People v. Taylor
| Decision Date | 21 May 1992 |
| Docket Number | No. G010516,G010516 |
| Citation | 6 Cal.App.4th 1084,8 Cal.Rptr.2d 439 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Mark Edwin TAYLOR, Defendant and Appellant. |
Mark Edwin Taylor appealed his second degree murder conviction, based on Adrian Obregon's death arising from Taylor selling him a few dollars' worth of phencyclidine (PCP). We originally reversed, holding the statute upon which Taylor's felony-murder conviction was based (Health & Saf. Code, § 11379.5) could be violated in a manner not inherently dangerous to life. The Supreme Court granted review and retransferred the case here with instructions to vacate our prior opinion and reconsider the case in light of People v. Patterson (1989) 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549. We did so, reversed the murder conviction again and remanded the case for consideration under Patterson 's "high probability of death" standard, and affirmed in all other respects. The trial court found the standard had been met, reimposed the judgment, and Taylor appealed again. We affirm in part and reverse in part again.
* * * * * *
The facts surrounding Obregon's death have not changed. However, we elaborate on the expert evidence concerning the dangers of PCP because it formed the basis for the trial court's ruling.
Adrian Obregon went to the beach with three friends. On their way, they purchased some beer. On arrival, they swam for a few minutes and drank some of the beer. Witnesses' descriptions of the surf that day ranged from "pretty calm" to "a little big" to "real strong." Obregon was a fairly good swimmer.
Taylor and another person approached the foursome and asked if they wanted to purchase some "water," meaning PCP. Obregon said he did, and he and one of his friends paid Taylor about $2. Taylor dipped an unfiltered cigarette in his vial of PCP. He lit the cigarette, took several puffs, and passed it around. Obregon and his friend took turns smoking the cigarette until it was gone. Obregon and two newcomers smoked another PCP-laced cigarette in this fashion.
After smoking, Obregon sat facing the ocean and listening to the radio via headphones; he was "high." He began scooting toward the water. At the water's edge, he turned around so his head was pointed toward the water. He allowed several waves to hit him and carry him, appearing to enjoy it. A wave broke over him and rolled him onto his stomach; he did not get up. The surf carried Obregon out to sea and neither the lifeguard nor others on the beach could find him.
Obregon's body turned up on the beach the next morning. An autopsy revealed a subdural brain hemorrhage, consistent with an impact against wet sand. Significant amounts of PCP were present in the blood, brain, and liver. The blood alcohol level was .058 percent. The autopsy surgeon identified the cause of death as saltwater drowning, with PCP use and the subdural hemorrhage as contributing factors.
A complaint charged Taylor with one count of murder, seven counts of sale, furnishing, or transportation of PCP, and one count of possessing PCP for sale. At trial, Dr. Steven Lerner, the prosecution expert, testified that PCP was used experimentally as a general anesthetic in the 1950's. At the normal anesthetic dosage of .25 milligrams per kilogram of body weight, it would render the patient unconscious without medical risk. Vital signs would remain stable. It was discontinued because of side effects, such as assaultive and belligerent behavior in the recovery room.
Ninety to ninety-five percent of PCP users have a pleasant experience. Some chronic users have ingested the drug on a daily basis for years. They build up incredibly high tolerances, up to 250 milligrams per sitting, which is 10 to 15 times the general anesthetic dose for surgery.
Although not familiar with the legal standard, Dr. Lerner testified PCP is inherently dangerous to human life. Although the drug can be toxic, most people who die from the drug do not overdose, but succumb as a result of its "behavioral effects," such as drowning or falls from heights. Users' spatial perceptions are affected; they lose their sense of up and down, and where their limbs are. They can drown in shallow water and are unsafe drivers. The drug also interferes with their ability to respond appropriately in emergency situations. Users can become violent and have been killed by police as a result. They have also attacked and killed others.
Defense expert Dr. Orm Aniline testified PCP is not a toxic substance by nature, although any substance has some toxic properties depending on how it is used and the sensitivity of the user. PCP was used as an anesthetic because doctors did not need to worry about seizures or cardiac and respiratory problems as they did with other anesthetics. It is still widely used for "headlight surgery" in remote areas because of its high margin of safety, and on animals with sensitive respiratory systems, such as elephants.
PCP is not an inherently dangerous drug; one can be given PCP without creating a substantial risk of death. Concerns about death from an overdose do not arise until an individual has ingested 1,000 milligrams, over 50 times a high street dosage and over 40 times the average anesthetic level. The odds of dying from a dose of PCP are less than 1 in 10,000, and possibly much less. It approximates the risk of death from a shot of lidocaine in the dentist's office.
Dr. Aniline acknowledged there are potential negative side effects to PCP use. It can cause a coma, seizures, neurological problems (including difficulty with balance and movement), respiratory problems, and exacerbation of preexisting conditions (such as heart seizures and psychosis).
Montebello police officers 1 Robert Carcano and Louis Ojeda had significant training on PCP and street experience with users. To their knowledge, although approximately 500 to 600 PCP arrests were made in their jurisdiction each year, no "PCP deaths" had ever occurred there.
The trial judge ruled that the sale of PCP is inherently dangerous to human life and allowed the murder charge to go to the jury. Taylor was found guilty on all counts and sentenced to 15 years to life on the murder count, terms being stayed on the companion drug offenses. On appeal, we reversed the murder conviction, reasoning under controlling authority that the felony-murder theory relied upon was invalid because the sale, transportation, or furnishing of PCP was not inherently dangerous to human life when "viewed in the abstract." (People v. Taylor (May 9, 1989) G005345, typed opn. p. 6; see also People v. Burroughs (1984) 35 Cal.3d 824, 829-830, 201 Cal.Rptr. 319, 678 P.2d 894; People v. Henderson (1977) 19 Cal.3d 86, 93, 137 Cal.Rptr. 1, 560 P.2d 1180.)
The Supreme Court granted review and subsequently transferred the case here with directions to vacate our opinion and to reconsider the matter in light of People v. Patterson (1989) 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549, decided four months after our opinion was filed. Patterson held that to be " 'inherently dangerous' " the underlying felony, viewed in the abstract, must carry " 'a high probability' that death will result." (Id. at pp. 622, 627, 262 Cal.Rptr. 195, 778 P.2d 549.) We reconsidered the matter with the guidance of Patterson, and reversed and remanded to the trial court with instructions to determine whether sale or furnishing of PCP posed a high probability of death. (People v. Taylor (Sept. 27, 1990) G005345.) The trial court found it did, relying solely on the expert testimony from the trial.
Before analyzing the trial court's finding that furnishing 2 PCP poses a high probability of death, we must determine the correct standard of review. Neither of the parties tackles the issue, although Taylor seems to treat the issue purely as a matter of law, 3 while the Attorney General seems to view it, at least partially, as an issue of fact. 4 It is the former. 5
(Atlantic Richfield Co. v. State of California (1989) 214 Cal.App.3d 533, 538, 262 Cal.Rptr. 683.)
However, deference need not always be given to the trial court. For example, statutory interpretation is a question of law (Dean W. Knight & Sons, Inc. v. State of California ex rel. Dept. of Transportation (1984) 155 Cal.App.3d 300, 305, 202 Cal.Rptr. 44), and appellate courts review such issues independently, at least where there is no conflicting extrinsic evidence offered to aid in interpretation. (See Atlantic Richfield Co. v. State of California, supra, 214 Cal.App.3d at pp. 538, 542, 262 Cal.Rptr. 683 [].) 6
Although second degree felony murder is not expressly set forth in the Penal Code, the courts have long held that certain felonies not listed in Penal Code section 189 () will support a finding of second degree murder if a defendant kills during the perpetration of one of them. (People v. Mattison (1971) 4 Cal.3d 177, 184, 93 Cal.Rptr. 185, 481 P.2d 193.)...
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