People v. Whitfield

Citation868 P.2d 272,27 Cal.Rptr.2d 858,7 Cal.4th 437
Decision Date28 February 1994
Docket NumberNo. S030759,S030759
CourtUnited States State Supreme Court (California)
Parties, 868 P.2d 272 The PEOPLE, Plaintiff and Respondent, v. Stephen Martin WHITFIELD, Defendant and Appellant.

Madeline McDowell, Sacramento, and John T. Philipsborn, San Francisco, as amici curiae on behalf of defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Robert M. Foster, Keith I. Motley, Garrett Beaumont and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

Kent S. Scheidegger and Charles L. Hobson, Sacramento, as amici curiae on behalf of plaintiff and respondent.

GEORGE, Justice.

We granted review in this case to resolve a conflict in decisions of the Courts of Appeal regarding whether, under Penal Code section 22, 1 evidence of voluntary intoxication is admissible in a prosecution for second degree murder when the prosecution seeks to establish We further hold that the trial court in this case correctly instructed the jury as to the proper use of evidence of voluntary intoxication in determining whether defendant was guilty of second degree murder or, instead, of gross vehicular manslaughter while intoxicated (§ 191.5), and did not err in refusing to provide an additional instruction, requested by defendant, concerning whether defendant was unconscious at the time of the killing. Accordingly, we affirm the judgment of the Court of Appeal upholding defendant's conviction of second degree murder.

[868 P.2d 273] the existence of malice aforethought on an implied malice theory, i.e., seeks to prove that the defendant acted with knowledge of the danger to human life and in conscious disregard of human life. For the reasons that follow, we hold that evidence of voluntary intoxication is admissible under section 22 with regard to the question whether the defendant harbored malice aforethought, whether such malice is express or implied.

I

Defendant was charged by amended information with murder (§ 187), driving under the influence of alcohol or drugs (Veh.Code, § 23152, subd. (a)) within seven years of having suffered three previous convictions for a similar offense (Veh.Code, § 23175), driving with a blood-alcohol content of .08 percent or more (Veh.Code, § 23152, subd. (b)) within seven years of having suffered three previous convictions for a similar offense (Veh.Code, § 23175), and driving while his privilege to drive was suspended or revoked for driving under the influence of alcohol or drugs (Veh.Code, § 14601.2, subd. (a)).

The evidence admitted at trial included the following. In 1989, pursuant to the sentence imposed upon his being convicted a second time for driving under the influence of alcohol, defendant attended several sessions of a program for repeat offenders and viewed a film that graphically depicted the carnage caused by intoxicated drivers, including footage of scenes of accidents caused by such drivers and interviews with relatives of persons who had been killed in this manner. On March 5, 1990, defendant suffered his third conviction for driving under the influence of alcohol.

Shortly after 1 p.m. on Saturday, November 17, 1990, defendant was driving on Van Buren Boulevard in Riverside County. Frank Diaz III, who was driving behind defendant, observed defendant's vehicle swerve in and out of the left lane and over the double yellow line dividing the road.

Frank Falbo was driving in the opposite direction on Van Buren Boulevard when defendant's vehicle swerved over the double yellow line, almost colliding with Falbo's automobile, then continued straddling the double yellow line, occupying three-quarters of the oncoming lane, and collided head-on with a vehicle driven by 21-year-old Ronald Lawrence Kinsey. Kinsey was killed.

Defendant was found unconscious on the front seat of his vehicle. He smelled strongly of an alcoholic beverage. Several empty 16-ounce cans of malt liquor were on the floor of the vehicle. He was taken to a hospital for treatment of his injuries, the most serious of which was a collapsed lung. A hospital employee informed defendant he had killed someone.

At approximately 3 p.m., a sample of defendant's blood was withdrawn at the request of the police. The technician who extracted the blood heard defendant exclaim: "Take me straight to the gas chamber, [I] killed somebody." Analysis of the blood sample revealed a blood-alcohol content of .24 percent.

Defendant did not dispute the prosecution's evidence establishing that he was under the influence of alcohol. To the contrary, defendant sought to prove that he did not harbor implied malice aforethought because he was so intoxicated that he was unconscious at the time the accident occurred. Accordingly, defense counsel elicited testimony demonstrating that, because the amount of alcohol in a person's system dissipates over time, defendant's blood-alcohol content would have been .27 percent about the time of the collision, and that individuals with blood-alcohol levels above .25 percent may become stuporous and lose consciousness. Defendant also introduced evidence indicating Lorena Lee testified for the defense that she drove past defendant's vehicle immediately prior to the accident and observed that defendant's head was nodding "like he was fighting sleep."

[868 P.2d 274] that an independent laboratory's analysis of the blood sample withdrawn at the request of the police, and an analysis by the hospital of a separate blood sample, revealed even higher blood-alcohol levels.

Defendant offered the testimony of a paramedic who arrived at the scene of the accident and found defendant unconscious. When defendant regained consciousness a short time later, he was incoherent, his speech was incomprehensible, and his breath smelled strongly of an alcoholic beverage. The paramedic acknowledged that defendant's apparent lack of comprehension and mumbled speech might have resulted from the accident, but he believed they were due to defendant's consumption of alcohol.

Clinical psychologist Dr. Craig Rath testified for the defense that blood-alcohol levels from .09 percent to .25 percent impair a person's memory and ability to make critical judgments and to predict the effects of one's actions. At blood-alcohol levels from .25 percent to .40 percent, a majority of individuals will become stuporous and lose consciousness, although their eyes may remain open and they may continue to function physically and even be able to operate a motor vehicle. Dr. Rath opined that a person could be capable of operating a motor vehicle even though he or she was incapable of conscious decisionmaking due to alcohol consumption.

On rebuttal, the prosecution introduced evidence establishing that, when questioned by police officers two days after the collision, defendant stated that during the morning of the day of the collision, he consumed the contents of two 16-ounce cans of malt liquor at his home and then drove his children to his mother's house. He purchased two more cans of malt liquor near his mother's house and consumed their contents as well. Defendant subsequently left his children with his mother and was driving home when the accident occurred. He did not remember the collision. The prosecution offered expert testimony establishing that the amount of alcohol defendant admitted having consumed was insufficient to produce a blood-alcohol level of .24 percent.

The trial court's instructions to the jury included the following. For the crime of murder "there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator." (CALJIC No. 3.31.) "If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider the fact of intoxication, including the degree of intoxication, in determining whether defendant had such specific intent or mental state." (See CALJIC No. 4.21.) "Every person who unlawfully kills a human being with malice aforethought is guilty of the crime of murder...." (CALJIC No. 8.10.) " 'Malice' may be either express or implied. Malice is express when there is manifested an intention unlawfully to kill a human being. [p] Malice is implied when: [p] 1. The killing resulted from an intentional act, [p] 2. The natural consequences of the act are dangerous to human life, and [p] 3. The act was deliberately performed with knowledge of the danger to and with conscious disregard for human life." (CALJIC No. 8.11.)

"The intentional act required for 'implied malice' underlying vehicle murder is not the traffic violation which may precede a collision, but whether the defendant was driving under the influence with a conscious disregard for human life." (Special instruction requested by the prosecution.) "In order to convict defendant of second-degree murder you must examine defendant's state of mind at the time of the act. This is referred to as a subjective test. Second-degree murder based on implied malice requires that defendant acted deliberately, that defendant acted with knowledge of the danger to human life, and that defendant acted in conscious disregard for human life." (Special instruction requested by defendant.) "If a person causes another's death by doing a dangerous act in an unlawful or criminally negligent manner, without realizing the risk involved, he is guilty of manslaughter. If, on the other hand, the person realized the risk and acted in conscious disregard of the danger to human life, malice is implied and the crime is The trial court refused defendant's request that the jury be instructed, pursuant to CALJIC No. 8.47, that "[i]f you find that a defendant, while unconscious as a result of voluntary intoxication, killed another human being without...

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