Caseflicks

California Supreme Court • 2005

People v. Howard

104 P.3d 107 | 23 Cal. Rptr. 3d 306 | 34 Cal. 4th 1129 | 2005 Daily Journal DAR 1055 | 2005 Cal. Daily Op. Serv. 752 | 2005 Cal. LEXIS 844

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Takeaway

In short, this case holds that felony evasion under Vehicle Code section 2800.2 cannot support second degree felony murder because the statute, considered abstractly, includes nondangerous ways of committing the offense; prosecutors must instead prove malice for a murder conviction based on a fatal police chase.

Background

At about 12:40 a.m., California Highway Patrol officers tried to stop Evert Keith Howard because the Chevrolet Tahoe he was driving lacked a rear license plate. Howard initially stopped, then sped away when the officers exited their patrol car. During an extended pursuit, he drove up to 90 miles per hour, turned off his headlights, ran stop signs and red lights, drove on the wrong side of the road, and ultimately headed toward downtown Fresno. An officer discontinued the pursuit because of the danger. About a minute later, Howard ran a red light at more than 80 miles per hour and struck a car driven by Jeanette Rodriguez, killing her and seriously injuring her husband. The Tahoe had been stolen earlier that day.

Howard was charged with murder, causing serious injury while evading an officer under Vehicle Code section 2800.3, and felony evasion with willful or wanton disregard for safety under Vehicle Code section 2800.2. The prosecution proceeded on a second degree felony-murder theory. The trial court instructed the jury that a violation of section 2800.2 was a felony inherently dangerous to human life and that a killing during its commission was murder. It gave no instruction requiring the jury to find express or implied malice. The jury convicted Howard on all counts, and the Court of Appeal affirmed.

The California Supreme Court granted review to decide whether section 2800.2 can serve as the predicate felony for second degree felony murder and whether section 2800.3 is a more specific statute that would preclude a felony-murder prosecution.

Issues

Issue #1

Whether fleeing or attempting to elude a pursuing police officer while driving with willful or wanton disregard for safety, in violation of Vehicle Code section 2800.2, is an inherently dangerous felony that can support second degree felony murder.

Holding

No. Vehicle Code section 2800.2 is not inherently dangerous to human life in the abstract, so it cannot serve as a predicate for second degree felony murder.

Reasoning

Second degree felony murder is a judicially created doctrine under which a killing that directly results from a felony inherently dangerous to human life constitutes at least second degree murder. The rule substitutes for proof of malice, but the court has repeatedly cautioned that it should not be extended beyond its required application because it imposes a form of strict criminal liability that can weaken the connection between culpability and punishment.

Whether a felony is inherently dangerous is determined from the elements of the offense in the abstract, not from the defendant's especially dangerous conduct in the particular case. The question is whether the felony, by its nature, cannot be committed without creating a substantial risk that someone will be killed.

Section 2800.2 makes felony evasion applicable when a driver flees police in violation of section 2800.1 and drives with willful or wanton disregard for the safety of persons or property. But subdivision (b), added in 1996, defines that disregard broadly enough to include flight during which the driver commits three traffic violations assigned point counts or causes property damage.

Some point-count traffic violations covered by subdivision (b), such as driving an unregistered vehicle, driving with a suspended license, slightly exceeding a speed limit, failing to make a full stop, or failing to signal sufficiently before a turn, can occur without creating a substantial risk of death. Because the statute encompasses these nondangerous means of commission, a section 2800.2 violation is not inherently dangerous in the abstract.

The Legislature's history did not show that it considered how the 1996 amendment would affect the felony-murder rule. The court therefore applied its established abstract-elements test to the statute as enacted, rather than treating Howard's extreme high-speed conduct as dispositive. The trial court consequently erred by instructing that section 2800.2 was inherently dangerous and by allowing a murder conviction without a jury finding of malice.

Issue #2

Whether Vehicle Code section 2800.3, which punishes flight from police that proximately causes death or serious injury, is a more specific statute that precludes a felony-murder prosecution based on section 2800.2.

Holding

The Court did not decide the question because its conclusion that section 2800.2 cannot support second degree felony murder made the issue unnecessary to resolve.

Reasoning

Howard argued that section 2800.3 supplied a specific legislative scheme for deaths or serious injuries caused by police evasion and therefore displaced prosecution for the more general offense of murder. The court declined to reach that statutory-preemption argument after holding that the asserted felony-murder theory failed at its threshold: section 2800.2 is not an inherently dangerous felony.

Issue #3

Whether the erroneous felony-murder instruction required reversal or could be found harmless.

Holding

The Court left prejudice for the Court of Appeal to determine on remand.

Reasoning

The parties had not briefed whether the failure to require a finding of malice was prejudicial. Although the record could potentially support an implied-malice theory of murder, the Supreme Court expressed no view on that issue and remanded for the Court of Appeal to address it in the first instance.

Concurrences

Justice Brown

Reasoning

Justice Brown agreed that Howard's felony-murder conviction must be reversed and the matter remanded. She wrote separately because she viewed the second degree felony-murder rule itself as constitutionally and analytically suspect and would abolish it rather than merely decline to extend it to section 2800.2.

In her view, the disagreement among courts and justices about whether reckless flight is inherently dangerous illustrates the doctrine's arbitrariness. A commonsense reading of section 2800.2, which requires wanton disregard while fleeing a pursuing officer, could readily support the opposite conclusion. Because such variation is inevitable under a nonstatutory doctrine, she would leave the Legislature to define precisely when conduct triggers murder liability without proof of malice.

Dissents

Justice Baxter

Reasoning

Justice Baxter would have affirmed. He reasoned that section 2800.2, subdivision (a), expressly makes it a felony to flee police by driving with reckless indifference to safety, and that conduct necessarily creates a substantial risk that someone will be killed. In his view, the felony-murder rule properly applies because the statute gives fair warning that this dangerous conduct is both felonious and capable of producing murder liability when death results.

He rejected the majority's reliance on subdivision (b)'s point-count provision. Although subdivision (b) may encompass some nondangerous traffic violations, Howard was charged, tried, and convicted solely on the basis of subdivision (a)'s willful or wanton disregard standard. The information, arguments, and instructions all focused on Howard's consciously dangerous high-speed driving, not on technical point-count violations. Justice Baxter would assess the dangerous form of the offense that actually underlay the conviction rather than allow a separate statutory route to felony liability to erase subdivision (a)'s inherently dangerous character.

Justice Baxter also concluded that any instructional error was harmless. The evidence showed that Howard intentionally continued a high-speed, reckless flight through roads and intersections, drove against traffic, and ran multiple stop signs and red lights. A properly instructed jury could not reasonably fail to find implied malice, and the jury's finding that Howard acted with conscious disregard for safety effectively established the mental component of implied malice.

Finally, Justice Baxter would reject the claim that section 2800.3 is a more specific statute barring felony murder. Section 2800.3 reaches deaths caused by police flight regardless of the driver's degree of care, whereas felony murder based on section 2800.2 would require willful or wanton disregard for safety. Because their elements differ and a section 2800.3 death will not necessarily or commonly constitute section 2800.2 felony murder, the specific-statute rule does not apply.