Supreme Court of California Justia
Docket No. S108353

People v. Howard


Filed 1/27/05

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S108353
v.
) Ct.App.
5
F036961
EVERT KEITH HOWARD,
) Fresno
County
Defendant and Appellant.
Super. Ct. No. 0655083-4

Murder is the unlawful killing of a human being, with malice aforethought.
(Pen. Code, § 187, subd. (a).) But under the second degree felony-murder rule, the
prosecution can obtain a conviction without showing malice if the killing occurred
during the commission of an inherently dangerous felony. Is the crime of driving
with a willful or wanton disregard for the safety of persons or property while fleeing
from a pursuing police officer (Veh. Code, § 2800.2)1 an inherently dangerous
felony for purposes of the second degree felony-murder rule? We conclude it is not.
I
At 12:40 a.m. on May 23, 2002, California Highway Patrol Officer Gary
Stephany saw defendant driving a Chevrolet Tahoe (a sport utility vehicle)
without

1
Unless otherwise stated, all further statutory citations are to the Vehicle
Code.

1



a rear license plate, and signaled him to pull over. Defendant stopped on the side
of the road. But when Officer Stephany and his partner, Officer Wayne Bernard,
got out of their patrol car, defendant restarted the engine and sped to a nearby
freeway. The officers gave chase at speeds of up to 90 miles per hour and radioed
for assistance. Defendant left the freeway and drove onto a surface street, turning
off his car’s headlights. He ran two stop signs and a red light, and he drove on the
wrong side of the road. His speed was 15 to 20 miles over the posted speed limit
of 50 miles per hour. At some point, he made a sharp turn onto a small dirt road
and escaped.
Minutes later, Officer Anthony Arcelus and his partner, Officer Bret Boss,
who had been monitoring the pursuit on their car radio, saw the Tahoe with its
headlights on again and took up the chase. Officer Arcelus, who was driving,
estimated the Tahoe’s speed at more than 80 miles per hour, and he saw it run a
stop sign and a traffic light. By then, the car’s headlights were again turned off.
Up to that point, the chase had taken place in rural parts of Fresno County. When
the Tahoe started heading toward downtown Fresno, Officer Arcelus gave up the
pursuit, fearing that the high-speed chase might cause an accident.
About a minute after Officer Arcelus stopped chasing the Tahoe, he saw it
run a red light half a mile ahead of him and collide with a car driven by Jeanette
Rodriguez. Rodriguez was killed and her husband, a passenger in the car, was
seriously injured. It turned out that the Tahoe that defendant was driving had been
stolen earlier that day. Defendant, who was also injured in the crash, was arrested
and charged with murder (Pen. Code, § 187), with causing serious bodily injury
while evading a police officer (§ 2800.3), and with evading a police officer in
willful or wanton disregard for the safety of persons or property (§ 2800.2).
At trial, the prosecution called as a witness Laurie Bennett, defendant’s
passenger during the chase. She was evasive about the events leading up to the
2

accident. Ultimately, she admitted that she had told the truth when she explained
to a police officer that five or six times during the chase she had begged defendant
to let her get out of the car, and that defendant had run a red light at the
intersection where the fatal accident occurred. An accident reconstruction expert
testified that at the time of the accident the Tahoe was traveling over 80 miles per
hour, and Rodriguez’s car was traveling close to the posted speed limit of 35 miles
per hour. John Mikkelson, a pipeline inspector working near the intersection
where the accident occurred, said he looked at the signal immediately after hearing
the crash of the two colliding cars and saw that it was green for cars traveling in
Rodriguez’s direction (and thus presumably red for defendant).
Forensic toxicologist Roger Peterson, a witness for the defense, testified
that defendant had a “high amount” of methamphetamine in his bloodstream at the
time of the accident. A person under the influence of methamphetamine, Peterson
said, might drive at excessive speeds, might have trouble staying in a single lane,
and might not notice traffic lights and signs. Defendant also had marijuana in his
bloodstream, but not enough to be under the influence. Victim Rodriguez’s
bloodstream contained morphine (a metabolite of heroin) and benzoyleconine (a
metabolite of cocaine). Based on this evidence, toxicologist Peterson expressed
his opinion that Rodriguez was under the influence of heroin and possibly cocaine
when the accident occurred.
Defendant testified on his own behalf. He admitted stealing the Tahoe and
fleeing from the Highway Patrol officers. He did so because his probation officer
had told him he would go to prison if he was again caught in a stolen car. He
could only remember bits and pieces of the chase. He described himself as a
skilled driver; his cousin, a race car driver, had taught him to drive “sprint cars” at
a race track. He saw the victims’ car before the accident but could not recall
hitting it. He could not remember what color the signal light was when he entered
3

the intersection but admitted it was “most likely” red when the car he was driving
crashed into the Rodriguez car.
The trial court instructed the jury: “Every person who unlawfully kills a
human being during the commission of violation of California Vehicle Code
section 2800.2, a felony inherently dangerous to human life, is guilty of the crime
of murder in violation of Section 187 of the Penal Code. [¶] In order to prove this
crime, each of the following elements must be proved: [¶] 1. A human being was
killed; [¶] 2. The killing was unlawful; and [¶] 3. The killing occurred during the
commission of violation of California Vehicle Code section 2800.2, a felony
inherently dangerous to human life. A violation of Vehicle Code section 2800.2 is
a felony inherently dangerous to human life.” The trial court did not instruct the
jury that malice is an element of murder or that the jury could convict defendant if
it found that he acted with express or implied malice when he killed victim
Rodriguez.
In his closing argument, defense counsel contended that defendant did not
violate section 2800.2 because he did not drive with willful and wanton disregard
for life or property; that even if defendant violated section 2800.2 while fleeing
from the officers he was not doing so when the accident occurred, because by then
the officers were no longer chasing him; and that defendant might not have caused
the accident because there was a reasonable doubt that he ran a red light at the
time of the incident.
During its deliberations, the jury sent the trial court this note: “It appears in
the instructions if there is a guilty verdict in [section] 2800.2 then there must be a
guilty verdict for [Penal Code section] 187, yes or no?” The court replied that it
was “not in a position to say yes or no”; it then reread the instructions on felony
murder and causation. The jury convicted defendant of all counts.
4

The Court of Appeal affirmed. As pertinent here, it rejected defendant’s
contention that he could not be convicted under the second degree felony-murder
rule because section 2800.2 is not an inherently dangerous felony. And it rejected
defendant’s contention that he could not be convicted of murder because his
conduct fit within section 2800.3 (causing death or serious bodily injury by willful
flight from a pursuing peace officer), which he claimed is a “special statute” that
bars his conviction for the more general crime of murder.
We granted defendant’s petition for review on these two issues:
“1. Whether the offense of driving in willful or wanton disregard for the safety of
persons or property while fleeing from a pursuing police officer (Veh. Code,
§ 2800.2) is a felony inherently dangerous to human life for purposes of the
second degree felony-murder rule. [¶] 2. Whether the offense of proximately
causing death or serious bodily injury by willful flight from a pursuing police
officer (Veh. Code, § 2800.3) is a more specific offense precluding application of
the second degree felony-murder rule where death occurs during the offense of
driving in willful or wanton disregard for the safety of persons or property while
fleeing from a pursuing police officer (Veh. Code, § 2800.2).”
II
Because the second degree felony-murder rule is a court-made rule, it has
no statutory definition. This court has described it thusly: “A homicide that is a
direct causal result of the commission of a felony inherently dangerous to human
life (other than the . . . felonies enumerated in Pen. Code, § 189) constitutes at
least second degree murder.” (People v. Ford (1964) 60 Cal.2d 772, 795, italics
added.) The rule “eliminates the need for proof of malice in connection with a
charge of murder.” (People v. Robertson (2004) 34 Cal.4th 156, 165.) It is not an
evidentiary presumption but a substantive rule of law (see People v. Dillon (1983)
34 Cal.3d 441, 472-476; see also People v. Patterson (1989) 49 Cal.3d 615, 626),
5

which is based on the theory that “when society has declared certain inherently
dangerous conduct to be felonious, a defendant should not be allowed to excuse
himself by saying he was unaware of the danger to life because, by declaring the
conduct to be felonious, society has warned him of the risk involved.” (People
v. Patterson, supra, 49 Cal.3d at p. 626.)
Because the second degree felony-murder rule is “a judge-made doctrine
without any express basis in the Penal Code” (People v. Dillon, supra, 34 Cal.3d
at p. 472, fn. 19), its constitutionality has been questioned (see People
v. Patterson, supra, 49 Cal.3d at p. 641 (conc. opn. of Panelli, J.)). And, as we
have noted in the past, legal scholars have criticized the rule for incorporating “an
artificial concept of strict criminal liability that ‘erodes the relationship between
criminal liability and moral culpability.’ ” (Id. at p. 621.) Therefore, we have
repeatedly stressed that the rule “ ‘deserves no extension beyond its required
application.’ ” (Id. at p. 622; see also People v. Burroughs (1984) 35 Cal.3d 824,
829; People v. Phillips (1966) 64 Cal.2d 574, 582.)
“In determining whether a felony is inherently dangerous [under the second
degree felony-murder rule], the court looks to the elements of the felony in the
abstract, ‘not the “particular” facts of the case,’ i.e., not to the defendant’s specific
conduct.” (People v. Hansen (1994) 9 Cal.4th 300, 309.) That is, we determine
whether the felony “by its very nature . . . cannot be committed without creating a
substantial risk that someone will be killed . . . .” (People v. Burroughs, supra, 35
Cal.3d at p. 833; see also People v. Robertson, supra, 34 Cal.4th at p. 166.)
Felonies that have been held inherently dangerous to life include shooting
at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311), poisoning
with intent to injure (People v. Mattison (1971) 4 Cal.3d 177), arson of a motor
vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163; but see People v. Henderson
(1977) 19 Cal.3d 86, 96), grossly negligent discharge of a firearm (People v. Clem
6

(2000) 78 Cal.App.4th 346, 353-354; see also People v. Robertson, supra, 34
Cal.4th at pp. 168-169 [quoting Clem with approval]), manufacturing
methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271), kidnapping
(People v. Greenberger (1997) 58 Cal.App.4th 298, 377; People v. Pearch (1991)
229 Cal.App.3d 1282, 1299), and reckless or malicious possession of a destructive
device (People v. Morse (1992) 2 Cal.App.4th 620, 646).
Felonies that have been held not inherently dangerous to life include
practicing medicine without a license under conditions creating a risk of great
bodily harm, serious physical or mental illness, or death (People v. Burroughs,
supra, 35 Cal.3d at p. 833); false imprisonment by violence, menace, fraud, or
deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96); possession of a
concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28,
35-41); possession of a sawed-off shotgun (id. at pp. 41-43); escape (People
v. Lopez (1971) 6 Cal.3d 45, 51-52); grand theft (People v. Phillips, supra, 64
Cal.2d at pp. 580-583); conspiracy to possess methedrine (People v. Williams
(1965) 63 Cal.2d 452, 458); extortion (People v. Smith (1998) 62 Cal.App.4th
1233, 1236-1238); furnishing phencyclidine (People v. Taylor (1992) 6
Cal.App.4th 1084, 1099); and child endangerment or abuse (People v. Lee (1991)
234 Cal.App.3d 1214, 1229).
III
In determining whether section 2800.2 is an offense inherently dangerous
to life, we begin by reviewing the statutory scheme. Three statutes punish those
who flee from police officers: sections 2800.1, 2800.2, and 2800.3.
Section 2800.1 states that any motorist who “with the intent to evade,
willfully flees or otherwise attempts to elude” a peace officer pursuing on a motor
vehicle or bicycle is, under specified circumstances, guilty of a misdemeanor.
7

Under section 2800.3, when “willful flight or attempt to elude a pursuing
peace officer in violation of Section 2800.1 proximately causes death or serious
bodily injury to any person,” the offense is a wobbler (an offense that can be a
felony or a misdemeanor, at the trial court’s discretion), punishable by up to five
years in prison.
Section 2800.2, which was the basis for defendant’s conviction under the
second degree felony-murder rule, provides:
“(a) If a person flees or attempts to elude a pursuing peace officer in
violation of Section 2800.1 and the pursued vehicle is driven in a willful or
wanton disregard for the safety of persons or property, the person driving the
vehicle, upon conviction, shall be punished by imprisonment in the state prison, or
by confinement in the county jail . . . . The court may also impose a fine . . . or
may impose both that imprisonment or confinement and fine.
“(b) For purposes of this section, a willful or wanton disregard for the
safety of persons or property includes, but is not limited to, driving while fleeing
or attempting to elude a pursuing peace officer during which time either three or
more violations that are assigned a traffic violation point count under Section
12810 occur, or damage to property occurs.”
In concluding that section 2800.2 is an inherently dangerous felony, the
Court of Appeal relied heavily on People v. Johnson (1993) 15 Cal.App.4th 169.
There the Court of Appeal, construing an earlier version of section 2800.2 that was
essentially the same as what is now subdivision (a) of that section, held that
driving with “willful or wanton disregard for the safety of persons or property”
was inherently dangerous to life. We need not decide, however, whether Johnson
was correct, because in 1998, five years after Johnson was decided, the
Legislature amended section 2800.2 to add subdivision (b). (Stats. 1996, ch. 420,
§ 1.) Subdivision (b) very broadly defines the term “willful or wanton disregard
8

for the safety of persons or property,” as used in subdivision (a), to include any
flight from an officer during which the motorist commits three traffic violations
that are assigned a “point count” under section 12810, or which results in “damage
to property.”
Violations that are assigned points under section 12810 and can be
committed without endangering human life include driving an unregistered vehicle
owned by the driver (§§ 40001, 12810, subds. (e), (g)(1)), driving with a
suspended license (§§ 14601, 12810, subd. (i)), driving on a highway at slightly
more than 55 miles per hour when a higher speed limit has not been posted
(§§ 22349, subd. (a), 12810, subd. (e)), failing to come to a complete stop at a stop
sign (§§ 22450, 12810, subd. (e)), and making a right turn without signaling for
100 feet before turning (§§ 22108, 12810, subd. (e)).
The Court of Appeal here rejected defendant’s contention that because of
the broad definition of the phrase “willful or wanton disregard for the safety of
persons or property” in subdivision (b) of section 2800.2, violations of section
2800.2 are not inherently dangerous to life for the purposes of the second degree
felony-murder rule. The Court of Appeal quoted People v. Sewell (2000) 80
Cal.App.4th 690, which concluded that subdivision (b) “did not change the
elements of the section 2800.2 offense, in the abstract, or its inherently dangerous
nature.” (Sewell, at p. 694.) But, as we pointed out in the preceding paragraph,
subdivision (b) greatly expanded the meaning of the quoted statutory phrase to
include conduct that ordinarily would not be considered particularly dangerous.2

2
Justice Baxter’s dissenting opinion stresses that the trial court’s instructions
to the jury left the phrase “willful or wanton disregard for the safety of persons or
property” undefined, and did not mention the Legislature’s broad definition of that
phrase in subdivision (b) of section 2800.2. (Dis. opn., post, p. 6.) Thus, the
dissent argues, this court should not consider the latter definition in deciding
(Footnote continued on next page.)
9



The Attorney General contends that when the Legislature amended section
2800.2 to add subdivision (b), it did not intend to make the second degree felony-
murder rule inapplicable to violations of that section. The legislative history of
the amendment makes no mention, however, of the second degree felony-murder
rule; nor does the legislative history pertaining to the original enactment in 1988
of section 2800.2 (Stats. 1988, ch. 504, § 3, p. 1919). In all likelihood, the
Legislature did not consider the effect that either the statute’s original enactment
or its amendment would have on murder prosecutions. In the absence of any
evidence of legislative intent, we assume that the Legislature contemplated that we
would determine the application of the second degree felony-murder rule to
violations of section 2800.2 based on our long-established decisions holding that
the rule applies only to felonies that are inherently dangerous in the abstract.
(People v. Robertson, supra, 34 Cal.4th at p. 166; People v. Hansen, supra, 9
Cal.4th at p. 309; People v. Phillips, supra, 64 Cal.2d at p. 582; People
v. Williams, supra, 63 Cal.2d at p. 458, fn. 5.) As we have explained in this
opinion, a violation of section 2800.2 is not, in the abstract, inherently dangerous

(Footnote continued from previous page.)

whether section 2800.2 is inherently dangerous. But in determining whether a
felony is inherently dangerous, we must consider the law enacted by the
Legislature, regardless of the jury instructions in a particular case. The dissent
also notes that “although the Legislature elected to include subdivision (b) as part
of section 2800.2, it could just have easily have added a separate section,
establishing a distinct felonious offense of committing three ‘points’ violations
while driving to elude a peace officer.” (Dis. opn., post, p. 4.) True. But the
Legislature did not do so. To determine whether section 2800.2 is inherently
dangerous, we must examine the law the Legislature did enact, not a hypothetical
law the Legislature could have enacted.
10



to human life. Therefore, the second degree felony-murder rule does not apply
when a killing occurs during a violation of section 2800.2.
Thus, the trial court here erred when it instructed the jury that it should find
defendant guilty of second degree murder if it found that, while violating section
2800.2, defendant fatally injured Jeanette Rodriguez when their cars collided.3
The parties have not briefed the question of whether the trial court’s instructional
error was prejudicial. That is a matter to be considered by the Court of Appeal on
remand.4
CONCLUSION
Nothing here should be read as saying that a motorist who kills an innocent
person in a hazardous, high-speed flight from a police officer should not be
convicted of murder. A jury may well find that the motorist has acted with malice
by driving with conscious disregard for the lives of others, and thus is guilty of
murder. (See generally People v. Watson (1981) 30 Cal.3d 290.) But, as we have
explained, not all violations of section 2800.2 pose a danger to human life.
Therefore, the prosecution may not (as it did here) resort to the second degree

3
Defendant asserts that when the Legislature enacted section 2800.3, it
created a specific statute that specifies the penalty when flight from a pursuing
peace officer results in death or serious bodily injury, thus barring his conviction
of the more general crime of second degree murder under the second degree
felony-murder rule, based on a violation of section 2800.2. We need not address
this contention, because of our conclusion that the second degree felony-murder
rule does not apply to violations of section 2800.2.
4
Justice Baxter’s dissenting opinion argues forcefully that the trial court’s
instructional error was harmless because (1) there was overwhelming evidence
that defendant acted with implied malice, and (2) the jury implicitly found, based
on the trial court’s instructions, that defendant acted with malice. (Dis. opn., post,
pp. 6-8.) We express no views on Justice Baxter’s arguments, which should be
considered by the Court of Appeal on remand.
11



felony-murder rule to remove from the jury’s consideration the question whether a
killing that occurred during a violation of section 2800.2 was done with malice.5
We reverse the judgment of the Court of Appeal, which upheld defendant’s
conviction for second degree murder, and remand the matter to that court for
further proceedings consistent with this opinion.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

5
To the extent it is inconsistent with this opinion, we disapprove People
v. Sewell, supra, 80 Cal.App.4th 690, which held that a murder conviction under
the second degree felony-murder rule can be based on a violation of section
2800.2.
12





CONCURRING AND DISSENTING OPINION BY BROWN, J.

I concur with the majority’s holding that the defendant’s conviction for
second degree felony murder must be reversed and the case remanded for further
proceedings. However, for the reasons set forth in my dissenting opinion in
People v. Robertson (2004) 34 Cal.4th 156, 186-192 (dis. opn. of Brown, J.), I
cannot countenance the majority’s continued allegiance to this dubious doctrine.
Here, the defendant was convicted solely on a second degree felony-murder
theory. The majority appears to acknowledge the rule is constitutionally and
analytically suspect: “Because the second degree felony-murder rule is ‘a judge-
made doctrine without any express basis in the Penal Code’ [citation], its
constitutionality has been questioned [citation]. And, as we have noted in the past,
legal scholars have criticized the rule for incorporating ‘an artificial concept of
strict criminal liability that “erodes the relationship between criminal liability and
moral culpability.” ’ [Citation.] Therefore, we have repeatedly stressed that the
rule ‘ “deserves no extension beyond its required application.” ’ [Citations.]”
(Maj. opn., ante, at p. 6.) I agree, but I would go farther and abrogate the rule
entirely. (People v. Robertson, supra, 34 Cal.4th 156, 191 (dis. opn. of Brown, J.)
[“Because the second degree felony-murder rule is suspect I believe it would not
be missed if we abandoned it”].) As the facts of this case conclusively
demonstrate, the application of the second degree felony-murder rule remains
irredeemably arbitrary.
1



The majority concludes, based on a technical parsing of the provision’s
grammar, that a violation of Vehicle Code section 2800.2 is not an inherently
dangerous felony for purposes of second degree felony murder. However, a
commonsense construction of the statute’s language leads to the opposite
conclusion—a conclusion that is considerably less counterintuitive. As one lower
court stated in addressing the same issue we review here, “It would seem clear as a
matter of logic that any felony whose key element is ‘wanton disregard’ for human
life necessarily falls within the scope of ‘inherently dangerous’ felonies. . . . [¶]
. . . [A]part from the ‘wanton disregard’ element, one must also be engaged in the
act of fleeing from a pursuing peace officer whose vehicle is displaying lights and
sirens. Any high-speed pursuit is inherently dangerous to the lives of the pursuing
police officers. In even the most ethereal of abstractions, it is not possible to
imagine that the ‘wanton disregard’ of the person fleeing does not encompass
disregard for the safety of the pursuing officers.” (People v. Johnson (1993) 15
Cal.App.4th 169, 173-174.) Unlike the majority, I find the Court of Appeal’s
statement in Johnson persuasive.
Indeed, I agree with Justice Baxter that if any offense should easily qualify
as inherently dangerous, Vehicle Code section 2800.2 certainly would.
“Subdivision (a) of section 2800.2 gives clear and specific notice that one who, in
order to elude police pursuit, drives with reckless indifference to safety is guilty of
a felony. Such reckless driving is, of course, inherently dangerous—by definition,
it creates a substantial risk that someone will be killed.” (Dis. opn. of Baxter, J.,
post, at pp. 2-3.) Although it is possible to imagine slow motion pursuits where
neither people nor property are harmed, the facts of this case present the more
likely scenario: the defendant greatly exceeded the speed limit, ran stop signs and
stoplights, drove the wrong way on a street and entered Downtown Fresno where
the pursuing police officer broke off his chase because he determined that it was
too dangerous to proceed. Unfortunately, although the police officer avoided
2

injury by breaking off his pursuit, the defendant still entered an intersection on a
red light and collided with another vehicle, killing its driver.
“[R]easonable judges can disagree about the legitimacy of contracting or
expanding the statutory definition of a felony in order to conclude that a particular
violation should be deemed inherently dangerous.” (People v. Robertson, supra,
34 Cal.4th 156, 186 (dis. opn. of Brown, J.).) Two other Court of Appeal
decisions have concluded that a violation of Vehicle Code section 2800.2 is an
inherently dangerous felony. (People v. Sewell (2000) 80 Cal.App.4th 690, 693-
697; People v. Johnson, supra, 15 Cal.App.4th at pp. 173-174.) In this case, two
members of this court and a unanimous Court of Appeal reached the same
conclusion. The fact that such variations are not just possible, but actually
inevitable, suggests a level of arbitrariness we should make every effort to
eliminate from the criminal law. For that reason, as well as other concerns
discussed more fully in Robertson, I would abrogate the nonstatutory second
degree felony-murder rule and leave it to the Legislature to define precisely what
conduct subjects a defendant to strict criminal liability.
BROWN, J.
3

DISSENTING OPINION BY BAXTER, J.

I respectfully dissent. In early morning darkness, defendant, driving a
stolen vehicle, led police officers on a perilous and extended chase over Fresno
County roads. He ran three stop signs and a red light, and even proceeded on the
wrong side of a divided highway, while operating the vehicle far in excess of
posted speed limits. Finally, as he dashed on city streets toward downtown Fresno
at speeds between 80 and 90 miles per hour, he ran a second red light and collided
with another vehicle. Both occupants of that car were ejected onto the street. One
perished.
As a result of his reckless actions, defendant suffered a conviction for
violation of Vehicle Code section 2800.2,1 which makes it a felony to flee police
pursuit by driving with “a willful or wanton disregard for the safety of persons or
property.” (Id., subd. (a).) Because his violation of this law had fatal
consequences, defendant was also convicted of second degree murder on a felony-
murder theory—i.e., that he caused death in the commission of an inherently
dangerous felony. Instructions told the jury that the “willful or wanton disregard”
necessary to both convictions required an intentional act performed with a
“conscious disregard” for safety.

1
All further unlabeled statutory references are to the Vehicle Code.
1



The majority concede that defendant (1) violated section 2800.2, the
reckless flight statute, by “willful[ly] or wanton[ly] disregard[ing]” human safety
during a flight from the police, and (2) thereby produced a human fatality.
Nonetheless, though two Court of Appeal decisions have concluded otherwise
(People v. Sewell (2000) 80 Cal.App.4th 690, 693-697 (Sewell); People v. Johnson
(1993) 15 Cal.App.4th 169, 173-174 (Johnson)), the majority insist that this
statute cannot support a felony-murder conviction.
The majority invoke the premise that second degree felony murder only
occurs in the commission of a felony which is inherently dangerous in the
abstract—one which, by its very nature, cannot be committed without creating a
substantial risk, or a high probability, that someone will be killed. (E.g., People v.
Hansen (1994) 9 Cal.4th 300, 309 (Hansen).) Relying on the peculiar
construction of the reckless flight statute, including its recent amendment, the
majority posit that even if defendant violated section 2800.2 in a potentially lethal
way, it can be violated without creating a lethal danger to persons.
The majority focus upon subdivision (b) of section 2800.2, which was
added in 1996. This subdivision states that “[f]or purposes of [section 2800.2],”
driving with “a willful or wanton disregard for the safety of persons or property
includes . . . driving . . . during which time . . . three or more [traffic] violations
that are assigned a traffic violation point count under [s]ection 12810 occur . . . .”
The majority reason that, because some statutory “points” violations are not
inherently dangerous, one can commit the unitary felony described in both
subdivisions of section 2800.2 in a way that does not place human life at risk.
I am not persuaded. Subdivision (a) of section 2800.2 gives clear and
specific notice that one who, in order to elude police pursuit, drives with reckless
indifference to safety is guilty of a felony. Such reckless driving is, of course,
inherently dangerous—by definition, it creates a substantial risk that someone will
2

be killed. Moreover, there is no doubt that defendant committed exactly the
reckless endangerment of human life forbidden by the statute. As I explain in
further detail below, his conviction for violating section 2800.2, as well as his
felony-murder conviction, were unambiguously based on the dangerous
recklessness of his flight from the police.
Hence, the principal reason noted by the majority for limiting the second
degree felony-murder rule should not bar a felony-murder finding here. The
statute’s express words placed defendant on notice that the particular conduct he
was committing—recklessly unsafe driving to elude police pursuit—was both
felonious and inherently dangerous, and thus a basis for murder liability if death
resulted. This is a case where “ ‘society has declared certain inherently dangerous
conduct to be felonious,’ ” and “ ‘defendant should [therefore] not be allowed to
excuse himself by saying he was unaware of the danger to life because, by
declaring the conduct to be felonious, society has warned him of the risk
involved.’ ” (Maj. opn., ante, at p. 6, quoting People v. Patterson (1989)
49 Cal.3d 615, 626 (Patterson).)
Conversely, the principal reason for applying the felony-murder rule is
present. The purpose of the felony-murder doctrine “ ‘is to deter those engaged in
felonies from killing negligently or accidentally.’ ” (Hansen, supra, 9 Cal.4th
300, 308, quoting People v. Satchell (1971) 6 Cal.3d 28, 43.) Because the
doctrine absolves the prosecution from proving malice, it properly applies when
“ ‘the killer is engaged in a felony whose inherent danger to human life renders
logical an imputation of malice on the part of all who commit it.’ ” (Ibid.)
Those requirements are met here. It is appropriate to deter persons from
killing negligently or accidentally—as did defendant—while engaged—as was
defendant—in recklessly unsafe driving to elude police pursuit, a specific form of
conduct made felonious by section 2800.2, subdivision (a). Moreover, the
3

inherent danger such conduct poses to human life is so clear that it is logical to
impute malice to anyone who commits it.
Under such circumstances, it perverts reason to refuse to apply the felony-
murder rule simply because subdivision (b) of section 2800.2 may additionally
describe a nondangerous felony. Where society has warned, in plain statutory
words, that the particular conduct committed by the defendant is both dangerous
and felonious, it should not matter that the statute may forbid nondangerous
conduct as well.2
It is worth noting that, although the Legislature elected to include
subdivision (b) as part of section 2800.2, it could just as easily have added a
separate section, establishing a distinct felonious offense of committing three
“points” violations while driving to elude a peace officer. This would equally
have satisfied the apparent legislative purpose to deter flight from the police by
expanding the circumstances under which driving to elude a pursuing police
officer would constitute a felony. (See, e.g., Sen. Com. on Crim. Proc., Analysis
of Assem. Bill No. 1999 (1995-1996 Reg. Sess.) as amended Apr. 29, 1996, p. 6.)
However, neither the Legislature’s desire to create a felony of flight with
“points” violations, nor its choice of methodology to accomplish this result, can

2
This court has previously indicated that when a felony statute speaks in the
disjunctive, describing discrete dangerous and nondangerous means of
commission, the felony cannot be considered “inherently dangerous” for purposes
of the second degree felony-murder rule. (People v. Burroughs (1984) 35 Cal.3d
824, 830.) It has also been said that the statute must be examined in isolation from
the facts of the case, so as to prevent the unfair possibility that the accused will be
deemed to have committed an “inherently dangerous” felony simply because a
death resulted. (Ibid.) I find these premises questionable where, as here, it is clear
that the accused committed a form of the felony which, by its terms, necessarily
endangers life, and that his murder conviction is based on the inherently dangerous
form of the felony.
4



deprive the reckless conduct described in subdivision (a) of all force as an
inherently dangerous felony. If subdivision (a) described an inherently dangerous
felony before the addition of subdivision (b) in 1996 (see Johnson, supra,
15 Cal.App.4th 169, 173-174), the unchanged words of that subdivision equally
do so following the 1996 amendment (see Sewell, supra, 80 Cal.App.4th 690, 693-
697).
In sum, where the defendant committed inherently dangerous conduct
expressly made felonious by subdivision (a) of section 2800.2, and was accused,
tried, and convicted solely under that subdivision, I submit that subdivision (a) is
the provision we should analyze to determine if it qualifies as a basis for felony
murder.
As I have indicated above, this is such a case. The prosecution avoided all
reliance on subdivision (b) of section 2800.2, and that subdivision was never an
issue in the trial below. When referring to section 2800.2, the information cited
only the language of subdivision (a), charging that defendant “drove with a willful
or wanton disregard for the safety of persons or property.” In his testimony, one
of the pursuing officers, Gary Stephany, ticked off the numerous Vehicle Code
violations defendant had committed during the high-speed chase, but the import of
Stephany’s testimony was simply to emphasize defendant’s extreme and ongoing
recklessness. The prosecutor never asked Stephany, or any other witness, whether
defendant committed “points” violations.
In his argument to the jury concerning section 2800.2, the prosecutor
emphasized that defendant’s various reckless traffic violations proved he had acted
with “willful or wanton disregard,” i.e., with conscious indifference to the
consequences for safety. The entire focus of the prosecutor’s argument was on
defendant’s culpable state of mind while fleeing the police, as evidenced by his
inherently dangerous driving maneuvers. The prosecutor never suggested that
5

technical “points” violations committed by defendant were a basis for finding him
guilty of violating section 2800.2, or of murder.
Most crucially, all reference to subdivision (b) was omitted from the jury
instruction on section 2800.2. When describing the elements of a violation of that
statute, the instruction said only that “ ‘[w]illful or wanton’ means an act
intentionally performed with a conscious disregard for the safety of persons or
property. It does not necessarily include an intent to injure.” (Italics added.)
Thus, beyond doubt, the jury convicted defendant of murder based solely
on proof that he fled police pursuit by driving with reckless indifference to safety,
conduct which is both inherently dangerous and expressly felonious under
subdivision (a) of section 2800.2. It follows that the felony underlying
defendant’s murder conviction was an inherently dangerous one. Accordingly,
I submit, a murder conviction could be premised on his commission of this felony.
But even if section 2800.2 were not an inherently dangerous felony that
could support a felony-murder conviction, any error in instructing the jury to the
contrary was harmless. Indeed, by remanding to the Court of Appeal for a
determination on the issue of prejudice, the majority imply that a no-prejudice
conclusion is plausible.
I find such a conclusion inescapable, for two reasons. First, a reasonable
jury, properly instructed on an implied malice theory of second degree murder,
could not have failed to find, on this evidence, the elements of malicious murder.
Second, though this jury received no explicit instructions on malice, it necessarily
did find, under the instructions which were given, that defendant killed
maliciously.
“ ‘Implied malice, for which the second degree felony-murder doctrine acts
as a substitute [fn. omitted], has both a physical and a mental component. . . . The
mental component is the requirement that the defendant “knows that his conduct
6

endangers the life of another and . . . acts with a conscious disregard for life.”
[Citation].’ ” (People v. Robertson (2004) 34 Cal.4th 156, 165, quoting Patterson,
supra, 49 Cal.3d 615, 626, italics added.)
In my view, the evidence that defendant acted with actual knowledge and
conscious disregard of the lethal probabilities is conclusive. No other inference
can be drawn from his decision to maintain his careening flight from the police
over highways and streets carrying innocent traffic. During the high-speed chase,
he swerved over a median boundary of a divided highway and travelled in lanes
reserved for oncoming vehicles, risking a head-on collision. With equal purpose,
he ran at least three stop signs and two red lights, forcing cross-traffic to yield and
creating the obvious danger of crashes at these controlled intersections. In his
frantic efforts to outdistance his pursuers, he “fishtailed” into curves and corners,
giving rise to the peril of spin-out accidents that could involve other vehicles. The
fatal collision occurred in the midst of this course of conduct, as defendant, still
trying to escape, ran a red light at high speed.
As a matter of law, I believe, these intentional acts went beyond mere gross
negligence or reckless indifference. Defendant—by his own evaluation a skilled
driver—must have acted with full awareness that he was thereby placing human
life at risk. He cannot evade this responsibility through his inherently implausible
testimony that he remembered only bits and pieces of the chase, and could not
recall whether the traffic light was red at the fatal intersection when he entered it.
In any event, this jury was told that the felony described in section 2800.2
required a conscious disregard for safety. Hence, in finding that defendant caused
death in the commission of this felony, the jury necessarily found that he
understood the danger, and chose to act anyway, thus exhibiting implied malice.
Under these circumstances, reliance on a felony-murder theory, even if error, must
7

be deemed harmless. (Cf., e.g., People v. Sedeno (1974) 10 Cal.3d 703, 720-
721.)3
Having concluded that defendant’s violation of section 2800.2 was an
“inherently dangerous” felony for purposes of the felony-murder rule, I must
address his second argument. Defendant urges that he cannot be prosecuted and
punished for felony murder in any event because the Legislature intends section
2800.3 as the only statute under which deaths caused by vehicular flight from the
police may be prosecuted and punished without proof of malice.4
Defendant invokes the principle that a special statute defining an offense
preempts a more general statute encompassing the same conduct. (See, e.g., In re
Williamson (1954) 43 Cal.2d 651, 654.) But this rule applies only “(1) when each
element of the general statute corresponds to an element on the face of the special
statute, or (2) when it appears from the statutory context that a violation of the
special statute will necessarily or commonly result in a violation of the general
statute. [Citation.]” (People v. Watson (1981) 30 Cal.3d 290, 295-296.)

3
As the majority note, there was evidence that defendant was under the
influence of methamphetamines during his reckless flight. But voluntary
intoxication cannot negate implied malice. (Pen. Code, § 22, subd. (b).) In any
event, the instructions actually alerted the jury to consider defendant’s intoxication
on the issue whether he acted intentionally, and with conscious disregard for
safety. By its verdicts, the jury necessarily resolved that issue against defendant.
4
Section 2800.3 provides in pertinent part: “Whenever willful flight or
attempt to elude a pursuing peace officer in violation of [s]ection 2800.1
proximately causes death or serious bodily injury to any person, the [fleeing
motorist], upon conviction, shall be punished by imprisonment in the state prison
for three, four, or five years, by imprisonment in the county jail for not more than
one year, or by a fine of not less than two thousand dollars ($2,000) nor more than
ten thousand dollars ($10,000), or by both that fine and imprisonment.”
8



Neither circumstance is present here. Both statutes permit punishment,
without proof of malice, for fatalities caused by vehicular flight from the police,
but the two statutes do not govern such killings identically. Section 2800.3—in
defendant’s view, the more specific death-related statute—sanctions such a
homicide regardless of the fleeing motorist’s degree of driving care. By contrast,
to be convicted of felony murder under the more “general” statute, section 2800.2,
the fleeing motorist must have driven with “a willful or wanton disregard for
safety.” Thus, the facial elements of the two statutes differ, and a fatality
punishable under section 2800.3 will not necessarily or commonly constitute a
felony murder under section 2800.2.
Through an exhaustive analysis of legislative history, defendant argues that
the Legislature’s “carefully crafted” scheme for punishment of pursuit-related
fatalities precludes prosecution of such homicides as felony murder. His
contention lacks merit. Vehicular flight from the police, with its potential for
death, injury, and property damage, has been a growing problem. The Legislature
has responded over the years by expanding the punishment for such conduct under
various circumstances. Among other things, it has provided in section 2800.3 that
one whose flight, however carefully conducted, causes death or injury may receive
up to five years in prison, a $10,000 fine, or both. But nothing indicates the
Legislature intended a similar limitation on the punishment of persons who
commit homicides while engaged in the inherently dangerous felony of flight from
police pursuit with willful and wanton disregard for safety. Every consideration
of logic and common sense suggests that such homicides may properly be treated
under the law of felony murder.
For all these reasons, I would affirm the judgment of the Court of Appeal.
BAXTER, J.
9

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Howard
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 99 Cal.App.4th 43
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S108353
Date Filed: January 27, 2005
__________________________________________________________________________________

Court:

Superior
County: Fresno
Judge: James L. Quaschnick

__________________________________________________________________________________

Attorneys for Appellant:

Madeline McDowell, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Jo Graves, Assistant Attorney General, W. Scott Thorpe, Janet E. Neeley, John
G. McLean and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.


1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Madeline McDowell
PMB 306
1305 North H Street, Suite A
Lompoc, CA 93436-3335
(805) 733-4933

Sharon E. Loughner
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 445-8529

2


Opinion Information
Date:Docket Number:
Thu, 01/27/2005S108353

Parties
1The People (Plaintiff and Respondent)
Represented by Sharon Elizabeth Loughner
Attorney at Law
300 South Spring Street
Los Angeles, CA

2Howard, Evert Keith (Defendant and Appellant)
Represented by Madeline Mcdowell
Attorney at Law
PMB 306, 1305 North H Street, Suite A
Lompoc, CA


Disposition
Jan 27 2005Opinion: Reversed

Dockets
Jul 16 2002Petition for review filed
  by counsel for appellant (Evert K. Howard)
Jul 16 2002Record requested
 
Jul 17 2002Received Court of Appeal record
  two doghouses
Sep 11 2002Petition for Review Granted; issues limited (criminal case)
  The issues to be briefed and argued shall be limited to the following: (1) Whether the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, ? 2800.2) is a felony inherently dangerous to human life for purposes of the second degree felony-murder rule and (2) Whether the offense of proximately causing death or serious bodily injury by willful flight from a pursuing police officer (Veh. Code, ? 2800.3) is a more specific offense precluding application of the second degree felony-murder rule where death occurs during the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, ? 2800.2). Votes: George, CJ., Kennard, Werdegar, Chin and Moreno, JJ.
Sep 27 2002Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Madeline McDowell is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits shall be served and filed on or before thirty (30) days from the date of this order.
Oct 25 2002Request for extension of time filed
  Appellant is requesting to and including 11/28/2002, to file the opening brief/merits. [E.O.T. request granted to 11/28 -- order prepared]
Oct 29 2002Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including November 28, 2002.
Nov 26 2002Request for extension of time filed
  for aplt to file the opening brief on the merits, to 1-2-03.
Dec 6 2002Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including January 2, 2003.
Dec 30 2002Received:
  (1) Appellant's Request to File Oversized Brief (75 pages) and (2) Request to Take Judicial Notice (two vols)
Jan 6 2003Order filed
  The request to file an oversized Appellant's Opening Brief on the Merits which is 75 pages long, in excess of the 50 page limit, is hereby GRANTED.
Jan 6 2003Opening brief on the merits filed
  Apellant's
Jan 6 2003Request for judicial notice filed (in non-AA proceeding)
  by appellant (two separate vols)
Jan 28 2003Request for extension of time filed
  in Sacramento by respondent for a 30-day extension of time to and including 3/3/2003, within which to file the answer brief on the merits.
Jan 29 2003Received letter from:
  the Attorney General dated 1/29/2003, advising that respondent will not file an opposition to Appellant's Request To Take Judicial Notice filed 1/6/2003. (received in Sacramento)
Feb 10 2003Extension of time granted
  to 3-3-03 for resp to file the answer brief on the merits
Feb 26 2003Request for extension of time filed
  (in Sacramento) by the Attorney General for a 30-day extension to 4/2/2003, to file the respondent's answer brief on themerits. [second request]
Mar 5 2003Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's Reply Brief on the Merits is extended to and including 4/2/2003.
Mar 19 2003Compensation awarded counsel
  Atty McDowell
Apr 2 2003Answer brief on the merits filed
  In Sacramento by Respondent {The People}.
Apr 24 2003Received:
  Appellant's Reply Brief on the Merits with Request to File Oversized Reply Brief which contains 6863 words (in excess of the 4200 word limit)
Apr 25 2003Order filed
  Appellant's request to file an oversized reply brief on the merits containing 6,863 words , in excess of the 4,200 word limit, is hereby GRANTED.
Apr 25 2003Reply brief filed (case fully briefed)
  by appellant Howard
Sep 17 2004Filed:
  Appellant's application to file a supplemental brief.
Oct 4 2004Case ordered on calendar
  11/4/04 @ 9am, Sacramento
Oct 7 2004Change of contact information filed for:
  Deputy Attorney General Sharon E. Loughner to LA office.
Oct 20 2004Request Denied
  The "Application for Permission to File Appellant's Supplemental Brief Re: Blakey [sic] v. Washington (2004) 542 U.S. __ [124 S.Ct. 2531]" is denied without prejudice to any relief to which defendant might be entitled after this court determines in People v. Black, S126182, and People v. Towne, S125677, the effect of Blakely v. Washington (2004) 542 U.S. ___ [124 S.Ct. 2531] on California law.Werdegar, J., was absent and did not participate.
Oct 25 2004Received:
  aplt's supp authorities for oral arg
Nov 3 2004Request for judicial notice granted
  Appellant's request filed Jan. 6, 2003.
Nov 4 2004Cause argued and submitted
 
Jan 27 2005Opinion filed: Judgment reversed
  and remanded to that court for further proceedings consistent with this opinion. Opinion by Kennard, J. -----joined by George, C.J., Werdegar, Chin, and Moreno, JJ. Concurring and Dissenting Opinion by Brown, J. Dissenting Opinion by Baxter, J.
Mar 2 2005Remittitur issued (criminal case)
 
Mar 8 2005Returned record
  to Third Appellate District
Mar 9 2005Received:
  Receipt for remittitur signed for by Jill Riviera, Deputy Clerk, Fifth District Court of Appeal
Apr 7 2005Note:
  case record sent to court of appeal (one volume)
Apr 13 2005Compensation awarded counsel
  Atty McDowell

Briefs
Jan 6 2003Opening brief on the merits filed
 
Apr 2 2003Answer brief on the merits filed
 
Apr 25 2003Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website