People v. Sanchez (2001)

[No. C032228. Third Dist. Jan. 3, 2001.]

THE PEOPLE, Plaintiff and Respondent, v. REFUGIO ANTHONY SANCHEZ, Defendant and Appellant.

[Opinion certified for partial publication. fn. *]

(Superior Court of Sacramento County, No. 98F01736, James Timothy Ford, Judge.)

(Opinion by Scotland, P. J., with Davis and Morrison, JJ., concurring.)

COUNSEL

Frank G. Prantil for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson and Arnold O. Overoye, Assistant Attorneys General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent. [86 Cal. App. 4th 973]

OPINION

SCOTLAND, P. J.-

One passenger was killed and two were seriously injured when defendant Refugio Anthony Sanchez crashed his car while trying to elude pursuing police officers. Criminal charges were filed, and defendant was convicted of a number of offenses, including second degree murder. (Pen. Code, § 187, subd. (a).) Sentenced to state prison, he appeals.

In the published portion of this opinion, we agree with defendant that his murder conviction must be reversed because the trial court erred in instructing the jury, pursuant to the felony-murder doctrine, that a person who kills a human being while violating Vehicle Code section 2800.3 is guilty of second degree murder. (Further section references are to the Vehicle Code unless specified otherwise.) We are not the first appellate court to conclude that the violation of section 2800.3 "cannot support a charge of felony murder." (People v. Jones (2000) 82 Cal. App. 4th 663, 666 [98 Cal. Rptr. 2d 724].) But we do so for reasons different from those stated in People v. Jones. As we shall explain, in determining whether the felonious violation of [86 Cal. App. 4th 974] section 2800.3 is inherently dangerous to human life as required for application of the second degree felony-murder doctrine, we must look to the elements of the statute in the abstract, rather than to defendant's specific conduct. In doing so, we conclude that, because dispositive elements of section 2800.3 can be satisfied by conduct that does not necessarily pose a high probability of death, it is not a felony inherently dangerous to human life. Thus, section 2800.3 cannot serve as the predicate crime for application of the second degree felony-murder doctrine.

In the unpublished parts of this opinion, we reject defendant's remaining claims of error. Accordingly, we shall reverse his murder conviction, but affirm the other convictions and special findings. fn. 1

Facts

Around 2:00 a.m. on March 1, 1998, Officer John Morris saw defendant's car run a stop sign and two red lights at speeds between 35 to 55 miles per hour. Morris turned on the red lights and siren of his marked patrol vehicle and pursued the car, which barely missed colliding with another vehicle while speeding through an intersection. Goldie McCowan, one of three passengers in defendant's car, told defendant to pull over because police were behind them. Defendant refused to do so, claiming he could get away. Eventually, all the passengers pleaded for defendant to pull over. But "[h]e just turned up the music" and drove faster.

Defendant accelerated to speeds between 85 to 100 miles per hour. As he drove down a residential street at high speed, defendant came to a 90-degree turn in the road. Unable to make the turn, defendant lost control of the car, the right rear of which "swung out" and "clipped the guardrail." After hitting the guardrail, the car flipped upside down and crashed into a house. Skid marks indicated that defendant's car was traveling at approximately 84 miles per hour when he lost control at the turn in the road.

Officer Morris stopped to render aid and arrest the driver. Flames were coming out of the front of the car, and smoke and gasoline pouring out of the [86 Cal. App. 4th 975] back. A car door was open, and one of the passengers was facedown on the ground, with the vehicle partially on top of her. Morris heard a woman in the back of the car screaming for help.

As others who had joined the pursuit attended to the passengers, Officer Bobby Daniels and another officer pulled defendant from the car. Defendant, who did not appear to be injured, was belligerent and continually screamed at the officers. Noticing that defendant had a strong odor of alcohol on his breath and was unable to stand on his own, Officer Daniels concluded that defendant was under the influence of alcohol. Subsequent testing revealed that defendant had a blood-alcohol level of .18 percent.

One of the passengers, Lakisha Davis, died as a result of the crash. Goldie McCowan suffered a broken right arm, a fractured collarbone, and injuries to her hip. Shanise Shaver was cut and bruised on her hand, head, and stomach.

Prior to the fatal crash, defendant had been convicted of driving under the influence of alcohol and his driver's license had been suspended.

Discussion

I, II fn. *

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III

The jury was presented with two alternative theories to support defendant's conviction of second degree murder: (1) he acted with implied malice in unlawfully killing Lakisha Davis, or (2) he caused her death while committing a felony that is inherently dangerous to human life but is not enumerated in Penal Code section 189 (the second degree felony-murder rule). fn. 3

[1] The implied malice theory applies "when a defendant, knowing that his or her conduct endangers life and acting with conscious disregard of the danger, commits an act the natural consequences of which are dangerous to [human] life," i.e., an act which, by its nature, poses "a high probability that it will result in death." (People v. Roberts (1992) 2 Cal. 4th 271, 317 [6 Cal. Rptr. 2d 276, 826 P.2d 274]; People v. Watson (1981) 30 Cal. 3d 290, 300 [179 Cal. Rptr. 43, 637 P.2d 279].) In such a circumstance, it may be inferred that the defendant acted with malice aforethought in committing the unlawful killing of a human being, i.e., committed murder. For example, a defendant who kills another as a result of driving under the influence of [86 Cal. App. 4th 976] alcohol at highly excessive speeds, "an act presenting a great risk of ... death," may be found to have acted wantonly and with conscious disregard for human life, i.e., with implied malice, and thus to have committed second degree murder. (People v. Watson, supra, at pp. 300-301.)

[2] The second degree felony-murder theory applies when a defendant commits a homicide during the perpetration of a felony that is inherently dangerous to human life but is not enumerated in Penal Code section 189. (People v. Hansen (1994) 9 Cal. 4th 300, 308 [36 Cal. Rptr. 2d 609, 885 P.2d 1022].) " 'The felony-murder doctrine, whose ostensible purpose is to deter those engaged in felonies from killing negligently or accidentally, operates to posit the existence of that crucial mental stateand thereby to render irrelevant evidence of actual malice or the lack thereofwhen the killer is engaged in a felony whose inherent danger to human life renders logical an imputation of malice on the part of all who commit it.' " (Ibid., quoting People v. Satchell (1971) 6 Cal. 3d 28, 43 [98 Cal. Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383].) In other words, a defendant who kills a human being during the commission of a felony that is inherently dangerous to human life is deemed to have acted with malice aforethought, i.e., committed murder. A felony is inherently dangerous to human life when it "carr[ies] 'a high probability' that death will result." (People v. Patterson (1989) 49 Cal. 3d 615, 627 [262 Cal. Rptr. 195, 778 P.2d 549], italics omitted.)

Hence, the difference between implied malice and felony murder is that, under the implied malice theory, when the defendant kills a person while committing an act which, by its nature, poses a high probability that the act will result in death, the trier of fact may infer the defendant killed with malice aforethought; whereas, under the felony-murder theory, if the inherently dangerous act is a felony, the defendant is deemed to have killed with malice aforethought as a matter of law. (People v. Satchell, supra, 6 Cal.3d at p. 43 ["the determination that an underlying felony will not properly support a felony-murder instruction simply removes the short-circuit provided by that doctrine and requires that the existence of [malice] be demonstrated to the trier of fact"].)

In this case, defendant's appeal addresses only the second theory tendered by the prosecutor, that defendant was guilty of felony murder based upon his violation of section 2800.3, which was charged as a felony. fn. 4

Over defendant's objection, the trial court agreed with the prosecutor that the felonious violation of section 2800.3 is an inherently dangerous felony that can support a murder conviction via the second degree felony-murder [86 Cal. App. 4th 977] doctrine. Consequently, the court instructed the jury as follows: "Every person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of evading a peace officer, a felony inherently dangerous to human life, is guilty of the crime of murder in violation of Section 187 of the Penal Code. [¶] In order to prove this crime, each of the following elements must be proved: [¶] One, a human being was killed; and two, the killing was unlawful; and three, the killing was done with malice aforethought or occurred during the commission or attempted commission of evading a peace officer, a felony inherently dangerous to human life. [¶] Evading a peace officer is a felony inherently dangerous to human life." (Italics added.) The court further instructed that "[t]he unlawful killing of a human being whether intentional, unintentional, or accidental, which occurs during the commission or attempted commission of a crime of evading a peace officer is murder of the second degree when the perpetrator had the specific intent to commit that crime." (Italics added.) fn. 5

[3a] Defendant contends "it was error for the court to predicate a felony[-]murder instruction upon a violation of section 2800.3." We agree for reasons that follow.

Under specified conditions satisfied by the evidence in this case, "[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 ...." (§ 2800.1.) Section 2800.3 provides that "[w]henever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death or serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by [confinement in state prison or county jail]."

[4] As we have noted, to serve as the basis for the second degree felony-murder rule, the predicate crime must be a felony inherently dangerous to human life, i.e., there must be a high probability that death will result from its commission. (People v. Patterson, supra, 49 Cal.3d at p. 627.) "In determining whether a felony is inherently dangerous [to human life], the [86 Cal. App. 4th 978] court looks to the elements of the felony in the abstract, 'not the "particular" facts of the case,' i.e., not to the defendant's specific conduct. [Citation.]" (People v. Hansen, supra, 9 Cal.4th at p. 309, original italics; People v. Burroughs (1984) 35 Cal. 3d 824, 829-830 [201 Cal. Rptr. 319, 678 P.2d 894].) fn. 6

In People v. Burroughs, supra, 35 Cal. 3d 824, the Supreme Court laid out the analytical model for determining whether, in the abstract, the elements of a felony make the crime inherently dangerous to human life. Courts "look first to the primary element of the offense at issue, then to the 'factors elevating the offense to a felony,' ... In this examination we are required to view the statutory definition of the offense as a whole, taking into account even nonhazardous ways of violating the provisions of the law which do not necessarily pose a threat to human life." (Id. at p. 830, citations omitted.) Thus, if dispositive elements of the statute may be established by conduct that does not endanger human life, it is not a felony inherently dangerous to human life. (People v. Caffero (1989) 207 Cal. App. 3d 678, 683 [255 Cal. Rptr. 22].)

[3b] As can be seen from the statutory language quoted above, the primary element of section 2800.3 is that, while operating a motor vehicle and with the intent to evade, a person willfully flees or otherwise attempts to elude a pursuing peace officer's motor vehicle. Common sense and common experience indicate that attempts by drivers to flee or otherwise elude pursuing peace officers often involve conduct that is inherently dangerous to human life. This case is a prime example of such reprehensible misconduct. But, as the Supreme Court has instructed, we must examine the crime in the abstract. And, as can be attested to by those who watched the ludicrous pursuit of Orenthal James Simpson in his white Bronco, a driver can flee or otherwise attempt to elude pursuing officers in a manner that does not pose a high probability of death to anyone. (Berman & Goldman, Nation Transfixed by Extraordinary Spectacle Chase, L.A. Times (June 18, 1994) p. 1; CNN, O.J. Simpson: The Arrest (June 17, 1994)