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People v. Dungan

California Court of Appeals, Third District, Placer
Apr 1, 2009
No. C055622 (Cal. Ct. App. Apr. 1, 2009)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ERIC KENNETH DUNGAN, Defendant and Appellant. C055622 California Court of Appeal, Third District, Placer April 1, 2009

NOT TO BE PUBLISHED

Super. Ct. No. 62056386

MORRISON, J.

Retired Associate Justice of the Court of Appeal, Third Appellant District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Rocklin Police Officer Matthew John Redding was on duty, diverting traffic away from high-risk felony stops being performed by a number of patrol vehicles. Defendant, who had been drinking all night, had been told minutes before that he was too drunk to drive, and who was looking at his mobile phone to send a text-message, ran Officer Redding down with his pickup truck, killing Officer Redding.

A jury convicted defendant of second degree murder and gross vehicular manslaughter while intoxicated, and found he fled the scene. (Pen. Code, §§ 187, subd. (a), 191.5, subd. (a); Veh. Code, § 20001, subd. (c).) The trial court sent him to prison for 15 years to life for murder, and imposed but stayed an 11-year sentence for the other charges. Defendant timely appealed.

Defendant principally contends that no substantial evidence supports his conviction for “drunk driving murder,” that is, second-degree murder based on implied malice. (See People v. Watson (1981) 30 Cal.3d 290 (Watson).) He also faults a special instruction given by the trial court that used the term “wantonness.” We find no error and affirm.

BACKGROUND

People’s Case

While defendant had been an airman at Beale Air Force Base, he had been present at briefings that emphasized the dangers of drinking and driving (DUI), among other topics. His former group commander testified there were monthly “commander’s calls” at which the subject of drunk driving was always brought up, and there were also weekly DUI briefings for airmen under 26, where participants would sign a “Weekly Safety Briefing/[DUI] Sign-In Log.” The commander identified defendant’s signature on one such log sheet, but did not know exactly what was said at that particular briefing.

Defendant drank at three different places on the night of October 8-9, 2005.

First, at TGI Friday’s, around 9 to 10 p.m., defendant joined a party celebrating the birthday of a friend/coworker of defendant’s.

Second, defendant stayed with the party as it moved about 10:30 to 11:30 p.m. to the West House. A witness who arrived around midnight testified defendant was staggering drunk, and had been dancing suggestively with the witness’s girlfriend.

Third, defendant stayed with the group as it moved around closing time to a private home in Granite Bay. A woman took a bottle of tequila away from him because he had had too much to drink; he was staggering drunk. Eventually, because he was pestering another women and groped her breast, she called a taxi cab company so that defendant would go home.

The cab driver received the call about 3:30 a.m., and it took only about 10 to 15 minutes to get to the house. Defendant first asked him to drive to the West House, but on the way defendant changed the destination to TGI Friday’s. From the way defendant acted, the cab driver thought he might not be well. They arrived at TGI Friday’s but defendant’s truck was not there, so defendant told the cab driver to go to the West House. The cab driver kept talking to defendant because he was afraid defendant would fall asleep. After they found defendant’s truck at the West House, the cab driver warned defendant that he was too drunk to drive and he should sleep in his truck. Defendant asked the driver whether the driver had defendant’s keys. About 4:00 a.m., after paying the cab fare with a credit card, defendant drove off. Based on his cab driving experience, he rated defendant “right around eight” on a scale of 1 to 10 for drunkenness.

While defendant was partying, Rocklin Police Officer Matthew Redding was on duty. He was assisting other officers who were performing a highly dangerous job. At the time, the Sacramento County sheriff provided contract police services to the City of Citrus Heights. As two Citrus Heights officers were following a car in response to a complaint of an armed man making threats, they became concerned when they realized other cars were following them. Eventually, there were three or possibly four suspect cars that had to be stopped and searched, and between 8 to 12 patrol cars, all with overhead light bars flashing, managed to coordinate multiple felony stops on Highway 65, just north of the Galleria Boulevard overcrossing, a “very well lit area.” Because of the danger, Highway 65 was blocked off.

Officer Redding parked his patrol car, with overhead light bar flashing, just before the Galleria/Stanford Ranch exit ramp, and set up a series of reflective hazard cones, to divert traffic off Highway 65. He stood facing traffic and motioning with a bright flashlight.

Defendant was driving about 55 to 60 miles per hour north on Highway 65. He did not slow down at the sight of the 8 to 12 police cars with flashing lights or for the flashing lights of Officer Redding’s car, although lights were visible for “about 1500 feet” south of where the car was parked. Another officer estimated the lights of the cars at the felony stop could be seen about 2000 feet away. One witness testified the “glow of the lights” was visible from the exit ramp from Interstate 80, and she saw a patrol car “in the middle of the road” and Officer Redding standing in front of it with a flashlight, motioning traffic off the highway at the Stanford Ranch exit. Two officers testified there was “a Christmas tree of police lights” visible to a motorist. Defendant did not slow down for the line of hazard cones leading traffic to the exit ramp. They were apparently so brightly reflective that one witness thought they had been flares. Defendant did not slow for Officer Redding-who stood 6’2”; nor did he stop for his flashlight signals. Instead, defendant drove around another car that had slowed down “real briefly” and drove directly into Officer Redding. Immediately, a witness estimated defendant was still driving at “Probably fifty” miles per hour.

Officers at the multiple felony stop, which had been winding down, heard a noise and then horrible screaming coming from the south. Officers saw defendant’s truck, with one headlight out and obvious damage, leave the freeway (after drifting onto the dirt or gravel shoulder) and they realized what may have happened, although they did not know the severity of the incident. Defendant was staring “straight ahead,” as he passed the officers, which can be a sign of intoxication.

Patrol cars began following defendant and signaled him to pull over. Although defendant had three opportunities to pull into a shopping center parking lot, and appeared to slow down for each of those chances, he kept driving until he reached Roseville Parkway, where he turned right and finally pulled over about 4:11 to 4:12 a.m. It was about half a mile between where officers caught up to defendant and where defendant finally pulled over.

Defendant’s eyes were bloodshot and glassy, he smelled of alcohol, and he continued to stare straight ahead. As defendant fumbled for identification, the officers learned that Officer Redding “was down” and they handcuffed defendant and put him in a patrol car. An ambulance on its way to the hospital passed the scene of the stop.

Defendant was taken to the Roseville jail. By the time he reached the jail the arresting officers had learned Officer Redding was dead. Defendant failed various field sobriety tests at the jail. When initially questioned about half an hour at the jail by CHP Officers Andrew Mayo and Barry Larson, defendant repeatedly claimed he thought he had hit a dog or a bird and once said he hit a traffic cone. He claimed he stopped drinking about 10:30 that night. He said he was sending a text message on his phone when he looked up, saw flashing lights and heard a bang.

Beginning about 7:45 that morning, CHP Officer Charles Swift interviewed defendant for two hours and 45 minutes. This interview, played for the jury on two DVDs, exhibit Nos. 454 and 455, revealed significant information about defendant’s mental state. However, no transcript of the interrogation was introduced into evidence, nor was any informal transcript included in the record on appeal, although some kind of transcript was passed out to the jurors. It appears that neither appointed appellate counsel nor the Deputy Attorney General assigned to this case viewed these DVDs, therefore neither brief accurately portrays the evidence that was before the jury.

From references to these DVDs in the reporter’s transcript, the parties could glean the following: Defendant claimed he thought he had hit a dog or cone, and held to that story for about two and a half hours, but then admitted that he had seen Officer Redding, and that he knew he had hit a police officer facing his truck. Defendant had been looking down at his mobile phone, preparing to send a text message; “I look up. There is the officer right there.” He claimed he had only four drinks that night, two at TGI Friday’s and two at the West House. He also said that he had been wearing earplugs from an iPod and had been listening to music at the time.

But the DVD recordings of Officer Swift’s interview with defendant reveal much more. Defendant told Officer Swift that he had a drinking problem, that he drank once a month, inferentially to excess, and he had driven home much drunker than he was on the night in question. He had been in a multi-car collision caused by a driver who was either drunk or on drugs, and a friend of a friend had been killed while driving drunk. He had attended “hundreds” of the Air Force briefings, and the Air Force taught him that a DUI would wreck his career in the military, it was a “big deal.” The air base had a board near the exit listing the number of DUIs in the squadron, as a caution to airmen leaving the base, and defendant had to sign a weekly statement that he understood the risks of drunk driving. Every weekend he had to attend briefings about the dangers of DUIs, and the Air Force taught him to have a “plan” in case of drinking; in fact, he knew one of the women in the party group was the “designated driver,” and although she testified at trial that she drank a beer, defendant’s statement shows his awareness of the purpose and need for a sober driver. He knew driving drunk impaired one’s abilities and knew it could cause death if there was an accident. He knew that he was supposed to stop at the scene of an accident, but he left the highway to avoid the patrol cars. He thought that if stopped he would “blow over,” that is, register at above the legal alcohol limit, but he still thought he was “fine” to drive because he had driven “worse than that” before, “way more drunk,” and it was a “straight freeway shot” home on Highway 65, it was not a “big deal.” He later said he thought he was in the “range” of the legal limit, but “You never know what you’re gonna blow” so he was not sure he would get a DUI. He settled into his usual routine of texting with his right hand while steering with his left, and had his iPod turned up loud, with earphones in both ears. He drove by using his peripheral vision, as he looked down to text. At one point he said he was “juggling” the phone and the iPod as he manually shifted gears, and he would “casually” look at the road while texting. He had been up nearly 24 hours and “hope[ed]” he would remember if he nodded off while driving, which has happened to him only on long trips and had not happened recently.

Defendant was released after posting bail and later made a statement to a television news reporter claiming he thought he hit a sign or a cone, in contrast to his admission to Officer Swift that he knew he had hit Officer Redding.

Defendant’s blood sample taken at 5:45 a.m., showed a blood alcohol content of .15 percent. In response to a hypothetical based on defendant’s weight and supposed drinking pattern, an expert calculated that his blood alcohol level would have been at between .17 and .19 percent at 4:07 a.m. (just over twice the legal “limit” of .08 percent), and he would have had to drink about 15 drinks that night.

A woman testified defendant called her on her mobile phone about 4:05 a.m. that morning, sounding drunk.Officer Redding suffered massive injuries, consistent with being hit by defendant’s truck at 50 to 55 miles per hour, and died within half an hour.

There were no mechanical problems with defendant’s truck and the weather was clear.

The felony stop was about 200 feet north of the overcrossing and Officer Redding’s patrol car was about 1400 feet south. A CHP accident reconstruction expert testified that, assuming he were traveling 50 miles per hour, defendant would have had 21 seconds to react to the patrol car lights, 15 seconds to react to the reflective cones, 14 seconds to react to Officer Redding’s flashlight and 6 seconds to react to Officer Redding standing in the roadway, based on an accepted reaction time of one and a half seconds.

Defendant testified in his own defense. We do not rely on his testimony in affirming the conviction. Briefly, he claimed he saw the lights of the patrol cars and mistook them for construction lights. While listening to his iPod and sending a text message to a woman, he changed lanes and felt a bump but did not know what he had hit because he had been looking down at his phone.

Verdicts

In addition to finding defendant guilty of second degree murder and gross vehicular manslaughter, the jury also returned a guilty verdict on a lesser included count of ordinary vehicular manslaughter, but the trial court treated it as a nullity. The jury also returned special findings that defendant had been “advised” by the cab driver “that he was too intoxicated to drive,” and that did not tell anyone that Officer Redding was in need of assistance, despite a reasonable chance to do so; however, the jury found not true an allegation that defendant was not remorseful.

DISCUSSION

I. Substantial Evidence

Defendant contends the People did not introduce substantial evidence to support the murder charge and therefore the trial court should have granted his motion for an acquittal at the close of the People’s case-in-chief; he also contends that the murder verdict must be overturned for lack of evidence.

Viewing the facts in the light most favorable to the jury verdict, as we must (People v. Johnson (1980) 26 Cal.3d 557, 576-578), we find substantial evidence of murder without reference to defendant’s testimony. Therefore we can resolve both of defendant’s evidentiary claims by reference to the evidence in the People’s case-in-chief. As defendant impliedly notes, this method of review would defeat both claims. (See, e.g., People v. Stevens (2007) 41 Cal.4th 182, 200; People v. Smith (1998) 64 Cal.App.4th 1458, 1464.)

Although many drunk driving death cases are properly deemed to constitute vehicular manslaughter, the California Supreme Court has held that “when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created, malice may be implied. (§ 188.) In such cases, a murder charge is appropriate.” (Watson, supra, 30 Cal.3d at p. 298.)

Watson is read “as deliberately declining to prescribe a formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach.” (People v. Olivas (1985) 172 Cal.App.3d 984, 989 (Olivas).)

The Courts of Appeal “have relied on some or all of the following factors in upholding such [murder] convictions: (1) blood alcohol level above the .08 percent legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving.” (People v. Autry (1995) 37 Cal.App.4th 351, 358; see People v. Talamantes (1992) 11 Cal.App.4th 968, 973.)

All four of these factors are present in this case. Defendant’s blood alcohol was just over twice the legal limit. Defendant had parked his car at one drinking location and joined a party that drank throughout the night, expecting to drive home. He had actual knowledge about the hazards of drunk driving, but he drank monthly and drove “way more” drunk than he was that night, showing he disregarded all of his training. He drove at highway speed by using his “peripheral” vision while his attention was on sending a text message, and while driving in such manner failed to see or heed obvious warnings.

Defendant claims the evidence did not establish the nature or frequency of the briefings he received. Although more evidence about these briefings was introduced during cross-examination of defendant, during the People’s case-in-chief, defendant’s former group commander described “weekly” briefings that younger airmen (under 26) had to take to emphasize the dangers of drinking and driving, and the commander identified defendant’s signature on an attendance log from one of those briefings. But what is not mentioned by appellate counsel is the details about the frequency of the training defendant revealed to Officer Swift. Defendant said he had had hundreds of briefings and the Air Force taught young airmen to have a “plan” while going out because getting a DUI was a career-ending event. From all of the evidence the jury could find defendant was more aware of the dangers than the average person. The fact a defendant received instruction on the dangers of drunk driving is relevant to show his knowledge of the dangers; “persistence” in driving drunk with that knowledge tends to show “a conscious disregard for the lives of others on the road.” (People v. Ortiz (2003) 109 Cal.App.4th 104, 111-112; see People v. Murray (1990) 225 Cal.App.3d 734, 744-745 (Murray).)

Defendant argues that because of public awareness campaigns, “everybody knows the dangers of driving under the influence.” We disagree. A general understanding of the danger is not the same as explicit warnings and training about drunk driving. And although much progress has been made, it is abundantly clear that a large segment of the driving public is not convinced that drunk driving is dangerous. Even defendant, who had been trained, had a habit of driving “way more” drunk than he was that night, showing that the lessons had not been learned.

The fact defendant had no collisions or near misses does not preclude a Watson murder conviction, although that is frequently one way a prosecutor will try to show a defendant’s subjective awareness of the risk. (See People v. David (1991) 230 Cal.App.3d 1109, 1115-1116; Murray, supra, 225 Cal.App.3d at pp. 746-747; Olivas, supra, 172 Cal.App.3d at p. 988.) Prior crashes or near misses may serve to provide a warning to any reasonable driver that her or his ability is impaired. But here, defendant was explicitly warned by the cab driver. Thus, the absence of prior crashes or near misses does not preclude a finding of malice, it merely shows defendant had been able to control his truck, early in the morning when traffic is light, before he killed Officer Redding. Indeed, he told Officer Swift that he thought he was “fine” and had a “straight freeway shot” up Highway 65, which he drove many times, and drove much drunker than on the night in question. That defendant was experienced driving while drunk, and did not immediately have a collision or near-miss that night, does not exonerate him.

The cab driver testified that he told defendant he was too drunk to drive “a couple of times.” Then he testified he told defendant he did not know what he was doing and needed to sleep; “You don’t want to be driving, and, you know. I just assumed he knew he was drunk. I didn’t need to tell him that, but I might have.” He then testified he told defendant he (defendant) did not know his “ass from a hole in the ground.” Defendant contests whether the cab driver really told defendant that he thought defendant was drunk, in explicit terms. But viewing the testimony in the light favorable to the verdict, the jury could find that the cab driver brought home to defendant the fact that in his opinion defendant was not able to drive due to his intoxication, despite the fact that the cab driver could not remember the exact words he used to make his point.

Another fact to consider is that defendant had already hired the cab and paid with a credit card. He could have taken the cab all the way home or slept in his truck. He had alternatives to driving, but chose to drive while drunk. (See Watson, supra, 30 Cal.3d at pp. 300-301 [knowing consumption of alcohol when one expects to have to drive “‘reasonably may be held to exhibit a conscious disregard of the safety of others’”].)

While in some cases liability may be shown in part by speeding, here, although defendant was traveling at a speed that would normally be lawful on Highway 65, he admitted in pretrial statements that he was driving by peripheral vision while he was texting a message. Driving at highway speed without looking at the road is driving too fast for conditions, i.e., speeding.

Two other facts could have been found by the jury: First, defendant did not stop, although he eventually said he knew he had hit a person, but instead drove off the highway to avoid the police. Second, defendant lied about how much he had to drink and about whether he knew he had hit a person. These facts could be used to show his consciousness of guilt, as the jury was instructed in this case. (CALCRIM Nos. 362, 372.) (CT 492-493) (See, e.g., People v. Rios (2007) 151 Cal.App.4th 1154, 1158-1159; People v. Anderson (1994) 26 Cal.App.4th 1241, 1253.)

Defendant states he “has found no case in which such moderate facts have been found sufficient to support a conviction of second degree murder.” (AOB 18) This claim is made plausible only because defendant shades the facts to present them benignly. For example, he states Officer Redding was not wearing a reflective vest. But the evidence showed he was 6’2” tall, standing upright facing traffic and motioning with his flashlight in a well lit area, and another driver had no trouble seeing him.

Defendant claims the “warning” of the roadblock was solely the lights on Officer Redding’s car, but this ignores the 8 to 12 cars, with flashing light bars, just ahead.

Finally, relying on a snippet of an opinion taken out of context, defendant asserts that drunk-driving murder as articulated in Watson, supra, 30 Cal.3d is “judicially created” and therefore “blur[s] the important distinction between application of the Legislature’s specific prohibition of vehicular manslaughter with gross negligence and the generic prohibition of second degree murder with implied malice by allowing a case which belongs firmly in the former category to be drawn into the latter category.” He reasons that we have “the critical duty of gatekeeper to assure vehicular manslaughter cases to not get distorted into second degree murder cases.”

Defendant leads this claim with a passage in a Court of Appeal opinion that noted, “The Watson decision was significant because it extended the possibility of a second degree murder consequence to a person driving under the influence of alcohol under certain circumstances.” (People v. White (1992) 4 Cal.App.4th 1299, 1304.) This statement was not a holding that Watson departed from the statutory scheme created by the Legislature, rather than merely interpreting that scheme. Nor would it authorize us to depart from Watson, which rejected the claim that gross vehicular manslaughter is a more specific statute than murder and therefore precludes drunk-driving murder cases. (Watson, supra, 30 Cal.3d at p. 294.) We are bound to follow Watson. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nor are we persuaded by defendant’s citation to a case where the justices disagreed on the extent or viability of second-degree felony murder, a case in which none of the opinions cite Watson. (People v. Robertson (2004) 34 Cal.4th 156.) From that case, and his view that drunk-driving murder is judicially created, defendant reasons we must exercise special “judicial restraint” in this case.

We agree that we have an important “gatekeeper” role. Our role is to determine if substantial evidence supports the murder charge based on factors established by the Legislature and interpreted by the California Supreme Court.

We conclude the jury could rationally find from the evidence at trial that defendant acted with implied malice when he killed Officer Redding.

II. Instruction on Murder

The trial court gave the pattern second degree murder instruction, CALCRIM No. 520.

“The defendant is charged in Count One with Second Degree Murder, a violation of section 187(a) of the Penal Code.

“To prove that the defendant is guilty of this crime, the People must prove that:

“1. The defendant committed an act that caused the death of another person;

“AND

“2. When the defendant acted, he had a state of mind called malice aforethought.

“There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

“The defendant acted with express malice if he unlawfully intended to kill.

“The defendant acted with implied malice if:

“1. He intentionally committed an act;

“2. The natural consequences of the act were dangerous to human life;

“3. At the time he acted, he knew his act was dangerous to human life;

“AND

“4. He deliberately acted with conscious disregard for human life.

“Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.”

The trial court gave the following special instruction:

“Implied Malice/Gross Negligence

The definitions of implied malice, and gross negligence, although bearing a general similarity, are not identical. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence. An implied malice may be found when the circumstances attending the killing show an abandoned and malignant heart (PC 188), that is, when a defendant, knowing that his conduct endangers life and with a conscious disregard of the danger, commits an act the natural consequences of which are dangerous to human life. Gross Negligence as defined in jury instruction 590 requires an objective test, that is, would a reasonable person in the defendant’s position have been aware of the risk involved.” (Italics added.)

The language we have italicized is taken almost verbatim from Watson, as follows:

“The requisite culpability for the vehicular manslaughter charged here is gross negligence [citation], which has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.] Though these definitions bear a general similarity, they are not identical. Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.” (Watson, supra, 30 Cal.3d at p. 296, italics added.)

The trial court also defined natural and probable consequences and the difference between ordinary and gross negligence, as those two concepts pertained to count II, charging gross vehicular manslaughter while intoxicated, and the lesser offense of vehicular manslaughter while intoxicated. (CALCRIM Nos. 240, 253, 590, 591.)

The jury asked for “a clearer definition” of conscious disregard for human life, and asked for a hypothetical. The trial court declined the jury’s requests.

On appeal defendant contends the special instruction was infirm because it used the term “wantonness,” which in his view “is too vague, and because the shorthand definition of implied malice conflicts by its incompleteness with the more complete definition” given in CALCRIM No. 520, also given to the jury, as quoted above.

Taking defendant’s last point first, nothing in the special instruction “conflicts” with CALCRIM No. 520. This is unlike cases where one instruction negates or undermines another instruction, as in the case cited by defendant. (People v. Maurer (1995) 32 Cal.App.4th 1121, 1125-1127 [one instruction told jury that crime required defendant to be motivated by abnormal sexual interest, but another told jury that motive was not an element].) The special instruction amplified the pattern instruction. There is no rule that each instruction must be a complete statement of the law. (People v. Fiu (2008) 165 Cal.App.4th 360, 370-371 [“absence of an essential element in a given instruction may be supplied by reference to another instruction, or cured in light of the instructions considered as a whole”].) The jury was instructed it had a duty to correlate all of the instructions. (CALCRIM No. 200.) We presume the jury did so. (See People v. Romo (1975) 47 Cal.App.3d 976, 990; People v. Powell (1960) 186 Cal.App.2d 54, 59.)

As for the claim that the use of the undefined term wantonness was “too vague,” we disagree.

“In considering a claim of instructional error we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights. In making this determination we consider the specific language under challenge and, if necessary, the instructions as a whole.” (People v. Andrade (2000) 85 Cal.App.4th 579, 585.)

Defendant asserts that one meaning of wanton is “lewd” and the jury might have predicated liability on defendant’s acts of groping one woman and “dirty dancing”—appellate counsel’s term—with another woman earlier that evening.

While “wanton” can refer to sexual or lewd behavior (see Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 1409), the jury could not rationally have so interpreted the term in this case. The pattern instruction told the jury the act necessary to find murder had to be an act dangerous to human life (CALCRIM No. 520), and so did the special instruction, which in part stated: “An implied malice may be found when the circumstances attending the killing show an abandoned and malignant heart (PC 188), that is, when a defendant, knowing that his conduct endangers life and with a conscious disregard of the danger, commits an act the natural consequences of which are dangerous to human life.” However “wanton,” that is, sexual or lewd, defendant’s acts toward women that night were, those acts were not “dangerous to human life.” The jury would not rationally have interpreted the instructions to convict defendant of murder because he groped a woman’s breast and “dirty danced” with another woman before he got in his truck and began driving while drunk. Thus, the ambiguity in the word “wanton” identified by defendant is not one that had any application to the facts of this case. It was academic.

The fact the jury sought clarification of “conscious disregard” does not indicate that its concerns had anything to do with the use of the term “wantonness.” If the jury had been confused about “wantonness” we presume it would have asked for a definition of that term, rather than asking for a definition of or illustration of “conscious disregard.”

Thus, we reject defendant’s claim that by using the term “wantonness” in the special instruction, the trial court somehow negated or impaired or confused the other instructions on murder and its elements, as applicable in this case.

DISPOSITION

The judgment is affirmed.

We concur: SCOTLAND, P. J., ROBIE, J.


Summaries of

People v. Dungan

California Court of Appeals, Third District, Placer
Apr 1, 2009
No. C055622 (Cal. Ct. App. Apr. 1, 2009)
Case details for

People v. Dungan

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIC KENNETH DUNGAN, Defendant…

Court:California Court of Appeals, Third District, Placer

Date published: Apr 1, 2009

Citations

No. C055622 (Cal. Ct. App. Apr. 1, 2009)