WATSON MURDER & IMPLIED MALICE
The California Supreme Court in the landmark case of People v. Watson (1981) 30 Cal 3rd 290 judicially created the crime of second degree murder, based upon an implied malice theory when a death or deaths occur as a result of a person driving impaired by alcohol and/or drugs. The critical element that distinguishes this type of second degree murder from gross vehicular manslaughter is the presence of implied malice rather than gross negligence. The Watson Court in defining this difference stated:
“The requisite culpability for the vehicular manslaughter charged here is gross negligence which has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. Though these definitions bear a general similarity, they are not identical. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.” 30 Cal 3rd at 296. Citations omitted.
Implied malice is defined by CALCRIM 520 as an intentionally committed act, that the natural consequences of what are dangerous to human life and that the person knew that the act was dangerous to human life and deliberately acted with conscious disregard for human life.
The mental state of the accused is often the most significant issue in a Watson prosecution. Implied malice does require sufficient proof that the defendant deliberately acted with conscious disregard to human life, knowing that the acts were dangerous to human life. Thus, the actual mental state of a defendant becomes highly relevant in a Watson prosecution and the prosecutor is allowed to present evidence to establish that subjective mental state.
This evidence generally concerns a defendant’s prior conduct and knowledge of the dangers of drinking and driving in order to establish preexisting knowledge of the dangers of driving while intoxicated. The evidence usually includes evidence of prior DUI convictions, including dockets, transcripts and waiver forms which include the “Watson” admonitions if the prior is relatively recent. This admonition which must be included in all DUI tahl waiver forms, advises the defendant that “I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle, and is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder.”
Often the prosecution will also present evidence of the actual facts and circumstances of the defendant’s prior convictions. Police officers, civilian witnesses and/or criminalists are called and the effect is a mini DUI trial being tried as part of the Watson murder charge.
The prosecution will also introduce evidence of the defendant’s terms and conditions of probation, required attendance at DUI alcohol education programs, the actual content and material taught at the alcohol awareness classes and evidence of the defendant’s course records, including any essays written about the dangers of driving impaired. This evidence is admissible to establish the defendant’s actual knowledge and actual awareness of the risks in driving while impaired.
People v. Autry, 37 Cal. App. 4th 351 (1995), is very instructive for the purpose of evaluating whether there is sufficient evidence to establish the requisite mental state for implied malice. Autry cites several appellate cases and determines that most cases have relied on some or all the following factors in upholding implied malice second degree murder convictions:
Blood alcohol level above the .08% legal limit;
A pre-drinking intent to drive;
Knowledge of the hazard of driving while intoxicated;
Highly dangerous driving;
A factual review of the cases cited in Autry demonstrate the quality of evidence that is required to imply malice in these types of cases.
The Autry case involved a defendant who had four prior driving under the influence convictions, had been in an alcohol treatment program and whose probation officer had warned him not to drink and drive on the very morning of the accident. Nevertheless, with a blood alcohol level of .22, Autry proceeded to drive while drinking, was told to slow down by his passengers after two near accidents and then drove between 80 and 85 miles per hour, ignoring a flashing arrow indicating road construction and proceeded to strike and kill two construction workers.
People v. Olivas, 172 Cal. App. 3rd 984 (1985), involved a defendant under the influence of PCP who drove a speed between 50 and 100 miles per hour in a police pursuit and in a stolen car. Olivas ran four stop signs and three red lights prior to the chase ending when he ran a stop sign while traveling 57 miles per hour in a 25 mile per hour zone and struck a vehicle broadside. Olivas had four prior felony convictions for burglary, grand theft, receiving stolen property and driving or taking a vehicle without consent. People v. Albright, 173 Cal. App. 3rd 883 (1985), involved a defendant who drove 90 to 110 miles per hour on a city street was involved in an intersection collision. Albright’s blood alcohol level was .17, stated he was trying to kill himself and had one prior driving under the influence conviction.
People v. McCarnes, 179 Cal. App. 3rd 525 (1986), involved a defendant with a blood alcohol level of .27% and who drove at a speed of “65+” on a city street and drove on the wrong side of the road and collided head on with another vehicle and had four prior driving under the influence convictions.
People v. Murray, 225 Cal. App. 3rd 734 (1990), involved a defendant who was driving the wrong way on the freeway and whose driving ended with a head on collision. Murray’s blood alcohol level was determined to be between .18 and .23%, had admitted to co-workers that he had recently blacked out while driving after drinking and he had two prior driving under the influence convictions.
People v. David, 230 Cal. App. 3rd 1109 (1991), involved a defendant who under the influence of PCP, between 60 and 80 miles per hour was in a police pursuit and ran five red lights. David had two prior convictions for driving under the influence of PCP. People v. Talamantes, 11 Cal. App. 4th 968 (1992), involved a defendant who was driving at a high rate of speed with a blood alcohol level between a .26 and .31% with two prior driving under the influence convictions.
A review of these cases demonstrates that they all have certain common characteristics. All of the cases involve very high blood alcohol levels at the time of driving. The defendant in almost all of the cases have numerous prior driving under the influence convictions. Most of the cases involve defendants that have had the opportunity to learn through alcohol education programs the dangers of driving and drinking. Although the driving patterns vary, the driving exhibited is highly dangerous over a prolonged period of time and distance.
In summary, the general theme of these cases is that defendants, who have had significant experience and opportunity to learn about the dangers of driving while intoxicated, nevertheless drove in a highly dangerous fashion with high blood alcohol levels.
Another significant issue in all of these prosecutions is whether the defendant’s conduct constituted the proximate cause of the decedent’s death. A necessary element in these types of prosecutions is that the defendant’s conduct be the proximate cause of the accident resulting in death. When the conduct of two or more persons, including the conduct of the decedent, contributes concurrently as a cause of the death, the conduct of each is a cause of the death if the conduct was also a substantial factor contributing to the result. Mitchell v. Gonzales, 54 Cal. 3rd 1041 (1991).
The contributing negligence of the decedent or a third party does not automatically relieve a criminal actor of liability. However, such contributing negligence will relieve a criminal actor of liability if the decedent or a third party’s conduct was the sole or superceding cause of the death. People v. Pike, 197 Cal. App. 3rd (1988). Thus, defendant will be relieved of criminal responsibility if an intervening or superceding cause breaks the chain of causation after the defendant’s original act or as stated in People v. Autry (1995) 37 Cal. App.4th 351 @ 361 “to relieve a defendant of criminal responsibility, an intervening or superseding cause must break the chain of causation after the defendant’s original act.”
Thus, People v. Glass, 266 Cal. App. 2nd 222 (1968), the defendant’s conviction of vehicular manslaughter, after striking two members of a road way repair crew, was reversed because the trial court did not allow defense evidence that a flagman was not present to warn of the repair work, which had considerably narrowed the street and evidence that no speed reduction signs were posted and no barricades were erected to direct traffic around the work. The appellate court held that the evidence should have been admitted because it was relevant, in part, on the issue as to whether or not the unsafe condition of the road was the sole cause of the accident.
GROSS & NEGLIGENT VEHICULAR MANSLAUGHTER
There are two types of vehicular manslaughter involving vehicular manslaughter while intoxicated. The more serious charge is gross vehicular manslaughter, a violation of Penal Code Section 191.5(a). That code section provides in relevant part:
“ Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152 or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.”
The least serious charge is vehicular manslaughter without gross negligence, a violation of Penal Code Section 191.5(b). The relevant portion of that code section provides as follows:
“Driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.”
The significant difference between these charges is the degree of negligence. Ordinary negligence is defined by CALCRIM 591as the failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else. By contrast, gross negligence is defined in CALCRIM 590 as acting in a reckless way that creates a high risk of death or great bodily injury and that a reasonable person would have known that acting that way would have created such a risk. Further, a person acts with gross negligence when the way he or she acts is so different from the way an ordinary careful person would act in the same situation that his or her acts amounts to a disregard for human life or indifference to the consequences of the act. Case law defines gross negligence as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. It is the state of mind of a person who acts with conscious indifference as to the consequences is simply, “I don’t care what happens.” The test is objective; whether a reasonable person in the defendant’s position would have been aware of the risk involved. People v. Ochoa (1993) 6 Cal. 4th 1199. The objective standard does not limit the introduction of prior misconduct evidence as the Courts have interpreted that the objective person as a person in the defendant’s position. Therefore, the prosecution is allowed to introduce evidence of prior conviction and the defendant’s attendance and participation in alcohol rehabilitation programs in gross vehicular manslaughter prosecutions.
There are various issues that pertain to sentencing in these cases. The second degree murder charge carries a sentence of 15 years to life. The gross vehicular manslaughter charge carries a range of sentences from 4, 6, or 10 years. The negligence vehicular manslaughter charge carries a sentence with a range of 16 months, 2 or 4 years.
However, Penal Code Section 191.5(b) elevates the penalty for gross vehicular manslaughter to 15 years to life, the same as the second degree murder conviction, if the defendant has suffered certain prior convictions. The sentence is elevated if the person has a prior vehicular driving impaired manslaughter conviction or if the defendant has twice been convicted of driving under the influence. This means that any defendant, who has twice been convicted of DUI, faces 15 years to life if convicted for violation of Penal Code Section 191.5(a), gross vehicular manslaughter while intoxicated. Both gross vehicular manslaughter while intoxicated and negligent vehicular manslaughter while intoxicated are serious felonies under the 3 strikes law. A defendant, who is sentenced to prison will receive 50% custody time credits.
The real problem in this area is Penal Code Section 12022.7 which imposes additional terms of imprisonment for persons inflicting great bodily injury while committing a felony. The situation often arises where passengers involved in a collision incur great bodily injury, in addition to death or deaths arising out of the same collision. Penal Code Section 12022.7(a) imposes an additional consecutive term of imprisonment for 3 years upon a person who inflicts great bodily injury and subdivision (b) of that section imposes an additional consecutive term of imprisonment for 5 years upon a person or persons who inflicts great bodily injury that causes the victim to become comatose due to brain injury or suffer paralysis of a permanent nature. The Penal Code Section 12022.7 allegation is a violent felony under the 3 strikes law and consequently, in addition to imposing significantly more time, requires that the defendant actually serve 85% of the entire sentence. The ultimate effect is to significantly increase a defendant’s maximum exposure in cases where there is death and seriously injured victims.
Finally, Vehicle Code Section 23558 provides for an additional one-year sentence enhancement for proximately causing bodily injury to more than one victim, up to a maximum of 3 years. This section does not affect time credits as does the Penal Code Section 12022.7 enhancements.
Richard A. Hutton is a partner is the Pasadena law firm of Hutton-Wilson. He has lectured extensively in the field of criminal law, with emphasis in driving under the influence cases. He has previously taught classes for the U.S.C. Advanced Professionalism Program on the subject of driving under the influence. He has lectured to various bar association groups, including California Attorneys for Criminal Justice, San Diego Trial Lawyers Association, Criminal Courts Bar Association, and Orange County Trial Lawyers. He has authored numerous articles on driving under the influence that have been published in numerous periodicals including Scientific and Expert Evidence, Second Edition.