People v. Murphy

Filed 06/30/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B306773
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA074601)
v.
DAVION DEMETRIOUS
MURPHY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Daviann L. Mitchell, Judge. Affirmed with
directions.
Stephen M. Vasil, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen, Supervising
Deputy Attorney General, and David Williams, Deputy Attorney
General for Plaintiff and Respondent.
________________________
Davion Demetrious Murphy appeals from the judgment
entered on his three convictions for second degree murder. (Pen.
Code, § 187, subd. (a).).1 Murphy argues the evidence supporting
his convictions is insufficient because the prosecution failed to
prove he acted with implied malice when, while under the
influence of marijuana, he drove his car at nearly 90 miles per
hour through a red light and collided with another vehicle, killing
its occupants.
We conclude sufficient evidence supported the jury’s
verdict. Although there is not yet a commonly administered and
standardized medical test equivalent to the blood alcohol
concentration test that accurately determines a person’s level of
impairment from lipophilic, psychoactive drugs such as
marijuana, there was substantial evidence that at the time of the
accident Murphy was impaired from using marijuana. There was
also substantial evidence that Murphy acted with implied malice
both when he smoked marijuana with the intent to drive, and
when he drove in a manner that demonstrated a conscious
disregard for human life.
Murphy also asserts the abstract of judgment contains an
error. Only Murphy’s complaint regarding the abstract of
judgment has merit. Accordingly, we affirm and direct the trial
court to correct the abstract of judgment.
1 All statutory references are to the Penal Code unless
otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Fatal Collision and Murder Charges
On the morning of January 11, 2018, Murphy (then 19
years old) was at his home in Lancaster with his cousin, Anthony
Brown, and two friends, Derick James and Nicholas Clayton.
The four smoked marijuana, ate breakfast and “rapped for a little
bit.” Murphy then drove Brown, James and Clayton to the
Eastside Car Wash & Quick Lube to get the oil changed in
Murphy’s silver Lexus.
The surveillance video from the car wash recorded the four
men arriving in Murphy’s car at 10:39 a.m.2 When Murphy rolled
down the driver’s window to speak with the oil change technician,
the technician saw smoke coming out of the window and smelled
a “strong” odor of marijuana. The smoke and odor emanating
from the car caused the technician to back away from the vehicle
and rub his eyes.
After Murphy and his companions left the car with the
technician, they walked to a courtyard adjacent to the car wash
office and waited for the car during the oil change. According to
Brown, while waiting they smoked more marijuana.3 Eventually
2 The surveillance video that was played for the jury
during Murphy’s trial showed Murphy and his companions’
activities while at the Eastside Car Wash.
3 The surveillance video also captured the group’s
activities in the courtyard. At 10:51 a.m., the video showed
Murphy lifting and lowering his hands, one at a time, to his
mouth. Detective Ryan Bodily, the lead case investigator,
expressed his lay opinion that Murphy’s gestures showed
he was smoking something. Brown testified that Murphy
3
the car wash manager asked them to stop smoking marijuana
near the door of the car wash office. By then, Brown said he was
“feeling woozy” from “the same weed that everyone was smoking.”
As they walked to get the car, Murphy embraced one Eastside
Car Wash employee and then fist bumped another4 before getting
into his Lexus. The surveillance video showed Murphy driving
out of the car wash at 11:27 a.m.
Shortly after leaving the car wash the group stopped at a
gas station, then drove through a residential neighborhood of
Lancaster, traveling east on Avenue J-8, as they headed back to
Murphy’s house. At approximately 12:00 p.m., when they were
about a mile from Murphy’s home, Murphy’s car ran a red light
at the intersection of Avenue J-8 and Challenger Way. Although
the posted speed limit was 40 miles per hour, Murphy’s car was
traveling approximately 88 miles per hour through the
intersection.
As Murphy approached the intersection, Tinei Delatorre
was stopped at the same intersection in the middle lane of
Challenger Way waiting for the signal light in her direction to
turn from red to green. To her right, a blue Subaru was waiting
at the signal light in the lane closest to the curb. After the signal
on Challenger Way turned green, and before Delatorre began to
drive into the intersection, Delatorre saw Murphy’s silver Lexus
“flying from” her left, driving east on Avenue J-8 at “freeway
speed.” Delatorre said Murphy did not honk his horn to provide a
sometimes smoked cigarettes, but that morning they were
all smoking “weed” and “not cigarettes.”
4 There was no testimony presented at trial that
Murphy knew the employees he hugged or fist bumped at
the car wash.
4
warning of his approach. It appeared to Delatorre that Murphy
had “no intention of stopping” at the red light. The blue Subaru
in the lane to Delatorre’s right had already driven into the middle
of the intersection when Murphy’s car ran the red light.
Murphy’s Lexus broadsided the driver’s side of the Subaru.
Yovanny Salazar Calzada was driving the Subaru, his wife Rocio
Lopez, was in the front passenger seat and his grandmother,
Virginia Martinez, sat in the backseat. Calzada, Lopez and
Martinez died from multiple blunt force traumatic injuries.
Neither Murphy nor his passengers were seriously injured in the
accident.5
Rochelle Roberts was in her car on Challenger Way near
the intersection of Avenue J-8 at the time of the accident. She
described the crash, stating it did not appear Murphy’s car
intended to stop at the red light. Roberts estimated Murphy’s car
sped through the intersection at over 80 miles per hour. Crystal
Aunchman was also an eyewitness; she was in her car, waiting at
the signal at the intersection of Challenger Way and Avenue J-8
when the accident occurred. She noticed the occupants inside the
5 Although none of the occupants of the Lexus wore
seat belts at the time of the accident, James, Clayton and
Brown suffered only minor injuries, and Murphy sustained
a broken femur. When first responders arrived at the
scene, they found James and Clayton sitting on the curb
near the Lexus. Murphy was still in the car, partially
hanging out of the passenger side window. Brown was
found about 50 feet north of the Lexus in an open field;
eyewitnesses reported that immediately after the accident,
Brown exited the Lexus and ran into a nearby vacant lot
where he collapsed on the ground.
5
Lexus were “laughing and having a good time” just before the
crash.6
At noon on January 11, 2018, Jose Ruiz, who lived on the
southeast corner of the intersection of Avenue J-8 and Challenger
Way, was in his garage when he heard an explosion. He did not
hear any car horns or brakes screeching before the collision.
After the accident, Murphy admitted to four different police
officers and a paramedic that he had been driving the silver
Lexus at the time of the crash. Murphy thought he had been
driving south on Challenger Way (not Avenue J-8). As he
approached the intersection with Avenue J-8, he saw the traffic
light turn red and knew he could not stop in time but claimed he
honked his horn while braking as he approached the intersection.
During the investigation officers found three marijuana
“canisters” in the Lexus, two of which were empty. The
investigators found no skid marks to suggest Murphy tried to
brake before the collision.
On April 8, 2019, Murphy was charged with three counts of
second degree murder. (§ 187, subd. (a).)7
6 Both Roberts and Aunchman testified they saw
someone, later identified as Brown, run from the car
toward an open field after the accident. At the time of the
accident, Roberts and Aunchman believed that the person
who ran from the car was the driver of the Lexus.
7 The information also charged Murphy with driving
under the influence of a drug causing injury (Veh. Code,
§ 23153, subs. (f)), with allegations that he caused bodily
injury or death to more than one victim (Veh. Code,
§ 23558) and inflicted great bodily injury on three people
6
B. Trial Proceedings
1. Prosecution’s Case
At trial the prosecution presented testimony from
witnesses who described the events from the morning of
January 11, 2018, through the time of the crash; the witnesses
included Brown,8 the oil change technician and the eyewitnesses
to the collision. The prosecution presented evidence that Murphy
had received multiple warnings about the dangers of driving
while under the influence of controlled substances.
Approximately three and a half years earlier, in September 2014,
Murphy attended a multi-day educational program for at-risk
youth9 during which he learned about instances of fatalities and
dangers caused by drivers who drove under the influence of drugs
or alcohol. Instructors shared personal stories, including one
instructor who described being hit by a drunk driver and another
who recounted the details of his wife’s accident when an
intoxicated driver struck her car. One of the program’s purposes
was to warn participants about the serious potential
(Pen. Code, § 12022.7, subd. (a)). Before trial the court
granted the prosecution’s motion to dismiss the Vehicle
Code violation charges and the accompanying allegations.
8 Brown testified he remembered Murphy getting in
the driver’s seat of the Lexus when they left the car wash.
However, because of the combined effects of smoking
marijuana that morning and the collision, Brown could not
recall anything that happened between the time they left
the car wash and after the accident.
9 On the program intake form Murphy disclosed he
first used marijuana at age 11.
7
consequences of their conduct if they drove under the influence of
controlled substances.
In 2016, when Murphy applied for a California driver’s
license, he acknowledged in the application “that being under the
influence of alcohol or drugs, or both, impairs the ability to safely
operate a motor vehicle. Therefore, it is extremely dangerous to
human life to drive while under the influence of alcohol or drugs,
or both. If 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.”10 After the accident, authorities also found a marijuana
container in Murphy’s Lexus with a warning label advising it was
dangerous to drive while under the influence of marijuana.
a. Toxicology Expert Testimony
The prosecution presented several expert witnesses during
trial, including Vanessa Meneses, a forensic scientist in the
toxicology section at the Orange County crime lab and the
prosecution’s expert toxicologist. Meneses described the
differences between how alcohol and marijuana are metabolized
and measured in the human body and the cognitive and physical
effects of marijuana on users. She testified about the toxicology
10 On April 13, 2022, Murphy asked this Court to take judicial
notice of the 2017, 2018 and 2020 California Driver Handbooks
published by the California Department of Motor Vehicles. The
handbooks are not relevant to this appeal; as such, Murphy’s
request is denied. (See Coyne v. City and County of San
Francisco (2017) 9 Cal.App.5th 1215, 1223, fn. 3 [denying judicial
notice as to documents that were not relevant to court’s
analysis].)
8
results of Murphy’s blood test after the accident and opined on
several hypothetical scenarios that tracked the case’s facts.
Regarding the toxicological differences between marijuana
and alcohol, Meneses first explained that alcohol is a hydrophilic
substance, which means alcohol is metabolized in water-based
systems of the body, including blood. A blood test to measure
blood alcohol concentration (commonly known as a BAC)
therefore provides an accurate measure of the concentration of
alcohol in a person’s body at the time of a blood draw and a fairly
uniform measure of impairment. Additionally, because the body
eliminates alcohol at a constant rate, a toxicologist can use a
person’s BAC at a given point in time to extrapolate that person’s
estimated BAC at an earlier point in time.
In contrast, Meneses explained marijuana is a lipophilic
drug, meaning it is stored in the body’s fatty tissue and organs,
including the brain. She stated the effect of lipophilic drugs
varies from one person to another but that generally, within 90
minutes after a person smokes marijuana, 90 percent of the
marijuana will have left the bloodstream and moved into the
brain. Blood tests are therefore a less accurate measure of the
amount of marijuana present in a person’s body at any point in
time. Currently there is no test similar to a BAC test for alcohol
that accurately determines a person’s level of impairment from
lipophilic drugs such as marijuana. However, Meneses also
testified that blood tests for marijuana could measure the
concentrations of certain components of marijuana, including
delta-9 tetrahydrocannabinol (“THC”) and THC metabolites: (1)
carboxy, which is non-psychoactive; and (2) hydroxy, which is
psychoactive. Meneses stated toxicologists use carboxy and
hydroxy concentrations to calculate “some rough estimates” about
9
when someone last used marijuana. A measurement of carboxy
THC can show marijuana in a person’s body weeks after the
person last used the drug whereas a measurement of hydroxy
THC discloses information about more recent ingestion of
marijuana.
Meneses stated Murphy’s blood was drawn at the hospital
at 4:38 p.m. on the day of the accident, about four hours after the
collision. The results showed Murphy’s blood contained 7.2
nanograms per milliliter of THC, 3.3 nanograms per milliliter of
hydroxy THC, and 225 nanograms per milliliter of carboxy THC.
Meneses testified that, given hydroxy was detected in Murphy’s
blood, he probably used marijuana within 24 hours prior to the
collision. She also stated the presence of carboxy concentrations
greater than 100 nanograms per milliliter indicated Murphy was
possibly a chronic marijuana user.
Meneses testified that studies have shown marijuana users
may experience cognitive impairment many hours after ingesting
the drug. Meneses also stated that many hours after smoking
marijuana, well after the feeling of euphoria has worn off, a user
may still be impaired. Occasional users might return to their
baseline function within three to six hours (with some having
cognitive impairments that last up to 24 hours), but it was
possible for long-term, chronic users to have more prolonged
effects, even after they have abstained from using marijuana for
an extended period. Meneses said even if a chronic user had not
smoked in 12 hours, psychoactive THC might still be stored in
the person’s brain, affecting cognition.
Meneses also described the impact that smoking marijuana
has on driving. Though effects vary from one person to another,
she stated marijuana use tends to have more mental than
10
physical effects. In describing those effects, she distinguished
between driving “under the influence” of a substance and driving
while “impaired” by a substance, explaining a person is “under
the influence” when that substance has some effect on the user; a
person is “impaired” when mental or physical capabilities are so
greatly affected that the person cannot drive a vehicle with the
necessary caution and safety of someone who is sober.
Meneses stated that using marijuana can cause a person to
experience feelings of euphoria and can have cognitive impacts
such as divided attention, the inability to multitask, lack of
perception of time and diminished spatial awareness. She
described physical impairments, including difficulties in balance
and coordination, increased heart rate and blood pressure as well
as a lack of convergence, which hinders a person’s ability to
distinguish something far from something nearby. She testified
marijuana use imposes challenges to a driver’s ability to safely
operate a motor vehicle, including impairing focus on the road
and affecting reaction time. She said a driver impaired by
marijuana might be incapable of reacting appropriately or timely
to unexpected events on the road. Meneses stated marijuana
impairment could also contribute to speeding or driving too
slowly, weaving within or outside of one’s lane, veering off the
road and failing to observe stop signs or traffic signals.
Finally, Meneses offered her expert opinion regarding
several hypothetical scenarios that tracked the facts of this case.
Meneses opined if a person smoked marijuana between 10:45
a.m. and 11:27 a.m. and was involved in a traffic accident at
noon, the person would be within the window of active
impairment from marijuana use at the time of the accident. She
also testified if that person had blood taken at 4:00 p.m., with the
11
levels of THC or hydroxy similar to Murphy’s at 4:38 p.m., then
the person would have been impaired by marijuana at noon. In
response to a hypothetical in which Meneses was asked about a
driver who was two blocks away from an intersection when a
traffic signal was yellow and one block away when the light
turned red, but did not apply the brakes and instead drove
through the red light crashing into another car, Meneses opined
such driving was consistent with the behavior of a driver
impaired by marijuana.
b. Accident Reconstruction Expert Testimony
Detective Ryan Bodily testified as the prosecution’s
accident reconstruction expert. He opined about the speed, rate
of acceleration and movements of Murphy’s Lexus and the
Subaru before and at the time of the collision. Before reaching
his opinions, Bodily examined the vehicles, reviewed the data
obtained from the vehicles, took measurements at the crash site,
observed the vehicles after the accident and interviewed
eyewitnesses.
Bodily testified Murphy’s Lexus was on Roden Avenue and
turned right onto Avenue J-8, traveling east. The Subaru was
traveling north on Challenger Way. The Lexus went through a
red light and collided with the Subaru in the middle of the
intersection. After the cars collided, the Lexus slid sideways on
its tires, hit the curb and toppled onto its passenger side. While
on its passenger side, it rotated 180 degrees so that the rear end
of the car was pointing east. As the Lexus decelerated, friction
from the car’s tires and body caused it to turn back up onto its
wheels.
After the Lexus struck it, the Subaru spun around, hit and
rotated around a pole and spun into a vacant lot. The impact
12
sent the Subaru north, and it came to rest in a dirt field
northeast of the intersection.
Bodily said he used the data obtained from the cars and
various measurements to determine the Lexus was traveling at
88.1 miles per hour when it collided with the Subaru.11 The
posted speed limit was 40 miles per hour. Bodily stated there
was no evidence that Murphy applied the brakes before colliding
with the Subaru.
Bodily explained that investigators measure vehicles’
locations, skid marks and scrapes at a collision scene and use
that data to create a factual diagram they can later use to
reconstruct the accident.12 Bodily testified that the type of
collision determines the kind of mathematical formula he uses to
evaluate the accident. In this instance he used “momentum
equations”; he started from the vehicles’ respective resting places
and worked backward to determine what Bodily called “the speed
zones” as each car moved. He used the damage to the two cars to
determine the angle of impact. From this, he determined the
Lexus swerved in the last few feet before impact, causing it to
collide with the Subaru at an 81 degree angle.
11 The Subaru, but not the Lexus, had an event data
recorder. Bodily used the Subaru’s event data and
determined the Subaru’s speed at impact was 32.3 miles
per hour. He used the Subaru’s speed to determine the
Lexus’s speed at impact.
12 Bodily used software to create a factual diagram.
The software had a “reconstruction component” that
allowed Bodily to enter data, and the program then
generated the reconstruction. Bodily also checked the
software’s calculations.
13
Bodily said he used software to create two animations
depicting his reconstruction of the accident, one from the
perspective of someone standing on the northeast corner of the
intersection and one from the Lexus driver’s perspective. He
synced the animation with traffic signal phasing data from the
City of Lancaster. At this intersection, the traffic light first
turned yellow for five seconds to give oncoming cars a chance to
pass through the intersection or come to a stop. Then, the traffic
light turned red in all four directions for two seconds to create an
all-clear safety zone for opposing traffic.
To create his animation, Bodily placed both cars at the
point of impact and then moved backward in time at one second
increments to place the Lexus where he thought it would have
been when the light turned red and when the light turned yellow.
He used data from the collision scene and published data about
each vehicle, including acceleration rates.
Bodily proposed two possibilities for how the Lexus
traveled down Avenue J-8. In one scenario, Murphy’s Lexus
could have rounded the corner of Roden and Avenue J-8 at the
average turning speed of 10 miles per hour, then immediately
accelerated to 88 miles per hour and maintained that speed until
the collision. Alternatively, Bodily thought the Lexus could have
initially accelerated to 40 miles per hour, maintained that speed,
and then accelerated when the light turned yellow. Although he
acknowledged both scenarios were possible, he opined “the more
realistic scenario” based on his conversations with his colleagues
and the prosecutors was that the Lexus had been driving at a
constant speed of 88 miles per hour. While Bodily conceded he
did not know which of the two scenarios was correct, he
concluded in either case, if Murphy had applied his brakes when
14
the light turned red, he would have stopped before colliding with
the Subaru.
2. Murphy’s Defense and Conviction
At trial, Murphy’s defense focused exclusively on the theory
that one of the other men in the Lexus had been driving at the
time of the crash. Consistent with that theory, Murphy
presented the eyewitness testimony of Roberts and Aunchman,
who attested that Brown, who ran from the Lexus after the
accident, was the driver of the Lexus. Murphy’s counsel also
cross-examined various prosecution experts on the DNA evidence
collected from the Lexus and the types of injuries the occupants
of the Lexus sustained in the accident.13
The jury convicted Murphy of three counts of second degree
murder (§ 187, subd. (a)).) The court sentenced him to three
concurrent terms of 15 years to life in prison, imposed various
fines and fees and gave him presentence custody credit.
Murphy timely appealed.
DISCUSSION
I. Sufficient Evidence Supported Murphy’s Convictions for
Second Degree Murder
Murphy argues the prosecution did not present sufficient
evidence to support his second degree murder convictions
because, based on the evidence that was presented at trial, no
reasonable jury could have found he acted with implied malice
when he drove his Lexus through the red light at the intersection
13 On appeal Murphy does not dispute that he was the
driver.
15
of Avenue J-8 and Challenger Way and collided with the Subaru.
According to Murphy, although 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.
A. Standard of Review
In reviewing a claim for sufficiency of the evidence, we
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. (People v. Flinner (2020) 10 Cal.5th 686, 748.) We review
the entire record to determine whether it discloses sufficient
evidence—that is, evidence that is reasonable, credible and of
solid value—supporting the decision and not whether the
evidence proves guilt beyond a reasonable doubt. (Ibid.) Our
application of this standard of review does not permit reweighing
the evidence or reevaluating the credibility of witnesses. (See
People v. Stewart (2000) 77 Cal.App.4th 785, 790.) Instead, we
presume the existence of every fact the jury reasonably could
have deduced from the evidence in support of the judgment.
(People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).) We
discard evidence that does not support the judgment as having
been rejected by the trier of fact for lack of sufficient verity.
(People v. Ryan (1999) 76 Cal.App.4th 1304, 1316.) And if the
circumstances reasonably justify the findings made by the trier of
fact, reversal of the judgment is not warranted simply because
16
the circumstances might also reasonably be reconciled with a
contrary finding. (People v. Covarrubias (2016) 1 Cal.5th 838,
890 (Covarrubias); accord, People v. Houston (2012) 54 Cal.4th
1186, 1215.) 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.” (Zamudio, at p. 357.)
B. Implied Malice Second Degree Vehicular Murder
Murder is the unlawful killing of a human being with
express or implied malice aforethought. (§§ 187, subd. (a), 188;
accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220.) Malice is
“express” when a person manifested a deliberate intention to
unlawfully take away the life of another human being; it is
implied when there was no considerable provocation or when the
circumstances attending the killing show an abandoned and
malignant heart. (People v. Soto (2018) 4 Cal.5th 968, 974.
(Soto).)
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.’ [Citation.] 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.’”’” (Soto, supra, 4 Cal.5th at p. 974, quoting People v.
Watson (1981) 30 Cal.3d 290, 300 (Watson).) That is, “malice 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.”
(Watson, at p. 300.) “Implied malice is determined by examining
the defendant’s subjective mental state to see if [the defendant]
17
appreciated the risk of [the defendant’s] actions. [Citations.]
Malice may be found even if the act results in a death that is
accidental. [Citation.] It is unnecessary that implied malice be
proven by an admission or other direct evidence of the
defendant’s mental state; like all other elements of a crime,
implied malice may be proven by circumstantial evidence.”
(People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690,
697.)
To support a finding of implied malice, the evidence must
establish 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. (Watson, supra, 30 Cal.3d at p. 300.) This conscious
disregard for the danger to life distinguishes implied malice from
gross negligence, which involves “the exercise of so slight a
degree of care as to raise a presumption of conscious indifference
to the consequences.” (Id. at p. 296.) “Phrased in everyday
language, the state of mind of a person who acts with conscious
disregard for life is, ‘I know my conduct is dangerous to others,
but I don’t care if someone is hurt or killed.’ The state of mind of
the person who acts with conscious indifference to the
consequences is simply, ‘I don’t care what happens.’” (People v.
Olivas (1985) 172 Cal.App.3d 984, 987-988 (Olivas).) The
standard for implied malice is subjective and requires the
defendant appreciate the risk involved. (Watson, supra, at
pp. 296-297.)
Watson is the leading case on vehicular murder involving
implied malice. (Watson, supra, 30 Cal.3d 290.) There, the
defendant drove to a bar and consumed a large quantity of beer.
After leaving the bar, he drove through a red light and narrowly
18
avoided a collision with another car. He then drove away at high
speed, accelerating to 84 miles per hour before suddenly braking
and skidding into an intersection where he collided with another
car, killing two people. Watson’s blood alcohol level half an hour
after the collision was 0.23 percent. An information charged him
with two counts of second degree murder, but the trial court
dismissed the murder counts. (Id. at pp. 293-294.)
The California Supreme Court reversed the dismissal on
the People’s appeal, holding sufficient evidence existed to uphold
the second degree murder counts in the information. (Watson,
supra, 30 Cal.3d at p. 301.) The court found the following
evidence as sufficient to support a finding that the defendant
acted with conscious disregard for life: the defendant’s blood
alcohol level supported a finding that he was legally intoxicated;
he drove to the establishment where he was drinking, knowing
he had to drive later; he presumably was aware of the hazards of
driving while intoxicated; he drove at high speeds on city streets,
creating a great risk of harm or death; and he was aware of the
risk, as shown by the near-collision and his belated attempt to
brake before the fatal collision. (Id. at pp. 300-301.)
Since Watson, numerous appellate courts have upheld
murder convictions in cases where defendants have committed
homicides while driving under the influence of alcohol and other
controlled substances. (See, e.g., People v. Wolfe (2018) 20
Cal.App.5th 673, 683 (Wolfe) [driver had a blood alcohol level of
0.34 percent, was aware of the dangers of drinking and driving
and had previously used a taxi service, drank intending to drive
home, and continued driving her damaged vehicle after hitting a
pedestrian]; People v. Autry (1995) 37 Cal.App.4th 351, 358–359
(Autry) [driver had a blood alcohol level of 0.22 percent, was
19
warned of the dangers of drinking and driving, drank and drove
throughout the day, had three near misses, and continued driving
over protests of his passengers]; People v. Murray (1990) 225
Cal.App.3d 734, 746-747 (Murray) [driving wrong way on a
freeway with a blood alcohol level between 0.18 and 0.23
percent]; People v. McCarnes (1986) 179 Cal.App.3d 525, 533
[crossing into oncoming traffic on a two-lane highway with a
blood alcohol level of 0.27 percent]; Olivas, supra, 172 Cal.App.3d
at p. 989 [extremely dangerous driving while under the influence
of PCP and “negligible” amount of alcohol].) These opinions have
generally relied on some or all of the factors that were present in
Watson: “(1) blood-alcohol level above the .08 percent legal limit;
(2) a pre-drinking intent to drive; (3) knowledge of the hazards of
driving while intoxicated; and (4) highly dangerous driving.”
(Autry, supra, at p. 358.)
Although the Watson factors are relevant to the
determination of implied malice vehicular murder, courts have
also recognized that “there is no particular formula for analysis of
vehicular homicide cases, instead requiring a case-by-case
approach.” (Costa, supra, 183 Cal.App.4th at p. 698 [citing
cases].) Indeed, lack of intoxication or the absence of driving at a
high rate of speed to evade police “‘does not preclude a finding of
[implied] malice.’” (Ibid., quoting People v. Contreras (1994) 26
Cal.App.4th 954, 955.)
The opinion in People v. Moore (2010) 187 Cal.App.4th 937(Moore) is instructive on this point. There, the defendant drove
70 miles per hour in a 35 mile per hour zone, ran a red light and
struck and killed another motorist. Moore was sober, told the
police he did not intend to kill anyone and was convicted of
second degree murder. (Id., at p. 940.) Division Six of this
20
District affirmed, holding the act of driving 70 miles per hour in a
35 mile per hour zone, crossing into the opposing traffic lane, and
running a red light “went well beyond gross negligence . . . . [¶]
Whether Moore was subjectively aware of the risk is best
answered by the question: how could he not be? It takes no leap
of logic for the jury to conclude that because anyone would be
aware of the risk, Moore was aware of the risk.” (Id. at p. 941.)
Courts have also concluded a finding of implied malice in
the context of vehicular murder does not require “a ‘predicate
act’” such as a prior driving under the influence (DUI) conviction,
a DUI-related accident, or a judicial or drug rehabilitation-
related admonition of the dangers of driving while intoxicated.
(People v. Johnigan (2011) 196 Cal.App.4th 1084, 1091-1092.)
C. Analysis
We have considered the Watson factors and the subsequent
cases that applied those factors, and we conclude substantial
evidence in the record supported the jury’s finding of implied
malice for Murphy’s second degree murder convictions.
First, regarding the Watson impairment factor, as the
Moore court recognized, implied malice for vehicular murder may
be found based on the totality of the circumstances. (See Moore,
supra, 187 Cal.App.4th at pp. 941-942.) It may exist in the
absence of evidence of drug use, impairment or excessive speed.
(Ibid.) However, here the prosecution presented sufficient
evidence from which the jury could reasonably infer Murphy was
under the influence of marijuana when he ran the red light and
struck the Subaru. Even though the toxicology expert testified
there is no equivalent to the BAC test to predict the degree of
impairment from smoking marijuana, other evidence was
presented to support a finding that Murphy was impaired by
21
marijuana before the accident. The jury could reasonably infer,
from the substantial evidence presented, that Murphy smoked
marijuana several times in the hours before the accident—Brown
testified Murphy smoked marijuana before Murphy drove them
to the carwash; the oil change technician testified smoke that
smelled of marijuana poured out of Murphy’s Lexus when they
arrived at the car wash, implying Murphy smoked marijuana
while driving to the car wash; and the surveillance video from the
car wash courtyard shows Murphy engaging in conduct
suggesting he continued to smoke marijuana after he arrived at
the car wash about an hour before the accident.
Although the record does not contain evidence as to the
amount of marijuana Murphy smoked or its potency, the
toxicology evidence showed Murphy had a significant quantity of
psychoactive THC in his blood four hours after the accident,
which indicated he had recently ingested marijuana. Based on
the quantity of psychoactive THC in Murphy’s blood, the
toxicology expert hypothesized that a similarly situated person
would likely have been actively impaired at the time of the
collision.
Other evidence in the record suggests Murphy was under
the influence (meaning he was experiencing the psychoactive
effects of the marijuana) shortly before the accident. For
example, the jury could infer Murphy was under the influence of
marijuana based on his inexplicably exuberant conduct at the car
wash when, for no apparent reason, he embraced and fist bumped
the employees, who appeared to be strangers.14 Moreover, an
14 In his reply brief Murphy suggests his embrace of the
car wash employee might be explained by something other
22
eyewitness stated that moments before the accident as he sped
through the red light in a residential area traveling nearly 90
miles an hour, Murphy was “laughing and having a good time,”
which implies he was distracted rather than focused on the road.
Furthermore, the circumstances of the crash also
demonstrate Murphy was impaired. Murphy was driving at more
than twice the posted speed limit at the time of the accident and
did not attempt to apply the brakes or honk the horn before
colliding with the Subaru. Notwithstanding the length of time
Murphy traveled on Avenue J-8 after the traffic light turned
yellow and then red, he did not take any measures to prevent the
collision. As the toxicology expert testified, excessive speed and
delayed reaction are consistent with marijuana impairment.
Second, regarding the Watson “pre-drinking intent to drive”
factor, the jury could have inferred Murphy smoked marijuana at
the car wash knowing he would resume driving when his car’s oil
change was complete. (See, e.g., Wolfe, supra, 20 Cal.App.5th at
than his marijuana use. Murphy posits this evidence could
also support a finding that he and the car wash employee
were friends or had a pre-existing relationship. In his
petition for rehearing, Murphy also suggests, for the first
time, that his conduct could be explained as a “well-known
type of greeting in the African-American community.”
However, the fact that Murphy’s conduct might suggest
something other than being under the influence of
marijuana does not warrant a reversal given the applicable
standard of review. (See Covarrubias, supra, 1 Cal.5th at
p. 890 [holding that in reviewing for substantial evidence,
reversal of the judgment is not warranted simply because
the circumstances might also reasonably be reconciled with
a contrary finding].)
23
p. 683 [concluding the jury could have reasonably inferred that
before the defendant began drinking, she intended to drive
herself home from the bar because she had left her car at the bar
earlier in the day].) Moreover, the jury could infer from the
evidence of marijuana smoke inside the car when Murphy arrived
at the car wash that Murphy smoked marijuana while driving to
the car wash. (See Autry, supra, 37 Cal.App.4th at p. 358
[finding a pre-drinking intent to drive based on evidence that
throughout the day, defendant drove and drank, including
driving to obtain more alcohol and drinking while driving].)
Third, applying the Watson factor concerning the
dangerousness of a defendant’s driving, Murphy’s driving was
exceedingly reckless before the collision. Eyewitness accounts
and physical evidence from the accident scene demonstrate
Murphy drove through a red light at a speed of 88.1 miles per
hour (more than 48 miles per hour over the applicable speed
limit) in a residential neighborhood without braking or honking
the car horn. We consider, as the court did in Moore, whether
Murphy was subjectively aware of the risk, and similarly
conclude Murphy was aware—“It takes no leap of logic for the
jury to conclude that because anyone would be aware of the risk,
[defendant] was aware of the risk.” (Moore, supra, 187
Cal.App.4th at p. 941.) A reasonable juror could conclude the
totality of Murphy’s conduct evidenced a conscious disregard of
the danger he posed to the lives of others on the roadway.
Finally, regarding the Watson factor of a defendant’s
knowledge of the hazards of driving under the influence, here the
prosecution presented substantial evidence Murphy was aware of
those dangers. He received multiple warnings about the dangers
of driving while under the influence of controlled substances.
24
Instructors at his youth educational program shared personal
accounts of the dangers of driving while under the influence of
alcohol and drugs. Murphy also signed a driver’s license
application affirming he had been advised that driving under the
influence of alcohol or drugs could lead to a murder charge.
Finally, during the accident, in his car, Murphy had a marijuana
container labeled with a specific warning against driving under
the influence of marijuana.
In reaching our conclusion, we reject Murphy’s argument
that the warnings he received through the at-risk youth program,
his driver’s license application and the marijuana canister label
were legally insufficient to prove his subjective awareness of the
danger of driving under the influence. Murphy claims the
warnings were ineffective because they failed to inform him of
how to determine whether he was under the influence of drugs.
Murphy offers no legal support for his argument that the
warnings were defective. On the contrary, courts have found
similar warnings sufficient under Watson to prove subjective
awareness. (See, e.g., Wolfe, supra, 20 Cal.App.5th at p. 683
[admonition in the driver’s license application]; Autry, supra, 37
Cal.App.4th at pp. 358-359; [attendance in treatment programs
addressing the dangers of intoxicated driving]; Murray, supra,
225 Cal.App.3d 736, 736. [driver’s educational classes].) In
addition, given the evidence that Murphy was a chronic
marijuana user, the jury could reasonably infer he had sufficient
experience with marijuana to know whether he was under the
influence, even if he had not attended an educational program on
the topic or otherwise received cautions or warnings about the
dangers of driving while under the influence of drugs.
25
On appeal Murphy also argues the expert toxicologist’s
testimony about impairment proves the evidence supporting his
conviction is insufficient. Because the toxicologist testified that a
marijuana user might be impaired by marijuana and yet lack the
subjective awareness of being under the drug’s influence, he
concludes the prosecutor was required, but failed, to prove he was
subjectively aware of his impairment at the time of the accident
or understood how the body metabolized marijuana. This
argument is unconvincing and flawed in two respects.
First, Murphy’s premise is based on an inaccurate
characterization of the toxicologist’s testimony regarding the
stages of impairment after ingestion of marijuana. The
toxicologist’s testimony supports the conclusion that most people
who smoked marijuana would feel the psychoactive effects about
90 minutes after smoking because by then, the THC would have
moved from the bloodstream into the brain. She then explained
that hours after smoking, some individuals would still be
impaired and yet no longer experience the euphoric effects of
marijuana, and thus not realize they were still impaired. The
toxicologist did not suggest that someone such as Murphy, who
caused a fatal car accident about 90 minutes after smoking
marijuana, would be unaware of his impairment. Here, there
was sufficient evidence based on the totality of his conduct on the
morning of the accident, including how he drove and his behavior
at the car wash, for the jury to infer Murphy knew he was
impaired.
Second, Murphy’s argument improperly collapses the
knowledge that a person has before becoming voluntarily
impaired (about the potential consequences of the person’s
actions while intoxicated) with the person’s intent after
26
impairment. If 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. (Watson, supra, 30 Cal.3d 290.) The vehicular
manslaughter statutes have codified the reasoning of Watson.
(See § 191.5, subd. (e).)
Murphy has offered no legal authority that requires
prosecutors, in order to secure convictions, to prove defendants
possess a subjective awareness of their level of intoxication. This
requirement could give rise to the absurd outcome in which
defendants may escape liability for implied malice vehicular
murder if they establish they were so intoxicated when they were
driving and killed someone that they no longer possessed
awareness of their impairment. The law contains no such
requirement.
Murphy also challenges the evidence related to his speed at
the time of the accident. Specifically, he argues the expert
opinion and lay eyewitness evidence that he was traveling at
more than 88 miles per hour when he ran the red light is
insubstantial.
Concerning the accident reconstruction expert’s testimony,
Murphy contends that the expert’s opinion about his rate of
acceleration before the accident, as well as his speed at the time
of impact, lacked foundation and was conclusory. Murphy
complains the expert failed to explain a “speed zone” and did not
justify why he believed Murphy began driving at a constant rate
27
of speed when he turned the corner from Roden to Challenger
Way.
Murphy’s attack on the accident reconstruction expert’s
opinion fails because it is not a proper challenge to the sufficiency
of the evidence. Instead, Murphy’s complaints are about the
admissibility of the expert opinion—that is, whether the
prosecution laid a proper foundation for the opinion and what
weight the opinion should have been given. These complaints do
not succeed here because Murphy failed to object to the accident
reconstruction expert’s testimony in the trial court. (See Evid.
Code, § 353; accord, People v. Clark (2016) 63 Cal.4th 522, 603
[“Defendant’s failure to object on this specific [evidentiary]
ground below forfeits his claim on appeal”].) Murphy also had
the opportunity to cross-examine the accident reconstructive
expert and to argue to the jury that they should give the expert’s
opinion no weight, but he did not do so. Instead, Murphy’s trial
defense focused exclusively on his claim that he was not the
driver of the Lexus at the time of the collision, and thus, the
prosecution had charged the wrong person.
Murphy’s challenge to the lay witness opinions regarding
his speed is equally unavailing. He complains the eyewitness
testimony that he was driving at “highway speed” and more than
80 miles an hour was weak and inadmissible because it lacked
foundation. But like his challenge to the expert testimony about
his speed, the complaint about the eyewitness testimony is
misplaced because it relates to the weight and admissibility of
evidence—arguments he should have made in the trial court to
the judge and jury. In any event, the eyewitness testimony about
the speed of Murphy’s car was proper. Cases allowing lay opinion
testimony uniformly hold that a lay opinion based on a witness’s
28
personal observation, including observation about the speed of a
vehicle, is admissible. (See People v. Chapple (2006) 138
Cal.App.4th 540, 547 [recognizing lay opinion testimony based on
the witnesses’ perceptions that someone is intoxicated, angry, or
driving a motor vehicle at an excessive speed is admissible and
an accurate means to convey that information to a jury].)
In sum, Murphy’s arguments misapprehend the operation
of the sufficiency of the evidence standard on appeal. The
questions before us are not what weight the evidence should have
been accorded, or whether it could have supported a different
verdict. Instead, the question is whether, considering the
evidence in the light most favorable to the judgment, the evidence
taken as a whole supports the verdicts reached. We conclude it
does.
II. The Trial Court Must Correct the Abstract of Judgment
Murphy argues the abstract of judgment must be corrected
because the trial court imposed concurrent sentences of 15 years
to life for Murphy’s three murder convictions, but the abstract of
judgment does not provide that his sentences are to run
concurrently. He points out that the first page of the abstract of
judgment, box 6, indicates the sentence as “15 years to Life on
counts 1, 2, 3,” but the table listing the convictions does not state
that the sentences are to run concurrently. The Attorney General
concedes this point. We agree and direct the trial court to correct
the abstract. (See People v. Amaya (2015) 239 Cal.App.4th 379,
385 [acknowledging that a court may correct clerical errors in a
judgment].)
29
DISPOSITION
The judgment is affirmed. The trial court is directed to
prepare a corrected abstract of judgment stating the sentences for
Murphy’s murder convictions are to run concurrently and to
forward a certified copy of the corrected abstract of judgment to
the Department of Corrections and Rehabilitation.
WISE, J.*
We concur:
SEGAL, Acting P. J.
FEUER, J.
* Judge of the Alameda County Superior Court,
assigned by the Chief Justice pursuant to article VI, section
6 of the California Constitution.
30