Nature of the Case
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Facts
Around 2:00 a.m. Officer Morris saw D's car run a stop sign and two red lights at speeds between 35 to 55 miles per hour. Morris turned on the red lights and siren of his marked patrol vehicle and pursued the car, which barely missed colliding with another vehicle while speeding through an intersection. Goldie McCowan, one of three passengers in Ds car, told D to pull over because police were behind them. D refused. All the passengers pleaded for D to pull over. But 'he just turned up the music' and drove faster. As he drove down a residential street at speeds between 85 to 100 miles per hour, D came to a 90-degree turn in the road. D lost control of the car, the right rear of which 'swung out' and 'clipped the guardrail.' After hitting the guardrail, the car flipped upside down and crashed into a house. Skid marks indicated that D's car was traveling at approximately 84 miles per hour when he lost control at the turn in the road. Flames were coming out of the front of the car, and smoke and gasoline pouring out of the back. D who did not appear to be injured, was belligerent and continually screamed at the officers. D had a strong odor of alcohol on his breath and was unable to stand on his own, Officer Daniels concluded that defendant was under the influence of alcohol. Subsequent testing revealed that D had a blood-alcohol level of .18 percent. One of the passengers, Lakisha Davis, died as a result of the crash. Goldie McCowan suffered a broken right arm, a fractured collarbone, and injuries to her hip. Shanise Shaver was cut and bruised on her hand, head, and stomach. Prior to the fatal crash, D had been convicted of driving under the influence of alcohol and his driver's license had been suspended. The jury was presented with two alternative theories for second-degree murder. (1) D acted with implied malice in unlawfully killing Lakisha Davis, or (2) D caused her death while committing a felony that is inherently dangerous to human life but is not enumerated in Penal Code section 189 (the second-degree felony-murder rule). The second-degree felony-murder theory applies when a defendant commits a homicide during the perpetration of a felony that is inherently dangerous to human life but is not enumerated in Penal Code section 189. A defendant who kills a human being during the commission of a felony that is inherently dangerous to human life is deemed to have acted with malice aforethought, i.e., committed murder. A felony is inherently dangerous to human life when it 'carries 'a high probability' that death will result.' D was found guilty of second-degree murder. D appealed. D's appeal addresses only the second theory that D was guilty of felony murder based upon his violation of section 2800.3, which was charged as a felony. During the trial, the trial court agreed with the prosecutor that the felonious violation of section 2800.3 is an inherently dangerous felony that can support a murder conviction via the second-degree felony-murder doctrine. D contends 'it was error for the court to predicate a felony-murder instruction upon a violation of section 2800.3.'
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