People v. Howard

• Decision Date: 27 January 2005
• Docket Number: No. S108353.,S108353.
• Citation: 34 Cal.4th 1129,104 P.3d 107,23 Cal.Rptr.3d 306
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Evert Keith HOWARD, Defendant and Appellant.

23 Cal.Rptr.3d 306

34 Cal.4th 1129

104 P.3d 107

The PEOPLE, Plaintiff and Respondent, v. Evert Keith HOWARD, Defendant and Appellant.

No. S108353.

Supreme Court of California.

January 27, 2005.

Madeline McDowell, Sacramento, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney

General, Jo Graves, Assistant Attorney General, W. Scott Thorpe, Janet E. Neeley, John G. McLean and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, J.

Murder is the unlawful killing of a human being, with malice aforethought. (Pen.Code, § 187, subd. (a).) But under the second degree felony-murder rule, the prosecution can obtain a conviction without showing malice if the killing occurred during the commission of an inherently dangerous felony. Is the crime of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh.Code, § 2800.2)¹ an inherently dangerous felony for purposes of the second degree felony-murder rule? We conclude it is not.

I

At 12:40 a.m. on May 23, 2002, California Highway Patrol Officer Gary Stephany saw defendant driving a Chevrolet Tahoe (a sport utility vehicle) without a rear license plate, and signaled him to pull over. Defendant stopped on the side of the road. But when Officer Stephany and his partner, Officer Wayne Bernard, got out of their patrol car, defendant restarted the engine and sped to a nearby freeway. The officers gave chase at speeds of up to 90 miles per hour and radioed for assistance. Defendant left the freeway and drove onto a surface street, turning off his car's headlights. He ran two stop signs and a red light, and he drove on the wrong side of the road. His speed was 15 to 20 miles over the posted speed limit of 50 miles per hour. At some point, he made a sharp turn onto a small dirt road and escaped.

Minutes later, Officer Anthony Arcelus and his partner, Officer Bret Boss, who had been monitoring the pursuit on their car radio, saw the Tahoe with its headlights on again and took up the chase. Officer Arcelus, who was driving, estimated the Tahoe's speed at more than 80 miles per hour, and he saw it run a stop sign and a traffic light. By then, the car's headlights were again turned off. Up to that point, the chase had taken place in rural parts of Fresno County. When the Tahoe started heading toward downtown Fresno, Officer Arcelus gave up the pursuit, fearing that the high-speed chase might cause an accident.

About a minute after Officer Arcelus stopped chasing the Tahoe, he saw it run a red light half a mile ahead of him and collide with a car driven by Jeanette Rodriguez. Rodriguez was killed and her husband, a passenger in the car, was seriously injured. It turned out that the Tahoe that defendant was driving had been stolen earlier that day. Defendant, who was also injured in the crash, was arrested and charged with murder (Pen.Code, § 187), with causing serious bodily injury while evading a police officer (§ 2800.3), and with evading a police officer in willful or wanton disregard for the safety of persons or property (§ 2800.2).

At trial, the prosecution called as a witness Laurie Bennett, defendant's passenger during the chase. She was evasive about the events leading up to the accident. Ultimately, she admitted that she had told the truth when she explained to a police officer that five or six times during the chase she had begged defendant to let her get out of the car, and that defendant had run a red light at the intersection where the fatal accident occurred. An accident reconstruction expert testified that at the time of the accident the Tahoe was traveling over 80 miles per hour, and Rodriguez's car was traveling close to the posted speed limit of 35 miles per hour. John Mikkelson, a pipeline inspector working near the intersection where the accident occurred, said he looked at the signal immediately after hearing the crash of the two colliding cars and saw that it was green for cars traveling in Rodriguez's direction (and thus presumably red for defendant).

Forensic toxicologist Roger Peterson, a witness for the defense, testified that defendant had a "high amount" of methamphetamine in his bloodstream at the time of the accident. A person under the influence of methamphetamine, Peterson said, might drive at excessive speeds, might have trouble staying in a single lane, and might not notice traffic lights and signs. Defendant also had marijuana in his bloodstream, but not enough to be under the influence. Victim Rodriguez's bloodstream contained morphine (a metabolite of heroin) and benzoyleconine (a metabolite of cocaine). Based on this evidence, toxicologist Peterson expressed his opinion that Rodriguez was under the influence of heroin and possibly cocaine when the accident occurred.

Defendant testified on his own behalf. He admitted stealing the Tahoe and fleeing from the Highway Patrol officers. He did so because his probation officer had cold him he would go to prison if he was again caught in a stolen car. He could only remember bits and pieces of the chase. He described himself as a skilled driver; his cousin, a race car driver, had taught him to drive "sprint cars" at a race track. He saw the victims' car before the accident but could not recall hitting it. He could not remember what color the signal light was when he entered the intersection but admitted it was "most likely" red when the car he was driving crashed into the Rodriguez car.

The trial court instructed the jury: "Every person who unlawfully kills a human being during the commission of violation of California Vehicle Code section 2800.2, 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: [¶] 1. A human being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The killing occurred during the commission of violation of California Vehicle Code section 2800.2, a felony inherently dangerous to human life. A violation of Vehicle Code section 2800.2 is a felony inherently dangerous to human life." The trial court did not instruct the jury that malice is an element of murder or that the jury could convict defendant if it found that he acted with express or implied malice when he killed victim Rodriguez.

In his closing argument, defense counsel contended that defendant did not violate section 2800.2 because he did not drive with willful and wanton disregard for life or property; that even if defendant violated section 2800.2 while fleeing from the officers he was not doing so when the accident occurred, because by then the officers were no longer chasing him; and that defendant might not have caused the accident because there was a reasonable doubt that he ran a red light at the time of the incident.

During its deliberations, the jury sent the trial court this note: "It appears in the instructions if there is a guilty verdict in [section] 2800.2 then there must be a guilty verdict for [Penal Code section] 187, yes or no?" The court replied that it was "not in a position to say yes or no"; it then reread the instructions on felony murder and causation. The jury convicted defendant of all counts.

The Court of Appeal affirmed. As pertinent here, it rejected defendant's contention that he could not be convicted under the second degree felony-murder rule because section 2800.2 is not an inherently dangerous felony. And it rejected defendant's contention that he could not be convicted of murder because his conduct fit within section 2800.3 (causing death or serious bodily injury by willful flight from a pursuing peace officer), which he claimed is a "special statute" that bars his conviction for the more general crime of murder.

We granted defendant's petition for review on these two issues: "1. Whether the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh.Code, § 2800.2) is a felony inherently dangerous to human life for purposes of the second degree felony-murder rule. [¶] 2. Whether the offense of proximately causing death or serious bodily injury by willful flight from a pursuing police officer (Veh.Code, § 2800.3) is a more specific offense precluding application of the second degree felony-murder rule where death occurs during the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2)."

II

Because the second degree felony-murder rule is a court-made rule, it has no statutory definition. This court has described it thusly: "A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the ... felonies enumerated in Pen.Code, § 189) constitutes at least second degree murder." (People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 388 P.2d 892, italics added.) The rule "eliminates the need for proof of malice in connection with a charge of murder." (People v. Robertson (2004) 34 Cal.4th 156, 165, 17 Cal.Rptr.3d 604, 95 P.3d 872.) It is not an evidentiary presumption but a substantive rule of law (see People v. Dillon (1983) 34 Cal.3d 441, 472-476, 194 Cal. Rptr. 390, 668 P.2d 697; see also People v. Patterson (1989) 49 Cal.3d 615, 626, 262 Cal.Rptr. 195, 778 P.2d 549), which is based on the theory that "when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved." (People v. Patterson, supra, 49 Cal.3d at p. 626, 262 Cal.Rptr. 195, ...