A predrinking intent to drive is not required before a jury may find implied malice supporting a second degree Watson murder (People v. Watson (1981) 30 Cal.3d 290). Defendant, while intoxicated, drove his vehicle at a high rate of speed off the highway and into an area occupied by an adjacent tractor supply business. When the vehicle hit agricultural equipment the passenger was ejected and killed. Defendant fled. He was convicted of second degree implied malice Watson murder, as well as other counts. He appealed. Held: Remanded for resentencing. Defendant contended the evidence was insufficient to support his murder conviction, in light of his testimony that he drank alcohol without intending to drive afterward, then drove while unconscious. But a predrinking intent to drive is not required before a jury may find a driver acted with implied malice. Instead it is only one of the Watson factors that may be considered. Regardless, defendant drove himself to a restaurant with the intent to drink there, and no plan to avoid driving himself home. Additionally, unconsciousness at the time of the collision, alone, does not refute a finding of implied malice, because a defendant’s mental state when he begins drinking may establish the requisite mens rea. There was sufficient evidence in the record to support defendant’s conviction for second degree Watson murder.

No instruction on voluntary intoxication is applicable for a violation of Vehicle Code section 20001 (fleeing the scene after an accident), which is a general intent crime. Defendant argued the trial court erred in failing to instruct the jury on voluntary intoxication and unconsciousness because the jury was permitted to consider his voluntary intoxication and unconsciousness to the extent they bore on whether he had the knowledge required for the substantive count of leaving the scene of an accident, and a fleeing-the-scene allegation. (Veh. Code, § 20001(a) & (c).) The Court of Appeal disagreed. A violation of section 20001 is a general intent crime, but actual or constructive knowledge of the resulting injury is an essential element. Penal Code section 29.4(b) allows for admission of evidence of voluntary intoxication solely with regard to specific intent crimes. After analyzing section 29.4 and relevant case law, the court concluded the knowledge requirement of section 20001, subdivisions (a) and (c) is not a specific intent element, nor an element entwined with specific intent, that may be negated by voluntary intoxication. Nor was an instruction for unconsciousness necessary. Generally, unconsciousness is governed by Penal Code section 26, but unconsciousness caused by voluntary intoxication is governed by section 29.4.

Remand was required for resentencing under Senate Bill No. 567 and Assembly Bill No. 124. Before the enactment of SB 567 and AB 124, the trial court sentenced defendant to the upper term on the substantive count of leaving the scene of an accident. Defendant’s statement in mitigation at sentencing suggested defendant may have a history of childhood trauma. Accordingly, the matter must be remanded for resentencing consistent with the changes made to Penal Code section 1170(b).

Tractor supply business was entitled to victim restitution for losses suffered as a result of defendant’s criminal conduct of driving with implied malice and causing a death. At sentencing, the trial court ordered defendant to pay $5,000 in restitution to Garton Tractor Company for repairs to their property that were needed as a result of the collision pursuant to Penal Code section 1202.4(f). Section 1202.4 provides for restitution, with certain exceptions, in every case in which a victim has suffered economic loss as a result of the defendant’s conduct. A victim includes a corporation “or any other legal or commercial entity when that entity is a direct victim of a crime.” (§ 1202.4(k)(2).) Garton suffered losses resulting from the means by which defendant committed the murder (which included driving his vehicle through Garton’s fence and into its equipment), and this damage must be taken into account in ordering restitution.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/F082140.PDF