Opinion
S286155
10-16-2024
PEOPLE v. DOAIFI (AFIFF KEVIN)
G062098 Fourth Appellate District, Div. 3.
The petition for review is denied.
(See Concurring Statement by Evans, J., joined by Liu, J.)
Concurring Statement
Evans, Justice
Twenty-three-year-old defendant Kevin Afiff Doaifi was convicted of second degree murder after a tragic accident. Doaifi, traveling at an excessive speed adjacent to a residential neighborhood late at night, collided with another driver attempting to make a turn from the opposite direction of a six-lane thoroughfare. Doaifi was not impaired, nor was there evidence that he was swerving or weaving through traffic or running stop signs or traffic lights. The evidence suggested that no cars were in front of Doaifi until the victim made an unprotected left turn. Immediately before the accident, Doaifi was traveling 99 miles per hour in a 45-mile-per-hour zone. In the three years prior to this incident, he had received traffic citations for speeding on five separate occasions resulting in two courses of online traffic school. In one of the prior incidents, Doaifi had been driving 109 miles per hour in a 65-mile-per-hour zone. During traffic court proceedings arising from this prior incident, Doaifi admitted that speeding was “dangerous.”
The resolution of this case does not turn on whether Doaifi was subjectively aware that speeding was wrong, or that speeding was dangerous. But to warrant application of second degree murder liability, our cases require satisfaction of an objective component. Specifically, "the defendant's act must not merely be dangerous to life in some vague or speculative sense; it must" - "involve[] a high degree of probability that it will result in death." '" (People v. Reyes(2023) 14 Cal.5th 981, 989 (Reyes).) The Court of Appeal below, however, never directly answered whether this requirement was satisfied. Because the objective component of implied murder liability is particularly important to the application of murder liability in vehicular homicide cases, I write separately to urge the lower courts to specifically analyze this factor when assessing implied malice in these circumstances.
Over 40 years ago, in the seminal case People v. Watson(1981) 30 Cal.3d 290 (Watson), this Court held that under the low standard applicable to preliminary hearings, there was sufficient evidence to hold a drunk driver to answer for second degree murder on a theory of implied malice. (Id. at pp. 300-301.) Late at night and in the early morning hours on the day of the homicides, Watson had consumed a large amount of alcohol at a bar. Later analysis revealed that Watson's blood alcohol level content one hour after the collision was .23 percent. (Id. at p. 294.) Prior to the collision at issue, Watson had narrowly avoided another collision by slamming on his breaks and skidding to a halt in the middle of an intersection. (Id. at p. 293.) Immediately prior to the fatal collision, expert testimony indicated that Watson had been traveling 84 miles per hour in a 35-mile-per-hour zone. (Id. at pp. 293-294.) As a result of the impact, a mother and her six-year- old daughter were ejected from their vehicle and killed. (Id. at p. 293.)
Such cases, vehicular homicides charged under a theory of second degree murder, have come to be known as "Watson murders." (People v. Lagunas (2023) 97 Cal.App.5th 996, 1006.)
In characterizing the legal standard under which to assess the sufficiency of the evidence in support of implied malice murder, the Court described two different formulations. Under one variation, "[w]e have said that second degree murder based on implied malice has been committed when a person does -" -an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" '" (Watson, supra, 30 Cal.3d at p. 300, italics added.) Or, "[p]hrased in a different way, malice may be implied when 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." (Ibid., italics added.)
Three decades later, concurring in People v. Cravens(2012) 53 Cal.4th 500 (Cravens), Justice Liu traced the origins of these competing standards. (Id. at pp. 512-513.) One derived from Justice Traynor's concurring opinion in People v. Thomas(1953) 41 Cal.2d 470 (Thomas), which articulated that implied malice is shown when "the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death." (Id. at p. 480 (conc. opn. of Traynor, J.).) The second line derives from People v. Phillips(1966) 64 Cal.2d 574 (Phillips), overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12, which described implied malice murder as a" -killing [which] proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.'" (Phillips, supra, 64 Cal.2d at p. 587.)
We have repeatedly indicated that these alternative formulations are equivalent. (Cravens, supra, 53 Cal.4th at p. 512 (conc. opn. of Liu, J.); see also People v. Nieto Benitez (1992) 4 Cal.4th 91, 104; People v. Knoller (2007) 41 Cal.4th 139, 152 ["these two definitions of implied malice in essence articulate[] the same standard"].) However, Justice Liu wrote separately based on his concern that the different phrasing of the standard "matters in a close case." (Cravens, supra, 53 Cal.4th at p. 514 (conc. opn. of Liu, J.).)
In Reyes, writing for a unanimous court, Justice Liu returned to the objective component of implied malice murder, reaffirming that the Thomas standard ("a high degree of probability that it will result in death" [Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.)]) was controlling. Reyes was convicted of second degree murder following a homicide committed by a fellow member of Santa Ana's F-Troop gang. Reyes was one of several members or affiliates of F-Troop who were present when the killing occurred, although the evidence showed he was not the shooter. (Reyes, supra, 14 Cal.5th at p. 984.) Reyes, then 15 years old, was in a park with a group of older boys and young men between the ages of 16 and 21. (Id. at p. 985.) All of them were gang members. (Ibid.) One of the young men, Francisco Lopez, showed the group that he was carrying a firearm. (Ibid.) Reyes and his group, on bicycles, proceeded to an area on the edge of territory belonging to a rival gang. (Ibid.) After a brief verbal exchange with riders in a car, the group on bicycles chased the group in the vehicle. Reyes's group and the car came together at an intersection and Lopez shot the driver in the head, killing him. (Ibid.)
Reyes challenged the validity of his conviction on the basis that the jury had been instructed on the since-abolished natural and probable consequences doctrine. (See Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437); Stats. 2018, ch. 1015, § 2.) The trial court rejected Reyes's petition for resentencing under Senate Bill 1437, concluding that Reyes was guilty beyond a reasonable doubt of second degree murder under an implied malice theory. (Reyes, supra, 14 Cal.5th at p. 987.)
In reversing the trial court's finding, this Court took issue with the trial court's application of the Phillips formulation of the objective component of implied malice murder, namely its conclusion that "the natural and probable consequences" (Phillips, supra, 64 Cal.2d at p. 587) of Reyes's act of traveling to rival gang territory with several other gang members, one of whom he knew was armed, and chasing and confronting another group, was "dangerous to human life." (Reyes, supra, 14 Cal.5th at p. 987.) The Reyes opinion explained that "[t]o suffice for implied malice murder, the defendant's act must not merely be dangerous to life in some vague or speculative sense; it must - "involve[] a high degree of probability that it will result in death." '" (Reyes, supra, 14 Cal.5th at p. 989.) It found the evidence insufficient to establish implied malice murder. (Ibid.)
In March 2024, the Judicial Council modified CALCRIM 520 to comply with the clarification provided in Reyes. Implied malice murder now requires that a defendant (1) intentionally engaged in an act; (2) the natural and probable consequences of that act involved a high degree of probability that it would result in death; (3) at the time the person acted, they knew the act entailed that danger; and (4) the person acted with conscious disregard for life. (CALCRIM No. 520; see also Judicial Council of Cal. Crim. Jury Instns. (2024) Bench Notes to CALCRIM No. 520, p. 251.)
"A natural and probable consequenceis one that a reasonable person would know is likely to happen if nothing unusual intervenes." (CALCRIM No. 520.)
Doaifi was convicted of second degree murder after a jury trial. The prosecution introduced evidence of Doaifi's prior citations of speeding and referral to online traffic school, his statements during the proceedings in one of these incidents evincing a subjective awareness that speeding was "dangerous," and his excessive speeding on the night in question.
The Court of Appeal's decision did not cite the objective component of the implied malice standard as articulated in Reyes, or the current version of CALCRIM No. 520. Instead, it cited the Phillips formulation, stating that" -[m]alice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger.'" The opinion also relied on the prior version of CALCRIM No. 520, without acknowledging that it had been superseded.
Doaifi argues our review is necessary because Reyes does not permit a conviction for implied malice murder based on the circumstances of his case, which he characterizes as murder liability based on "excessive speed alone."
As a class, Watson murders are unique. Not only do the defendants in such cases lack an intentto kill, but they can often claim an opposing intent: an affirmative desire not to harm anyone.
Unsurprisingly, it is not uncommon for Watson murder defendants, as in this case, to have no prior criminal history of violence. Absent an intent to harm anyone, Watson murder cases turn on the defendant's subjective awareness of the objective risks that their grossly reckless behavior poses. However, in some cases, it may be difficult to characterize a Watson murder defendant's conduct as demonstrating a "high probability that it will result in death." (Watson, supra, 30 Cal.3d at p. 300.) For instance, as Chief Justice Bird noted in her Watson dissent, the mere fact of driving while intoxicated is not alone an act with a high probability that it will result in death: "[d]eath or injury is not the probable result of driving while under the influence of alcohol. -Thousands, perhaps hundreds of thousands, of Californians each week reach home without accident despite their driving intoxicated.'" (Watson, supra, 30 Cal.3d at p. 305 (dis. opn. of Bird, C. J.).) The same can be said of speeding.
According to data compiled over the last 40 years published by the California Department of Motor Vehicles, the rate of vehicle fatalities involving alcohol and drugs is only roughly one percent of the total number of convictions under Vehicle Code section 23152. (Rees et al., DUI Summary Statistics: 1980-2020 (Nov. 2023) Dept. of Motor Vehicles <https://www.dmv.ca.gov/portal/dmv-research-reports/research-development-data- dashboards/dui-management-information-system-dashboards/dui-summary-statistics/> [as of Oct. 16, 2024]; all Internet citations in this opinion are archived by year, docket number and case name at<http://www.courts.ca.gov/38324.htm>.) However, because a large number of intoxicated drivers are neither arrested nor convicted, it is safe to assume that driving while intoxicated results in fatal injury in far less than one percent of cases.
Because the underlying violations of the Vehicle Code that underpin most Watson murder cases are unfortunately commonplace, Watson murder cases often present the sort of "close case[s]" (Cravens, supra, 53 Cal.4th at p. 514 (conc. opn. of Liu, J.)) in which the choice of phrasing of the implied malice standard (now resolved by Reyes in favor of the" - "high degree of probability that it will result in death" '" [Reyes, supra, 14 Cal.5th at p. 989]) may make a significant difference. In other words, as a general matter, it is relatively easy to surmise that a defendant's act is dangerous to life "in some vague or speculative sense." (Reyes, supra, 14 Cal.5th at p. 989.) But to differentiate between gross vehicular manslaughter and second degree murder, more is required.
For the same reason, the Watson murder doctrine has been subject to substantial academic criticism for its over application. (See Freestone, Elementary My Dear Watson: The Evolution to Strict Liability Murder Thirty Years AfterPeople v. Watson (2011) 33 Whittier L.Rev. 243, 243 & fn.5 [noting that scholars have "consistently voiced opposition" to the expansion of Watson murder liability].)
It is for this reason that Reyes's refinement of the objective component of implied malice is important in Watson murder cases. To be sure, in vehicular homicide cases, murder liability may be the appropriate sentence. And this is true even assuming a defendant's credible desire not to harm anyone. Such defendants can be said (subjectively) to exhibit a "a base, anti-social motive and [] wanton disregard for human life" (Thomas, supra, 41 Cal.2d at p. 480 (con. opn. of Traynor, J.)) precisely because they are knowingly engaged in an activity that is (objectively) highly likely to cause death. (Reyes, supra, 14 Cal.5th at p. 989.)
Cases such as this one, however, present difficult questions on that score. Speeding is unquestionably dangerous, reckless speeding even more so. But speeding itself, even at a high rate of speed, does not automatically equate to a" - "high degree of probability that it will result in death." '" (Reyes, supra, 14 Cal.5th at p. 989.) Rather, an objective analysis of the risk of speeding must account for a myriad of factors. Speeding on a highway differs from speeding in a residential neighborhood; traveling 100 miles per hour in a 45-mile-per-hour zone is not the same as doing so in a 70-mile-per-hour zone. Other factors such as the time of day, visibility, traffic volume, weather, and road conditions can all be relevant. Expert testimony on traffic fatalities may be needed to objectively establish a "high degree of probability" of causing death that adequately accounts for various risk factors.
The court below did little to consider the conditions in which Doaifi was speeding on the night in question, and it provided no analysis demonstrating that death was the highly probable, or even most probable, result. It cited our unadorned statement in Watson that excessive speed is "an act presenting a great risk of harm or death." (Watson, supra, 30 Cal.3d at p. 301.) But this statement was made in the context of a great amount of other evidence: the defendant in Watson was extremely intoxicated, driving erratically, and had almost collided with another car moments before the killing. (Id. at pp. 293-294.)
In his initial Court of Appeal briefing, Doaifi did not cite Reyes. However, he did argue that implied malice is only present when a "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." (Italics added; see People v. Washington (1965) 62 Cal. 2d 777, 782.) Reyes, which had issued almost a year before the case was argued, was controlling authority. Five days after the case was argued and submitted, however, Doaifi's counsel requested to file supplemental briefing articulating the impact of Reyes(based on the then-recent change to CALCRIM No. 520, which had occurred one month prior to argument and of which counsel discovered only after argument). The Court of Appeal denied this request as untimely. It also denied a petition for rehearing that argued that it had failed to apply Reyes and had applied in the incorrect version of CALCRIM No. 520.
Equally important, the law has been clarified since Watson. It is impermissible to equate a speculative "risk" to human life with an act demonstrating a" - "high degree of probability that death will result." '" (Reyes, supra, 14 Cal.5th at p. 989.) The potential confusion between these two competing formulations is precisely what prompted our recent clarification of the standard in Reyes. (Ibid.) To place the standard in context, a gang member traveling with other gang members (one of whom is armed) to rival territory, and ultimately engaging in a pursuit and confrontation, can certainly be characterized as an act presenting a risk of harm or death. (Ibid.) But many other non-fatal outcomes are possible, and even likely. Thus, the conduct in Reyes was, as a matter of law, insufficient to support murder liability. (Ibid.)
It is unclear whether the court or the jury below concluded that Doaifi's conduct constituted an act with a" - "high degree of probability that it would result in death." '" (Reyes, supra, 14 Cal.5th at p. 989.) However, it is premature for this court to address the issue now. The application of Reyes in the Watson murder context is a relatively new legal issue, and the change in jury instruction is of even more recent vintage. Other Courts of Appeal have affirmatively recognized Reyes as the controlling standard. (People v. Superior Court (Chagolla) (2024) 102 Cal.App.5th 499, 515 [citing Reyes and affirming trial court's decision to set aside Watson murder charge for insufficient evidence under Pen. Code § 995]; id. at p. 522 (conc. opn. of Do, J.) [writing separately to highlight that "[i]mplied malice murder cannot be based on a death that is anything less than highly probable."].) Furthermore, the Court of Appeal's failure to address the Reyes standard is, at least in part, attributable to Doaifi's counsel's failure to brief the issue in a timely manner. However, if future cases fail to apply, or misapply, the Reyes standard in this context, review by this Court may be warranted.
I Concur:
LIU, J.