P. v. Taitague

Filed 6/8/06 P. v. Taitague CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed.

In this vehicular homicide case, Paul Taitague was convicted of second degree murder, vehicular manslaughter, and several other offenses arising from his fleeing the police at high speeds on city streets. He argues (1) there is insufficient evidence to support implied malice for his murder conviction, and (2) the trial court erred in refusing his requested special instruction. We reject his arguments and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At about noon on August 10, 2004, Officer Michael Doyle was patrolling in a police vehicle in downtown El Cajon when he observed a Honda vehicle being driven by Taitague. Officer Doyle determined that the Honda was stolen. When Taitague noticed Officer Doyle watching him, Taitague fled in the Honda, driving at a high rate of speed and failing to stop at a stop sign. Officer Doyle activated the police vehicle's lights and sirens and pursued Taitague.

There was considerable traffic on the streets in downtown El Cajon because it was the lunch hour. When Taitague reached a red light, he drove on the sidewalk, bypassed several cars waiting at the light, and drove through the red light. Taitague accelerated the vehicle until he reached an "incredible speed." At one point the distance between Taitague and Officer Doyle lengthened because Officer Doyle had to slow down to avoid a car while Taitague maintained his high-speed flight.

As Taitague continued driving at high speeds, cars pulled over to avoid his vehicle. When he reached the intersection of West Main and Johnson, he ran another red light, causing a multiple-vehicle collision at the intersection. A video recording obtained from a camera mounted on the police vehicle, as well as accident reconstruction evidence, showed that Taitague never tried to brake during his flight. The accident reconstructionist ascertained that Taitague was driving about 74 miles per hour when he reached the intersection. The posted speed limit was 35 miles per hour.

The Honda driven by Taitague hit Linda Soper's vehicle, causing her vehicle to "pick up and violently spin." Soper, who was driving about 24 miles per hour, was ejected from her vehicle. When Officer Doyle reached the area, Soper was lying on the ground, still alive and trying to get up. She subsequently died. Soper's husband, who was a passenger in the car driven by his wife, was trapped in the vehicle. The roof of the car had to be cut to remove him. He sustained injuries to his face, ear and elbow which required stitches and staples. In addition to the Soper vehicle, three other cars were hit during the collision. Occupants of the other vehicles sustained varying degrees of injury.

After Taitague was placed in handcuffs and seated on the ground, he told Officer Doyle that he needed an ambulance. Officer Doyle told him there were other people more seriously injured than he was. Taitague responded that "he was not concerned about the other individuals," but rather "was concerned about getting treatment for his ankle." Several stolen items were found in the stolen Honda driven by Taitague, including credit cards and a driver's license.

The jury convicted Taitague of second degree murder, vehicular manslaughter, evading an officer causing serious bodily injury or death, reckless driving causing great bodily injury, misdemeanor reckless driving causing bodily injury (five counts), unlawful taking or driving of a vehicle, receiving a stolen vehicle, and receiving stolen property.

DISCUSSION

Substantial Evidence of Implied Malice

Taitague challenges the sufficiency of the evidence to support the jury's second degree murder verdict based on implied malice, asserting that the facts support only a vehicular manslaughter conviction.

In a vehicular homicide case, a defendant may be convicted of second degree murder if he or she acted with implied malice. (People v. Watson (1981) 30 Cal.3d 290, 296 (Watson); People v. Contreras (1994) 26 Cal.App.4th 944, 954-955.) Implied malice exists when the defendant "knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life." (Watson, supra, 30 Cal.3d at p. 296.) In contrast, the defendant is guilty of the lesser offense of vehicular manslaughter if he or she acted merely with gross negligence. (Ibid.) Gross negligence is defined as "the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences." (Ibid.) The mental state for implied malice is measured by a subjective standard; i.e., the defendant must actually appreciate the risk involved. (Id. at pp. 296-297.) Gross negligence is measured by an objective standard; i.e., the mental state exists if a reasonable person in defendant's position would have been aware of the risk involved. (Id. at p. 296.)

"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." (Watson, supra, 30 Cal.3d at p. 296.) There is both a physical and a mental component to implied malice, 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 or her conduct endangers the life of another and acts with a conscious disregard for life. (People v. Calderon (2005) 129 Cal.App.4th 1301, 1309.)

In People v. Howard (2005) 34 Cal.4th 1129, 1139, the California Supreme Court recognized that the issue of whether a motorist who kills a person in a reckless, high-speed flight from the police is guilty of murder, is a factual matter for the jury based on an assessment of whether the motorist "acted with malice by driving with conscious disregard for the lives of others." The California Supreme Court has not "prescribe[ed] a formula for analysis of vehicular homicide cases, [but] instead requir[es] a case-by-case approach." (People v. Olivas (1985) 172 Cal.App.3d 984, 989, citing Watson, supra, 30 Cal.3d 290.) Further, because there is rarely direct evidence of a defendant's state of mind, "it may be inferred from all the facts and circumstances disclosed by the evidence." (People v. Kwok (1998) 63 Cal.App.4th 1236, 1245.)

In reviewing a challenge to the sufficiency of the evidence, we consider the entire record and view the evidence in the light most favorable to the judgment to determine whether a rational trier of fact could find guilt beyond a reasonable doubt. (People v. Contreras, supra, 26 Cal.App.4th at p. 955.) The same standard applies to the review of circumstantial evidence. (Id. at p. 956.)

To support his challenge to his murder conviction, Taitague asserts that the record shows nothing more than reckless driving during a high-speed chase and that additional facts are necessary to show that he was subjectively aware of, and consciously disregarded, the danger to human life. The argument is unavailing. Contrary to Taitague's suggestion, there is no hard and fast rule requiring something beyond dangerous driving during a high-speed chase to support a finding of implied malice. In People v. Fuller (1978) 86 Cal.App.3d 618, 628-629, a case involving an appeal by the People after the trial court dismissed a murder charge, the appellate court held that highly reckless driving during a high-speed flight from the police can support a murder conviction.

The fact that in other cases involving a high-speed chase appellate courts have cited circumstances beyond the nature of the defendant's driving during the chase to support an implied malice finding,^[1] does not mean that the defendant's manner of driving can never be sufficient on its own to show implied malice. Rather, the issue of the sufficiency of the evidence to support an implied malice finding in a vehicular homicide case turns on an evaluation of the particular circumstances of each case and it is not governed by a precise formula. (See, e.g., People v. Contreras, supra, 26 Cal.App.4th at pp. 947, 955-956 [high-speed chase or intoxication not necessary to show implied malice; implied malice finding supported by defendant's conduct of racing other tow truck driver to accident scene, and his prior record of reckless driving, prior accident, and knowledge of malfunctioning brakes].)

The evidence showed that Taitague drove at an extremely fast speed on city streets during a high-traffic time of day, drove on a sidewalk, ran through a red light, caused other drivers to take evasive action to avoid a collision, and then ran through another red light. The jury could reasonably conclude that Taitague's manner of driving on busy streets was so dangerous that he must have been subjectively aware of the extreme risk to human life he was creating and that he acted with wantonness rather than with the lower-level indifference associated with gross negligence. The conscious disregard component of implied malice is also supported by the facts that he never used his brakes during the time he was evading the police and after the collision he expressly stated he was not concerned about his victims.

To further advance his contention that the facts of a reckless, high-speed chase cannot alone show implied malice, Taitague argues that speeding and running red lights are not acts that are necessarily dangerous to human life. The fact that this type of conduct may not necessarily be dangerous to human life in all cases does not mean that in a particular case a jury could not properly find the conduct to pose the requisite danger for implied malice. (See People v. Nieto Benitez (1992) 4 Cal.4th 91, 105-108 (Nieto).)

Moreover, the cases cited by Taitague on this point, People v. Howard, supra, 34 Cal.4th 1129 and People v. Vanegas (2004) 115 Cal.App.4th 592, do not support his challenge to the implied malice finding predicated on his highly hazardous driving. The issue in Howard was whether Vehicle Code section 2800.2, which defines the crime of vehicular evasion of a peace officer with willful or wanton disregard for the safety of persons or property, was an inherently dangerous felony for purposes of the felony-murder rule. The court concluded the offense did not fall within the felony-murder rule, given that the Legislature had defined various nondangerous traffic violations (i.e., driving with a suspended license, etc.) as included within the conduct constituting willful or wanton disregard for safety under Vehicle Code section 2800.2. (People v. Howard, supra, 34 Cal.4th at pp. 1136-1138.) However, the Howard court was careful to point out that its holding did not mean a high-speed chase resulting in death could not support a murder verdict based on implied malice. (Id. at p. 1139.) In People v. Vanegas, supra, 115 Cal.App.4th at pages 600-601, the court held that it was error to effectively instruct that a violation of the basic speed law constituted an act dangerous to human life for purposes of establishing implied malice. The Vanegas court noted that the violation could be committed without necessarily endangering human safety, for example by driving at a speed which endangers property or at a speed greater than what is reasonable or prudent. (Id. at p. 601.) Although the instruction in Vanegas was erroneous because it created a mandatory presumption, the Vanegas court recognized that a jury could properly infer that a particular act violating the basic speed law was dangerous to human life. (Id. at p. 600.) There is nothing in Howard or Vanegas that suggests a jury's finding of implied malice cannot be sufficiently supported by such facts as extreme speed and the running of red lights.

The facts here support the jury's finding of implied malice, and Taitague's substantial evidence challenge fails.

Special Instruction

Because the distinction between implied malice and gross negligence is not expressly addressed in the standard instructions, the trial court gave the jury a special instruction to highlight this point. Taitague argues the trial court erred in denying his request to give a slightly different special instruction that he proffered regarding the distinction. To define implied malice, the trial court's special instruction used the phrase "natural consequences" of danger to human life, whereas the special instruction requested by Taitague used the phrase "high probability" of death.

Taitague's requested instruction stated in relevant part:

"'Implied malice' for murder requires 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'. [¶] . . . [¶] 'Gross negligence is found by applying an objective test. The test is whether a reasonable person in the defendant's position would have been aware of the risk involved. . . . [¶] . . . [¶] [T]o prove murder, the [p]rosecution must prove beyond a reasonable doubt that at the time the [d]efendant was driving, he knew his driving actually created a high [p]robability that there would be a death and that the [d]efendant consciously disregarded this possibility." (Italics added.)

The special instruction given by the trial court stated:

"A finding of implied malice requires a subjective awareness [of a] higher degree of risk than does gross negligence. It involves a conscious disregard of that risk which is absent in gross negligence. [¶] A finding of gross negligence requires the application of an objective test, whether a reasonable person in defendant's position would have been aware of the risks involved. Whereas a finding of implied malice requires that there must be 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." (Italics added.)

The "natural consequences" language used by the trial court in its special instruction followed the language used in CALJIC Nos. 8.11 and 8.31 to define implied malice, which standard instructions the court also gave.

Taitague asserts that knowledge of a "high probability" of death is different than knowledge that the "natural consequences" of the conduct are dangerous to human life, and argues that an instruction containing the former term was necessary for the jury to understand the difference between murder and vehicular manslaughter. Contrary to Taitague's contention, the California Supreme Court has concluded that the two phrases, which have been used interchangeably to define implied malice, embody the same standard. (Nieto, supra, 4 Cal.4th at p. 111; People v. Dellinger (1989) 49 Cal.3d 1212, 1218-1219; Watson, supra, 30 Cal.3d at p. 300.)

In Nieto, the California Supreme Court concluded that the trial court had no sua sponte duty to give an instruction containing the "high probability" standard for implied malice because the "natural consequences" standard set forth in CALJIC No. 8.31 articulated the same concept. (Nieto, supra, 4 Cal.4th at pp. 110-111; accord People v. Curtis (1994) 30 Cal.App.4th 1337, 1353-1354.) The Nieto court expressly approved the "natural consequences" standard as a correct statement of the law. (Nieto, supra, 4 Cal.4th at pp. 110-111.) Although a trial court's duty to deliver a requested instruction is greater than its obligation to instruct sua sponte, the court may properly refuse requested instructions that "are repetitive or are on issues fully covered by other instructions . . . ." (People v. La Fargue (1983) 147 Cal.App.3d 878, 886; People v. Thongvilay (1998) 62 Cal.App.4th 71, 82.) Because the "high probability" standard repeats the concept conveyed in the "natural consequences" standard, the trial court was not required to give the instruction requested by Taitague.

Taitague cites to the concurring opinion in Nieto, in which two justices concluded that in some cases the "high probability" standard might be necessary for a lay jury's understanding of the case; for example when a defendant commits an act that results in a "freak occurrence" of human death (such as a death arising from a hunter shooting at a 45-degree angle in a remote area). (Nieto, supra, 4 Cal.4th at pp. 112-115 (conc. opn. of Mosk, J.).) In the concurring opinion, Justice Mosk posited that in such a case the "natural consequences" standard might be vague "to those unschooled in the nuances of the law of homicide," whereas the "high probability" standard was "forthright and clear." (Id. at pp. 114-115.) Even assuming there may be cases where this analysis might compel a trial court to give a requested instruction using the a "high probability" standard, this is clearly not such a case. The death resulting from Taitague's highly dangerous manner of driving cannot be characterized as a "freak occurrence."

To support his argument that in this case the jury should have been instructed on the "high probability" standard, Taitague asserts that "a finding that [he] knew the consequences of his driving were 'dangerous to human life' equally applies to gross negligence" and thus the high probability standard "was necessary to clarify the murky distinction between manslaughter and murder under the facts of the instant case." Taitague's argument is incorrect; if the jury found he knew the consequences were dangerous to human life (and he consciously disregarded the danger), he would be guilty of murder, not vehicular manslaughter.

Taitague also asserts that the "high probability" standard addresses both the physical and mental components of implied malice, whereas the "natural consequences" standard does not. He does not explain why one standard applies to both components and the other does not, and there is no logic to his assertion. The same standard--whether it be defined as "high probability" of death or "natural consequences" resulting in death--can properly be applied to both the nature of the physical act the defendant must commit, and the defendant's knowledge that he is engaging in that type of conduct.^[2]

Taitague has not presented any persuasive argument explaining how the phrase "high probability" communicates a different concept than "natural consequences" for purposes of distinguishing the greater and lesser vehicular homicide offenses. Accordingly, he has shown no instructional error arising from the trial court's rejection of his requested instruction.

Moreover, even if the trial court was required to give Taitague's requested instruction, the error was harmless beyond a reasonable doubt. (People v. Flood (1998) 18 Cal.4th 470, 502-503.) Because the jury was properly instructed with the "natural consequences" standard and because the record shows Taitague drove in an egregiously dangerous manner, it is clear the jury's verdict was not affected by the failure to additionally instruct them with the "high probability" standard.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

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^[1] Such cases include People v. Olivas, supra, 172 Cal.App.3d at p. 989 (defendant ingested PCP and during chase collided with one car and nearly collided with two other cars before fatal accident), and People v. Ortiz (2003) 109 Cal.App.4th 104, 119 (defendant had engaged in acts of reckless driving on other occasions).

^[2] The trial court used the "natural consequences" standard to describe both the act and the defendant's knowledge, telling the jury that implied malice exists when the "natural consequences of the act are dangerous to human life," and when "the defendant actually and personally knew that the natural consequences of driving in the manner he did were dangerous to human life." (Italics added.)