Opinion
F084320
08-25-2023
THE PEOPLE, Plaintiff and Respondent, v. DEMARIA CHRISTOPHER HARGE, Defendant and Appellant.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Christina H. Simpson, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. 1473058. Linda A. McFadden, Judge.
Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Christina H. Simpson, Amanda D. Cary, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
SNAUFFER, J.
In 2017, defendant Demaria Christopher Harge was convicted of two counts of second degree murder (Pen. Code, § 187, subd. (a)) and other crimes arising out of a car crash he caused while driving under the influence. The murder victims were his pregnant girlfriend and her unborn fetus. The same panel of this court affirmed Harge's conviction in People v. Harge (Apr. 16, 2019, F075850) [nonpub. opn.] (Harge I).
Undesignated statutory references are to the Penal Code.
In 2022, Harge filed a standard form petition for resentencing under then section 1170.95, which has since been renumbered as section 1172.6. (Stats. 2022, ch. 58, § 10.) Section 1172.6 provides a procedure for persons convicted of murder under a now-invalid theory to petition to vacate their conviction. (§ 1172.6, subd. (a).) Following a response by the People and a hearing, the court found Harge failed to make a prima facie case for relief under section 1172.6 and denied the petition. Harge appeals from the order denying the petition.
We hereafter refer to the statute as section 1172.6.
Because the record shows Harge is ineligible for relief under section 1172.6 as a matter of law, we will affirm the trial court's order denying the petition for resentencing.
FACTS
I. The People's request for judicial notice
The People request that we take judicial notice of our appellate record in Harge I. Harge objects to our taking judicial notice of the trial transcripts in that record, claiming they are irrelevant, but he does not object to our judicially noticing the rest of the Harge I record. We grant the People's request to take judicial notice of the entire Harge I appellate record, including of the trial transcripts. (Evid. Code, §§ 452, subd. (d), 459 [we may take judicial notice of the records in our cases]; People v. Ervin (2021) 72 Cal.App.5th 90, 102 [record of conviction, for purposes of a section 1172.6 petition, may include admissible trial evidence].)
II. The crimes
We reproduce the summary of facts of the crimes from our Harge I opinion. We have reviewed the trial transcripts and conclude they support the following summary.
On April 24, 2014, Harge drove a brown, two-door Lexus northbound on Interstate 5 through Stanislaus County at speeds between 100 and 130 miles per hour. Taylor L., who was approximately six and a half months pregnant, was in the front passenger seat. Taylor's friend, Cally G., was in the back seat. With a highway patrol officer in pursuit, Harge abruptly cut across traffic to take the Howard Road exit. At the bottom of the offramp, he sideswiped the rear of a white pickup truck that was stopped at a stop sign. The Lexus became airborne and overturned side over side multiple times, eventually coming to rest on its roof. The moments immediately before and during the collision were captured on video by an officer's dashboard camera.
Harge and Cally exited the vehicle. Cally had minor injuries. Taylor could not be immediately removed from the vehicle and she died of craniocerebral injuries. Because of her death, blood circulation to her fetus ceased and the fetus died of cerebral hypoxia.
The Collision
Cally and Taylor made plans to take a trip together to Santa Barbara. Cally didn't know that Taylor's boyfriend, Harge, would be joining them. However, when Taylor came to pick Cally up on April 21, 2014, Harge was driving and stated he didn't want Taylor driving by herself due to her pregnancy. They stopped in Santa Barbara for a night or two before proceeding to Los Angeles, where they spent another one to two nights. While in Los Angeles, they went out to purchase tea because Harge had a stomach ache due to withdrawing from opiates. At one point, Harge stated he wanted to go to an emergency room to obtain some Vicodin due to his stomach ache.
Harge was cordial during the trip until April 24, 2014, the morning of their departure. That morning, Harge was in a bad mood and slamming stuff around. He said his stomach hurt because he couldn't find any Vicodin. He threw his stuff in the trunk of the car and slammed it shut stating, "Come on." Cally and Taylor got in the car.
After driving for five to ten minutes, Harge stopped at a convenience store. Harge entered the store and came out with a bottle of Patron tequila. He immediately opened it and began drinking. Cally saw Harge drink throughout the drive. He drank approximately ten separate times for a duration of "one one thousand, two one thousand, three one thousand" each time. Neither Cally nor Taylor drank any of the tequila.
After driving for another ten to thirty minutes, Harge stopped at a gas station near the beginning of the Grapevine. Harge backhanded Taylor in the face and said, "Bitch, give me some money." Taylor complied. When Harge came back, Taylor got out of the car to apologize. Harge wrapped his hand around Taylor's throat for a couple of seconds and threw her away from him. Taylor started crying and went to go sit down on a bench. Cally followed. Taylor texted her mom and Cally tried to comfort her. Harge drove off.
After about 30 seconds to one minute, Harge turned around and came back. He got out of the car, grabbed Taylor by her hair, and dragged her back into the front passenger seat. Cally got back in the car because she didn't want Taylor to be alone. Harge backhanded Taylor in the face again and Taylor said, "Please, Demaria, I'm pregnant." Harge said, "Bitch, I don't give a fuck about you or that baby. That baby ain't here yet." Harge began driving. He consistently drove at a speed over 100 miles per hour. Cally could clearly see the speedometer. Cally and Taylor asked Harge to slow down at least 20 times. Harge mostly ignored them but a few times told them to "shut the fuck up." At times he reached a speed of 140 miles per hour.
After the gas station, Harge stopped two more times before the crash. One time was at a gas station convenience store. Another time they pulled over because Harge had ash in his eye from smoking a cigarette.
At some point, Taylor texted her mother, "Can you call highway patrol and report a drunk, reckless driver in I-5 northbound coming up on Los Banos?" As a result, Mother called 911 and relayed to them Taylor's vehicle information and location. California Highway Patrol Officer Jonathan Peregoy was dispatched at 2:09 p.m. to respond to a call involving possible domestic violence and a driver possibly driving under the influence. He had only general information about the vehicle's location. He set up in a cut-out and waited almost forty minutes before he saw a brown Lexus two-door sedan traveling northbound in the number two lane at approximately 100 miles per hour. At the same time, he received a "ping" from Taylor's cell phone, confirming to him that he had seen the correct vehicle. He activated his forward radar unit and obtained a reading of 110 miles per hour.
Officer Peregoy entered the freeway and attempted to overtake the vehicle. He didn't activate his enforcement lights, choosing instead to drive around slower traffic. It took almost three miles for him to get within a reasonable distance of the Lexus. During that time, the Lexus was traveling erratically between the number one and number two lanes at speeds between 100 and 130 miles per hour. An eyewitness was traveling in the number one lane with his cruise control set to 90 miles per hour when the Lexus passed him on the right at a high rate of speed.
About a mile south of Howard Road, the Lexus began driving more aggressively and Officer Peregoy activated his enforcement lights. Meanwhile, inside the Lexus, Cally and Harge noticed a police vehicle behind them with its lights on. Harge said, "Oh, shit, I'm going to jail." Cally and Taylor begged Harge to pull over but he accelerated instead.
As they approached the Howard Road exit, the Lexus was in the number one lane. The Lexus then made a hard turn to exit the freeway, cutting across the number two lane close to another vehicle before cutting across a gore point and onto the right shoulder of the offramp while maintaining a speed of over 100 miles per hour. The Lexus came back across to the left side of the offramp, then attempted to correct again to the right. At the bottom of the offramp, the Lexus sideswiped a white pickup truck that was stopped at a stop sign. This caused the Lexus to rotate in a clockwise manner as it traversed the intersection before becoming airborne and overturning side over side multiple times. It then traveled up the onramp on the other side, and down the embankment where it came to rest on its roof. The wreck occurred at 2:52 p.m.
Officer Peregoy exited his vehicle with his duty weapon drawn. He saw Harge crawling out of the driver's side window and ordered him to get on the ground. Harge refused for approximately thirty seconds but eventually got on his knees. Officer Peregoy placed Harge in handcuffs and had him lay on the ground. Harge smelled of alcohol. He began yelling, "Help her, help her." During this time, Cally also crawled out the driver's side window. At that point, Officer Peregoy believed all passengers were accounted for. However, Cally began to scream, "She's still in there, she's still in there" and "help her" and "She's pregnant." At that point Peregoy saw another individual in the vehicle upside down in the right front passenger seat.
Officer Peregoy entered the vehicle and the first thing he saw was a quarter-full bottle of Patron tequila sitting on the interior driver's side of the roof of the vehicle, blocking his pathway. He attempted to assist Taylor but was unable to free her from the vehicle. She showed no signs of life. After about seven minutes, other officers arrived and attempted, without success, to turn the vehicle over. It took approximately fifteen to twenty minutes for emergency personnel to remove Taylor from the vehicle. After the vehicle was turned over, officers found a quarter-full 375 milliliter Patron bottle on the right rear passenger seat floorboard.
During this time, Harge was yelling and disobedient, and he was eventually transported to a caged vehicle. The transporting officer noticed that Harge had bloodshot and watery eyes and smelled strongly of alcohol. Although he believed Harge was under the influence of alcohol, he did not perform any field sobriety tests due to the need to attend to victims and Harge's lack of cooperation.
Officer Peregoy spoke with Harge while Harge was in a patrol vehicle. Harge smelled of alcohol, was angry and loud, and was acting irrationally or "[a]lmost manic" in that he would be very loud and aggressive with his movements, then go into tears, and then a few seconds later would calm down and speak calmly. Harge was later transported to a hospital and underwent a blood draw at 4:56 p.m. His blood alcohol level was determined to be .067 percent. His blood test also was positive for THC and negative for Norco or Vicodin. A criminalist opined that a male of Harge's approximate weight who had reached peak alcohol absorption two hours earlier would have had an estimated blood alcohol level of .107 percent at that time.
Harge's driving under the influence was determined by investigators to be the cause of the wreck, with unsafe speed being a contributing factor. A mechanical inspection of the Lexus did not reveal any indication a mechanical failure contributed to the wreck.
Evidence Regarding Alcohol and Substance Use
Taylor's mother was a licensed drug and alcohol counselor. She identified Harge as Taylor's boyfriend. Mother had known Harge for approximately two years and didn't care for him. When she saw him, he was always under the influence. She had seen him under the influence of marijuana, alcohol, Norco and Vicodin. She told him it wasn't good to use pills or drive while on medication. She had inquired whether Taylor stayed in his car when he was street racing.
Prior Traffic Incidents
The People presented extensive evidence concerning Harge's history of prior traffic incidents.
A witness testified that, on June 20, 2010, she heard a motorcycle accelerate really fast in a residential area and then heard a loud collision. She went to the street and saw a vehicle with extensive damage. The driver of the vehicle had a few bruises. A police officer responded and testified that he saw a motorcycle helmet approximately 100 feet from the collision site, and Harge was on the ground in between the helmet and collision site. Harge was taken by helicopter to a trauma center.
Another officer testified that he pulled Harge over on a San Francisco highway at 3:25 a.m. on February 12, 2012. Harge was traveling 80 miles per hour in a 50 miles per hour zone. Harge performed poorly on three out of four field sobriety tests. He was transported to another location where breath tests administered more than an hour later revealed blood alcohol levels of .061 and .059 percent. Because these levels did not correlate with what the officer observed regarding Harge's level of intoxication, he called in a drug recognition expert. The drug recognition expert testified that he performed the same field sobriety tests as the other officer and concluded Harge showed signs of being under the influence. The parties stipulated that Harge was not prosecuted in relation to this arrest.
A detective from the city of Fairfield testified that, on March 30, 2012, at 10:45 p.m., he observed a vehicle run a red light while making a left turn. At least one vehicle had to brake to avoid a collision. The detective turned on his emergency lights and gave chase. The driver pulled into a parking lot and exited the vehicle, leaving it running while walking away. Harge was booked for reckless driving and driving on a suspended license. Harge eventually failed to appear on that citation on April 7, 2014, approximately two and a half weeks before the collision in this case.
A witness testified that she was rear-ended by another vehicle on April 4, 2013 while she was stopped at a red light. She was uninjured but her passenger had minor injuries. The other driver smelled like marijuana and asked her why she had stopped. She explained to him that she had a red light. The responding police officer determined Harge was at fault due to unsafe speed and cited him for failure to provide proof of insurance.
An officer from Suisun City testified that, on April 17, 2013, she observed a black Mustang leave a parking lot with a squealing sound. She pursued the Mustang at speeds of 35 to 40 miles per hour in a 25 miles per hour zone, and 55 to 60 miles per hour in a 35 miles per hour zone. She also observed the vehicle run a red light. She lost sight of the vehicle until another motorist pointed out it had entered a residential area. When she found the vehicle, no one was in it. Harge eventually returned to the car and told the officer his foot slipped on the gas pedal and he panicked. He was cited for speeding and reckless driving. He failed to appear in court in relation to these counts on April 7, 2014.
Harge also was found guilty of speeding based on a June 10, 2013, citation in Alameda County.
Another witness testified that he observed a Mustang spinning donuts in the middle of an intersection on July 26, 2013. The witness was worried about children on the corner who were trying to cross the street and he called police. The responding officer testified that he believed the driver, Harge, was intoxicated. Preliminary alcohol screening tests showed Harge had blood alcohol levels of .083 and .086 percent. Harge was arrested for driving under the influence and his driver's license was confiscated. A subsequent blood draw revealed Harge had a blood alcohol level of .07 percent and also tested positive for benzodiazepines, opiates, and THC.
Harge's license was suspended in September 2013 based on a suspected DUI in July 2013. His license remained suspended at the time of the wreck.
Taylor's sister testified that Taylor had shown her YouTube videos in October 2013 that showed Harge driving. Harge was present when Sister viewed the videos. Both videos showed Harge in the driver's seat of a vehicle with a toddler in his lap, driving rapidly away and doing doughnuts in the street. The videos were admitted into evidence and played for the jury. Sister told Harge, "That's ridiculous," or "That's stupid." Sister also testified that she heard Harge was suing over a "bad accident" that occurred when he was driving under the influence and fleeing from police officers. However, this latter testimony was stricken.
In jail phone calls made after the wreck, Harge and his brother discussed a YouTube video in which Harge almost hit one of their friends with his car.
III. Procedural history
Harge was convicted by a jury of two counts of murder (§ 187, subd. (a); victims Taylor and her fetus); one count of gross vehicular manslaughter (§ 191.5; victim Taylor); one count of evading a peace officer causing death (Veh. Code, § 2800.3, subd. (b)), and one count of driving while intoxicated and causing bodily injury (Veh.
Code, § 23153, subd. (a); victim Cally G.). He received consecutive terms of 15 years to life on each murder count, plus a concurrent term of three years for driving under the influence and causing bodily injury. Sentence on the remaining counts was stayed.
In January 2022, Harge filed a standard form petition for resentencing under section 1170.95, which has since been renumbered as section 1172.6. The trial court appointed counsel to represent Harge in the proceeding and set a briefing schedule. The People filed a response and Harge field a reply.
At the May 6, 2022, hearing, the trial court denied Harge's petition, holding that, as a matter of law, Harge could not make a prima facie case for relief under section 1172.6. The court stated that the murder convictions were "based on implied malice." To that point, the court observed the jury instructions on the murder counts showed Harge was not convicted under any "vicarious liability" theory. Defense counsel agreed that Harge was not entitled to relief as a matter of law:
"Right. We're not contesting that the record that this Court is permitted to use indicates that Mr. Harge falls outside of the protection of 1170.95, which is why we submitted on the briefing; however, that cannot include evidentiary-it's not competent to be admitted at a trial which would include hearsay which, you know, [the] basis of appellate opinion, factual recitation is based on hearsay.
"But in terms of the merits of this case, we're not fighting too much."
The court then stated: "[S]o this is just the prima facie case part and I think the Court can use the appellate court summary as to this defendant for that. But even absent that, we could just look to the record in the file itself." The court told Harge, "[Y]ou're not eligible [for section 1172.6 relief] given the fact that you were not convicted on a vicarious liability theory. You were convicted based on your actions, your actions alone."
The same day, the court entered a written order denying Harge's petition. The order reiterated the court's statements at the hearing that the record of conviction shows that, as a matter of law, Harge cannot make a prima facie case for relief under section 1172.6. The order explained that Harge "was not charged or convicted of murder under a theory of felony murder or the natural and probable consequences doctrine," nor was he convicted on any theory of imputed malice. Rather, Harge "was convicted of murder based solely on his own actions and implied malice."
DISCUSSION
Harge claims the trial court erred by denying his petition at the prima facie stage because the jury instructions allowed the jury to impute malice to him based on his alleged past driving offenses. He is incorrect. The record of conviction establishes the jury convicted him of murder on an implied malice theory, not on an imputed malice theory. The trial court correctly found that Harge was not entitled to section 1172.6 relief as a matter of law.
A. Senate Bill No. 1437 and Section 1172.6
Senate Bill No. 1437 "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life." (Stats. 2018, ch. 1015, § l, subd. (f).)
To further that purpose, Senate Bill No. 1437 added three separate provisions to the Penal Code. First, to amend the felony murder rule, Senate Bill No. 1437 added section 189, subdivision (e): "A participant in the perpetration or attempted perpetration of [qualifying felonies] in which a death occurs is liable for murder only if one of the following is proven: [¶] (1) The person was the actual killer. [¶] (2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree. [¶] (3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2."
Second, to amend the natural and probable consequences doctrine, Senate Bill No. 1437 added section 188, subdivision (a)(3): "Except [for felony murder liability] as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime."
Third, Senate Bill No. 1437 added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief under the two ameliorative provisions above. That statute, which has since been renumbered as section 1172.6, authorizes "[a] person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter [to] file a petition with the court that sentenced the petitioner to have the petitioner's murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts[.]" (§ 1172.6, subd. (a).)
" '[T]he defendant initiates the process by filing a petition in the sentencing court that must include three pieces of information. (§ [1172.6], subd. (b).)" (People v. Daniel (2020) 57 Cal.App.5th 666, 672.) First, the petition must include "[a] declaration by the petitioner that the petitioner is eligible for relief under this section, based on all the requirements of subdivision (a)." (§ 1172.6, subd. (b)(1)(A).) Those requirements are that (1) "[a] complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person's participation in a crime, or attempted murder under the natural and probable consequences doctrine"; (2) "[t]he petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted of murder or attempted murder"; and (3) "[t]he petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019." (§ 1172.6, subd. (a).) Second, the petition must include "[t]he superior court case number and year of the petitioner's conviction." (§ 1172.6, subd. (b)(1)(B).) And finally, the petition must state "[w]hether the petitioner requests the appointment of counsel." (§ 1172.6, subd. (b)(1)(C).)
Effective January 1, 2022, "[u]pon receiving a petition in which the information required by this subdivision is set forth or a petition where any missing information can readily be ascertained by the [trial] court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner." (§ 1172.6, subd. (b)(3); Stats. 2021, ch. 551, § 2.) This provision codifies the Supreme Court's decision in People v. Lewis (2021) 11 Cal.5th 952, which held that "petitioners are entitled to the appointment of counsel upon the filing of a facially sufficient petition" for relief. (Id. at p. 957; Stats. 2021, ch. 551, § 1.)
Finally, section 1172.6, subdivision (c), addresses the procedure for determining whether an order to show cause should issue. That provision states that "[a]fter the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so." If an order to show cause issues, the court "hold[s] a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts[,]" unless the parties "waive a resentencing hearing and stipulate that the petitioner is eligible to have the ... conviction vacated and to be resentenced." (§ 1172.6, subd. (d)(1)-(2).)
B. Harge is ineligible for relief under section 1172.6 as a matter of law
Harge acknowledges he was not convicted of murder under either a felony murder theory or a natural and probable consequences theory. Yet he claims he still is eligible for relief under section 1172.6 because the jury instructions allowed the jury to convict him under an imputed malice theory. Specifically, he asserts the instructions allowed the jury to impute malice to him based on his alleged past driving offenses. He is incorrect.
We begin by reviewing the law of second degree murder. "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." (§ 187, subd. (a).) "For purposes of Section 187, malice may be express or implied." (§ 188, subd. (a).) "Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature," and it is "implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (§ 188, subd. (a)(1)-(2).) "Express malice is an intent to kill," but implied malice does not require such intent. (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) Rather, "[m]alice is implied when a person willfully does an act, the natural and probable consequences of which are dangerous to human life, and the person knowingly acts with conscious disregard for the danger to life that the act poses." (Ibid.) All murders committed with implied malice are of the second degree. (Ibid.)
Our Supreme Court in People v. Watson (1981) 30 Cal.3d 290 (Watson) held that vehicular homicide may be charged as second degree murder "if the facts surrounding the offense support a finding of 'implied malice.'" (Id. at p. 294.) "Malice may be implied when a person willfully drives under the influence of alcohol." (People v. Roldan (2020) 56 Cal.App.5th 997, 1004 (Roldan); citing Watson, at p. 294.) Harge was convicted of this type of murder, which is commonly referred to as "Watson murder."
Senate Bill No. 1437 abolished the natural and probable consequences doctrine but did not affect the concept of implied malice. As one of our sister courts has explained:
"Before Senate Bill No. 1437, 'the natural and probable consequences doctrine was an exception to the actual malice requirement'-i.e., the requirement of either express or implied malice. [Citations.] The name of the doctrine is confusing, since implied malice also incorporates the idea of 'natural and probable consequences,' but the two concepts are distinct. Whereas implied malice is based on 'the "natural and probable consequences" of a defendant's own act,' the natural and probable consequences doctrine was 'a theory of vicarious liability under which "[a]n aider and abettor [was] guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commit[ted] (the nontarget crime)" '-including murder-' "that [was] a natural and probable consequence of the target crime."' [Citation.] 'Because a nontarget murder" '[was] unintended, the mens rea of the aider and abettor with respect to that offense [was] irrelevant and culpability [was] imposed simply because a reasonable person could have foreseen the commission of the [murder]....'" '
"Under section 188 as amended by Senate Bill No. 1437, 'to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.' (§ 188, subd. (a)(3).) Although the legislation thus 'abolished the natural and probable consequences doctrine' as a theory of vicarious liability, 'it maintained the viability of murder convictions based on implied malice, and the definition of implied malice remains unchanged.' [Citation.] In other words, a person may still be convicted of second degree murder, either as a principal or an aider and abettor, 'if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.'" (People v. Rivera (2021) 62 Cal.App.5th 217, 231-232, fn. omitted.)
In Roldan, supra, 56 Cal.App.5th 997, the Second District Court of Appeal applied these concepts to hold that a person convicted of Watson murder is ineligible for relief under section 1170.95. (Id. at p. 1004.) Roldan explained that under Watson, "[m]alice may be implied when a person willfully drives under the influence of alcohol." (Ibid.) Thus, a defendant convicted of Watson murder is "convicted under a theory of actual implied malice, not malice imputed under the natural and probable consequences doctrine[.]" (Ibid.) Although "the doctrine of implied malice has a 'natural and probable consequences' element," the defendant must "actually appreciate that death is the natural and probable consequence of his or her actions, and further requires that the [defendant] consciously disregard that danger." (Id. at pp. 1004-1005.) Thus, unlike the natural and probable consequences doctrine eliminated by Senate Bill No. 1437, implied malice rests on the killer's own mens rea. (See Roldan, at pp. 1004-1005.) As a later case makes clear, "[s]econd degree implied malice murder ... is not based on a theory of imputed malice." (People v. Schell (2022) 84 Cal.App.5th 437, 444.)
Section 1172.6 was still numbered as section 1170.95 when that decision issued.
Roldan's holding and reasoning applies here. The record of conviction shows Harge was charged and convicted as the sole perpetrator based on the implied malice theory of second degree murder under Watson. The court and the parties at trial did not address the felony murder rule, the natural and probable consequences doctrine, or the alleged culpability of any accomplices or aiders and abettors. The issue was whether Harge acted with implied malice when he drove while intoxicated, with an appreciation of the risks, and caused fatal injuries. There were no other participants in the murders, and the jury was not told it could find Harge acted with implied malice based solely on his commission of past offenses. Rather, the finding of implied malice was based on ample evidence that Harge was actually aware of and consciously disregarded the high risk to life he took by driving drunk and recklessly, at times reaching a speed of 140 miles per hour. Thus, malice was not imputed to him within the meaning of section 188, and he is ineligible for relief under section 1172.6 as a matter of law. (See Roldan, supra, 56 Cal.App.5th at pp. 1004-1005.)
Harge contends that Roldan is inapposite because it was decided before the current version of section 1172.6 took effect. When Roldan was decided, the statute provided that "[a] person convicted of felony murder or murder under a natural and probable consequences theory" could petition for resentencing (former § 1170.95, subd. (a)), and the corresponding condition of relief required that "[a] complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine" (former § 1170.95, subd. (a)(1)). Now, as a result of Senate Bill No. 775 (2021-2022 Reg. Sess.), the provisions quoted above pertain to not only "felony murder or murder under the natural and probable consequences doctrine" but also any "other theory under which malice is imputed to a person based solely on that person's participation in a crime[.]" (§ 1172.6, subd. (a); Stats. 2021, ch. 551, § 2.) In other words, section 1172.6 now echoes section 188's requirement that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).)
Even assuming Senate Bill No. 775 substantively expanded the classifications of those who are entitled to relief under section 1172.6, Harge would not be included. Harge asserts that the jury instructions allowed the jury to impute implied malice to him solely based on his participation in past offenses. The relevant instructions are CALCRIM No. 375 and CALCRIM No. 520.
CALCRIM No. 520, the second degree murder instruction, instructed that implied malice requires that "(1) [Harge] intentionally committed an act; (2) [t]he natural and probable consequences of the act were dangerous to human life; (3) [a]t the time [Harge] acted, he knew his act was dangerous to human life; [and] (4) [Harge] deliberately acted with conscious disregard for human or fetal life."
CALCRIM No. 375 instructed that the jury may consider Harge's alleged past driving offenses in deciding whether he "knew that the natural and probable consequences of the manner in which he was driving on April 24, 2014[,] [were] dangerous to human life when he allegedly acted in this case." But before the jury could consider the past offenses for this purpose, it had to find by a preponderance of the evidence that Harge in fact committed them.
CALCRIM No. 375 is titled "Evidence of Uncharged Offense to Prove Identity, Intent, Common Plan, etc." and is to be given when evidence of other offenses has been introduced. (Bench Notes to CALCRIM No. 375.)
Harge argues that CALCRIM No. 375 allowed the jury to impute malice solely from the commission of the alleged past offenses. Not so. CALCRIM No. 520 "instructed that implied malice has both a physical component (an intentional act the natural and probable consequences of which are dangerous to human life) and a mental component (knowledge of the danger to and conscious disregard for human life)." (People v. Carr (2023) 90 Cal.App.5th 136, 145 [analyzing implied malice requirements of CALJIC No. 8.11, the CALJIC instruction for malice aforethought].) CALCRIM No. 375 was relevant only to the mental component of implied malice. That is, it allowed the jury to consider the past offenses only when determining whether Harge knew the manner in which he drove on April 24, 2014, was dangerous to human life. CALCRIM No. 375 was clear that the commission of the past offenses was "not sufficient by itself to prove that the defendant is guilty of Second Degree Murder[.]"
The record of conviction shows Harge is ineligible for section 1172.6 relief as a matter of law. We therefore need not reach his claim that the trial court erroneously relied on the summary of facts in our Harge I opinion.
DISPOSITION
The trial court's May 6, 2022, order denying the Penal Code section 1172.6 petition is affirmed.
WE CONCUR: SMITH, Acting P. J. DE SANTOS, J.