Vehicular Homicide – Smoking Pot & Implied Malice

A driver can be convicted of second-degree murder (Penal Code § 187(a)) based on a finding of implied malice when the circumstances involved in the killing show “an abandoned and malignant heart.” People v. Soto (2018) 4 Cal. 5th 968, 974.  Implied malice has both a physical and a mental component.  People v. Watson (1981) 30 Cal. 3d 290, 300.

What kind of circumstances show this, especially if it is a first-time DUI?

The answer is best shown by way of example, as the following summary provides of a recent Second Appellate District Court ruling published May 25, 2022, originating out of the Lancaster Courthouse and the courtroom of Judge Daviann L. Mitchell, who we have appeared before several times.

On the morning of January 11, 2018, Davion Demetrious Murphy (then age 19) was at his home in Lancaster with his cousin and two other friends, smoking marijuana.  They also ate breakfast and, as testified to at trial, “rapped for a little bit.”

Murphy then drove his cousin and two other friends to the Eastside Car Wash & Quick Lube to get the oil changed on his silver Lexus.  The surveillance video from the car wash showed the men arriving there at 10:39 a.m. 

When Murphy rolled down the driver’s side window to speak with the oil change technician, a cloud of smoke poured out of the window.  The oil change technician testified at trial that he smelled the “strong” odor of marijuana.  Because the smoke and odor emanating from the car was so overwhelming, the technician backed away from the vehicle, rubbing his eyes.

After Murphy and his passengers left the car for the oil change, video showed them sitting in a courtyard adjacent to the carwash smoking more marijuana.  Eventually, the car wash manager asked them to stop smoking marijuana near the front door to the car wash office.

At trial, one of the passengers testified that at that time, he was feeling “woozy” from “the same weed everyone else was smoking.”

As they walked to get back in the car after the oil was changed, Murphy hugged one of the technicians (who testified at trial he has never met before) and then fist-bumped another (who testified at trial he had never met Murphy before either). 

Murphy then drove out of the car wash.  They then headed back to Murphy’s home.  About a mile from the house, he ran a red light at Avenue J-8 and Challenger Way.  The speed limit in the area was 40 miles per hour.  Murphy’s car collided with a Subaru, broadsiding it and killing three passengers.  The on-board computer in Murphy’s car showed he was traveling 88 miles per hour at impact.  There were no skid marks from Murphy’s car prior to the impact.  Police found three empty marijuana cannisters in the car. 

Murphy was thereafter charged with and convicted of three counts of second-degree murder in the Lancaster Superior Court.  He was sentenced to three concurrent terms of fifteen years to life in state prison.

Murphy appealed the conviction to the Second Appellate District in Los Angeles, arguing that there was insufficient evidence of implied malice to find him guilty of second-degree murder.

The Second Appellate District affirmed the conviction, noting many of the facts testified to above by the oil change technician, the car wash manager and one of the passengers in his car, explaining that “malice can be implied when a defendant does an act with a high probability that it will result in death and does with a base antisocial motive and with a wanton disregard for human life.”  Watson, supra, at 300.

The appellate court further noted evidence presented at trial that Murphy had received multiple warnings about the danger of driving while under the influence of controlled substances.  Approximately three and a half years earlier, in September 2014, Murphy attended a multi-day educational program for at-risk youth (on the program intake form, he disclosed he first used marijuana at age 11), during which he learned about instances of fatalities and dangers caused by drivers who drove under the influence of drugs or alcohol.  During the program, instructors shared personal stories, including one instructor who described being hit by a drunk driver and another who recounted the details of his wife being struck by a car driven by a drunk driver.

In 2016, when Murphy applied for a California driver’s license, he acknowledged in the application “that being under the influence of alcohol or drugs, or both, impairs the ability to safely operate a motor vehicle.  Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both.  If I drive while under the influence of alcohol or drugs, or both, and as a result, a person is killed, I can be charged with murder.” 

The appellate court also noted that after the accident, authorities found a marijuana container in Murphy’s Lexus with a warning label advising that it was dangerous to drive while under the influence of marijuana.

We present this summary as a bit of a cautionary tale of the types of readily available evidence a prosecutor may use to elevate what previously may have been involuntary manslaughter or simple vehicle manslaughter while intoxicated to second-degree murder based on evidence that shows “an abandoned and malignant heart.”

The citation for the Second Appellate District Court ruling discussed above is People v. Davion Demetrious Murphy (2nd App. Dist., 2022) 80 Cal. App. 5th 713, 295 Cal. Rptr. 3d 887.

For more information about vehicular manslaughter issues, please click on the following articles: