THE PEOPLE, Plaintiff and Appellant, v. ROBERT LEE WATSON, Defendant and Respondent, 30 Cal. 3d 290

Opinion RICHARDSON, J. Defendant was charged with both second degree murder (see Pen. Code, §§ 187-189; all further statutory references are to this code) and vehicular manslaughter (§ 192, subd. 3(a)). In this pretrial proceeding, he contends that the facts underlying the alleged offense disclose, at most, gross negligence punishable under the manslaughter statute. We have concluded, however, that the facts also support a finding of implied malice (§ 188) justifying the murder charge as well.

The circumstances of the offense, as elicited at the preliminary examination, are as follows: In the late night and early morning hours of January 2 and 3, 1979, defendant Robert Watson consumed large quantities of beer in a Redding bar. Approximately an hour and a half after leaving the bar, defendant drove through a red light on a Redding street and avoided a collision with another car only by skidding to a halt in the middle of the intersection. After this near collision, defendant drove away at high speed, approached another intersection and, although he again applied his brakes, struck a Toyota sedan.

Three passengers in the Toyota were ejected from the vehicle and the driver and her six-year-old daughter were killed. Defendant left 112 feet of skid marks prior to impact, and another 180 feet of skid marks to the vehicle’s point of rest. The applicable speed limit at the accident scene was 35 miles per hour. Expert testimony based on the skid marks and other physical evidence estimated defendant’s speed immediately prior to applying his brakes at 84 miles per hour. At point of impact, the experts concluded that defendant’s speed was approximately 70 miles per hour.

Eyewitness Henke testified that defendant’s car passed him “real fast” (estimated by Henke at 50 to 60 miles per hour) shortly before the collision. According to Henke, defendant swerved from the slow lane into the fast lane, suddenly braked and skidded into the intersection, and thereupon struck the other vehicle. Henke believed that the traffic light was green when defendant entered the intersection. Defendant’s blood alcohol content one-half hour after the collision was .23 percent, more than twice the percentage necessary to support a finding that he was legally intoxicated.

The complaint herein charged defendant with two counts each of second degree murder and vehicular manslaughter. At the preliminary examination, the magistrate found probable cause to charge defendant with vehicular manslaughter, but refused to hold him to answer the second degree murder counts, concluding that the facts elicited at the preliminary examination were insufficient to demonstrate the essential element of implied malice. Despite the magistrate’s ruling, the People included in the information the two counts of second degree murder which were rejected by the magistrate. (See § 872.) Defendant’s

section 995 motion to dismiss the murder counts was granted by the superior court, and the People appeal from the order of dismissal. (§ 1238, subd. (a)(1).) Based upon his review of the legislative history of the vehicular manslaughter statute (§ 192, subd. 3(a)), defendant claims that a murder charge is precluded. He asserts that the Legislature intended separately to classify and punish all vehicular homicide as manslaughter. We hold otherwise, concluding that nothing in the legislative history of this

section suggests such an intent. Rather, we conclude that if the facts surrounding the offense support a finding of “implied malice,” second degree murder may be charged; if the facts demonstrate only “gross negligence,” a vehicular manslaughter charge may be sustained. Although the terms “gross negligence” and “implied malice” are similar in requiring an awareness of a risk of harm, the degrees of awareness differ. Because of that fact, the more specific vehicular manslaughter statute does not preclude application of the more general murder statute.

Finally, because the conduct of defendant in this case, reasonably viewed, exhibited wantonness and a conscious disregard for life which would support a finding of implied malice, we conclude that the order of dismissal must be reversed. 1. Application of Murder Statutes to Vehicular Homicides

Section 187, subdivision (a), provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Under

section 188, malice may be express or implied, and implied malice is present “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

Section 189 defines first degree murder as all murder committed by specified lethal means “or by any other kind of willful, deliberate, and premeditated killing,” or a killing which is committed in the perpetration of enumerated felonies; all other kinds of murder are of the second degree. Under

section 192, manslaughter is “the unlawful killing of a human being, without malice.” One kind of manslaughter is defined in subdivision 3 of that section: “In the driving of a vehicle—[¶] (

a) In the commission of an unlawful act, not amounting to felony, with gross negligence; or in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.” Defendant reasons that the general murder statutes (§§ 187-189) are preempted by the more specific provisions applicable to vehicular homicides (§ 192, subd. 3(a)).

In In re Williamson (1954) 43 Cal.2d 651, 654 [276 P.2d 593], we said that: “‘[W]here the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment.’” (Quoting from People v. Breyer (1934) 139 Cal.

App. 547, 550 [34 P.2d 1065, 1067].) Defendant observes that the murder statutes deal generally with the unlawful killing of a human being, whereas the vehicular manslaughter provision deals specifically with such killing while driving a vehicle. He therefore contends that the latter statute bars the application of the former under the Williamson rule. The argument contains a flaw.

We have held that the Williamson preemption rule is applicable (1) when each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute. (People v. Jenkins (1980) 28 Cal. 3d 494, 502 [170 Cal.Rptr. 1, 620 P.2d 587].) Neither of these two categories applies here. A prosecution for murder under

section 187 requires a finding of malice, while

section 192 specifically defines manslaughter as a killing without malice. Moreover, in light of the malice requirement, a violation of the vehicular manslaughter statute would not necessarily or commonly result in a violation of the general murder statute. Thus, the Williamson rule is inapplicable. Nonetheless, defendant asserts that by charging him with second degree murder based upon implied malice (§§ 187, 188), the prosecution has charged him with an unintentional killing.

He argues that because vehicular manslaughter also is an unintentional killing, the two crimes are coterminous, and that the more specific statute excludes the more general one. This argument is not persuasive. The requisite culpability for the vehicular manslaughter charged here is gross negligence (§ 192, subd. 3(a)), 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. (See People v.

Costa (1953) 40 Cal.2d 160, 166 [252 P.2d 1].) 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. (See People v. Sedeno (1974) 10 Cal.3d 703, 722-723 [112 Cal.Rptr. 1, 518 P.2d 913]; People v. Phillips (1966) 64 Cal.2d 574, 587 [51 Cal.Rptr. 225, 414 P.2d 353].) 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. (§ 188; see Kastel v. Stieber (1932) 215 Cal. 37, 46 [8 P.2d 474].) Furthermore, we have applied different tests in determining the required mental states of gross negligence or malice.

A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. (Weber v. Pinyan (1937) 9 Cal.2d 226, 230-231 [70 P.2d 183, 112 A.L.R. 407].) However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. (People v.

Phillips, supra, 64 Cal.2d at p. 588.) In the present case, the prosecution will be required to show a higher degree of culpability in support of the second degree murder charge than it will to establish vehicular manslaughter. Accordingly, because

section 187 and

section 192, subdivision 3(a), contemplate different kinds of culpability or criminal activity, the Williamson rule would not preclude a second degree murder charge. Defendant alternatively argues that if the Legislature clearly intends a special statute to apply to the exclusion of a more general statute, this intent must be given effect even if application of the Williamson rule would render both statutes applicable. (People v. Jenkins, supra, 28 Cal.3d 494, 503-504 and fn. 9.) Defendant contends that the Legislature enacted

section 192, subdivision 3, with the specific intention of requiring prosecution of all vehicular homicides under that statute. Our own review of the legislative history, however, leads us to a contrary conclusion. Rather,

section 192, subdivision 3(a), was enacted to proscribe vehicular homicides which resulted from grossly negligent conduct, without precluding the possibility of a murder charge when the circumstances revealed more aggravated culpability. In seeking the probable legislative intent behind

section 192, subdivision 3, we examine its history. When the Penal Code was enacted in 1872, manslaughter was defined in

section 192 as an unlawful killing of a human being without malice, and was characterized as being either voluntary or involuntary. A specific statute directed at vehicular homicides was enacted in 1935 as Vehicle Code

section 500 (Stats. 1935, ch. 764, p. 2141). That

section provided for imprisonment of one year in the county jail or three years in the state prison for deaths which occurred within one year as the proximate result of injuries caused by the negligent driving of a vehicle. In 1941,

section 500 was amended to elevate the standard of culpable conduct to a reckless disregard of, or wilful indifference to, the safety of others. (Stats. 1941, ch. 279, § 1, p. 1414.) The amended statute specifically made the involuntary manslaughter statute inapplicable to vehicular homicides. According to the People, because of the difficulty of proof, few convictions were obtained under this amended version of

section 500. Accordingly, in 1943

section 500 was repealed, and

section 193 of the Penal Code was amended to provide a specific penalty for involuntary manslaughter resulting from the operation of a vehicle. (Stats. 1943, ch. 421, § 2, p. 1959.) The ordinary term of imprisonment for manslaughter was not more than 10 years in the state prison; however, amended

section 193 made involuntary vehicular manslaughter punishable by imprisonment in the county jail for not more than one year or in the state prison for not more than five years. In 1945, subdivision 3 was added to

section 192 (Stats. 1945, ch. 1006, § 1, p. 1943) to provide a separate category for vehicular manslaughter in addition to the voluntary and involuntary categories. As previously noted, present

section 192, subdivision 3(a), describes as vehicular homicide the commission of an unlawful act, not amounting to a felony, with gross negligence, or the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. In

summary, the requisite mental state for prosecution varied between the different versions of the vehicular manslaughter statute: the 1935 statute required mere negligence; the 1941 version referred to a wilful indifference to, or a reckless disregard for, the safety of others (which, as the People note, required a showing that the defendant was subjectively aware of the risk involved (People v. Young (1942) 20 Cal.2d 832, 836-837 [129 P.2d 353])); the present statute at issue here is directed at gross negligence.

We stress, however, that the crime involved in each version was manslaughter, an offense which consistently has been defined as the unlawful killing of a human being without malice. (§ 192.) Although the wilful indifference standard in the 1941 version entailed the same element of subjective awareness that is present in implied malice, that standard was speedily rejected by the Legislature soon after its enactment in favor of a gross negligence standard. Thus, the Legislature specifically declined to include conduct of any greater culpability than gross negligence in the present vehicular manslaughter statute.

Moreover, there is no indication that the Legislature intended the conduct of the culpable party in a vehicular homicide case automatically to be characterized as gross negligence in order to bring all vehicular homicides within the scope of

section 192, subdivision 3(a). Rather, when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied. (§ 188.) In such cases, a murder charge is appropriate. There is precedent for the foregoing conclusion. In People v. Fuller (1978) 86 Cal.App.3d 618 [150 Cal.Rptr. 515], defendants committed a burglary and then drove at high speeds in an attempt to elude a pursuing police officer.

At one point in the chase, defendants almost collided head-on with another car while driving on the wrong side of the street. Defendants approached a downtown intersection at a speed of between 60 and 75 miles per hour, ran a red light, and struck another car killing its driver.

The appellate court in Fuller reversed the trial court’s dismissal of a murder charge (Id., at p. 624.) The court held the felony-murder doctrine applicable and also stated that “[f]or the guidance of the trial court, we observe that [defendants] may also be prosecuted for ordinary second degree murder” based on malice which “may be implied when the defendant does

an act with a high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life.” (Id., at p. 628, italics added.) Defendant incorrectly assumes that the Fuller court was able to reach its conclusion regarding second degree murder only because the case involved an underlying felony (burglary). (See 86 Cal.App.3d at p. 623.) On the contrary, the Fuller court determined that if the circumstances disclose sufficiently wanton conduct, and if the prosecution can demonstrate that such conduct reached a level of implied malice, second degree murder may be charged even in the absence of an underlying felony.

We agree with this conclusion. In People v. Satchell (1971) 6 Cal.3d 28 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383] (cited in Fuller at pp. 625, 628-629) we noted that an underlying felony is not required in order to charge second degree murder.

We emphasized there that the unavailability of the felony-murder rule to provide the element of malice necessary to a murder conviction did not preclude a murder charge: “Under well-settled principles of criminal liability a person who kills—whether or not he is engaged in an independent felony at the time—is guilty of murder if he acts with malice aforethought.” (6 Cal.3d at p. 43, italics in original.) An independent felony may furnish additional evidence of malice, but it is not the sine qua non, a prerequisite to a finding of the implied malice necessary to support a murder charge. 2.

Probable Cause to Charge Second Degree Murder Having determined that a defendant may be charged with second degree murder upon facts which also would support a charge of vehicular manslaughter, we inquire whether the facts in the present case imply malice and therefore justify charging the greater offense, that is, whether there was probable cause to hold defendant to answer the second degree murder charge. The magistrate and superior court concluded that no probable cause existed to support a charge of second degree murder.

This determination, based upon undisputed facts, constituted a legal conclusion which is subject to independent review on appeal. (Pizano v. Superior Court (1978) 21 Cal.3d 128, 133-134 [145 Cal.Rptr. 524, 577 P.2d 659]; see also People v. Lawler (1973) 9 Cal.3d 156, 160 [107 Cal. Rptr. 13, 507 P.2d 621]; People v. Handley (1970) 11 Cal.App.3d 277, 281 [89 Cal.Rptr. 656]; 6 Witkin, Cal.

Procedure (2d ed. 1971) Appeal, § 256, p. 4247.) In such a case, our function is to determine whether a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion that defendant committed the crime charged. (Taylor v.

Superior Court (1970) 3 Cal. 3d 578, 582 [91 Cal.Rptr. 275, 477 P.2d 131].) We have said that second degree murder based on implied malice has been committed when a person does ‘““an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’” . . . . ” (People v. Sedeño, supra, 10 Cal.3d at p. 719, quoting from People v. Phillips, supra, 64 Cal.2d 574, 587.) Phrased in a different way, malice may be implied when defendant does

an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. (People v. Washington (1965) 62 Cal.2d 111, 782 [44 Cal.Rptr. 442, 402 P.2d 130].) Based upon our independent review of the record, we believe that there exists a rational ground for concluding that defendant’s conduct was sufficiently wanton to hold him on a second degree murder charge.

The facts upon which we base this conclusion are as follows: Defendant had consumed enough alcohol to raise his blood alcohol content to a level which would support a finding that he was legally intoxicated. He had driven his car to the establishment where he had been drinking, and he must have known that he would have to drive it later. It also may be presumed that defendant was aware of the hazards of driving while intoxicated. As we stated in Taylor v.

Superior Court (1979) 24 Cal.3d. 890, 897 [157 Cal.Rptr. 693, 598 P.2d 854]: “One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.” Defendant drove at highly excessive speeds through city streets,

an act presenting a great risk of harm or death. Defendant nearly collided with a vehicle after running a red light; he avoided the accident only by skidding to a stop. He thereafter resumed his excessive speed before colliding with the victims’ car, and then belatedly again attempted to brake his car before the collision (as evidenced by the extensive skid marks before and after impact) suggesting an actual awareness of the great risk of harm which he had created. In combination, these facts reasonably and readily support a conclusion that defendant acted wantonly and with a conscious disregard for human life.

We do not suggest that the foregoing facts conclusively demonstrate implied malice, or that the evidence necessarily is sufficient to convict defendant of second degree murder. On the contrary, it may be difficult for the prosecution to carry its burden of establishing implied malice to the moral certainty necessary for a conviction. Moreover, we neither contemplate nor encourage the routine charging of second degree murder in vehicular homicide cases.

We merely determine that the evidence before us is sufficient to uphold the second degree murder counts in the information, and to permit the prosecution to prove, if it can, the elements of second degree murder. We need not consider defendant’s contention that the degree of his intoxication rendered him incapable of entertaining malice. Such an argument would relate to a diminished capacity defense which properly should be raised and considered at trial. (See, e.g., Taylor v. Superior Court, supra, 24 Cal.3d at p. 899.) The judgment of dismissal is reversed.

Tobriner, J., Mosk, J., Newman, J., and Lachs, J., concurred. Assigned by the Chairperson of the Judicial Council.