DUI murder conviction under implied malice is not eligible for resentencing under PC 1172.6

THE PEOPLE, Plaintiff and Respondent, v. VONDETRICK CARR, Defendant and Appellant. (Cal. Ct. App., Apr. 7, 2023, No. E079368) 2023 WL 2820859, at *1

Summary: Carr drove drunk with four children in his car, hitting a pickup truck. One of the children was killed and Carr was convicted of second degree murder. Car was sentenced to a 51 years, 4 months to life in prison.

In 2021, Carr filed a petition to vacate the murder conviction under Penal Code section 1172.6. The trial court denied the petition because Carr was not convicted either on a natural and probable consequences theory or under the felony murder rule.

On appeal, Carr argued that the theory under which he was convicted — causing death unintentionally but with implied malice while driving drunk (People v. Watson (1981) 30 Cal.3d 290 (Watson)) — is an “other theory under which malice is imputed to a person based solely on that person’s participation in a crime” within the meaning of section 1172.6.

Implied malice is not imputed malice. It requires the that perpetrator actually and personally harbor malice. Watson holds that implied malice may be inferred from a defendant’s conduct before, during, and after driving drunk — not imputed from the bare fact of driving drunk. Carr’s argument takes the words “natural consequences” and/or “natural and probable consequences” out of their proper legal contexts.

Murder, malice, felony murder and natural and probable consequences

Second degree murder is defined as requiring either express or implied malice. (Pen. Code, §§ 187, subd. (a), 188, subd. (a).) Express malice is intent to kill. (Pen. Code, § 188, subd. (a)(1).) “ ‘[I]mplied malice has both a physical and a mental component, the physical component being the performance “ ‘of an act, the natural consequences of which are dangerous to life,’ ” and the mental component being the requirement that the defendant “ ‘knows that his conduct endangers the life of another and … acts with a conscious disregard for life.’ ” ’ ” (People v. Taylor (2004) 32 Cal.4th 863, 868.)

When Carr  was tried, there were at least two ways a person could be found guilty of murder without personally harboring malice.

Under the felony-murder doctrine, when the defendant or an accomplice kills someone during the commission, or attempted commission, of an inherently dangerous felony, the defendant is liable for either first or second degree murder, depending on the felony committed. (People v. Powell (2018) 5 Cal.5th 921, 942.) The felony-murder rule imputed] the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to human life. (People v. Baker (2021) 10 Cal.5th 1044, 1105.)

Unde the natural and probable consequences doctrine, an aider and abettor was guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime.  Malice alice could be imputed to an aider and abettor under the natural and probable consequences doctrine.

Effective January 1, 2022, Senate Bill No. 775  amended section 1172.6 so that it now provides: “A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime … may file a petition … to have the petitioner’s murder … conviction vacated and to be resentenced on any remaining counts ….” (§ 1172.6, subd. (a).)

Implied malice murder under DUI-Watson Murder

Under Watson, implied malice can be inferred when the defendant unintentionally killed someone while driving while intoxicated. (Watson, supra, 30 Cal.3d at pp. 300-301.) “ ‘One who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.’ ” (Ibid.) However, driving while intoxicated, standing alone, is not sufficient to prove implied malice. “[A] finding of implied malice [requires evidence] that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (Id. at pp. 296-297.)

“Implied malice murder involving drunk driving is now ‘colloquially known as a Watson murder.’ [Citation.]” (People v. Alvarez (2019) 32 Cal.App.5th 781, 785, fn. 2.)

Carr argued that  aWatson murder rests upon and is a specific application of the natural and probable consequences doctrine. However, the  natural and probable consequences doctrine is a theory of liability for aiding and abetting. It made an aider and abettor guilty of a murder committed by the perpetrator, even if the aider and abettor lacked malice, as long as (1) the aider and abettor intended to commit the target crime, and (2) murder was a natural and probable consequence of the target crime. A Watson murder, by contrast, does not normally involve aiding and abetting. Watson requires that the defendant — the person who kills unintentionally while driving drunk — act with implied malice.

The Court of Appeal concluded that the trial court correctly ruled that Carr was not eligible for relief under section 1172.6.

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