Cal.App.3d 883, 219 Cal.Rptr. 334.

In Olivas, defendant was under the influence of PCP and drove at high speeds through city streets, running stop signs and stop lights, colliding with one car and narrowly avoiding collisions with others while being pursued by police.   In Albright, the suicide-bent defendant, with a blood alcohol level of .17 percent, sped into an intersection at 90 to 110 miles per hour on a city boulevard.   Albright exhibited severe alcohol impairment at the scene and had a prior conviction for driving under the influence.   In both cases, this court found the evidence sufficient to uphold the charge or conviction of second degree murder.

Similarly in People v. McCarnes (1986) 179 Cal.App.3d 525, 224 Cal.Rptr. 846, the court upheld a second degree murder verdict against a defendant with a blood alcohol level of .27 percent, driving 20–25 miles per hour above the speed limit and passing recklessly into a clearly visible oncoming car.   The defendant's numerous prior DUI convictions and previous drunk driver education training persuaded the court he was fully aware of the substantial risk his conduct posed.  (Cf. People v. Eagles (1982) 133 Cal.App.3d 330, 183 Cal.Rptr. 784 [defendant acquitted of murder but convicted of three counts of manslaughter when defendant drove through a busy city intersection at a high rate of speed and against a red light, killing three people and injuring several others].)

And in Watson, the defendant similarly had a high blood alcohol level (.23 percent), drove at an excessive rate of speed (nearly 50 miles per hour over the posted speed limit) and ran a red light causing a near collision before the fatal accident.  “Based upon our independent review of the record, we believe that there exists a rational ground for concluding that defendant's conduct was sufficiently wanton to hold him on a second degree murder charge․

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.”

(People v. Watson, supra, 30 Cal.3d at pp. 300–301, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis added.)

It thus appears that in the cases discussed, the defendant had a record of drunk driving convictions, was under the influence of alcohol or drugs, drove at excessive speeds or experienced an earlier near collision, each set of facts reflecting a subjective awareness that the defendant's driving conduct posed a high degree of risk to human life.   Our high court has made abundantly clear:

‘ “ ‘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’ ”․'  (People v. Sedeno, supra, 10 Cal.3d at p. 719 [112 Cal.Rptr. 1, 518 P.2d 913], quoting from People v. Phillips, supra, 64 Cal.2d 574, 587 [51 Cal.Rptr. 225, 414 P.2d 353].)  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.  (People v. Washington (1965) 62 Cal.2d 777, 782 [44 Cal.Rptr. 442, 402 P.2d 130].)' ” '

(People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis added.) ⁴

The cited cases graphically demonstrate what is lacking in the evidentiary record before us:  credible evidence tending to prove that defendant had “an actual awareness of the great risk of harm which he had created.”  (People v. Watson, supra, 30 Cal.3d at p. 301, 179 Cal.Rptr. 43, 637 P.2d 279.)   While the evidence of his driving clearly manifests a careless indifference and, at times, a grossly negligent operation of a motor vehicle in terms of unsafe speed and passing, it does not adequately reflect or support the requisite conscious disregard for human life from which malice may be implied.

Although forensic evidence disclosed a probable violation of the statute proscribing driving a vehicle under the influence of intoxicants, there was no evidence of any other alcohol-related offenses or other preceding occurrences potentially resulting in serious injury to other persons.   Indeed, the only evidence suggesting a subjective awareness of great risk of harm was the introduction of defendant's cavalier remark, “no guts, no glory,” after his driving companion had criticized his driving habits some hours earlier.   While the isolated comment may have reflected an attitude of irresponsibility or even recklessness, we cannot say that, standing alone or in consideration with other evidence, it represents sufficient, credible evidence from which a rational trier of fact could find defendant exhibited a wanton disregard for human life while fully cognizant that his conduct endangered the lives of others.   As the Olivas court cogently observed, there is a subtle but logical distinction between “ ‘conscious disregard for life’ ” and “ ‘conscious indifference to the consequences.’ ”  (People v. Olivas, supra, 172 Cal.App.3d at pp. 987–988, 218 Cal.Rptr. 567.)

Thus, we conclude that the evidence before us fails to support the essential finding of implied malice.   As a consequence, defendant's second degree murder conviction cannot stand.

However, the crime of manslaughter, as charged in two counts of the Information, constitutes an offense necessarily included within the crime of murder.  (See People v. Watson (1983) 150 Cal.App.3d 313, 320–323, 179 Cal.Rptr. 43, 637 P.2d 279.)   Herein, the record supplies strong and convincing evidence of the commission of gross vehicular manslaughter under former Penal Code section 192, subdivision (c)(3) (now Pen.Code, § 191.5) as charged in count three of the Information.   The tragic death of the young victim was the direct result of defendant's grossly negligent operation of his vehicle while under the influence of an alcoholic beverage and during the commission of one or more acts proscribed under the provisions of the Vehicle Code.   Contrary to defendant's assertion, the jury was correctly instructed on the law of vehicular manslaughter.

“Where a reviewing court finds insufficient evidence that a defendant committed the crime of which he was convicted but finds overwhelming evidence that he committed a lesser included offense, the court is empowered to reduce the conviction to the lesser offense.  (People v. Steger (1976) 16 Cal.3d 539 [128 Cal.Rptr. 161, 546 P.2d 665, 83 A.L.R.3d 1206];  People v. Enriquez (1967) 65 Cal.2d 746 [56 Cal.Rptr. 334, 423 P.2d 262];  see also, Pen.Code, § 1260.)”

(People v. Allen (1985) 165 Cal.App.3d 616, 627, 211 Cal.Rptr. 837;  People v. John (1983) 149 Cal.App.3d 798, 807, 197 Cal.Rptr. 340.)

Accordingly, we modify the verdict to reduce the conviction to the offense of vehicular manslaughter, a violation of former Penal Code section 192, subdivision (c)(3).

II.–III.**

DISPOSITION

Defendant's conviction of second degree murder is modified to reduce it to a conviction of vehicular manslaughter in violation of former Penal Code section 192, subdivision (c)(3).   The matter is remanded to the superior court for purpose of resentencing in accordance with law.

I concur in the lead opinion, but wish to state my own reasoning with its slightly different emphasis on certain aspects of this case.

It strikes me that the law of vehicular homicide is in grave disarray.   Statute is piled upon statute, but the construct lacks masonry and architecture, and is a mere shambles.   What is needed is a measured and comprehensive legislative response to this complicated and emotionally charged problem.   And, of course, the judicial precedents are equally confusing, particularly in the area of vehicular manslaughter.

As for the present case involving vehicular murder, the difficulty is deep-seated.   Where the crime is malum in se, wrong in itself, simple proof that the accused did the act constitutes a prima facie case for the People.   There, the intention to do the act is itself an evil design, or mens rea, and no other intent is imputed by the statute.   The presumption remains in favor of the accused, that he is a reasonable man in full command of his faculties;  it is left to him to prove that he was mistaken, drunk, drugged or not otherwise responsible.

In other cases, however, the Penal Code punishes, not an action, but an outcome which was intended, as in statutory murder, or even an outcome without an intent, as in manslaughter.

The present case turns upon the nature of “implied malice.”   This is a singular concept;  at first it may seem tautological, since “malice” is a state of mind, and, necessarily, evidence as to the mind of another is not explicit, but can be known only by inference from visible manifestations.

The concept of implied malice must then serve to distinguish the kind of intent that is inferred from the evidence, as opposed to some other kind that is not.   The latter could perhaps conveniently be called “presumed” malice—that is, inferred only after the fact.   It is found in the case of certain felonies:  one who commits the felony is presumed to have intended any deaths that result.   This distinction is observed in People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, which makes clear the subjective nature of implied malice, using such terms as “deliberately,” “knows” and “conscious”—whereas the state of mind of a “reasonable person” is objective.

The People's evidence concerning appellant's actual “subjective” intent was strikingly weak.   As to his knowledge, what was required was knowledge of the danger, whereas the evidence introduced showed, if anything, ignorance of it.

Evidence of a subjective state of mind can only be separate and distinct from the evidence that the accused did the wrongful act.   And, malice in general will not suffice under the Watson test:  what is required is proof that appellant knew he was endangering the life of another, and that he entertained conscious disregard for such life.  (Cf. also People v. Sedeno (1974) 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913.)

That heavy burden was in my view clearly not met, and no amount of revulsion I feel for the tragic consequences of the subject occurrence can convince me that appellant was properly convicted of murder.

FOOTNOTES

1.   Defendant was charged in the alternative with vehicular manslaughter not involving alcohol (former Pen.Code, § 192, subd. (3)(a), now § 192, subd. (c)(1)) and vehicular manslaughter involving alcohol (former Pen.Code, § 192, subd. (c)(3), now § 191.5).

2.   At trial, a forensic alcohol analyst offered the opinion that any person having a blood alcohol level of .08 percent or above would be too impaired to drive safely.

3.   Defendant unsuccessfully moved for a directed verdict at the close of the prosecution case, at the close of the defense case, and to modify the verdict.

4.   It is not entirely clear whether the Watson court's discussion of the dual concepts of implied malice, together with reference to wantonness and conscious disregard, suggests alternative standards or a synonymous definition as argued by defendant.  (See, e.g., People v. Flores (1986) 178 Cal.App.3d 74, 79–80, 223 Cal.Rptr. 465.)   We note that the comment to the relevant pattern instruction (CALJIC No. 8.11 (1983 Rev.) (4th ed. 1979)) expresses no opinion.

FOOTNOTE.   See footnote *, ante.

RACANELLI, Presiding Justice.

ELKINGTON and NEWSOM, JJ., concur.