The Supreme Court yesterday denied review in People v. Doaifi, a case in which the Fourth District, Division Three, Court of Appeal’s unpublished opinion affirmed a second-degree murder conviction of a driver who killed another driver while going more than 50 miles per hour over the 45 mph speed limit. There were no recorded dissenting votes, but Justice Kelli Evans, joined by Justice Goodwin Liu, filed a long concurring statement.
Justice Evans wrote that Division Three “never directly answered” whether the evidence supported the requirement that “ ‘the defendant’s act must not merely be dangerous to life in some vague or speculative sense; it must “ ‘ “involve[] a high degree of probability that it will result in death.” ’ ” ’ ” She continued, “Because the objective component of implied murder liability is particularly important to the application of murder liability in vehicular homicide cases, I write separately to urge the lower courts to specifically analyze this factor when assessing implied malice in these circumstances.”
Justice Evans also explained why she didn’t vote to grant review. “[I]t is premature for this court to address the issue now,” she said, because “[t]he application of [the high-degree-of-probability requirement] in the [vehicular homicide] context is a relatively new legal issue, and [a] change in jury instruction [about the issue] is of even more recent vintage.” She added, “the Court of Appeal’s failure to address the . . . standard is, at least in part, attributable to [defense] counsel’s failure to brief the issue in a timely manner.” (See: Wait for it: issue percolation, right vehicles, and legislative inaction.)