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Name: People v. Johnigan
Case #: B220763
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 06/23/2011

Implied malice for second degree murder in fatal vehicle collision involving intoxicated defendant does not require showing of prior DUI conviction or accident involving alcohol. Defendant ingested 16 drinks at a bar and, despite offers of rides and warnings she was too drunk to drive, got in her car to drive home. She collided with another vehicle, killing the driver. Appellant was convicted of second degree murder. She claimed the evidence of malice was insufficient as she had never been prosecuted for a DUI or been involved in an alcohol-related accident. However, “there is no requirement of a ‘predicate act'” to establish implied malice. Malice was shown, as appellant acted with conscious “disregard of the near certainty that someone would be killed.”

The trial court’s denial of defense pinpoint instructions was not error. The defense requested an instruction which “suggested that gross vehicular manslaughter while intoxicated was a lesser included offense to second degree murder.” This is not the law and the instruction was properly denied. Appellant also asserted the court should have instructed on “sudden emergency” (i.e., the police attempting to stop appellant caused her to flee and crash), but this was properly denied because the “emergency” must not be caused by the defendant’s negligence.

The prosecution did not deliberately offer improper expert testimony that alcohol impairs the brain’s ability to form memories. Although the criminalist who so testified acted improperly in giving this testimony, it was stricken. Nor did the prosecutor commit misconduct by asking appellant whether prosecution witnesses lied about warning her not to drive. A defendant who is a percipient witness to events may be asked whether prosecution witnesses are lying. Assuming arguendo there was error, it was harmless.

Change of venue. Appellant contested the denial of her motion to change venue, but provided no citation to evidence the jurors were exposed to pretrial publicity. Nor did appellant establish that an alcohol-related traffic fatality was an unusual crime that created a venue concern.