Defendant’s conviction for Watson murder was supported by substantial evidence. Defendant was driving under the influence of alcohol in a residential area. He accelerated through a turn, lost control of the car, and killed a six-year-old girl who was playing on the sidewalk. A jury convicted him of second degree implied malice murder, i.e., a “Watson” murder. On appeal, defendant argued there was insufficient evidence he deliberately acted with implied malice. Held: Affirmed. Murder is the unlawful killing of a human being with malice aforethought. Malice may be implied when a person drives a motor vehicle under the influence of alcohol and kills someone. (People v. Watson (1981) 30 Cal.3d 290.) Generally, cases upholding such implied malice murder convictions have relied on the presence of some or all of the following factors: (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. All four of these factors were present here. Defendant’s BAC was nearly three times the legal limit; he took alcohol with him when he drove to his worksite alone that day; he had prior convictions for driving under the influence of alcohol in which he was explicitly warned that he could be convicted of murder if he continued to do so; and he drove at such high speed in a residential neighborhood that he could not negotiate a turn. To the extent defendant relied on cases where implied malice murder convictions were upheld on more egregious facts, the comparison is not helpful because it does not negate the substantial evidence that exists in this case that defendant deliberately acted with conscious disregard for human life (implied malice).
The trial court did not err by not instructing the jury on its own motion on the lesser related offense of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5(a)). Generally, a trial court must instruct the jury on lesser included offenses that are supported by the evidence. However, without the consent of the prosecutor, the trial court has no obligation to instruct on lesser related offenses. When a defendant is charged with murder, a gross vehicular manslaughter while intoxicated charge may be a related offense, but it is not necessarily included within a murder charge because it includes two additional elements: (1) the defendant’s use of a vehicle, and (2) the defendant’s intoxication. (People v. Sanchez (2001) 24 Cal.4th 983, 990-991.) Because gross vehicular manslaughter while intoxicated is a lesser related offense of murder, the trial court did not err in failing to instruct on it on its own motion. Defendant argued that under the plain meaning of the word “manslaughter,” the Legislature intended that vehicular manslaughter offenses be lesser included offenses of murder. The court disagreed, concluding the statutory language did not support this proposition; thus, the court did not consider defendant’s legislative history arguments.