Daily Archives: July 14, 2014
A Southern California man was sentenced to 34 years to life in a California State prison last week for a 2012 DUI that led to the death of two Caltrans workers. Amongst other charges, Yocio Jonathan Gomez was convicted of second degree murder.
Gomez, 25, was driving a Ford Explorer 90 miles an hour through a construction zone in Torrance in the early morning hours of July 22, 2012. According to the Los Angeles County District Attorney’s Office, Gomez lost control of his vehicle which struck another SUV. The SUV spun out of control striking Caltrans workers, Ricardo Zamora, 58, and Ramon Lopez, 56, killing both. A third worker was also injured.
It was later determined that Gomez’s blood alcohol content was 0.21 percent. Gomez was charged with and subsequently convicted of second degree murder.
A conviction of second degree murder for a DUI related fatality such Gomez’s always raises questions, especially amongst students of mine. How can someone, who doesn’t intend to kill anyone, be charged with murder?
Gomez’s conviction of second degree murder turned on one very significant fact: it wasn’t his first DUI.
Prior to 1981, a person who killed another in the course of driving under the influence could not be charged and convicted of murder. However, the landmark case of People v. Watson (1981) 30 Cal.3d 290, changed all of that.
California Penal Code section 187(a) provides that “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” Section 188 provides that malice can either be expressed or implied and implied malice is present “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”
What does that mean?
According to People v. Phillips, (1966) 64 Cal.2d 574, 587, second degree murder based on implied malice has been committed when a person does “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”
With this foundation, the Watson court found that if the facts surrounding the DUI support a finding of “implied malice,” second degree murder can be charged. If the facts surrounding the DUI only support a finding of “gross negligence,” only vehicular manslaughter may be charged.
The difference between implied malice and gross negligence is wafer thin. Gross negligence occurs when a person acts in a reckless way that creates a high risk of death or great bodily injury and a reasonable person would have known that acting in that way would create such a risk.
How does the prosecutor prove that a person acted with implied malice rather than gross negligence?
Since Watson, courts began expressly advising convicted DUI defendants that it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both and if the defendant continues to do so and, as a result of their driving, someone is killed, they can be charged with murder.
In other words, it’s the court’s way of telling someone, “You’ve done it once, now consider yourself warned. If you do it again, it’s no longer reckless, it’s a conscious disregard for human life.”