• Implied Malice Second Degree Murder
• Driving While Under the Influence of Marijuana

A second degree implied malice murder conviction will be sustained on appeal so long as the evidence is sufficient to show that upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, including that the defendant was subjectively aware that his actions endangered human life.

Davion Demetrious Murphy (defendant) was 19 years old in January, 2018.  He’d been smoking marijuana since the age of 11.  Despite his young age, defendant was well aware of the dangers of misusing marijuana and its potential effects while driving a motor vehicle.  Classified as an “at-risk” youth in 2014, when he was 15, he’d attended a multiday educational program where one of the program’s purposes was to warn participants about the serious potential consequences of driving a motor vehicle while under the influence of alcohol and/or a controlled substance.  During this program, he learned about specific instances of traffic fatalities involving drunk drivers, including several firsthand accounts. Later, in 2016, while applying for a California Driver’s license, defendant acknowledged in the license application “that being under the influence of alcohol or drugs, or both, impairs the ability to safely operate a motor vehicle, (and that) it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both.”  Defendant also acknowledged in his license application that, “(i)f I drive while under the influence of alcohol or drugs, or both, and as a result, a person is killed, I can be charged with murder.”  Lastly, evidence at his eventual trial (as described below) also showed that a marijuana container found in defendant’s car after the collision in issue had a warning label attached to it advising users that it was dangerous to drive while under the influence of marijuana. Despite all this forewarning, defendant showed no reluctance to get behind the wheel while stoned. 

On the morning of January 11, 2018, defendant, his cousin (Anthony Brown), and two other friends started smoking marijuana early—before breakfast—at defendant’s home in Lancaster.  After downing a hearty breakfast, and engaging in “a little bit” of dope-inspired rapping, they decided to take defendant’s Lexus to the Eastside Car Wash & Quick Lube to get the oil changed.  Surveillance video at the carwash showed them arriving at 10:39 a.m., with defendant driving.  It also showed the carwash technician backing away from the vehicle and rubbing his eyes when defendant rolled down his window.  The technician later testified to the “strong” odor of marijuana as the smoke flowed from the car.  As the four of them waited while the Lexus was being serviced, they continued smoking their marijuana to the point where the carwash manager had to ask them to stop smoking so close to his office door.  Anthony Brown later testified that he was “feeling woozy” from “the same weed that everyone was smoking.”  Defendant himself was described by others as feeling quite friendly, embracing one employee and “fist bump(ing)” another, before leaving at 11:27 a.m. 

After stopping briefly at a gas station, they headed on their way back to defendant’s home with defendant driving.  At what was later estimated to be over 80 miles per hour in a 40 mph zone, driving on J-8 Street in a residential area, as they were all “laughing and having a good time” (according to witnesses), they came to a red light at a cross street (Challenger Way).  Defendant didn’t even attempt to slow—an allegation supported by the lack of any skid marks—as he blew the light.  Halfway across the intersection, defendant broadsided (T-boned) a Subaru that was attempting to traverse the intersection on Challenger Way.  The three occupants of the Subaru (Yovanny Salazar Calzada, his wife, Rocio Lopez, and grandmother, Virginia Martinez) all died at the scene.  Neither defendant nor any of his passengers were seriously injured.  Three marijuana canisters were recovered from the Lexus, two of which were empty.

Defendant was charged in state court with three counts of second degree murder (P.C. §§ 187(a), 188).  (Vehicle Code violations and attached allegations were dismissed prior to trial at the prosecution’s request.)  During trial, the prosecution used a forensic scientist (Vanessa Meneses) from the toxicology section of the Orange County crime lab as its expert toxicologist to testify to the effects of marijuana upon a person’s ability to drive.  The People also used an accident reconstruction expert (Detective Ryan Bodily) to do just that; reconstruct the details of the collision including the speed of defendant’s vehicle at the point of impact (i.e., 88.1 miles per hour).   Convicted and sentenced to three concurrent terms of 15 years to life in prison, defendant appealed.

The Second District Court of Appeal (Div. 7) affirmed.  Defendant’s primary defense was that it was not he, but rather his cousin—Anthony Brown—who was driving; an assertion the jury didn’t buy despite the fact that immediately after the collision, Brown had been seen exiting the Lexus from the driver’s side door.  In support of the People’s allegations, evidence was presented that defendant told numerous witnesses at the scene that he had been driving; an admission that was consistent with the testimony of other witnesses who saw him behind the wheel.  His secondary defense was that the evidence, as presented, was insufficient to support a second degree murder conviction, arguing that “no reasonable jury could have found he acted with implied malice when he drove his Lexus through the red light at the intersection . . . .” As was argued by the defense:  “(A)lthough the evidence of his conduct may have been enough to sustain a finding that a reasonable person in Murphy’s position would have been aware of the risk involved—which is the standard for ‘gross vehicular manslaughter’—it was not enough to sustain the jury’s finding that Murphy was subjectively aware his actions endangered human life, which was necessary to support an implied malice second degree murder conviction.” (Italics added)  The Court disagreed. 

On appeal, an appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Consequently, “[a] reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.”  (People v. Zamudio (2008) 43 Cal.4th 327, 357.)  On the issue of a charge of murder, the basic rules are well established even if a bit convoluted.  Murder is defined as “the unlawful killing of a human being with express or implied malice aforethought.”  (Italics added: P.C. §§ 187(a), 188.)  “Malice,” as an element of “murder,” is “express” when a person manifested a deliberate intention to unlawfully take away the life of another human being.  (I.e., a first degree murder.)  It is “implied” (for a second degree murder) when there was no considerable provocation or when the circumstances attending the killing show an abandoned and malignant heart. (People v. Zamudio, supra.)  

As further noted by the Court, “implied malice” has “both a physical and a mental component. The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’  The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.’”  (People v. Soto (2018) 4 Cal.5th 968, 974.)  In other words: “(M)alice 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 a wanton disregard for human life.”  (People v. Watson (1981) 30 Cal.3d 290, 300.)  “Implied malice is determined by examining the defendant’s subjective mental state” to see if he appreciated the risk of his actions.  The death may even be the result of an accident, as it was in this case.  And implied malice may be proven via circumstantial evidence.  It need only be established that the defendant deliberately committed an act, the “natural consequences of which were dangerous to life, with knowledge of the act’s danger to life and a conscious disregard of that danger.”  (People v. Watson, supra, at p. 300.)  It is this “conscious disregard for the danger to life” that distinguishes “implied malice” from a mere “gross negligence.” 

The Court here determined that there was in fact “substantial evidence” supporting the jury’s conclusion that defendant acted with implied malice.  Such a finding by the jury does not require the jury to conclude that defendant was under the influence of marijuana.  Implied malice may exist in the absence of drug use.  However, in this case, the prosecution presented sufficient evidence from which the jury could reasonably infer that defendant was in fact driving while under the influence of marijuana when he ran the red light and crashed into the Subaru.  During the trial, the People presented evidence from an expert toxicologist who testified that while there is no way to determine the degree of impairment caused by smoking marijuana, as there is when alcohol consumption is the issue, other evidence was presented to support a finding that defendant was in fact impaired by marijuana before and during the accident, having smoked it a number of times immediately preceding the collision.  The People’s toxicologist expert provided evidence as to the general effects of marijuana consumption on one’s ability to drive, leading to the inference that defendant’s dangerous driving was due to his consumption of marijuana.  Although the record does not contain evidence as to the amount of marijuana defendant smoked, or its potency, the toxicology evidence (from a blood test obtained some four hours after the collision) showed that defendant had a significant quantity of psychoactive THC in his blood after the accident, which indicated he had recently ingested marijuana. Based on the quantity of psychoactive THC in defendant’s blood, the toxicology expert hypothesized that a similarly situated person would likely have been actively impaired at the time of the collision.   Defendant’s observed actions immediately before the fatal collision support this conclusion; e.g., embracing and “fist bumping” carwash employees and “laughing and having a good time” as he sped down J-8 Street in a residential area at nearly 90 miles per hour.  The Court further rejected defendant’s contention that the knowledge he had gained at the “at-risk” youth program he’d attended some years earlier, his driver’s license application process, and the warning label on a marijuana canister found in his car, were insufficient to prove his subjective awareness of the dangers involved in the driving of a motor vehicle while under the influence.  Prior case law has held that such warnings are sufficient evidence to prove such awareness.  The Court also rejected defendant’s argument that the People failed to prove that defendant was subjectively aware that he was under a drug’s influence and thus impaired, finding to the contrary; i.e., that defendant’s actions themselves were sufficient to prove this element.  Also, the Court ruled that “(i)f a person knows—for example, from prior experience with drugs and alcohol or from warnings the person received—that driving under the influence of such substances is extremely dangerous, then ingesting marijuana, and proceeding to drive, could readily be deemed to establish ‘conscious disregard’ for the lives of others, satisfying the intent element for implied malice.”  The evidence as presented at defendant’s trial was sufficient to prove this fact.  The Court further held that there is no legal authority for the argument that prosecutors were required to prove that a defendant possessed a subjective awareness of his or her level of intoxication. 

Lastly, the Court rejected defendant’s arguments concerning the alleged insufficiency of an accident reconstruction expert’s testimony which was used by the prosecution to establish the speed of defendant’s Lexus at the instant it collided with the Subaru, and lay witness testimony concerning Murphy’s estimated speed while driving on J-8 Street.  First, Murphy failed to object to such testimony at the time, relying instead upon the argument that Anthony Brown was the actual driver.  Secondly, such evidence is generally admissible, it’s value going to the weight of such evidence and not its admissibility; an issue to be determined by a jury.  And lastly, cases concerning lay opinion testimony uniformly hold that such a lay opinion based on a witness’ personal observation, including an estimate of the speed of a vehicle, is admissible.  (E.g., People v. Chapple (2006) 138 Cal.App.4th 540, 547.)  Defendant’s conviction was therefore affirmed, although remanded to the trial court to correct an error in the abstract of judgment

I suspect that “driving while under the influence of marijuana” cases have become more and more prevalent since California fully legalized the possession and consumption of the stuff.  As such, this excellent case is must-reading for any prosecutor before trying such a DUI/marijuana case, providing all the necessary evidence to secure a conviction.  Police officers should also be familiar with this case so they can do their job in providing the prosecution with the necessary evidence.  The toxicologist’s testimony is described in the opinion in excruciating detail, as well as the Court’s explanation as to its relevance in a DUI/drug case.  Also, this case is doubly important as an example on what is needed to convict a DUI (drugs or alcohol) defendant of second degree, implied malice murder involving a vehicle collision and a death.  The accident reconstruction expert’s important evidence, also described in detail, is but icing on the cake, even though necessary icing.  Great job done by LA DDAs Yoobin Kang Hernandez and Casey Higgins, of the LADA’s DUI Training and Prosecution Section (at the time), generating a great case for the People.