IN RE: JOSEPH G. (1982)

On January 22, 1981, the District Attorney of Ventura County filed a petition alleging that appellant Joseph G. was a minor within the provisions of section 602 of the Welfare and Institutions Code because he had committed murder (Pen.Code, § 187, count I) and had aided the suicide of another (Pen.Code, § 401, count II).   After the first stage of a bifurcated hearing, the court found the evidence sufficient to establish the corpus delicti of the crime of homicide and thereafter allowed the introduction of appellant's admissions;  at the conclusion of the second stage, the court determined that appellant had committed murder in the first degree and dismissed count II as not applicable.

On appeal, the minor contends that the evidence was insufficient to establish the corpus delicti of the crime of homicide;  that it was insufficient to prove the petition beyond a reasonable doubt;  and in the alternative, that appellant was at most guilty of either violating section 401 of the Penal Code (deliberately aiding, advising, or encouraging another to commit suicide), or of manslaughter.

FACTS

On the afternoon of November 17, 1980, appellant Joseph G. (Joe) and Jeff Westerberg, both age 16, gave their friends Hollis Troxler and Kelly Lovelace a ride home from school in Joe's car.   Later that evening, Hollis and Kelly met Joe, Jeff and three other friends at the public library next to their high school.   The right front fender and door of Joe's car were now damaged and the right front tire was flat.   Joe said he had hit something.

The youths decided to take Kelly's car for a cruise around town.   About an hour later, they returned to the library, where a number of other students joined them.   Although the evidence is somewhat in conflict, this was apparently the first time that Joe and Jeff began talking about “the cliff,” a curve and car turnout overlooking a 300- to 350-foot cliff on a road outside of Fillmore.   Joe and Jeff announced that they would drive off the cliff and kill themselves.   Their listeners did not believe them.   Joe and Jeff, however, were serious, agreeing with each other, and Joe said, “You don't believe us that we are going to do it.   We are going to do it.   You can read it in the paper tomorrow.”   Jeff also wanted to go, saying he would go up to the curve with Joe and go off with him.   Joe gave one of the girls in the party his baseball hat and said that this was the last time he would see her.   Both Joe and Jeff shook hands, and Jeff was anxious to go.   As they prepared to drive off in Joe's car, Kelly tried to come along, but Joe said, “No, because we don't want to be responsible for you.”

At around 7:30 p. m., Keith Collier and Craig Ballard, two other students at the high school, saw Joe and Jeff drive up to a gas station and fill the right front tire of Joe's car with air.   Joe and Jeff walked over to Keith's car to shake hands, and Joe said, “Shake my hand, and stay cool.”   Jeff said, “Let's go,” and “Remember you shook my hand.”   After Joe drove off with Jeff in the passenger seat, Keith and Craig followed them surreptitiously to see what they would do, barely close enough to observe the car's taillights.   They saw Joe's car drive uphill past the cliff and then saw headlights turn around.   As Keith and Craig passed the cliff, Joe's car passed them in the opposite direction.   In the rearview mirror, Keith saw sparks flying where Joe's car broke through the iron fence and drove off the cliff.

Scott Van Den Ham and three of his friends had parked their cars at the turnout.   They saw Joe's car proceed beyond the cliff and then return at a speed of upward of 50 miles per hour.   A warning sign at the curve indicated a speed limit of 25 miles per hour.   Suddenly the car veered off the road, without skidding or zigzagging, headed straight towards the fence, and sparks flew as if the car's bottom had hit the asphalt.   Mr. Van Den Ham's first impression was that the driver had lost control.   As the car left the road, the men heard its throttle open to accelerate, and then the car crashed through the fence, flying off the cliff.   None of the witnesses saw the car's brakelights flash or brighten.   As a result of the crash Jeff Westerberg died.

The investigating officer found no skid marks on the pavement, but discovered a gouge mark that could have been made by a speeding car going straight towards the fence and hitting its bottom on the rough terrain.   A motorcar safety specialist testified that neither the steering mechanism nor the brake system of Joe's car was defective.

On Christmas Day 1981, appellant talked to his high school friend James Peery about the crash.   He told James that he and Jeff had no reason for the act, but did it “[j]ust to get it over with.”   Before the car went over he told Jeff, “I guess this is it, Westerberg.   Take it easy.”   Joe now felt that the act had been “stupid,” but insisted that he had done it on purpose.

For the defense, an officer experienced in investigating suicides stated that although suicide victims frequently leave notes behind, he found no such note in Joe's car.   Appellant's father testified that Joe never talked about committing suicide, never gave any indication that he was unhappy with his life, and the night before the incident gave no indication that he might attempt to take his life.

1. The Corpus Delicti.

Appellant first contends that the evidence adduced at the first stage of the bifurcated hearing was insufficient to establish the corpus delicti for homicide.

 The corpus delicti of a crime must be established by evidence independent of the extrajudicial statements of the accused.   (People v. Mehaffey, 32 Cal.2d 535, 544–545, 197 P.2d 12.)   In a homicide case, the elements to be proven are the death of a human being and the criminal agency of another.  (People v. Cooper, 53 Cal.2d 755, 3 Cal.Rptr. 148, 349 P.2d 964.)   The corpus delicti may be established entirely by circumstantial evidence and the reasonable inferences to be drawn therefrom, and need only be proven by a “reasonable probability” or slight, prima facie proof.  (People v. Mehaffey, supra, 32 Cal.2d 535, 544–545, 197 P.2d 12.  People v. Ramirez, 91 Cal.App.3d 132, 137, 153 Cal.Rptr. 789.)   An equally plausible noncriminal explanation of the event does not compel a finding of lack of criminal agency.  (People v. Jacobson, 63 Cal.2d 319, 327, 46 Cal.Rptr. 515, 405 P.2d 555, cert. den. 384 U.S. 1015, 86 S.Ct. 1954, 16 L.Ed.2d 1036;  People v. Ramirez, supra, 91 Cal.App.3d at p. 137, 153 Cal.Rptr. 789.)

 At the first stage of appellant's hearing, counsel stipulated that Jeff Westerberg died as the result of the crash on November 17.   Five witnesses testified, carefully omitting Joe's own statements and admissions.   Kelly Lovelace related that after their cruise around town, Jeff told him that he and Joe were going to “fly off” the cliff together.   Keith Collier saw Joe and Jeff put air in the flat front tire at the gas station.   He recalled how both boys shook hands with him, Jeff saying, “Remember you shook my hands”;  how Joe drove off with Jeff in the passenger seat;  how their behavior made him follow them;  and how he saw Joe's car pass him and break through the fence.   Scott Van Den Ham testified that he saw Joe's car drive through the curve posted at 25 miles per hour at upwards of 50 miles per hour, suddenly veer off, accelerate, and head straight toward the fence, without sliding or zigzagging and apparently without activating the brakes.   The investigating officer testified that he found no skid marks, and the safety specialist stated that neither the car's brake system nor its steering mechanism was defective.

This evidence is more than sufficient to prove that a criminal agency caused the death of a human being.   From these facts, the factfinder could infer with reasonable probability that Jeff and Joe formed a suicide pact that led Joe to drive his car off the cliff in order to kill Jeff and himself.   Appellant asserts that the evidence merely shows some daredevil boasts and a tragic accident.   But even assuming that this inference is plausible, the inference of a suicide pact and an intentional killing is at least equally plausible.  (People v. Jacobson, supra, 63 Cal.2d 319, 327, 46 Cal.Rptr. 515, 405 P.2d 555.)   Since at least prima facia evidence supports the corpus delicti, appellant's claim is unpersuasive.

2. Insufficiency of the Evidence.

Appellant next asserts that the evidence was insufficient to sustain the finding of murder in the first degree.

 A defendant is guilty of first degree murder if he acts with malice and commits a willful, deliberate, and premediated killing.   (People v. Anderson, 70 Cal.2d 15, 24, 73 Cal.Rptr. 550, 447 P.2d 942.)   Although in common usage the word “malice” connotes ill will or hatred, in the legal sense it is defined in Penal Code section 188 as “a deliberate intention unlawfully to take away the life of a fellow creature.”   Deliberation and premeditation may be inferred from such facts and circumstances as will furnish a reasonable foundation for the inference, and if the evidence is not in law insufficient, the matter is exclusively within the province of the trier of fact.  (People v. Lookadoo, 66 Cal.2d 307, 315, 57 Cal.Rptr. 608, 425 P.2d 208.)   The type of evidence which sustains a finding of premeditation and deliberation falls into three categories:  (1) “planning” activity, or facts prior to the killing which would show that the defendant was engaged in activity directed toward the killing;  (2) facts about the defendant's prior relationship or conduct with the victim from which the factfinder can reasonably infer a “motive,” which together with facts of type (1) or (3) support an inference of preexisting reflection;  and (3) facts showing that the “manner” of killing was so particular and exacting as to demonstrate a preconceived design to take the victim's life.  (People v. Anderson, supra, 70 Cal.2d at pp. 26–27, 73 Cal.Rptr. 550, 447 P.2d 942;  People v. Smith, 33 Cal.App.3d 51, 63, 108 Cal.Rptr. 698.)

 Despite the bizarre and tragic nature of the events, the evidence in the instant case is sufficient to support a finding of first degree murder.   Joe's intent to take Jeff's life is apparent not only from his use of his car as a deadly weapon (see People v. Lines, 13 Cal.3d 500, 505–506, 119 Cal.Rptr. 225, 531 P.2d 793), but also from his numerous statements prior to the act that he and Jeff would drive off the cliff to kill themselves and from his later admission to James Peery that he “did it on purpose.”   Further, his conduct before the crash shows deliberation and premeditation.   Joe discussed the planned suicide with his friends and with Jeff Westerberg.   It appears that these discussions and preparations took at least 30 minutes and perhaps several hours.   Joe shook hands in farewell and talked of the next day's newspaper reports about him.   He deliberately barred Kelly Lovelace from the car, explaining that he did not intend to be responsible for him;  but with equal deliberation, he took Jeff Westerberg along to die with him.   His conduct certainly indicates preexisting reflection, careful thought and weighing of considerations, and an awareness of the seriousness of the planned act.  (See People v. Anderson, supra, 70 Cal.2d 15, 26–27, 73 Cal.Rptr. 550, 447 P.2d 942.)

Joe also took time to put air in the front tire of his car so that he could reach the agreed upon location for the suicide pact.   He drove his car directly towards the fence at over 50 miles per hour, accelerating at the last moment, and plunged it from a 300- to 350-foot cliff.   The manner of killing was particular, exacting and according to Joe's and Jeff's preconceived design.   The abundant evidence of their mutual suicide pact establishes a motive.   We hold that substantial evidence supports the court's finding of murder in the first degree.

3. The Suicide Pact.

 Appellant argues forcefully that the peculiar circumstances of the killing—a mutual suicide pact resulting in the death of only one of the participants—should reduce the crime to either a felony under Penal Code section 401, or to manslaughter.   These contentions are without merit.

Section 401 provides that “[e]very person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony.”   Apparently, the only California case interpreting this section in a criminal setting is People v. Matlock, 51 Cal.2d 682, 336 P.2d 505.   In Matlock, the defendant asserted that he had robbed and strangled his victim upon the latter's request, and should therefore be guilty only of a felony instead of first degree murder.   The Matlock court rejected the argument.   Quoting an Oregon case interpreting a similar statute, it stated:  “ ‘[T]he statute ․ does not contemplate active participation by one in the overt act directly causing death.   It contemplates some participation in the events leading up to the commission of the final overt act, such as furnishing the means for bringing about death,—the gun, the knife, the poison, or providing the water, for the use of the person who himself commits the act of self-murder.   But where a person actually performs, or actively assists in performing, the overt act resulting in death, such as shooting or stabbing the victim, administering the poison, or holding one under water until death takes place by drowning, his act constitutes murder, and it is wholly immaterial whether this act is committed pursuant to an agreement with the victim, such as a mutual suicide pact.’ ”  (People v. Matlock, supra, 51 Cal.2d at p. 694, 336 P.2d 505.)   The court held that since Matlock by his own account actively strangled his victim, instructions based on Penal Code section 401 were properly refused.  (Id.;  see also Model Pen.Code & Commentaries, Pt. II, § 210.5, p. 91.)

Appellant argues that his actions amounted to no more than “participation in the events leading up to the commission of the final overt act.”   This contention is unpersuasive.   The manner in which appellant used his car is legally indistinguishable from the manner of killing in Matlock.   While Jeff undoubtedly encouraged Joe, Joe had exclusive control of the instrumentality causing the death.   At the last minute, Joe pushed down the accelerator.   He could not have been a more active participant had he strangled his victim, pulled the trigger of a gun, or held the victim's head under water.   The trial court's finding that section 401 is inapplicable to this case was correct.¹

 Appellant's last argument is that the mutual suicide pact somehow vitiates the element of malice and reduces the crime to manslaughter.   However, neither a defendant's motive nor a victim's consent negates the presence of the requisite mens rea for first degree murder.  (See People v. Man, 39 Cal.App.3d Supp. 1, 4, 114 Cal.Rptr. 237;  Tate v. Canonica, supra, 180 Cal.App.2d 898, 908, 5 Cal.Rptr. 28;  Witkin, Cal. Crimes, § 249, p. 233.)   While tragic circumstances such as a suicide pact can be relevant considerations in a sentencing disposition, they do not change the crime itself.  (See People v. Matlock, supra, 51 Cal.2d 682, 693, 336 P.2d 505;  Parrish v. Municipal Court, 258 Cal.App.2d 497, 504, 65 Cal.Rptr. 862.)

The judgment is affirmed.

FOOTNOTES

1.   Appellant urges that the finding of a mutual suicide pact is inconsistent with a conviction of first degree murder because California, along with a number of other states, has rejected the common law punishment for suicide by removing criminal sanctions against the act itself and by declaring that aiding and abetting of suicide is not murder, but is either manslaughter or an independent felony.  (See Tate v. Canonica, 180 Cal.App.2d 898, 5 Cal.Rptr. 28;  Pen.Code, § 401;  Model Pen.Code & Commentaries, Pt. II, § 210.5, subd. 2, p. 91.)   In the instant case, however, the suicide pact was not the basis of the murder conviction.   Joe's actions went far beyond attempted suicide or the aiding and abetting of the suicide of another.   He not only assisted Jeff in his own destruction, but directly controlled and applied the force that killed him.  (See People v. Matlock, supra, 51 Cal.2d at p. 694, 336 P.2d 505.)   Hence, considerations regarding the appropriate punishment for suicides or mutual suicide pacts are not relevant to the case.

ASHBY, Associate Justice.

FEINERMAN, P. J., and HASTINGS, J., concur.