PEOPLE v. HAMMOND (1992)

OPINION

Defendant Keith Nolan Hammond was charged in an information in count I with second degree murder (Pen.Code, § 187); ¹ in count II with unlawful driving or taking of a vehicle (Veh.Code, § 10851);  in count III with attempting to evade a pursuing police vehicle (Veh.Code, § 2800.3);  and in count IV with selling or transporting more than 28.5 grams of marijuana (Health & Saf.Code, § 11360, subd. (a)).  The information further alleged that Hammond had been previously convicted of two felonies:  robbery (§§ 211/667) and petty theft with a prior theft conviction (§§ 666/667.5, subd. (b)).

Hammond pleaded guilty to count IV, and the jury found him guilty on the other counts.   The court found the prior felony allegations to be true.   The court sentenced him to a three-year term on count IV, a three-year term on count III (stayed under § 654), and a concurrent two-year term on count II.   The determinate sentence was to be followed by an indeterminate term of 15 years to life for the murder conviction, a consecutive 5–year term for the first prior felony, and a concurrent 1–year term for the second prior felony.²

On appeal, Hammond contends the trial court erred in (1) denying his motion for judgment of acquittal of second degree murder;  (2) admitting evidence of his parole status;  (3) admitting evidence of a previous car chase by police;  (4) excluding portions of his statements to his parole agent;  (5) instructing the jury that speeding and running stop signs are acts inherently dangerous to human life;  and (6) instructing the jury that it could consider flight as proving consciousness of guilt.   Although we find error in jury instructions, we conclude the error was not prejudicial, and we affirm.

FACTS

On June 30, 1989, Officer Gregory Mojado, in uniform and driving a marked police car in Perris, saw a pickup with an expired registration.   He called dispatch to check the registration.   Meanwhile, he followed the pickup until it stopped at a gas station.   Two passengers got out and walked toward the building while Hammond, the driver, stood near the pickup.

Mojado learned that the pickup had been reported stolen, and he decided to initiate a detention.   However, Hammond noticed the officer and got in the pickup and drove away.   Mojado followed the pickup.   He turned on his flashing lights and siren, but Hammond did not stop.

With Mojado in pursuit, Hammond drove through downtown Perris at 30 to 40 miles per hour, ignoring several stop signs.   He drove on the right shoulder of an on-ramp for the 215 freeway at about 55 miles per hour, passing stopped traffic.   Later, he passed cars in a turn lane and ignored a red light.   He cut in front of a trailer rig, causing it to stop abruptly in front of Mojado.

Officer Petree, with his lights flashing and siren turned on, joined the chase as Hammond entered a residential area.   Hammond drove through various streets, at times ignoring stop signs.   His speed increased, and the officers in pursuit measured their speed at 105 miles per hour.   The pickup became airborne going through one intersection, and Hammond appeared to lose control.   Once, Mojado saw the pickup fishtail when it went off onto the shoulder.   Ultimately, Hammond ran a stop sign at an intersection and collided with another car, killing the other car's driver.

When the chase occurred, Hammond had an outstanding arrest warrant for a parole violation.   While he was in the hospital after the accident, he told his parole agent he had borrowed the pickup from a friend, knowing it was stolen.   He had tried to elude the pursuing officers because he did not want to go back to jail.

Defense.  Hammond testified he had borrowed the pickup from a friend in May or June.   He knew it was stolen because he had to start it with a screwdriver.   During the pursuit, the fastest he drove was 80 or 85 miles per hour.   He fled from the police because he did not want to be arrested.   He never meant to hurt anyone.   He did not think he would get into an accident, because other cars responded to the chase by stopping and getting out of the way.   He denied he had ever lost control of the pickup before the collision.   He admitted it was dangerous to run stop signs, and testified that he now knew his driving had been dangerous to others.

An accident reconstruction expert testified that at the time of the collision, Hammond was going about 51 miles per hour, and the car he hit was going about 43 miles per hour.   Other facts are stated in the discussion of the issues to which they pertain.

DISCUSSION

IDENIAL OF MOTION FOR ACQUITTAL

 At the close of evidence, Hammond moved under section 1118.1 for acquittal of second degree murder on the ground the evidence was insufficient to show implied malice.   The trial court denied the motion.

 In reviewing a ruling on a motion for acquittal, we apply the same test as for reviewing a judgment of conviction.  (See People v. Blair (1979) 25 Cal.3d 640, 666, 159 Cal.Rptr. 818, 602 P.2d 738.)   When a defendant challenges the sufficiency of the evidence to support his conviction of a crime, we “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.)

 Second degree murder is an unlawful killing committed with malice aforethought but without willfulness, premeditation, or deliberation.   (People v. Fuller (1978) 86 Cal.App.3d 618, 628, 150 Cal.Rptr. 515.)   When the defendant's conduct “can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied.  (§ 188.)”  (People v. Watson (1981) 30 Cal.3d 290, 298, 179 Cal.Rptr. 43, 637 P.2d 279.)   In such a case, “․ second degree murder may be charged even in the absence of an underlying felony.”  (Id. at p. 299, 179 Cal.Rptr. 43, 637 P.2d 279.)

In Watson, the court found the following evidence sufficient to hold the defendant to answer on a charge of second degree murder: ³  “Defendant had consumed enough alcohol to raise his blood alcohol content to a level which would support a finding that he was legally intoxicated.   He had driven his car to the establishment where he had been drinking, and he must have known that he would have to drive it later․  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.”  (Id. at pp. 300–301, 179 Cal.Rptr. 43, 637 P.2d 279.)   The court stated, “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.)

 Hammond argues that no evidence showed he was intoxicated during the pursuit, and the element of intoxication is essential for a conviction of second degree murder on a Watson theory.   To support this proposition, he notes that intoxication was a factor in all the cases after Watson upholding second degree murder convictions based on auto accidents.  (See, e.g. People v. David (1991) 230 Cal.App.3d 1109, 281 Cal.Rptr. 656;  People v. Murray (1990) 225 Cal.App.3d 734, 275 Cal.Rptr. 498;  People v. McCarnes (1986) 179 Cal.App.3d 525, 224 Cal.Rptr. 846;  People v. Albright (1985) 173 Cal.App.3d 883, 884, 887, 219 Cal.Rptr. 334;  People v. Olivas (1985) 172 Cal.App.3d 984, 988, 218 Cal.Rptr. 567;  see also People v. Ricardi (1990) 221 Cal.App.3d 249, 270 Cal.Rptr. 425;  People v. Brogna (1988) 202 Cal.App.3d 700, 708, 248 Cal.Rptr. 761.)

In each of those cases, the defendant's intoxication was only one circumstance supporting the conclusion that he had implied malice.   The Watson court “deliberately [declined] to prescribe a formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach.”   (Olivas, supra, 172 Cal.App.3d at pp. 989, 218 Cal.Rptr. 567.)   Malice may be implied when a defendant, fleeing from police in a high speed chase, causes a fatal collision.  (See Fuller, supra, 86 Cal.App.3d at pp. 628–629, 150 Cal.Rptr. 515.)  “[T]he state of mind for implied malice is ‘ “I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.” ’  [Citation.]”  (David, supra, 230 Cal.App.3d at p. 1114, 281 Cal.Rptr. 656.)   This state of mind does not depend on the defendant's being intoxicated.

The court in Olivas did state, “The criminal act underlying vehicular murder is not use of intoxicating substances in anticipation of driving, but is driving under the influence with conscious disregard for life.”  (Olivas, supra, 172 Cal.App.3d at pp. 988–989, 218 Cal.Rptr. 567.)   However, we do not interpret this remark as establishing a rule that vehicular murder cannot be proven absent intoxication.   If the Legislature intended to create such a rule, it could have stated it in the statute defining murder.  (Cf. § 191.5, [defining gross vehicular manslaughter while intoxicated].)   The Legislature did not do so, and we consider it inappropriate to create such a rule through judicial interpretation.

In People v. Pulley (1964) 225 Cal.App.2d 366, 37 Cal.Rptr. 376, the court stated, “By any reasonable standard, stealing and driving a stolen car and endeavoring to escape pursuing officers with the stolen car, entering an intersection against all rules of the road at 70 to 80 miles per hour and crashing with other cars lawfully proceeding therein, are highly dangerous.”   (Id., at p. 373, 37 Cal.Rptr. 376.)   The California Supreme Court later disapproved Pulley (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5, 47 Cal.Rptr. 7, 406 P.2d 647), implying that a violation of Vehicle Code section 10851 in the abstract, could not be considered an inherently dangerous crime for purposes of the felony-murder doctrine.   However, a defendant could still be convicted of second degree murder on an actual showing of implied malice.  (People v. Satchell (1971) 6 Cal.3d 28, 33–34, fn. 11, 98 Cal.Rptr. 33, 489 P.2d 1361.)

In the present case, the evidence showed that during the pursuit, which extended over several miles, Hammond ran five stop signs and two red lights;  he drove on the curb and on the shoulder to pass cars;  he cut off a tractor-trailer rig by passing only 10 feet in front of it, causing it to stop suddenly;  he appeared to lose control of the pickup when rounding a curve at excessive speed;  and finally, he became airborne in the pickup when he went through a dip in the road at high speed.   The jury could reasonably infer that Hammond was aware his conduct endangered the lives of others, but acted in disregard of that danger.   The evidence supports a conviction of second degree murder.

II

JURY INSTRUCTIONS CREATING MANDATORY PRESUMPTION

 Hammond contends the trial court erred in instructing the jury that speeding (Veh.Code, § 22350) ⁴ and running a stop sign (Veh.Code, § 22450) ⁵ are acts inherently dangerous to human life.⁶  He argues the instructions subverted the presumption of innocence and invaded the truth-finding task of the jury.   He contends the dangerousness of the defendant's acts is an element of the crime of second degree murder based on implied malice, and “ ‘[t]he judge ․ may not instruct the jury that as a matter of law some element of the crime charged has been adequately proved.’   [Citation.]”  (People v. Figueroa (1986) 41 Cal.3d 714, 726, 224 Cal.Rptr. 719, 715 P.2d 680, emphasis deleted;  see also Sandstrom v. Montana (1979) 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39;  People v. Hedgecock (1990) 51 Cal.3d 395, 407, 272 Cal.Rptr. 803, 795 P.2d 1260.)

 The People ignore Hammond's constitutional argument.   Rather, they assert merely that the instructions were properly given because they applied to the lesser included offense of vehicular manslaughter and “had nothing to do with the instructions on second degree murder.” ⁷  As we discuss below, we conclude the instructions were erroneous because they created an impermissible mandatory presumption for the jury.

A. Mandatory Presumptions

 The Due Process Clause of the Fourteenth Amendment requires the prosecution to bear the burden of proving beyond a reasonable doubt every essential element of a crime.   Evidentiary presumptions in instructions to the jury that relieve the prosecution of that burden are unconstitutional.   (Sandstrom, supra, 442 U.S. at p. 524, 99 S.Ct. at p. 2459;  Hedgecock, supra, 51 Cal.3d at p. 407, 272 Cal.Rptr. 803, 795 P.2d 1260.)   Hammond claims the trial court's instructions that speeding and running a stop sign are inherently dangerous acts set up a presumption that relieved the prosecution of its burden of proving an element of second degree murder based on implied malice.

 To convict a defendant of second degree murder, the prosecution must prove that a human being was killed, the killing was unlawful, and the killing was done with malice aforethought.  (Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)  “Implied malice ․ has both a physical and a mental component.   The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’   [Citation.]  The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and ․ acts with a conscious disregard for life.’  [Citation.]”  (People v. Patterson (1989) 49 Cal.3d 615, 626, 262 Cal.Rptr. 195, 778 P.2d 549.)

The jury was instructed, “ ‘Malice’ may be either express or implied.   [¶] [Malice is express when there is manifested an intention unlawfully to kill a human being.]  [¶] [Malice is implied when:  [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.]”  (CALJIC NO. 8.11.)   The jury was further instructed, pursuant to CALJIC No. 8.95, “A violation of the basic speed law is the commission of an act inherently dangerous to human life and safety, ․”

B. Standard of Review.

To resolve Hammond's claim of error, we must first determine whether the challenged instructions created a mandatory presumption rather than merely a permissive presumption.  (Sandstrom, supra, 442 U.S. at p. 524, 99 S.Ct. at p. 2459.)   If we conclude that the presumption was mandatory, we then consider whether other instructions explained the “infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption.  [Citation.]”  (Francis v. Franklin (1985) 471 U.S. 307, 315, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344.)   Finally, if we conclude the instruction was reasonably understood to have relieved the prosecution of its burden of proving an element of the offense, we then determine the effect of the error.  (Carella v. California (1989) 491 U.S. 263, 109 S.Ct. 2419, 105 L.Ed.2d 218 (per curiam);  Rose v. Clark (1986) 478 U.S. 570, 580, 106 S.Ct. 3101, 3107, 92 L.Ed.2d 460;  Hedgecock, supra, 51 Cal.3d at p. 410, 272 Cal.Rptr. 803, 795 P.2d 1260.)

C. Distinction Between Mandatory and Permissive Presumptions.

 A mandatory presumption requires the jury to infer an elemental fact, such as intent or malice, from proof of a basic fact, such as a knowing act.  (Ulster County Court v. Allen (1979) 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777.)   Mandatory presumptions violate the Due Process Clause if the presumed fact is an element of the offense for which the prosecution should bear the burden of proof.   In contrast, a permissive presumption permits the jury to infer the elemental fact upon proof of the basic fact, but does not require such an inference.   The prosecution retains the burden of proof because it still must convince the jury that it should infer the elemental fact based on the basic facts proved.   Permissive presumptions are constitutional if the predicate facts and presumed facts are rationally connected.  (Id. at pp. 157–159, 99 S.Ct. at pp. 2224–2226.)

In Sandstrom, the court found unconstitutional a jury instruction which created a mandatory presumption of intent upon proof of other elements of the offense of murder.   The jury was instructed, “ ‘[T]he law presumes that a person intends the ordinary consequences of his voluntary acts.’ ”   (Sandstrom, supra, 442 U.S. at p. 513, 99 S.Ct. at p. 2453.)   The court explained, “[A] reasonable jury could well have interpreted the presumption as ‘conclusive,’ that is, not technically as a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption.   Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant's voluntary actions (and their ‘ordinary’ consequences), 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.”  (Id. at p. 517, 99 S.Ct. at p. 2456.)

In Yates v. Aiken (1988) 484 U.S. 211, 108 S.Ct. 534, 98 L.Ed.2d 546, the court found unconstitutional an instruction which stated, “ ‘[M]alice is implied or presumed from the use of a deadly weapon.’ ”  (Id. at p. 212, 108 S.Ct. at p. 535.)   In Doucette v. Vose (1st Cir.1988) 842 F.2d 538, 539, the court found unconstitutional an instruction which stated, “When the killing is caused by the intentional use of a deadly weapon, such as a knife, there arises a presumption that the killing was with malice aforethought.”   In Hill v. Maloney (1st Cir.1990) 927 F.2d 646, 648, the court found unconstitutional an instruction which stated, “ ‘[M]alice is implied from any deliberate or cruel act against another, however sudden.’ ”   In each case, the offending instruction was phrased in unqualified terms, such that the jury had no choice but to apply the presumption.

California courts have found an impermissible mandatory presumption when the jury was instructed that a bone fracture constituted substantial and significant injury for purposes of a great bodily injury enhancement.   (People v. Beltran (1989) 210 Cal.App.3d 1295, 1303, 258 Cal.Rptr. 884;  accord, People v. Nava (1989) 207 Cal.App.3d 1490, 1498, 255 Cal.Rptr. 903.)  “ ‘Even such a simple concept as “a gun is a firearm,” must be conveyed to the jury in definitional terms so as to permit the jury to apply the instruction in its factfinding/law-applying function.’  [Citation.]”  (Beltran, supra, 210 Cal.App.3d at pp. 1304–1305, 258 Cal.Rptr. 884.)   More recently, the court found error in an instruction to the effect that homicide was a reasonable and natural consequence of a gang attack.  (People v. Godinez (1992) 2 Cal.App.4th 492, 3 Cal.Rptr.2d 325.)

Here, the jury was instructed, pursuant to CALJIC No. 8.95 and a special prosecution instruction, that speeding and running a stop sign “[are] act[s] inherently dangerous to human life or safety.”   This language appears to state an unswerving principle of law, just like the offending language in Sandstrom and the other cases listed above.   The jury was not told it had a choice, or that it might reasonably infer that certain acts were inherently dangerous.   It was told that the acts were inherently dangerous.  (See Sandstrom, supra, 442 U.S. at p. 515, 99 S.Ct. at p. 2454.)   The instruction was phrased in unqualified terms.  “It is clear that a reasonable juror could easily have viewed such an instruction as mandatory.”   (Sandstrom, supra, 442 U.S. at p. 515, 99 S.Ct. at p. 2454.)

D. Other Instructions.

 We next consider whether other instructions cured any erroneous impression that the offending language created a mandatory presumption.   (Franklin, supra, 471 U.S. at p. 315, 105 S.Ct. at p. 1971.)   We note that general instructions on the presumption of innocence are not alone sufficient to offset an unconstitutional mandatory presumption.  “The jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.”  (Sandstrom, supra, 442 U.S. at pp. 518–519, fn. 7, 99 S.Ct. at p. 2456, fn. 7.)

The People contend that the instruction applied only to the lesser included offense of vehicular manslaughter and had “nothing to do with” the second degree murder charge.⁸  However, no other instructions informed the jury that the challenged instructions applied only to vehicular manslaughter.   No other instructions explained to the jury that it must independently determine whether Hammond's acts were dangerous to human life despite being told that certain acts were inherently dangerous as a matter of law.   Rather, the jury was instructed pursuant to CALJIC No. 8.11 that malice is implied when a killing results from an intentional act and “[t]he natural consequences of the act are dangerous to human life.”   We conclude that no other instructions offset the effect of the mandatory presumption.

E. Effect of Error.

 Finally, we consider the effect of the error.  (Carella, supra, 491 U.S. 263, 109 S.Ct. 2419;  Hedgecock, supra, 51 Cal.3d at p. 410, 272 Cal.Rptr. 803, 795 P.2d 1260.)   The California Supreme Court has stated, “[W]hen a trial court instructs the jury that an element of the offense charged is conclusively presumed, the effect of the error appears to be measured by the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman v. California (1967) 386 U.S. 18, 21 [87 S.Ct. 824, 826, 24 A.L.R.3d 1065].  [Citations.]   But when the error renders the trial ‘fundamentally unfair,’ the error is reversible per se.  (Rose v. Clark, supra, 478 U.S. at pp. 577–578 [106 S.Ct. at pp. 3106, 92 L.Ed.2d at pp. 470–471];  People v. Hernandez (1988) 46 Cal.3d 194, 210–211 [249 Cal.Rptr. 850, 757 P.2d 1013].)”   (Hedgecock, supra, 51 Cal.3d at p. 410, 272 Cal.Rptr. 803, 795 P.2d 1260.)

To assess the effect of the error, we consider whether there was a reasonable possibility the error contributed to the verdict.  (Godinez, supra, 2 Cal.App.4th at p. 503, 3 Cal.Rptr.2d 325.)   If a reasonable jury could have concluded that Hammond's acts were not dangerous to human life, the error is prejudicial.   In this case, the error did not make Hammond's trial fundamentally unfair so as to require reversal per se.   The defense essentially conceded that Hammond's acts were dangerous to human life.   The thrust of the defense was that Hammond did not deliberately disregard a known danger.   We conclude the error was harmless beyond a reasonable doubt.   No reasonable jury could have found that Hammond's acts were not dangerous to human life.

III

JURY INSTRUCTIONS ON INHERENTLY DANGEROUS ACTS

 In our view, the challenged instructions suffer from an additional defect.   We disagree that a violation of the basic speed law or running a stop sign are “inherently dangerous” acts as that term has evolved in case law.

The jury was instructed on the lesser offense of vehicular manslaughter without gross negligence.   The instruction, based on CALJIC No. 8.90, stated, “Every person who drives a vehicle without gross negligence and unintentionally but unlawfully kills another human being is guilty of the crime of vehicular manslaughter in violation of Penal Code Section 192(c)(2).  [¶] A killing is unlawful when a person commits an act inherently dangerous to human life or safety, amounting to a misdemeanor or an infraction, ․” (Emphasis added.)

Vehicular manslaughter may be based on driving a vehicle in the commission of “an unlawful act, not amounting to felony.”  (§ 192, subd. (c)(2).)   Identical language appears in the statutory definition of involuntary manslaughter.  (§ 192, subd. (b).)

Courts have interpreted the involuntary manslaughter statute as requiring the prosecution to “prove, beyond a reasonable doubt, that the accused either committed an act inherently dangerous to human life or safety amounting to a misdemeanor or infraction, or negligently committed an act ordinarily lawful which might produce death.”  (People v. Durkin (1988) 205 Cal.App.3d Supp. 9, 12, 252 Cal.Rptr. 735.)   This states the general principle that “Settled judicial interpretation has tempered the statutory definition of involuntary manslaughter:  when the killing results from ‘an unlawful act not amounting to a felony,’ the crime is involuntary manslaughter only if the act is dangerous to human life or safety.  [Citation.]”  (People v. Wright (1976) 60 Cal.App.3d 6, 10, 131 Cal.Rptr. 311;  see also People v. Armitage (1987) 194 Cal.App.3d 405, 414, fn. 5, 239 Cal.Rptr. 515;  People v. Wong (1973) 35 Cal.App.3d 812, 829, 111 Cal.Rptr. 314.)   In light of the fact that the Legislature used identical language in the definition of vehicular manslaughter, we conclude the same interpretation should apply.

 In the context of the felony-murder doctrine, courts have traditionally defined acts inherently dangerous to human life as acts that “cannot be committed without creating a substantial risk that someone will be killed, ․” (See People v. Burroughs (1984) 35 Cal.3d 824, 833, 201 Cal.Rptr. 319, 678 P.2d 894.)   To determine whether a crime is inherently dangerous, the court must look at the elements of the crime in the abstract rather than considering the particular facts of the crime.  (People v. Patterson (1989) 49 Cal.3d 615, 622–627, 262 Cal.Rptr. 195, 778 P.2d 549.)

A. Violating the Basic Speed Law.   The primary element of violating the basic speed law is driving at a speed greater than is reasonable or prudent.   (Veh.Code, § 22350.)   The Legislature added that one shall not drive a vehicle in such a way as to create a danger to persons or property.   (Ibid.)  This additional statement suggests that the Legislature perceived that the infraction could be committed without endangering human life.  (Cf. Wright, supra, 60 Cal.App.3d at p. 11, 131 Cal.Rptr. 311.)   We agree.

There is a great difference between doing an act which may not be reasonable or prudent and doing an act which creates a probability or substantial likelihood that death will ensue.   Thus, in our view, violation of the basic speed law, in the abstract, is not an inherently dangerous act for purposes of the vehicular manslaughter statute.   However, the California Supreme Court has held that such a violation may be the predicate offense for an involuntary manslaughter conviction.  (People v. Mitchell (1946) 27 Cal.2d 678, 683, 166 P.2d 10.) ⁹

B. Running a Stop Sign.   A violation of Vehicle Code section 22450 may be accomplished by proceeding through a stop sign at a speed of two-to-four-miles per hour (Shiya v. Reviea (1953) 122 Cal.App.2d 155, 163, 264 P.2d 190;  Inouye v. McCall (1939) 35 Cal.App.2d 634, 638, 96 P.2d 386) or by stopping too far back from the limit line (Greene v. M. & S. Lumber Co. (1951) 108 Cal.App.2d 6, 10, 238 P.2d 87).   In these instances, we cannot say that a violation of the statute is inherently dangerous.¹⁰  We conclude that a violation of Vehicle Code section 22450, in the abstract, is not an inherently dangerous act for purposes of the vehicular manslaughter statute.   Nonetheless, for the reasons expressed above, the error was harmless beyond a reasonable doubt.

IV

INSTRUCTION ON FLIGHT**

V

EVIDENCE OF HAMMOND'S PAROLE STATUS

 Hammond moved under Evidence Code section 352 to exclude evidence of his parole status.   He now contends the trial court erred in admitting testimony that he was a parolee at large, and a warrant for his arrest had been issued before the incident.   He argues that evidence of his parole status was not probative of implied malice, the only mental state in issue.   He asserts implied malice concerned his subjective awareness of the risk his conduct created, not his motive for undertaking the risk.   His motive in fleeing the officers was to avoid arrest for parole violations.

The trial court is vested with broad discretion in determining the admissibility of evidence.   Its exercise of discretion under Evidence Code section 352 will not be disturbed on appeal absent a clear abuse of that discretion, “i.e., unless the prejudicial effect of the evidence clearly outweighs its probative value.  [Citation.]”  (People v. Karis (1988) 46 Cal.3d 612, 637, 250 Cal.Rptr. 659, 758 P.2d 1189.)

The mental state required to prove the murder charge contained two elements:  a consciousness of the risk and a deliberate disregard of the known risk.   Although Hammond's parole status was not probative of his knowledge of the risk, it was probative of his willingness to disregard the risk to others in his effort to escape arrest.   The trial court did not abuse its discretion in admitting evidence of Hammond's parole status.

VI–VIII***

DISPOSITION

The judgment is affirmed.   The matter is remanded for resentencing on the prior felony conviction under section 667.5, subdivision (b) in a manner consistent with the views stated in this opinion.

I concur in the disposition reached by the majority and in portions I, II, IV, V, VI, VII and VIII of the opinion.

As to part II, the jury instructions on acts inherently dangerous to life, I would add to the majority opinion that a commonsense reading of the instructions given at trial demonstrates that second degree murder and vehicular manslaughter share the element of including an act dangerous to life.   Where they differ is in their intent requirements—the former requires that the defendant realize the risk of his act and act in total disregard of the danger, and the latter applies when the defendant does not realize the risk involved.   During closing argument, defense counsel frequently referred to this essential difference, and while he did not expressly concede that Hammond was guilty of vehicular manslaughter, he repeatedly stated that Hammond had committed dangerous acts in speeding and failing to stop, thereby, in fact, admitting that he was guilty of the offense.

Part III of the majority opinion is unnecessary to its outcome, and I do not concur in it.

FOOTNOTES

1.   All further statutory references are to the Penal Code unless otherwise indicated.

2.   On our own motion, we requested the parties to provide supplemental briefing on whether imposing a concurrent term for a prior felony was unauthorized under section 667.5, subdivision (b).   Such error is reviewable under section 1238, subdivision (a)(10).

3.   The court noted that the evidence did not “conclusively demonstrate implied malice” (Watson, supra, 30 Cal.3d at p. 301, 179 Cal.Rptr. 43, 637 P.2d 279) and was not necessarily sufficient to convict defendant of second degree murder.   The court cautioned that it “neither [contemplated] nor [encouraged] the routine charging of second degree murder in vehicular homicide cases.”  (Ibid.)  Rather, it “merely [determined] that the evidence before [it was] sufficient to uphold the second degree murder counts in the information, and to permit the prosecution to prove, if it [could], the elements of second degree murder.”  (Ibid.)

4.   “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”  (Veh.Code, § 22350.)

5.   “The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection, or railroad grade crossing shall stop at a limit line, if marked, otherwise before entering the crosswalk on the near side of the intersection.  [¶] If there is no limit line or crosswalk, the driver shall stop at the entrance to the intersecting roadway or railroad grade crossing.”  (Veh.Code, § 22450.)

6.   The jury was instructed, “A violation of the basic speed law is the commission of an act inherently dangerous to human life and safety amounting to a misdemeanor or an infraction.”The jury was further instructed, “A violation of [Vehicle Code section 22450, failure to stop at a stop sign] is an act inherently dangerous to human life or safety, amounting to an infraction.”

7.   Although Hammond cited numerous cases in support of his position, the Attorney General failed to discuss the holdings of those cases, and simply asserted, without citation to relevant authority, that there was no error.   We must therefore determine the issue without the benefit of the Attorney General's research and analysis.   We remind the Attorney General that counsel's duty to assist the court includes a duty to study and discuss the available authorities.  (People v. Taylor (1974) 39 Cal.App.3d 495, 496, 114 Cal.Rptr. 169.)

8.   In fact, the prosecutor argued to the jury, “The natural consequences are dangerous to life.   Again, there's no question.   You've heard [the trial court] instruct you as to the law.”

9.   In Mitchell and cases following it (People v. Martin (1955) 136 Cal.App.2d 709, 712–714, 289 P.2d 69;  People v. Flores (1947) 83 Cal.App.2d 11, 13–14, 187 P.2d 910;  and People v. Lett (1947) 77 Cal.App.2d 917, 920, 177 P.2d 47) the courts did not state that a violation of Vehicle Code section 22350 is inherently dangerous;  rather, the courts indicated that the violation could support an involuntary or vehicular manslaughter conviction.Both Mitchell, supra, 27 Cal.2d 678, 166 P.2d 10 and Martin, supra, 136 Cal.App.2d 709, 289 P.2d 69 dealt with the People's appeal from the dismissals of actions under section 995.   In Mitchell, the defendant was charged with involuntary manslaughter.   The court concluded, “From the evidence before the committing magistrate in the present case it would be reasonable to conclude that defendant drove his automobile not only in violation of [the Vehicle Code] but in reckless disregard for the safety of others.”  (Id., 27 Cal.2d at pp. 683–684, 166 P.2d 10, emphasis added.)In our view, this language does not support an instruction to the jury that violation of the basic speed law is inherently dangerous.   The question before the Mitchell court was simply whether, on the basis of evidence presented to the magistrate, the defendant's acts justified holding him to answer on a charge of involuntary manslaughter.   Likewise, the Martin court simply stated that the evidence before the magistrate was sufficient to hold the defendant to answer.  (Martin, supra, 136 Cal.App.2d at p. 712, 289 P.2d 69.)   This is a far cry from determining that his acts, as a matter of law, were inherently dangerous to human life.However, the Mitchell court continued, “In this state it is settled that a person commits an unlawful act within the meaning of section 192 if he violates speed laws designed to prevent injury to the person, and that he is guilty of involuntary manslaughter if death is caused thereby.   [Citations.]”  (Mitchell, supra, 27 Cal.2d at p. 683, 166 P.2d 10.)   The court further stated, “ ‘It is ․ practically agreed ․ that if the act is a violation of a statute intended and designed to prevent injury to the person, and is in itself dangerous, and death ensues, that the person violating the statute is guilty of manslaughter at least․’  [Citations.]”  (Ibid.)   The court did not discuss whether the defendant's acts, which included apparent violations of several Vehicle Code sections, were inherently dangerous.The court in Lett, supra, 77 Cal.App.2d 917, 920, 177 P.2d 47, announced, “Violation of the [basic speed law] was negligence as a matter of law.”   This statement does not support a jury instruction that a violation of the basic speed law is inherently dangerous as a matter of law.In Flores, supra, 83 Cal.App.2d 11, 187 P.2d 910, the court stated, “Speed laws are designed to prevent injury to persons, and when an accused is found to have committed a homicide while violating such laws, he is guilty of involuntary manslaughter.  [Citation.]  In such a situation, it is not necessary that his driving should have been wanton or reckless.   A finding that he was grossly negligent is sufficient to support the conviction.  [Citation.]”  (Flores, supra, 83 Cal.App.2d at pp. 13–14, 187 P.2d 910.)

10.   A few moments' reflection will reveal that most of us have technically violated this statute.   Almost certainly, most of us did not feel we were endangering life or safety when doing so.

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

DABNEY, Associate Justice.

McDANIEL, J.,† concurs.