California Court of Appeals, Fourth District, Third Division
from a judgment of the Superior Court of Orange County No.
14HF2315, Gary S. Paer, Judge. Affirmed.
& Peabody and Jennifer Peabody, under appointment by the
Court of Appeal, for Defendant and Appellant.
Becerra, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney
General, Eric A. Swenson and Junichi P. Semitsu, Deputy
Attorneys General, for Plaintiff and Respondent.
Kelly Michele Wolfe killed an innocent pedestrian while
driving under the influence of alcohol. The prosecution
charged Wolfe with an implied malice murder (colloquially
known as a Watson murder). The trial court refused
to instruct the jury on involuntary or vehicular
manslaughter; it is well-settled that these are not lesser
included offenses. The court also instructed the jury that
voluntary intoxication was not a defense to an implied malice
murder; this is also an accurate statement of California law.
jury convicted Wolfe of murder and other offenses. Wolfe
makes three claims: the evidence was insufficient to sustain
the murder conviction, the failure to allow a manslaughter
instruction as a lesser included offense violates the equal
protection clause, and the failure to allow voluntary
intoxication as a defense violates due process.
disagree and affirm the judgment.
AND PROCEDURAL BACKGROUND
4, 2013, at about 8:30 p.m., Wolfe left a San Clemente bar
and was driving to her nearby home when she struck and killed
a pedestrian. Wolfe's blood-alcohol content (BAC) was
about.34 percent. The evidence at trial encompassed:
Wolfe's prior knowledge about the dangers of drinking and
driving; Wolfe's alcohol consumption before the
collision; the circumstances of the collision itself; and
what happened afterwards, including Wolfe's arrest.
1994, Wolfe pleaded guilty to a charge of driving under the
influence in Nevada. Wolfe was required to attend a victim
impact panel in which offenders learn about the consequences
of drinking and driving. During the 90-minute presentation,
Wolfe was exposed to statistical information and
presentations by “injured victims or surviving family
members of deceased victims.”
2008, Wolfe renewed her California Driver's License.
Wolfe signed a Department of Motor Vehicles (DMV) renewal
form, which included the following statement: “I am
hereby advised that being under the influence of alcohol or
drugs, or both, impairs the ability to safely operate a motor
vehicle. Therefore, it is extremely dangerous to human life
to drive while under the influence of alcohol or drugs, or
both. If I drive while under the influence of alcohol or
drugs, or both, and as a result, a person is killed, I can be
charged with murder.”
Consumption Before the Collision
and her husband Mike Rosney were regular customers at
Knuckleheads, a bar in San Clemente. The couple had two
vehicles that they would regularly drive to the bar,
Rosney's red convertible and Wolfe's white Volkswagen
van. Wolfe and Rosney usually called a local taxi driver,
Thomas “Tommy Taxi” Meadows, to take them home
when they felt they could not drive safely. Wolfe ordinarily
called Meadows for a ride home two to three times a month.
4, 2013, at about 11:00 a.m., Wolfe and Rosney drove
separately to Knuckleheads for lunch. After eating lunch,
Rosney and Wolfe left in Rosney's car to attend a
birthday party in Mission Viejo. Wolfe drank an unknown
quantity of wine at the party. At about 4:00 p.m., Rosney
drove Wolfe back to the couple's home in Capistrano
Beach; they dropped off some leftovers, and then they
returned to Knuckleheads at about 6:15 p.m.
they entered the bar, Rosney ordered two shots and two beers
for himself and Wolfe. The bartender, Serena Stewart, noticed
that Wolfe had been drinking, although Wolfe did not appear
to be “overly intoxicated.” Wolfe drank the shot
at the bar and took her beer glass outside. After about 45
minutes, Wolfe came back inside the bar. Wolfe's glass
was mostly empty, and she told Rosney that she was ready to
leave. Rosney told Wolfe that he had just ordered another
shot and a beer for himself and a friend. Wolfe put her glass
on the bar and walked out the front door.
continued drinking for 10 to 15 minutes. Rosney asked Stewart
for his tab and said he had “an angry wife”
waiting for him in the car. Stewart advised Rosney:
“You guys have been drinking. It's a holiday.
There's lots of cops out. You are calling Tommy Taxi,
right?” Rosney responded: “Yes.” Rosney
picked up a phone, but Meadows later testified that neither
Rosney nor Wolfe called him for a ride that evening. Rosney
left the bar, walked to his car, and eventually drove home.
Rosney did not see Wolfe or notice whether her van was still
parked outside the bar.
after 8:00 p.m., 12-year-old Mason, and his grandmother,
Marthann, were walking from their family's beachside
vacation home towards the beach where they planned to watch
fireworks with their family. Mason was blind from birth (as
in years past, it was anticipated that Marthann would
describe the fireworks to her grandson). As they walked along
the Pacific Coast Highway (PCH), Mason held a white cane in
his right hand and held on to his grandmother's arm with
his left hand.
about 8:33 p.m., Marthann and Mason stood in the gutter near
the bike lane, waiting to cross the street. At that moment,
Wolfe was driving her van northbound on PCH and failed to
negotiate a curve in the road. Wolfe veered out of the
traffic lane into the bike lane. Wolfe's van was headed
directly towards Marthann and Mason, as well as others who
were seated nearby. Marthann pushed Mason away just before
the van struck her; Marthann died at the scene. Mason heard a
loud “thud”; his grandmother's arm was no
longer within his reach. Mason sustained injuries to his face
and right leg. There were no skid marks at the site of the
the collision, Wolfe continued driving northbound on PCH
towards her apartment. As a result of the impact, the
van's passenger windshield was shattered, its horn was
blaring, one or both of its headlights were out, and its
front grill section was crumpled and severely damaged. The
van stalled as it made a right hand turn from PCH onto a side
street. As Wolfe tried to restart the van, its horn kept
blaring intermittingly. Wolfe was eventually able to restart
the van and drive to her home, which was right up the hill.
Wolfe nearly clipped a parked car before she stopped abruptly
and parked askew on the street. Several witnesses noticed
that Wolfe remained seated in the van for a few minutes. One
witness said that Wolfe had “a very shocked look on her
face.” Wolfe eventually got out of the van with her
purse and walked into her home.
about 8:35 p.m., Deputy Anton Pereyra arrived in front of
Wolfe's residence; he was responding to a dispatch call
regarding a possible vehicle involved in the fatal collision
on PCH. Pereyra saw the van and noticed that it had sustained
major damages to its front passenger side; he “could
see pieces of hair and scalp in the windshield as well as on
the [vertical support].” When Pereyra looked inside of
the van he noticed “broken glass particles across the
dashboard, the passenger seat, and the floorboard.”
Pereyra ran the vehicle's license plate and learned that
it was associated with Wolfe's address.
Deputy Pereyra walked to Wolfe's apartment, he saw Rosney
sitting on the front porch drinking beer. Pereyra asked
Rosney several questions, but Rosney was uncooperative and
argumentative. Rosney eventually told Pereyra that he assumed
Wolfe was inside the home, but Rosney said that he had not
spoken to Wolfe since they separately arrived at their home
from Knuckleheads bar.
about 8:40 p.m., Sergeant Jonathan Daruvala arrived at the
home and asked Wolfe to walk outside. Daruvala noticed that
Wolfe was unsteady as she walked, she smelled of alcohol, and
her eyes were bloodshot and watery. Wolfe told Daruvala that
she had consumed two glasses of wine two to three hours
earlier. Daruvala conducted multiple field sobriety tests;
Wolfe performed poorly on all of them. Daruvala arrested
Wolfe and took her to the hospital to have her blood drawn.
Daruvala noticed that in the backseat of his police vehicle
there were broken pieces of glass. Inside of Wolfe's
purse there were also pieces of broken glass and Wolfe's
driver's license, which had expired.
blood draw occurred at about 10:39 p.m., and later revealed a
blood alcohol content (BAC) of.307 and.314 percent. At trial,
a forensic expert opined that given the average rate of
alcohol elimination from the bloodstream, Wolfe's BAC at
the time of the collision was somewhere between.34 and.35
percent. The expert further opined that based on Wolfe's
weight, gender, and other factors, she had consumed the
equivalent of 14 to 16 standard alcoholic drinks prior to the
prosecution filed an amended information charging Wolfe with
murder, hit and run with permanent injury or death, DUI
causing great bodily injury (GBI) (Mason), driving with a BAC
level of.08 percent or greater causing GBI (Mason), driving
without a license, and failing to yield the right of way to a
blind pedestrian. (Pen. Code, § 187; Veh. Code,
§§ 20001, subd. (a), 23153, subds. (a) & (b),
12500, subd. (a), 21963.) The information further alleged
that Wolfe had driven with a BAC of.15 percent or greater.
(Veh. Code, § ...