P. v. Reyes

Filed 3/9/06 P. v. Reyes CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

….Continue……..From Part I…

"Murder is the unlawful killing of a human being . . . with malice aforethought." (Pen. Code, § 187, subd. (a).) Murder does not fit within the definition of a general intent crime since the definition of murder requires not only an act that results in death but also that the defendant act with a particular mental state, that is, with malice aforethought. (Ibid.) If the killing occurred without malice aforethought, then an individual is not guilty of murder. (See id., §§ 192, 195, 197.)^[1]

Reyes, relying on a split decision by the Ninth Circuit in Ho v. Carey (9th Cir. 2003) 332 F.3d 587, 592 (Ho), argues the error requires reversal. While we agree with Reyes that the majority decision in Ho supports his argument, we find the Ho majority's reasoning to be flawed and disagree with its conclusion.

In Ho, the defendant, after an angry physical and verbal exchange with the victim, shot the victim three times. The defendant claimed he thought the victim was reaching for a weapon and fired in self-defense. The trial court instructed the jury:

"The crime of murder in the second degree–in the crime charged, murder in the second degree based on implied malice, this instruction applies.

"There must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is acting with general criminal intent even though he or she may not know his act or conduct is unlawful.

"That applies only to murder in the second degree based on the theory of implied malice, and I'll write that down in the form for you." (Ho, supra, 332 F.3d at p. 591, italics omitted.)

The next day, after the prosecutor told the court it had erred by instructing the jury murder was a general intent crime, the court instructed the jury:

"Lastly, this instruction only applies to involuntary manslaughter. In the crime of involuntary manslaughter, 192(b) of the Penal Code, there must exist a union or joint operation of act or conduct and general criminal intent. To constitute general criminal intent, it is not necessary that there should exist an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he or she is acting with general criminal intent even though he may not know that his act or conduct is unlawful." (Ho, supra, 332 F.3d at p. 591.)

The trial court also fully instructed the jury on the elements of murder and the required mental state. The defendant was convicted of second degree murder. His appeal was affirmed by the California Court of Appeal, which found the trial court had committed error but the error was harmless in light of the other instructions. After his petitions for a writ of habeas corpus were rejected by the California courts, the defendant brought a petition for a writ of habeas corpus in federal court.

In granting the habeas petition, the majority in Ho found the court's error to be prejudicial, noting "that the trial court did not, at any time, advise the jury that its instruction that general intent is an element of second-degree murder based on implied malice was erroneous and must be disregarded." (Ho, supra, 332 F.3d at p. 593.) The Ho court rejected the argument that the error was cured by other instructions because "it is reasonably likely that the jury convicted [the defendant] of second-degree murder based on implied malice, after finding that he had the general intent to fire his weapon at [the victim], notwithstanding the evidence he presented that he acted in self-defense." (Id. at p. 595.)

We find the reasoning of the majority to be deeply flawed. First, the Ho majority ignored the presumption that jurors follow the court's instructions (see People v. Holt (1997) 15 Cal.4th 619, 662) and instead presumed the jurors disregarded all the specific instructions detailing the elements necessary for a murder conviction, including the required mental state of malice aforethought. Second, the Ho majority's conclusion the jury might have convicted the defendant of second degree murder even though they found he acted in self-defense is unpersuasive. In Ho, the erroneous general intent instruction told the jury, inter alia: "When a person intentionally does that which the law declares to be a crime, he or she is acting with general criminal intent even though he [or she] may not know [the] act or conduct is unlawful." (Ho, supra, 332 F.3d at p. 591.) The standard instruction on self-defense, which was presumably given in this case (CALJIC No. 5.12), tells a jury: "The killing of another person in self-defense is justifiable and not unlawful . . . ." Thus, even if the jury had credited the erroneous general intent instruction stating it was necessary only to find the defendant had a general intent to "intentionally do[] that which the law declares to be a crime" (Ho, at p. 591), nonetheless, it would not have convicted the defendant of second degree murder (an act the law declares to be a crime) while at that same time finding he had acted in self-defense. No reasonable jury would have found the defendant acted lawfully and without criminal intent because he acted in self-defense and yet at the same time found he acted unlawfully and with malice and committed murder.

Here, we find the court's error was harmless. The court fully instructed the jury on murder, including telling the jury it could not convict Reyes of murder unless the prosecutor had proven Reyes acted with malice aforethought (CALJIC No. 8.10); defined both express and implied malice (CALJIC No. 8.11); and told the jury it was necessary to find Reyes performed the intentional act that killed the victim "with knowledge of the danger to, and with conscious disregard for, human life" (CALJIC No. 8.31). Further, the court instructed the jury on the difference between gross negligence and implied malice and that implied malice required "proof beyond a reasonable doubt that while driving, the defendant actually and personally knew that the natural consequences of driving in the manner he did were dangerous to human life." Finally, we note that in response to a jury note the court told the jury that to return a murder conviction, it was necessary they find beyond a reasonable doubt all the elements of murder listed in CALJIC Nos. 8.10 (elements required for a murder conviction) and 8.31 (elements required for implied malice second degree murder). There is not even the remotest possibility the jury ignored all these specific instructions detailing the elements and mental state for second degree murder and instead relied exclusively on the one instruction listing murder as a general intent crime.

Reyes nonetheless argues the error requires reversal. He argues the jury could have returned a second degree murder conviction based only on finding he "simply intended to drive as he did on May 10" without also finding he had "the specific intent to do a dangerous act." We disagree since the jury was specifically told that a murder conviction required a finding of malice and that implied malice required a finding of "proof beyond a reasonable doubt that while driving, the defendant actually and personally knew that the natural consequences of driving in the manner he did were dangerous to human life." If the jury had made the findings Reyes suggested, that is, that he lacked any intent to do a dangerous act, they would have returned a verdict of vehicular manslaughter. Moreover, as we explain in part IV, there was abundant evidence showing Reyes acted with implied malice, that is, that he specifically intended to do a dangerous act. Given his repeated and extremely reckless and dangerous driving during police pursuits on May 6 and the evidence showing he was not merely speeding on May 10 but also engaging in dangerous passing maneuvers while fleeing from the police, it is highly unlikely the jury returned a guilty verdict solely on the basis Reyes had only a general intent to exceed the speed limit rather than on the basis Reyes acted with implied malice.

In sum, the minor instructional error committed by the court does not warrant reversal of the murder conviction.

III

Requested Instructions on Implied Malice

Reyes contends the court erred in refusing his request to instruct the jury that a finding of implied malice requires a high probability that the defendant's act would result in death.

The court gave the jury the standard instruction, CALJIC No. 8.31 on second degree murder, which states:

"Murder of the second degree is the unlawful killing of a human being 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.

"When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being." (Italics added.)

This instruction "correctly distills the applicable law." (People v. Nieto Benitez (1992) 4 Cal.4th 91, 111.) When the court gives the "conscious disregard" instruction, it is not necessary to instruct the jury that the "defendant commit the act with a high probability that death will result" because "the two linguistic formulations--'an act, the natural consequences of which are dangerous to life' and 'an act [committed] with a high probability that it will result in death' are equivalent and are intended to embody the same standard." (Ibid; see also People v. Curtis (1994) 30 Cal.App.4th 1337, 1353 [rejecting a contention that the " 'conscious disregard' [instruction] is defective because . . . it fails to require that the defendant's act must involve a high probability of death" because the Supreme Court has repeatedly stated "that the 'conscious disregard' and [high probability of death instructions] are equivalent to each other" and has expressly approved the "conscious disregard" instruction].) Accordingly, the court properly rejected Reyes's proposed instruction; the trial court is not required to give instructions that "are repetitious of others, or merely elaborate on the general instructions." (People v. Thongvilay (1998) 62 Cal.App.4th 71, 82; People v. Sanders (1995) 11 Cal.4th 475, 560.)

IV

Sufficiency of Evidence - Implied Malice

Reyes contends his murder conviction must be reversed because there is insufficient evidence to support a finding of implied malice. Specifically, he contends there was insufficient evidence to show he was subjectively aware his conduct was dangerous.

" 'The role of an appellate court in reviewing the sufficiency of the evidence is limited. The court 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." [Citations.] [¶] . . . But it is the jury, not the appellate court, which must be convinced of the defendant's guilt beyond a reasonable doubt.' " (People v. Sanchez (1998) 62 Cal.App.4th 460, 468, quoting People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139, italics omitted.)

We " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' " (People v. Davis, supra, 10 Cal.4th 463, 509; In re Manuel G. (1997) 16 Cal.4th 805, 822.) We do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Green (1997) 51 Cal.App.4th 1433, 1437.) "Before a judgment of conviction can be set aside for insufficiency of the evidence to support the trier of fact's verdict, it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support it." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765.)

"[I]mplied malice has both a physical and a mental component, the physical component being the performance of ' "an act, the natural consequences of which are dangerous to life," ' and the mental component being the requirement that the defendant ' "knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life." ' " (People v. Hansen (1994) 9 Cal.4th 300, 308.) " '[I]mplied malice aforethought does not exist in the perpetrator only in relation to an intended victim. Recklessness need not be cognizant of the identity of a victim or even of his existence.' [Citations.] When a defendant commits an act, the natural consequences of which are dangerous to human life, with a conscious disregard for life in general, he acts with implied malice towards those he ends up killing. There is no requirement the defendant specifically know of the existence of each victim." (People v. Taylor (2004) 32 Cal.4th 863, 868.) "Conscious disregard in the context of implied malice essentially means indifference to a subjectively understood danger to life." (People v. Brown (2001) 91 Cal.App.4th 256, 270.)

Reyes argues while there may have been sufficient evidence to support a finding that a reasonable person would have been consciously aware of the danger, that is, to find sufficient evidence to support implied malice using an objective standard, "there is nothing to show that [he] had such awareness." He argues "[t]he only sort of evidence which might support such awareness is something which conveys the message of danger, such as an accident, a warning by a passenger, an arrest for dangerous driving, or a class on dangerous driving." He asserts "[p]rior acts of reckless driving that result in no accidents, injuries, or verbal warnings of danger," as occurred in this case, "do not convey a message of danger that provides the requisite subjective awareness." We disagree.

Here, just days before Reyes killed his passenger, he had engaged in two police pursuits where he had ignored speed limits, had run red lights even though he believed running red lights when traffic was present to be unsafe, had driven too fast to avoid colliding with a police barricade, had become airborne, had smashed through mailboxes, and crashed his grandparents' car. Contrary to Reyes's argument, this evidence supports an inference Reyes was subjectively aware of the dangers of a high speed police pursuit.

As to the events of May 10, the jury was entitled to reject Reyes's testimony he had not seen the CHP car and was driving at his normal rate of speed. The jury was entitled to believe Reyes was driving 90 to 100 miles per hour on a road with posted speed limits of 55 miles per hour because he was attempting to elude the CHP officer. The jury was entitled to reject Reyes's testimony that he was driving safely when he passed Narvaez and Stollfuss. The jury was entitled to believe they had swerved or moved to the right to avoid a collision and that Reyes, who testified he saw the actions of both drivers, was aware he would have collided with these drivers had they not taken evasive action. The jury was entitled to reject Reyes's testimony that only his tires had touched the double yellow line and there was no oncoming traffic at the time he passed Stollfuss. The jury was entitled to believe other testimony showing Reyes's car had crossed half-way into a lane with oncoming traffic. In other words, the jury was entitled to believe, based on the evidence presented, that Reyes was aware that he was driving in a dangerous manner, that is, causing other drivers to take evasive action to avoid a collision and crossing into oncoming traffic.

Moreover, any time an individual decides to engage in a high speed flight from the police he or she is making a conscious decision to discontinue driving in the manner he or she normally considers safe and to drive in a manner designed to elude the police, that is, to drive at a higher rate of speed and take more risks in order to avoid capture. (See People v. Lima (2004) 118 Cal.App.4th 259, 266 ["In the context of second degree murder prosecutions, an attempt to evade police using a high-speed vehicle chase has been held sufficient to demonstrate implied malice through a conscious disregard for the safety of others"].) Such a decision involves a conscious awareness of the risks and dangers to human life and a decision to disregard those dangers as justified by a perceived need to avoid the police. Further, it is logical to infer Reyes, who was recently involved in police chases, was a fugitive, was driving a stolen car and consciously decided to take more and greater risks in order to avoid capture and return to prison than a person who was merely attempting to elude the police to avoid a traffic ticket.

In sum, there was substantial evidence to support a finding Reyes acted with implied malice, that is, that he was subjectively aware of the danger to human life posed by his driving and nonetheless consciously decided to disregard that danger.

V

Instructions on Evading an Officer - Mandatory Presumption

Reyes contends the court improperly instructed the jury on the May 6 charge of evading an officer by driving in violation of Vehicle Code section 2800.2 because the court instructed the jury that a willful or wanton disregard for the safety of persons or property included fleeing from a pursuing peace officer while committing three or more Vehicle Code violations, which the court specified. He contends defining "evasion of the police by driving in a willful and wanton disregard for the safety of persons or property in terms of violations of Vehicle Code sections constitute[s] the use of a constitutionally impermissible mandatory presumption to define an element of the offense."

A mandatory presumption requires a jury to find an elemental fact, that is, one of the elements of an offense, based on proof of another fact. (People v. Roder (1983) 33 Cal.3d 491, 498.) In a criminal case, the jury may not be instructed with a mandatory presumption that relieves the prosecution of its burden to prove the ultimate facts beyond a reasonable doubt. (Ulster County Court v. Allen (1979) 442 U.S. 140, 167; In re Christopher K. (2001) 91 Cal.App.4th 853, 856.) Nor can " 'the legislature . . . make certain [ultimate] facts conclusive proof of another ultimate fact when there is no logical connection or probability in experience to connect them.' " (People v. McCall (2004) 32 Cal.4th 175, 188.) However, the Legislature may make a rule of substantive law that declares certain conduct to be criminal by definition; in those circumstances, there is no impermissible mandatory presumption. (Ibid.)

Under Vehicle Code section 2800.1, subdivision (a), "[a]ny person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle, is guilty of a misdemeanor" if certain specified conditions exist (relating to the markings and conduct of the police vehicle and officer). Vehicle Code section 2800.2, subdivision (a) makes it a felony to flee or attempt to elude a pursuing peace officer while driving in a willful or wanton disregard for the safety of persons or property. In Vehicle Code section 2800.2, subdivision (b), the Legislature defined "willful or wanton disregard" as follows:

"(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursing peace officer during which time either three or more violations that are assigned a traffic violation point count under [Vehicle Code] Section 12810 occur, or damage to property occurs."

Consistent with this instruction, the trial court instructed the jury:

"A willful or wanton disregard for the safety of persons or property also includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time the person driving commits three or more Vehicle Code violations, such as Vehicle Code section 22349(a) -- Speeding, Vehicle Code section 21801(a) -- Illegal Left Turn, Vehicle Code section 21453(a) -- Running Red Light, Vehicle Code section 21751 -- Unsafe Passing, and Vehicle Code section 22107 -- Unsafe Turning Movement, or damage to property occurs.

" 'Willful or wanton' means an act or acts intentionally performed with a conscious disregard for the safety of persons or property. It does not necessarily include an intent to injure." (CALJIC No. 12.85, italics added.)

The issue whether Vehicle Code section 2800.2, subdivision (b) and instructions telling the jury three or more Vehicle Code violations constitutes willful and wanton disregard for the safety of others creates a constitutionally impermissible presumption was rejected by the majority in People v. Pinkston (2003) 112 Cal.App.4th 387 (Pinkston). The Pinkston majority explained:

"Subdivision (b) of Vehicle Code section 2800.2 does not state a mandatory presumption. Rather, it sets out the Legislature's definition of what qualifies as willful and wanton conduct under subdivision (a). Although Vehicle Code section 2800.2 uses the phrase 'willful or wanton disregard for the safety of persons or property' to describe an element of reckless evading, the statute defines this element so that it may be satisfied by proof of property damage or by proof that the defendant committed three Vehicle Code violations. Thus, section 2800.2, subdivision (b) establishes a rule of substantive law rather than a presumption apportioning the burden of persuasion concerning certain propositions or varying the duty of coming forward with evidence. [Citation.] In other words, evasive driving during which the defendant commits three or more specified traffic violations is a violation of section 2800.2 'because of the substantive statutory definition of the crime' rather than because of any presumption. [Citation.] Since there is no presumption, due process is not violated." (Pinkston, supra, at pp. 392-393, italics omitted.)

The Pinkston majority noted its interpretation was supported by the legislative history of the amendment that added subdivision (b) to Vehicle Code section 2800.2. The Legislative Counsel's Digest states: " 'This bill would . . . describe acts that constitute driving in a willful or wanton disregard for the safety of persons or property.' (Stats. 1996, ch. 420, italics added)," and the Senate Rules Committee's analysis states: " 'This bill would define "a willful or wanton disregard for the safety of persons or property" as behavior that includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count occur or damage to property occurs.' (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 1999 (1995-1996 Reg. Sess.) as amended July 7, 1996, p. 2.)" (Pinkston, supra, 112 Cal.App.4th at p. 394.)

Justice Klein dissented in Pinkston. She concluded "subdivision (b) of section 2800.2 violates due process by reducing the People's burden of proof with respect to the element of willful or wanton disregard for the safety of persons or property." (Pinkston, supra, 112 Cal.App.4th 387, 396 (dis. opn. of Klein, J.).) Justice Klein reasoned:

"The basic facts the prosecution must prove to bring the presumption into play--three Vehicle Code violations or damage to property--do not on their face establish beyond a reasonable doubt that the defendant acted with conscious disregard for the safety of persons or property during the pursuit. Obviously, a defendant may commit three Vehicle Code violations or cause property damage during a pursuit while exercising extreme vigilance for the safety of persons or property. Thus, the presumption allowed the People to establish the elemental fact of willful or wanton disregard, a relatively complex mental state, based on three Vehicle Code violations or property damage even though the driving may, in fact, not have been reckless and the conduct, viewed in its entirety as it would have been absent the presumption, did not establish recklessness to the jury's satisfaction." (Id. at pp. 396-397.)

Justice Klein criticized the majority: "[The majority's] assessment [that the subdivision was merely definitional] overlooks the fact that section 2800.2, subdivision (b), permits the People to prove conscious disregard for the safety of persons or property based on the commission of three or more Vehicle Code violations or the occurrence of property damage. This goes beyond mere definition and constitutes a classic example of a 'mandatory presumption' because it 'tells the trier [of fact] that [it] must find the elemental fact upon proof of the basic fact . . . .' " (Pinkston, supra, 112 Cal.App.4th 387, 397 (dis. opn. of Klein, J.), first and second bracketed insertion added.) Justice Klein found the error was not harmless beyond a reasonable doubt, because the officers did not testify the defendant ever came close to striking any other vehicle or that the defendant had caused any other vehicle to stop, brake hard or take evasive action to avoid a collision, the chase only lasted two minutes, and the jury had convicted the defendant only of misdemeanor violation of evading an officer as to another charged police pursuit. (Id. at p. 398.)

We agree with the Pinkston majority that subdivision (b) does not create an impermissible mandatory presumption but rather defines a felony offense. That felony offense is committed when an individual flees or attempts to elude the police and commits three or more of the specified Vehicle Code violations during the pursuit. Other courts agree. (See People v. Diaz (2005) 125 Cal.App.4th 1484, 1487 [Vehicle Code section 2800.2, subdivision (b) "does not state a mandatory presumption, but simply defines one way in which the People may prove the willful or wanton disregard for safety element of the section 2800.2[, subdivision] (a) offense"]; People v. Williams (2005) 130 Cal.App.4th 1440, 1446 ["subdivision (b) of section 2800.2 establishes a rule of substantive law rather than a presumption that varies the burden of proof . . ."].) The Legislature is entitled to define willful or wanton disregard for the safety of persons or property and to make it a felony when an individual not only flees from the police but also commits multiple Vehicle Code violations during a police pursuit.

Moreover, even if we were to agree with Reyes, we would find the error to be harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18.) Reyes reached speeds of 90 miles per hour--three times the legal speed limit--on city surface streets that had a significant amount of traffic. He ran four stop lights without slowing even when there was cross traffic. He twice crossed double yellow lines. He made an illegal left turn against the light at a large intersection with a heavy volume of cars. The police were unable to keep pace with Reyes because they had to slow for cross traffic. No reasonable jury could have found, under the circumstances of this case, that Reyes was driving safely rather than driving in a "willful or wanton disregard for the safety of persons or property." (Veh. Code, § 2800.2, subd. (b).)

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

O'ROURKE, J.

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^[1] Reyes argues second degree implied malice murder is a specific intent crime and cites cases that, while not addressing this precise issue, lend some support to his argument. We need not resolve this issue since regardless of whether the offense is technically a "specific intent crime," it is clear that second degree implied malice murder is not a simple general intent crime but requires a certain mental state, that is, implied malice.