30 Cal.3d 290, 21674, People v. Watson

Docket Nº:21674
Citation:30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279
Opinion Judge:[10] Richardson
Party Name:People v. Watson
Attorney:[7] George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, James T. McNally, Lisa Lewis Dubois, Eddie T. Keller and Thomas R. Yanger, Deputy Attorneys General, for Plaintiff and Appellant. [8] Russell J. Swartz,...
Case Date:November 30, 1981
Court:Supreme Court of California

Page 290

30 Cal.3d 290

179 Cal.Rptr. 43, 637 P.2d 279

The PEOPLE, Plaintiff and Appellant,


Robert Lee WATSON, Defendant and Respondent.

Cr. 21674.

Supreme Court of California.

Nov. 30, 1981.

Rehearing Denied Dec. 30, 1981.

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George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., James T. McNally, Lisa Lewis Dubois, Eddie T. Keller and Thomas R. Yanger, Deputy Attys. Gen., for plaintiff and appellant.

Russell J. Swartz, Public Defender, Redding, Quin Denvir, State Public Defender, and Charles M. Bonneau, Deputy State Public Defender, for defendant and respondent.


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

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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.

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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-(P) (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, 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.) 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

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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.) 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.) 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; People v. Phillips (1966) 64 Cal.2d 574, 587, 51 Cal.Rptr. 225.) 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.)

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.) However, a finding of implied malice depends upon a determination

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that the defendant actually appreciated the risk involved, i. e., a subjective standard. (People v. Phillips, supra, 64 Cal.2d at p. 588, 51 Cal.Rptr. 225.)

In the present case, the prosecution will be required to show a higher degree of culpability in...

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