In a case involving driving while intoxicated, the evidence of implied malice was sufficient to sustain defendant’s second degree murder conviction. Wolfe was convicted of second degree murder after she drove under the influence of alcohol (DUI), and hit and killed a pedestrian. On appeal she challenged the sufficiency of the evidence of implied malice. Held: Affirmed. Murder is the unlawful killing of a human being with malice aforethought. In a second degree murder case, malice may be either express or implied. It is implied when the killing results from an unlawful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for the danger. When a person willfully drives under the influence of alcohol, this may provide the implied malice required for second degree murder. (People v. Watson (1981) 30 Cal.3d 290.) Some of the Watson factors are: (1) a blood alcohol content (BAC) over the legal limit; (2) a predrinking intent to drive; (3) knowledge of the hazards of driving while intoxicated; and (4) highly dangerous driving. Wolfe had a prior DUI and attended a class that discussed the dangers of drunk driving. She frequently called a taxi to return home after drinking at a bar, which reflects her awareness of the dangers of drunk driving. On the day of the offense, she had a BAC over .307. Given the facts of the collision and Wolfe’s flight from the scene, a jury could infer that she was subjectively aware she had hit and possibly killed a person, yet continued to drive. Her inability to keep her car in the lane allowed the jury to find that her driving was “highly dangerous” and that she showed a conscious disregard for the risks her act posed. There was sufficient evidence of malice.

The fact that manslaughter is not a lesser included offense (LIO) of implied malice murder by vehicle does not violate equal protection. A trial court must instruct the jury on all LIOs to the charged crime that are supported by the evidence. An offense is necessarily included in the greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all the elements of the lesser offense. Vehicular manslaughter is not an LIO of implied malice murder, which does not necessarily require proof of driving or intoxication. Vehicular manslaughter may be a lesser related offense (LRO) to implied malice murder, but instructions on an LRO are not required. Further, involuntary manslaughter may not be applied to acts committed in the driving of a vehicle (Pen. Code, § 192, subd. (b)). The fact a defendant is not entitled to instructions on voluntary manslaughter in an implied malice murder case involving drunk driving does not deny equal protection because not all second degree murder defendants are necessarily entitled to LIO instructions; there must be substantial evidence of the lesser offense. Wolfe has failed to show the required disparate treatment of similarly situated groups to mount a successful equal protection challenge. In any event, allowing the prosecution to charge only implied malice vehicular murder is rationally related to the legitimate governmental purpose of punishing people who engage in the highly dangerous conduct of driving while intoxicated.

The trial court correctly instructed the jury that voluntary intoxication is not a defense to implied malice murder. Wolfe argued she was denied due process when the trial court instructed the jury that voluntary intoxication is not a defense to implied malice murder. However, a statute that limits the admissibility of evidence of voluntary intoxication (Pen. Code, § 29.4, subd. (b)) to negate a mental state required for an offense does not violate due process. Rather, it reflects a legislative judgment that a defendant’s voluntary intoxication is not a defense to a certain designated group of offenses.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G052920.PDF