Impairment from marijuana while driving supports implied malice for murder

People v. Murphy (Cal. Ct. App., May 25, 2022, No. B306773) 2022 WL 1673827, at *1

Summary: Murphy appealed his three convictions for second degree murder. (Pen. Code, § 187, subd. (a).). The court sentenced him to three concurrent terms of 15 years to life in prison, Murphy argued that the evidence supporting his convictions is insufficient because the prosecution failed to prove he acted with implied malice. Murphy, while under the influence of marijuana, drove his car at nearly 90 miles per hour through a red light and collided with another vehicle, killing its occupants.
The Court of Appeal concluded that sufficient evidence supported the jury’s verdict. Even though there is no standardized medical test equivalent to the blood alcohol concentration test that accurately determines a person’s level of impairment from marijuana, there was substantial evidence that Murphy was impaired from using marijuana and that acted with implied malice both when he smoked marijuana with the intent to drive, and when he drove in a manner that demonstrated a conscious disregard for human life.

Currently no blood test like BAC for marijuana

At trial an expert testified that marijuana is a lipophilic drug, meaning it is stored in the body’s fatty tissue and organs, including the brain. The effect of lipophilic drugs varies from one person to another but generally, within 90 minutes after a person smokes marijuana, 90 percent of the marijuana will have left the bloodstream and moved into the brain. There is no test similar to a BAC test for alcohol that accurately determines a person’s level of impairment from lipophilic drugs such as marijuana. However, blood tests for marijuana could measure the concentrations of certain components of marijuana, including delta-9 tetrahydrocannabinol (“THC”) and THC metabolites: (1) carboxy, which is non-psychoactive; and (2) hydroxy, which is psychoactive. Toxicologists use carboxy and hydroxy concentrations to calculate “some rough estimates” about when someone last used marijuana. A measurement of carboxy THC can show marijuana in a person’s body weeks after the person last used the drug whereas a measurement of hydroxy THC discloses information about more recent use of marijuana.

Expert testimony on marijuana use and impairment
Studies have shown marijuana users may experience cognitive impairment many hours after ingesting the drug; the highest concentration of marijuana reaches the brain and brings potent psychoactive effects about 90 minutes after smoking. But a use may be impaired many hours after the feeling of euphoria has worn off.
Implied Malice Second Degree Vehicular Murder
Murder is the unlawful killing of a human being with express or implied malice aforethought. (§§ 187, subd. (a), 188; accord, People v. Rangel (2016) 62 Cal.4th 1192, 1220) Malice is “express” when a person manifested a deliberate intention to unlawfully take away the life of another human being; it is implied when there was no considerable provocation or when the circumstances attending the killing show an abandoned and malignant heart. (People v. Soto (2018) 4 Cal.5th 968, 974, 231 (Soto).)
Implied malice has “ ‘ “both a physical and a mental component. The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’ The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and acts with conscious disregard for life.’ ” ’ ” (Soto, supra, 4 Cal.5th at p. 974, 231 Cal.Rptr.3d 732, 415 P.3d 789, quoting People v. Watson (1981) 30 Cal.3d 290, 300 (Watson).) That is, “malice may be implied when [the] defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.” (Watson, at p. 300, 179 Cal.Rptr. 43.) To support a finding of implied malice, the evidence must establish the defendant deliberately committed an act, the natural consequences of which were dangerous to life, with knowledge of the act’s danger to life and a conscious disregard of that danger. (Watson, supra, 30 Cal.3d at p. 300, 179.) The state of mind of a person who acts with conscious disregard for life is, ‘I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.’ The state of mind of the person who acts with conscious indifference to the consequences is simply, ‘I don’t care what happens.’ ” (People v. Olivas (1985) 172 Cal.App.3d 984, 987-988, 218 Cal.Rptr. 567 (Olivas).) The standard for implied malice is subjective and requires the defendant appreciate the risk involved. (Watson, supra, at pp. 296-297.)

Vehicular murder and implied malice
Watson is the leading case on vehicular murder involving implied malice. Since Watson, numerous appellate courts have upheld murder convictions in cases where defendants have committed homicides while driving under the influence of alcohol and other controlled substances. Courts have also concluded a finding of implied malice in the context of vehicular murder does not require “a ‘predicate act’ ” such as a prior driving under the influence (DUI) conviction, a DUI-related accident, or a judicial or drug rehabilitation-related admonition of the dangers of driving while intoxicated. (People v. Johnigan (2011) 196 Cal.App.4th 1084, 1091-1092.)