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People v. Watson11/30/1981
gard for life." (Maj. opn. at p. 296.) In other words, the accused must have (1) intended to commit an act likely to kill with (2) conscious disregard for life. (People v. Washington (1965) 62 Cal. 2d 777, 780 [44 Cal. Rptr. 442, 402 P.2d 130].) The majority fail to demonstrate that the existence of either element can reasonably be inferred from the facts presented below.
Given Henke's testimony, it cannot be found that respondent committed an act likely to kill. The act of speeding through a green light at 55 or 60 miles per hour in a 35-mile-per-hour zone was dangerous, but was not an act likely to result in the death of another. It was 1 o'clock in the morning. The person whose car respondent nearly collided with testified that he saw no other cars around.
Respondent's acts were not comparable to those of the defendants in People v. Fuller (1978) 86 Cal. App. 3d 618 [150 Cal. Rptr. 515], cited by the majority (maj. opn. at pp. 298-299). In that case, the court observed in dicta that the defendants could be prosecuted for second degree murder on an implied-malice theory. (86 Cal. App. 3d at pp. 628-629.) The defendants had fled from the police after being caught in an attempted auto burglary. They sped through the main thoroughfares of Fresno at 8:30 on a Sunday morning. They were driving on the wrong side of the road and cars had to swerve off the road to avoid them. They ran a red light, causing other cars to stop sharply in order to avoid collisions. They drove their car toward two police vehicles which were attempting to block them. The police were required to take defensive action to avoid a collision. The defendants ran a second red light, collided with another car, and killed its driver. (Id., at pp. 621, 629.) Compare those facts with this case. Respondent drove down empty streets at 1 o'clock in the morning. There was no evidence that he ran a red light at the intersection where the accident occurred. His conduct was not like that evidenced in Fuller, where the defendants' acts were likely to result in the death of others.
The fact that respondent was under the influence of alcohol made his driving more dangerous. A high percentage of accidents is caused by such drivers. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 898-899 [157 Cal. Rptr. 693, 598 P.2d 854].) No one holds a brief for this type of activity. However, a rule should not be promulgated by this court that driving while under the influence of alcohol is sufficient to establish an act "likely to kill." Death or injury is not the probable result of driving while under the influence of alcohol. "Thousands, perhaps hundreds of thousands, of Californians each week reach home without accident despite their driving intoxicated." (Id., at p. 907, dis. opn. of Clark, J.)
The majority also fail to demonstrate that it is reasonable to infer that respondent had a conscious disregard for life. Can a conscious disregard for life be established by the fact that several hours before the accident respondent drove his car to a bar? The majority hold as a matter of law that he "must have known" he would have to drive his car later and that he wilfully drank alcohol until he was under its influence. (Maj. opn. at p. 300.)
How does respondent's state of mind at the time he drove to the bar and began drinking justify an inference that he had a reckless state of mind at the time of the accident? This meager evidence does not justify the inference that by drinking alcohol he harbored a conscious disregard for life whe
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