Ct.App. 4/1 D054613 San Diego County Super. Ct. No. SCD206917 Judge: John S. Einhorn
The opinion of the court was delivered by: Baxter, J.
The issue presented in this case is whether there is sufficient evidence to support defendant Seth Cravens's conviction of second degree murder under a theory of implied malice. The Court of Appeal held there was not. After reviewing the entire record, we conclude the evidence is sufficient and therefore reverse the Court of Appeal.
Defendant was convicted by a jury of various crimes against a number of victims: one count of making a criminal threat (Pen. Code, § 422); one count of battery (§ 242); four counts of assault by means of force likely to produce great bodily injury, one of which was enhanced because defendant personally inflicted great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)); and one count of second degree murder (§ 187, subd. (a)). He was sentenced to 20 years to life. Because the issues in this proceeding concern only the murder conviction, we limit our factual recitation to the circumstances of that crime.
The principal characters, including defendant, then 21 years old, and the decedent, Emery Kauanui, 24, were all at the La Jolla Brew House on the night of May 23, 2007. Kauanui, a professional surfer, was sitting at the bar and drinking with some friends while he waited for his girlfriend, Jennifer Grosso, to arrive. Grosso left work late and got to the bar between 11:00 and 11:30 p.m. to find her boyfriend in a "[v]ery cheerful" mood. About half an hour later, defendant arrived with his friends, all former football teammates from La Jolla High School: Eric House, Matthew Yanke, Orlando Osuna, and Henri "Hank" Hendricks. Grosso went up to say "hi" to defendant and gave him a big hug. Defendant and his friends approached the bar where Kauanui was seated and became "like . . . a big group" where people were standing close to each other, "kind of elbow to elbow."
Sometime later, Kauanui and Grosso started dancing next to the tables. Kauanui had a full drink in his hand. A little bit of it spilled accidentally on Eric House, who was close by. House complained, "You better watch out, you know. I can knock you out with one punch." Kauanui replied, "[W]hat? Like, what did you say?" Defendant stepped in and said, "Yeah. You know Eric could beat your ass. Like don't say anything." The mood became more aggressive, less joking, but Kauanui kept asking, "[D]o you guys have like a problem?" In an effort to defuse the worsening situation, the bar manager, Ron Troyano, intervened and eventually suggested that Kauanui leave. Troyano explained that Kauanui was not being kicked out but that it was easier to remove Kauanui than to evict defendant, who was there with many friends. When Kauanui, who appeared calm, expressed a fear of being "jumped" outside, Troyano said he would escort Kauanui to his car. Defendant attempted to follow them as they left the bar, but Troyano told him twice to stop and wait. While Troyano was still at the vehicle, Grosso (who had been settling the tab) came out and said she would drive Kauanui home. Grosso had consumed less than one drink; Kauanui had consumed three or four. Defendant, House, Yanke, Osuna, and Hendricks eventually came outside to continue the argument, but Grosso and Kauanui drove off in Kauanui's car.
Kauanui was on the phone as Grosso pulled up to Kauanui's house a couple minutes later. She heard him say, "If you want to fight me one on one, I'll fight you." She yelled at him to get off the phone. He did so, and they went inside together. She scolded him for acting in an immature manner. He apologized, admitted the situation was "dumb," and "completely went back into a just really calm behavior." Satisfied that he was contrite, Grosso felt able to walk back towards the bar to retrieve her own car, which was parked illegally in a nearby lot. He made her promise to come back and said he needed her.
Grosso started out by walking but then realized the risk in being out alone at that time of night and jogged the rest of the way. Unable to shake a bad feeling about what might happen, she picked up the pace and, as she was running down the alley near the bar, heard defendant say, "Let's go fuck him up. . . . [D]on't call him. Don't call him. I know where he lives. Let's go fuck him up." She screamed out defendant's name, but he and his friends sped past in a black Ford Explorer, ignoring her. She immediately tried to call Kauanui, but he did not answer. She ducked her head into the Brew House to tell her friends that Kauanui was going to get jumped. Then she ran to her car and raced back to the house. She figured she was one to two minutes behind defendant and his friends. Meanwhile, inside the Ford Explorer, defendant was egging on and encouraging House to fight Kauanui. The fight began promptly after defendant and the others exited the Explorer.
There was conflicting testimony as to whether the fight was truly a one-on-one battle between Kauanui and House or whether Kauanui was instead the victim of a group beating.
Neighbor Erica Wortham was awakened by loud voices out in the street. She saw four people approaching Kauanui with the apparent intention of fighting. As she left her balcony to call 911, she heard "a lot of blows, a lot of hitting. Like a maul. . . . [L]ike several people on top of each other hitting. . . . [R]eally awful. Like a soundtrack out of a movie." The 911 call awakened her husband, Philip Baltazar, who saw what looked like a rugby scrum: "What I saw were four guys on top of one guy, and four guys were either kicking or punching or elbowing or kneeing. And as I said, you know, it was moving. . . . [I]t was like a scrum line. And they were just whaling--four guys were just whaling, you know, on someone who turned out to be Emery."
Dylan Eckardt, who was friends with Kauanui and was driving towards Kauanui's house after receiving a frantic phone call from his friend that there was going to be a fight, saw a few men circled around Kauanui, kicking or hitting him while he was on the ground. Eckardt's girlfriend, Karen Loftus, saw four or five people punching or kicking Kauanui while he was on the ground.
On the other hand, defendant's friends and former teammates Matthew Yanke and Hank Hendricks claimed that the fight was between House and Kauanui alone. Yanke testified that Kauanui came out swinging, but that House ducked, tackled Kauanui around his legs, and brought him down to the ground. Hendricks confirmed that House tackled Kauanui and brought him to the ground. Yanke described a wrestling match, in which House and Kauanui took turns being on top. Hendricks said that House initially had the upper hand but that Kauanui later had the advantage.
In any case, House had the advantage when Grosso drove up. House was straddling Kauanui and punching him with both fists. Kauanui had one arm wrapped around House's shoulder, as though attempting a headlock, but it was not working. Grosso honked her horn to wake up the neighbors, but the beating continued. Kauanui was not yelling, he was not throwing any punches, and "[t]here was no strength being exerted from his body." Grosso ran up and kicked House in an effort to break up the fight, but House did not react to her other than to tell his friends to "get her the fuck off of me." Hendricks pulled Grosso away, but she continued to scream out their names and vow that they would go to jail. When this still failed to stop to the fight, she started to kick at the headlights and pound on the body of the Ford Explorer. The group then started talking amongst themselves, calling her "crazy" and suggesting it was time to leave.
Meanwhile, Kauanui had managed to get loose, but he was unsteady and could not walk straight. Loftus was surprised he was able to get up at all. Kauanui asked defendant, "How the fuck are you going to jump me at my house?" and raised his palms upward, as though asking "what happened?" He was not behaving in an aggressive manner. But defendant nonetheless "came flying out" and "coldcocked" Kauanui. At the time of the blow, defendant was on the curb and Kauanui was at street level. Grosso, Eckardt, and Hendricks opined that Kauanui was unconscious from the blow before he hit the ground. The punch was described by witnesses as "extremely hard" and "one of the hardest punches I've ever seen thrown." Eckardt added that "[i]t was a knock-out. . . . [A]ll you heard was like boom, like, from his head hitting the concrete. Nothing else hit first. It was like a side punch Mr.--Emery didn't see." Even the neighbors could hear the sound of his skull hitting the ground. A pool of blood started to stream from the back of Kauanui's head. Grosso thought "he was dead right then and there." Hendricks checked Kauanui's pulse to determine whether he was still alive.
When Grosso asked defendant why he did this, defendant had no reaction. Instead he said to his friends, "Come on. Let's go." Yanke drove defendant away in the Ford Explorer. Grosso testified that the Explorer drove away quickly. Hendricks and Osuna left on foot. House refused to leave; he was on all fours on the ground looking for his tooth. (At the time police took him into custody, House had suffered a laceration above his right eye and a missing tooth, as well as abrasions to his knees and swollen knuckles.) An ambulance took Kauanui to the hospital. Kauanui had a blood-alcohol level of .17 percent when he was admitted, and his blood contained traces of marijuana.
At the hospital, doctors performed a craniotomy (an operation to open the skull) and a craniectomy (removal of part of the skull to release pressure). However, the pressure on Kauanui's brain remained high, despite maximal therapy, surgeries, and medications. The brain injury continued to worsen, and Kauanui was pronounced brain dead on May 28, 2007.
Christina Stanley, the forensic pathologist who performed the autopsy, described a skull fracture that radiated down into the base of the skull, spanned 15 centimeters across multiple bones, and ended up quite far forward on Kauanui's head, just behind the eye sockets. The entire left side of his brain was swollen and had shifted over prior to surgery, cutting off one of the blood vessels supplying the right half of the brain. According to her testimony, the more swelling there is, the less blood flow there is, which leads to more swelling--and, over a period of days, to brain death. Kauanui's injuries were consistent with being punched by someone coming off a greater height and propelling him onto a concrete surface. In Stanley's experience, the severe injuries Kauanui suffered--a fracture through the bony structures containing the ear canal, which are one of the thickest areas of the skull--can be seen in victims of motor vehicle crashes or in those struck in the head with a hammer, baseball bat, or tire iron. Kauanui's other injuries (abrasions and bruises on his arms, knees, shoulder and back) were not life threatening and were consistent with an assault. The cause of death was blunt-force head injuries.
Yanke, testifying for the defense, claimed that Kauanui "uppercut" House several times while House was repeatedly saying "I'm done." On the other hand, Hendricks, another defense witness, recalled that House said, "You got me. You got me. It's over. It's over," while he and Kauanui were holding each other like boxers in the 15th round. According to Yanke, defendant had to push Kauanui away and said, "Get off him. He's done. He's done. Get off him." Both Yanke and Hendricks claimed that after Kauanui stood up, he charged towards defendant and started speaking in an aggressive manner. Yanke recalled that defendant, who is right handed, punched Kauanui with his left hand, and said that defendant looked very shocked and worried after Kauanui fell. However, once they got to Yanke's house, defendant bragged about knocking out Kauanui with his left hand. A few hours later, after Nur Kitmitto called defendant to describe Kauanui's condition ("he didn't look good") and to warn him that the police were there and "it's a big deal," defendant insisted he "was willing to go back at Emery again." The next morning, when Kristen Link called to ask whether defendant had been in a fight with Kauanui, defendant bragged, "I would hardly call it a fight. I punched him out." During a telephone conversation that same morning between Hendricks and Nicole Sparks about the fight, defendant laughed and said, "We put him to sleep."
Yanke claimed he and defendant drove away slowly after Kauanui fell, but he admitted crashing the Explorer into a retaining wall on the drive home.
Hendricks admitted that defendant was bigger, taller, and weighed quite a bit more than Kauanui. At the time of the murder, Kauanui was five feet 10 inches tall and weighed 181 pounds. Defendant stood 6 feet and weighed 240 pounds. The top of defendant's left hand appeared swollen at the time of his arrest.
Defendant was convicted of second degree murder. In prior proceedings, Eric House, Matthew Yanke, and Orlando Osuna pleaded guilty to involuntary manslaughter. Hank Hendricks pleaded guilty to being accessory to murder.
In an unpublished opinion, the Court of Appeal affirmed the judgment except for the second degree murder conviction, which it ordered reduced to voluntary manslaughter because of insufficient evidence of implied malice. The court focused solely on the subjective component of implied malice and reasoned that "[a] single fist blow to the head does not involve a high probability of death simply because it occurs on pavement, and awareness that the recipient of such a blow might fall and hit his or her head on the pavement is merely awareness of a risk of serious bodily injury, not conscious disregard for life."
We granted the Attorney General's petition for review.
Murder is the unlawful killing of a human being or a fetus "with malice aforethought." (Pen. Code, § 187, subd. (a).) Defendant was convicted of second degree murder, which is "the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder." (People v. Knoller (2007) 41 Cal.4th 139, 151.) Malice may be either express (as when a defendant manifests a deliberate intention to take away the life of a fellow creature) or implied. (People v. Blakeley (2000) 23 Cal.4th 82, 87.) "Malice is implied when the killing is proximately caused by ' "an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who ...