The PEOPLE, Plaintiff and Respondent, v. Vincent William ACOSTA, Defendant and Appellant.
Stephen Gilbert, under appointment by the Court of Appeal, Santa Monica, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Janelle B. Davis and John T. Swan, Deputy Attys. Gen., for plaintiff and respondent.
Vincent William Acosta appeals his conviction on three counts of second degree murder (Pen.Code, § 187) and one count of unlawfully driving another's vehicle without consent (Veh.Code, § 10851), contending: (1) there was insufficient evidence his conduct was the proximate cause of the deaths; (2) there was insufficient evidence of malice; (3) the jury was erroneously instructed on implied malice; (4) the trial court erred in admitting his post-arrest statements; and (5) his sentence constituted cruel and unusual punishment. In the published portion of the opinion, I agree with his second contention and reverse the murder convictions. I discuss his fourth contention in the unpublished portion and conclude his fifth contention is moot.
At 10 p.m. on March 10, 1987, Officers Salceda and Francis of the Santa Ana Police Department's automobile theft detail saw Acosta in Elvira Salazar's stolen Nissan Pulsar parked on the street. The officers approached Acosta and identified themselves. Acosta inched the Pulsar forward, then accelerated rapidly. He lead Salceda, Francis and officers from other agencies on a 48–mile chase along numerous surface streets and freeways throughout Orange County. The chase ended near Acosta's residence in Anaheim.
During the chase, Acosta engaged in some of the most egregious driving tactics imaginable. He ran stop signs and red lights, and drove on the wrong side of streets, causing oncoming traffic to scatter or swerve to avoid colliding with him. Once, when all traffic lanes were blocked by vehicles stopped for a red light, he used a dirt shoulder to circumvent stationary vehicles and pass through the intersection. When leaving the freeway in Anaheim, he drove over a cement shoulder.
Throughout the pursuit, Acosta weaved in and out of traffic, cutting in front of other cars and causing them to brake suddenly. At one point on the freeway, he crossed three lanes of traffic, struck another car, jumped the divider between the freeway and a transition lane, and passed a tanker truck, forcing it to swerve suddenly to avoid a collision.
Acosta generally drove at speeds between 60 and 90 miles per hour, slowing only when necessary. During several turns, his wheels lost traction. When an officer was able to drive parallel to the Pulsar for a short distance, Acosta looked in his direction and smiled. Near the end of the chase, one of the Pulsar's front tires blew out, but Acosta continued to drive at 55 to 60 miles per hour, crossing freeway traffic lanes.
Police helicopters from Anaheim, Costa Mesa, Huntington Beach, and Newport Beach assisted in the chase by tracking Acosta. During the early part of the pursuit, the Costa Mesa and Newport Beach craft were used, pinpointing Acosta's location with their high beam spotlights. The Costa Mesa helicopter was leading the pursuit, in front of and below the Newport Beach helicopter. As they flew into Newport Beach, the pilots agreed the Newport Beach craft should take the lead. The normal procedure for such a maneuver is for the lead helicopter to move to the right and swing around clockwise behind the other craft while climbing to an altitude of 1,000 feet. At the same time, the trailing helicopter descends to 500 feet while maintaining a straight course.
At the direction of the Costa Mesa pilot, the Newport Beach helicopter moved forward and descended while the Costa Mesa helicopter banked to the right. Shortly after commencing this procedure, the Costa Mesa helicopter, having terminated radio communication, came up under the Newport Beach helicopter from the right rear and collided with it. Both helicopters fell to the ground. Three occupants in the Costa Mesa helicopter died as a result of the crash.
Acosta claims there was insufficient evidence of two elements necessary to support the convictions for second degree murder: that he proximately caused the deaths of the victims, and that his state of mind constituted implied malice. (People v. Scola (1976) 56 Cal.App.3d 723, 726, 128 Cal.Rptr. 477 [proximate cause]; People v. Spring (1984) 153 Cal.App.3d 1199, 1204, 200 Cal.Rptr. 849 [malice].) He is correct on the latter claim.
As to the proximate cause issue, Acosta argues that although a collision between ground vehicles was a foreseeable result of his conduct, one between airborne helicopters was not, noting his expert had never heard of a similar incident. He also contends the Costa Mesa helicopter pilot's violation of FAA regulations was a superseding cause. Because the deaths here were unusual, to say the least, the issue deserves special scrutiny.
To determine whether Acosta's conduct was not, as a matter of law, a proximate cause of death of the Costa Mesa helicopter's occupants, I enter a legal realm not routinely considered in published California cases. When a causation issue arises, it does so almost invariably in homicide cases (1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Elements of Crime, § 126, p. 146), and often involves a discussion of the subject severely limited to an expedient disposition of the narrow question at hand. This leaves the possibility for misapprehension about the number of factors which actually should be (or implicitly were) considered in resolving the issue.5 I approach the issue broadly because several theoretical concepts of proximate cause impinge on this case.
“Proximate cause” is the term historically used 6 to separate those results for which an actor will be held responsible from those not carrying such responsibility. The term is, in a sense, artificial, serving matters of policy surrounding tort and criminal law and based partly on expediency and partly on concerns of fairness and justice. (Perkins & Boyce, supra, at p. 776.) Because such concerns are sometimes more a matter of “common sense” than pure logic, the line of demarcation is flexible, and attempts to lay down uniform tests which apply evenly in all situations have failed. (Id. at pp. 776–777.) That does not mean general guidelines and approaches to analysis cannot be constructed.
Prosser and Keeton, in an in-depth discussion of the dynamics of foresight, conclude that although it is desirable to exclude extremely remarkable and unusual results from the purview of proximate cause, it is virtually impossible to express a logical verbal formula which will produce uniform results. (Prosser & Keeton, supra, at p. 300.) I agree. The standard should be simply stated, exclude extraordinary results, and allow the trier of fact to determine the issue on the particular facts of the case using “ ‘the common sense of the common man as to common things.’ ” (Perkins & Boyce, supra, at p. 817.) 18 As with other ultimate issues, appellate courts must review that determination, giving due deference to the trier of fact.
The “highly extraordinary result” standard serves that purpose. It is consistent with the definition of foreseeability used in California. (See People v. Harris, supra, 52 Cal.App.3d at p. 427, 125 Cal.Rptr. 40.) It does not involve the defendant's state of mind, but focuses upon the objective conditions present when he acts.19 Like numerous other legal definitions, what it means in practice will be determined as case law develops. Limitations arising from the mental state of the actor can be left to concepts like malice, recklessness and negligence.
Because the highly extraordinary result standard is consistent with the limitation on direct causes, it simplifies the proximate cause inquiry. The analysis is: (1) was the defendant's conduct the actual cause of the harm (but for his actions would it have occurred as it did)? (2) was the result an intended consequence of the act? (3) was the defendant's action a substantial factor in the harm? and (4) was the result highly extraordinary in light of the circumstances?
Here, but for Acosta's conduct of fleeing the police, the helicopters would never have been in position for the crash. However, there was no evidence he intended the harm, so I must examine questions three and four.
Justice Crosby's opinion parts company with this analysis, reasoning that “neither the intervening negligent conduct nor the risk of harm was foreseeable.” (Separate opn. of Crosby, J. at p. 139.) He justifies this conclusion by reference to the well-traveled opinion of Justice Cardozo in Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 100. Reliance on Palsgraf reveals the error in the analysis.23 Justice Cardozo approached the problem from the perspective of duty, concluding that the defendant owed no duty of care to an unforeseeable plaintiff. Although the interesting facts and novel analysis of Palsgraf 24 have made it a favorite in law school texts, the four-to-three decision is not the gospel on proximate cause. (See generally Prosser & Keeton, supra, at pp. 273–274, 280–281, 284–289.) Because of its confusion between foreseeability as it relates to negligence and as it relates to causation, I have eliminated it from the proximate cause analysis.
Neither concurring opinion offers case law “on all fours,” suggesting this case is unique and presents a close question. Partly because this is so, it is appropriate to rely on two compelling factors: the jury found proximate cause based on proper instructions,28 and the dearth of case law to support a rejection of that finding. Given these circumstances, a finding of proximate cause is appropriate.
Acosta also contends the evidence was insufficient as a matter of law to show he acted with malice, arguing it failed to establish he acted with a conscious disregard for a substantial risk of death. I agree.
The definitions contained two notable differences. The first mentions a wanton disregard for life, but the second uses a conscious disregard for life. And the first definition speaks of a high probability of death, while the second refers to consequences which are merely dangerous to life. Later cases remedied confusion arising from these disparities.
In People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, the Supreme Court held that “a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (Id. at pp. 296–297, 179 Cal.Rptr. 43, 637 P.2d 279.) This conclusion comports with the analyses of the major commentators. (Perkins & Boyce, supra, at p. 858 [“heedless disregard of a harmful result, foreseen as a likely possibility”]; 2 LaFave & Scott, Substantive Criminal Law (1986) § 7.4, p. 205 [“to convict of murder ․ subjective realization should be required”].) People v. Dellinger, supra, 49 Cal.3d at page 1221, 264 Cal.Rptr. 841, 783 P.2d 200 held that the term “conscious disregard for human life” best expresses the subjective appreciation standard.
The result in Albright was correct. The suicidal defendant drove at speeds of 90 to 110 miles per hour while under the influence of alcohol, missing 3 cars but striking the last and killing the occupant. There was no requirement that he consciously disregard the safety of the actual victim to be guilty of murder. But if the Albright court meant to say he was liable for any death which ensued if he consciously disregarded the life of anyone, I respectfully disagree. I review the cases and authorities relied upon in Albright to discern the basis for the court's statement.
The first case cited was a decision by this court, People v. Spring, supra, 153 Cal.App.3d 1199, 200 Cal.Rptr. 849. There, we said, “Malice aforethought neither presupposes nor requires any ill will or hatred of a particular victim.” (Id. at p. 1204, 200 Cal.Rptr. 849.) But the facts involved a direct physical assault by the defendant upon the victim. The emphasis was upon the absence of an ill will requirement, not the culpability of a defendant whose assault fells an unexpected victim.
The statement of law is correct. If the defendant had “malice,” in either the legal or informal sense, against the ultimate victim, the logical conclusion would be that the killing was intentional and done with “actual” malice. (Pen.Code, § 188.) But in both People v. Stein, supra, 23 Cal.App. 108, 137 P. 271 and People v. Albright, supra, 173 Cal.App.3d 883, 219 Cal.Rptr. 334, the ultimate victim came from that group which his reckless act directly put at risk. In Stein it was the crowd in the piano room; in Albright it was motorists on the street. Factually, neither of these cases can stand for the proposition that if a defendant acts recklessly toward a discernable high risk group, he is strictly liable for a death which might occur outside the group.
Under the definition of implied malice, the defendant's conduct must carry a high probability of death. It is that risk which the defendant must consciously disregard and which must result in the death. Any other interpretation would allow a defendant to be held culpable for murder based upon a death which was barely foreseeable,33 and which had no conscious disregard associated with it.
The victim in Caldwell, an accomplice of the defendants as, along with the defendants, a felon who resisted capture by a display of arms, and within the group which faced a high probability of death. The victims here were not. The group of persons on the ground near Acosta faced a high probability of death. But he did not kill someone there and the risk created for the group in the air was minimal. Acosta's flight only caused the helicopter pilots to “be there.” There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot. As to the victims, his conduct did not create a high probability of death.36 No juror could have reasonably found to the contrary.
Jury instructions must be read together and their correctness determined from the entire charge given, not from parts of an instruction or one instruction alone. (People v. Burgener (1986) 41 Cal.3d 505, 538–539, 224 Cal.Rptr. 112, 714 P.2d 1251; People v. Talamantez (1985) 169 Cal.App.3d 443, 454, 215 Cal.Rptr. 542.) The prosecution's special instruction cannot be considered in a vacuum. Through all of the instructions, the court properly explicated the concepts of proximate cause: actual cause, substantial factor, concurrent cause, intervening cause and extraordinary results. The court advised the jury to exonerate Acosta if it found the helicopter collision to be highly unusual or extraordinary. Amicus curiae does not contend the other proximate causation instructions were erroneous or deficient. At worst, the prosecution's instruction was superfluous.
The language of the prosecution's instruction was taken, almost verbatim, from four cases. (People v. Pike, supra, 197 Cal.App.3d at pp. 747, 749, 243 Cal.Rptr. 54; People v. Armitage, supra, 194 Cal.App.3d at pp. 420–421, 239 Cal.Rptr. 515; People v. Harris, supra, 52 Cal.App.3d at p. 427, 125 Cal.Rptr. 40; People v. Hebert (1964) 228 Cal.App.2d 514, 521, 39 Cal.Rptr. 539.) Although the instructions were not stated in the simplified terms I have set forth, they were ample and cogent.
With respect to the other issues presented in this case, I concur in the result, though not the lead opinion's reasoning concerning the sufficiency of the evidence and instruction of the jury on proximate cause. I also agree appellant's post-arrest statements were properly admitted at trial. Finally, I would conclude the lower court's sentence was proper. The judgment should be affirmed in its entirety.
I agree the evidence supports the jury's finding appellant proximately caused the victims' deaths. But I find the lead opinion's creation of a new test for proximate cause unnecessary and inappropriate. I also conclude the lower court's instructions on proximate cause were correct.
I fail to see any significant difference between Pike, Harris and this case. Three persons died when two police vehicles collided during a nighttime, high-speed vehicle pursuit between contiguous cities located in a densely populated area. The pursuit arose when appellant chose to flee rather than submit to a detention by two police officers.
The mere fact the collision involved aircraft rather than ground vehicles is a distinction without a difference. The use of helicopters by the police is well known; their advantage in assisting ground units to locate and pursue a fleeing vehicle is obvious. Given the route chosen by appellant, it was foreseeable police helicopters from different cities would participate in the chase. Furthermore, appellant knew that more than one helicopter was involved in the chase. The possibility that during the nighttime chase one of the helicopter pilots might negligently operate his craft and thereby cause a mid-air collision was as foreseeable as the negligent operation of the police cars in Pike and Harris.
Both the lead opinion and Justice Crosby's opinion suggest the helicopter collision was an “extraordinary” event, noting research has not unearthed any prior case involving a similar incident. (Lead Opn. at pp. 120, fn. 3; 126; 128, fn. 27: Dis. opn. at p. 140.) But this case does not present the first recorded collision between two aircraft while in flight. Over the past several years there have been several incidents of either midair collisions or “near misses” between aircraft. Furthermore, these incidents occurred in routine flight operations. Indeed, many experts have expressed a concern that the potential for midair collisions between aircraft is increasing. If such accidents occur between aircraft engaged in routine operations, it should come as no surprise that two police helicopters participating in the nighttime pursuit of a fleeing motorist might also collide with each other.
The mere fact a midair collision between two helicopters has never occurred before does not defeat the existence of proximate cause. In Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36, defendant radio station conducted a contest where listeners could win prizes by being the first to locate a radio personality at specified locations in the Los Angeles area. During the contest, two participants in the contest were following the radio personality. While maneuvering for position, the two participants forced plaintiffs' decedent's car onto the center divider where it overturned. Plaintiffs successfully sued the participants and radio station for wrongful death. The station appealed. Claiming it owed no duty to the decedent because of its conduct, the station argued the accident was not foreseeable because there had been no similar prior injury.
The events leading up to the helicopter collision were set in motion by appellant's decision to flee from the police. It was predictable that, in response, the police would pursue appellant and use whatever means available to them to locate and capture him. The possibility that during the chase the pursuing police vehicles might be operated in a negligent manner thereby causing a collision was sufficiently foreseeable to establish appellant's conduct as the proximate cause of the accident. Therefore, I conclude the evidence is sufficient to support the jury's finding of proximate cause.
The lead opinion holds implied malice requires proof the defendant committed an act with a high probability it would result in death. (Lead opn., pp. 128, 129.) Furthermore, the lead opinion concludes the persons killed in the helicopter collision were not within the class of persons who faced a high probability of death from appellant's conduct. (Lead opn., p. 130.) This new standard is unsupported by any authority and contrary to recent decisions of the Supreme Court.
Justices Mosk, Broussard and Panelli concurred in the definition of what constitutes an inherently dangerous felony. (Id. at pp. 640–641, 262 Cal.Rptr. 195, 778 P.2d 549.) No member of the court questioned or criticized Justice Kennard's definition of implied malice.
Nonetheless, Dellinger concluded the “wanton disregard for human life” definition had become “superfluous,” and “[t]he better practice in the future is to charge juries solely in the straight-forward language of the ‘conscious disregard for human life’ definition of implied malice.” (People v. Dellinger, supra, 49 Cal.3d at p. 1221, 264 Cal.Rptr. 841, 783 P.2d 200.) The court then considered the 1988 revision of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.) which employs only the “conscious disregard for human life” test and stated: “We approve of this newly revised implied malice instruction, and agree with the CALJIC committee's conclusion that the ‘conscious disregard for human life’ definition, standing alone, is ‘more comprehensible to the average juror.’ [Citation.]” (Id. at p. 1222, 264 Cal.Rptr. 841, 783 P.2d 200.) A few months later, the Supreme Court reaffirmed this holding in People v. Douglas (1990) 50 Cal.3d 468, 515–516, 268 Cal.Rptr. 126, 788 P.2d 640.
Adding a high probability of death requirement to the present “conscious disregard for life” definition of implied malice is absurd. Both Watson and Dellinger make patently clear the “wanton disregard for human life” and “conscious disregard for life” definitions are equivalent. Therefore, the present definition of implied malice found in CALJIC Nos. 8.11 and 8.31, which was read to the jury in this case, properly defined the concept. Adding the high probability of death requirement to the “conscious disregard for life” definition is merely redundancy.
Later in the opinion, the court repeats this conclusion and expressly approves the most recent revisions of CALJIC Nos. 8.11 and 8.31 which incorporate only the “conscious disregard for life” definition. (Id. at pp. 1221–1222, 264 Cal.Rptr. 841, 783 P.2d 200.) Subsequent appellate decisions have employed the revised definition of implied malice without finding it necessary to add the “high probability of death” requirement. (See People v. David (1991) 230 Cal.App.3d 1109, 1114, 281 Cal.Rptr. 656; People v. Murray (1990) 225 Cal.App.3d 734, 745–746, 275 Cal.Rptr. 498; People v. Butler (1990) 225 Cal.App.3d 77, 88–89, 274 Cal.Rptr. 742.) In light of the Supreme Court's repeated approval of the current implied malice definition, the lead opinion's contrary reading of Dellinger is but another manifestation of its author's revulsion for implied malice.
I also reject the lead opinion's conclusion the victims were not within the zone of danger created by appellant's conduct. The opinion asserts “The group of persons on the ground near Acosta faced a high probability of death. But he did not kill someone there and the risk created for the group in the air was minimal. Acosta's flight only caused the helicopter pilots to ‘be there.’ There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot. As to the victims, his conduct did not create a high probability of death․” (Lead opn. at p. 130, fn. omitted.) This analysis merely employs the concept of proximate causation under the guise of implied malice.
The lead opinion questions the holding in Albright arguing it is erroneous to conclude a defendant would be “liable for any death which ensued if he consciously disregarded the life of anyone․” (Lead opn. at p. 128.) But Albright was concerned with the element of malice, not proximate cause. The reasoning employed in that case assumed the defendant had proximately caused the victim's death. Here, as well, the jury was required to decide whether appellant proximately caused the victims' deaths and found that he did. Furthermore, the lower court fully and adequately instructed them on the subject and the lead opinion concedes the evidence supports the jury's finding on proximate causation.
I also conclude the evidence supports the jury's finding appellant acted with implied malice. After consuming alcohol, cocaine, and heroin, appellant took the police on a 50–mile chase through a highly urban county, exceeding the speed limit, driving the wrong way, driving with his lights off, ignoring traffic control devices, making illegal turning movements, colliding with one vehicle and nearly causing several other accidents. He admitted he knew police vehicles, including helicopters, were pursuing him, and that his conduct was dangerous at the time, but defiantly continued driving in the same fashion anyway.
Appellant frequently drove on the wrong side of roads during the chase, ignored traffic control devices, and even left the road where necessary to skirt other traffic. Appellant slowed his vehicle only where it was necessary to negotiate a turn or steep grade, or because of heavy traffic, not in deference to the health and safety of his fellow motorists. His attempts to warn other drivers by flashing the Pulsar's headlights was, at best, only a minimal effort to avoid collisions. Contrary to appellant's claim, he crossed and re-crossed freeway traffic lanes on several occasions during the chase.
2. The pilot of the Newport Beach helicopter also testified that the correct procedure in changing the lead helicopter is for the helicopter relinquishing the lead to make a gradual climbing turn, stay in radio communication, and keep a safe distance away.
3. Our research yielded no published civil or criminal case nationwide which involved a two-helicopter collision.
5. For example, in People v. Scola, supra, 56 Cal.App.3d 723, 128 Cal.Rptr. 477, the court stated that the prosecution's burden of showing proximate cause is met “if the state produces evidence from which it may be reasonably inferred that appellant's act was a substantial factor in producing the accident. [Citations.]” (Id. at p. 726, 128 Cal.Rptr. 477.) Under the facts of that case, the statement was correct because there was no intervening cause and the resulting harm was not extraordinary. But, as I shall discuss, it would be incorrect to infer that the prosection need never show more.
7. A tricky situation is presented where two independent actors each inflict wounds which would alone be fatal. Perkins and Boyce deal with the problem by reasoning that but for the individual act of each, the death would not have occurred as it did. (Perkins & Boyce, supra, at p. 773.) LaFave and Scott submit that a sine qua non analysis does not work, but actual cause may be found if the act was a substantial factor in the death. (1 LaFave & Scott, supra, at pp. 394–395.)Although the approach of Perkins and Boyce is somewhat artificial, I prefer it over that of LaFave and Scott. It could be argued that a cause is not substantial if the victim would have died anyway. And, as I shall discuss, the substantial factor issue is best reserved for exclusion from culpability; i.e., “but for” causes are not sufficient unless they are a substantial factor in the harm.Under both approaches the result is the same. An actor who delivers a deadly blow will suffer the consequences even though another independent deadly force is also applied, a result in keeping with the use of proximate cause analysis to assign appropriate culpability.
12. Perkins and Boyce also give the example of a wife who is forced out into freezing weather by her husband, and opine that the action of the husband comes to a point of rest when the wife refuses an opportunity to take shelter at her father's residence. They eschew using the “ ‘contributory negligence’ of the wife” as the explanation for the lack of proximate causation, reasoning that contributory negligence is not a defense to the prosecution. (Id. at p. 781, fn. 74.)I part company with this analysis. The husband's act has not “come to rest in a position of apparent safety,” albeit only due to the wife's affirmative decision not to go inside her father's house. And, although the principle that the victim's contributory negligence is not a defense is frequently quoted in California cases (see, e.g., People v. Pike, supra, 197 Cal.App.3d at pp. 747–748, 243 Cal.Rptr. 54; People v. Armitage, supra, 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515; People v. Harris, supra, 52 Cal.App.3d at p. 426, 125 Cal.Rptr. 40; CALJIC No. 8.56), it is not applicable, as phrased, in a proximate cause analysis.Contributory negligence involves the concept of determining civil responsibility based upon lack of care by the parties. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809–811, 119 Cal.Rptr. 858, 532 P.2d 1226.) Almost by definition it would not be a defense to a criminal action. Even so, it deals with a state of mind, not causation. As I shall discuss, its only relevance is in determining the foreseeability that an intervening act, independent of the defendant, will cause harm.Thus, Perkins' and Boyce's example is better explained by concluding the wife's refusal of shelter in freezing weather was the extraordinary end produce of the husband's action. If this example is excluded, the “comes to rest” concept can be categorized as a corollary of the substantial factor rule.
16. Of course, this is a restatement of the principle that the defendant is culpable if his direct cause is a substantial factor in the harm, even if there is a concurrent cause.
17. Although this statement is cogent, it is unfortunate the last sentence falls back into the concept of foresight from the perspective of a reasonable person. The focus should remain solely on the probability of the result under the circumstances.
21. As I have mentioned (see fn. 15, ante ), reckless conduct is not “highly extraordinary” per se. It depends upon the circumstances. (See People v. Armitage, supra, 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515.) I need not deal with that problem here. The Costa Mesa pilot was negligent, but there was no evidence he was reckless. No statements show his state of mind. Turner opined he violated an FAA regulation prohibiting “reckless and careless” flying without specifying the precise standard of care the pilot failed to meet. Substantial evidence supports the inference he was merely negligent.
22. In People v. Pike, supra, 197 Cal.App.3d at page 750, 243 Cal.Rptr. 54, the court concluded, “The speeds, places, conditions and methods of driving were primarily dictated by defendant; he chose the route and speeds. Predictably, the officers chose to follow suit․ The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred. [Citations.]” And in People v. Harris, supra, 52 Cal.App.3d at page 427, 125 Cal.Rptr. 40, the court reasoned, “It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase.”Although the analyses in Pike and Harris are couched in terms of foreseeability, the reasoning is predicated upon the logical assumption that the flight of a suspect creates an appreciable probability that the police will chase, and in doing so sometimes be involved in accidents. Where helicopters are involved the probabilities are undoubtedly reduced, but remain appreciable.
24. The defendant's railway attendants accidentally knocked a package of fireworks from a passenger's arms while boarding a train, causing a concussive explosion which overturned scales on the platform which struck the plaintiff.
25. Justice Crosby does not dispute that such is the case here.
26. To use his terminology (separate opn. of Moore, J. at p. 133, fn. 1), while it may become usual in the 21st century, it is unusual in the late 20th century. The automobile pursuit cases provide guidance in the analysis, but do not serve as binding precedent because the air crashes are qualitatively different, at least in terms of probability.
27. His opinion does provide two hypothetical fact situations. (Separate opn. of Crosby at p. 139, fn. 4.) As to the first, more facts are necessary to determine whether the defendant was a substantial factor in the crash. The mere fact he was in an accident would probably be insufficient. As to the second, the same question arises. Further, the defendant would only be convicted if his conduct constituted at least gross negligence vis-a-vis the victim.
30. The Attorney General argues that the approval of CALJIC Nos. 8.11 and 8.31 in People v. Dellinger, supra, 49 Cal.3d at pages 1221–1222, 264 Cal.Rptr. 841, 783 P.2d 200, mandates a contrary result because those instructions do not contain the “high probability” standard. But the focus of the court in Dellinger was only upon the use of “conscious disregard for human life” in place of “wanton disregard for human life.” The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act. “It is axiomatic that cases are not authority for propositions not considered.” (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7, 82 Cal.Rptr. 724, 462 P.2d 580.)The string citation of People v. David (1991) 230 Cal.App.3d 1109, 1114, 281 Cal.Rptr. 656, People v. Murray (1990) 225 Cal.App.3d 734, 745–746, 275 Cal.Rptr. 498, and People v. Butler (1990) 225 Cal.App.3d 77, 88–89, 274 Cal.Rptr. 742 in Justice Moore's opinion (separate opn. of Moore, J. at p. 138) does not change this fact. None of those cases addressed the “high probability” issue. People v. Cleaves (1991) 229 Cal.App.3d 367, 280 Cal.Rptr. 146 did so, and concluded CALJIC Nos. 8.11 and 8.31 correctly stated the law because “an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death.” (Id. at p. 378, 280 Cal.Rptr. 146.) That an act can be dangerous to human life without involving a high probability of death needs no explication. If the Cleaves court meant to say that the term “dangerous to human life” in the instruction presumes a high probability, it deals with an instructional issue not presented here because, as a matter of law, the officers in the helicopter were not exposed to a high probability of death. I hold this opinion not because of any “revulsion for implied malice” (separate opn. of Moore, J. at pp. 138–139), but because numerous references to a “high probability of death” by our supreme court mandate it.
31. People v. Dellinger, supra, 49 Cal.3d at pages 1217–1218, 264 Cal.Rptr. 841, 783 P.2d 200 added the words “to human life” to the term “the risk involved.” Although the words are proper because the risk at issue in a murder case is the risk to human life (see 1 LaFave & Scott, supra, at p. 336), they are superfluous to our analysis.
32. I assume the “electric piano” was what I would call a player piano. Thus, I am led to believe the defendant did not shoot the piano player.
36. At oral argument amicus counsel described a situation which might have qualified. Had Acosta purposely maneuvered the helicopters into tall transmission towers, high wires, or a similar hazard with apparent conscious disregard for the well being of the occupants, malice could be inferred.
37. Justice Crosby also claims that our resolution of the malice issue “appears entirely inconsistent with the conclusion reached in the proximate cause discussion.” (Separate opn. of Crosby at p. 3.) Not so. A nonextraordinary result for proximate cause purposes does not require a “high risk” victim; implied malice does. Similarly, Justice Crosby's concern that the victim be in a zone of danger (Palsgraf v. Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. 99, 100) properly belongs in an analysis of gross negligence as it relates to involuntary manslaughter. Because Acosta was convicted of second degree murder, I have not considered that question.
38. Acosta's argument that the court erred in instructing on malice is moot. However, by our foregoing analysis, the court should have informed the jury that a high probability of death was required. (People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.) This omission would provide an independent ground for reversal.
43. Of course, reversal of the murder counts for insufficient evidence precludes retrial on those charges. Acosta's claim of a cruel and unusual sentence is therefore rendered moot.
1. While my colleague is willing to embrace the era of the automobile in the 20th century by citation to a 1928 opinion of Justice Cardozo, he is not ready to leave and enter the 21st century.
2. To the extent my colleagues cannot agree, I am forced to agree that defendant may be retried.
1. If despicable behavior alone were enough to affix criminal responsibility on a defendant for any remote consequence, no matter how unexpected, that would constitute the wholesale adoption of the concept of strict liability into the law of crimes. Many might view that as desirable, but that is not the law at present.
3. Occasionally, screen protagonists, such as James Bond, do—usually deliberately—fell pursuing helicopters from the ground by various means. That is not the real world, thankfully; and this is not such a case in any event.
4. A slippery concept at best, proximate cause is ultimately a judicial application of educated common sense to a given set of facts. Because the tort and criminal formulations of the term are interchangeable, if the lead opinion is correct, the driver who causes a freeway accident could be liable in tort for the crash of helicopters broadcasting traffic advisories at the scene. Such a motorist should have every reason to anticipate the arrival of aerial surveillance, but it is inconceivable that a court would find him liable for the negligence of a pilot under such circumstances. The lead opinion suggests there may be different factors involved in tort and criminal analyses of proximate cause. (Lead opn., p. 121, fn. 4.) Maybe so, but the law of crimes virtually always employs more conservative standards in fixing responsibility than does the civil law. Does the lead opinion mean to imply that this defendant is criminally, but not civilly, liable for this collision? If anything, I would think the opposite would be the case.In some remote parts of our state, traffic laws are enforced from the air. Signs along the highway warn of this. Can an ordinary speeder be guilty of manslaughter when a police aircraft in the process of clocking him crashes because of the negligence of some third party? The theory of the lead opinion would seemingly support such a prosecution.
5. The lead opinion makes the tautological accusation that I cite no case for this conclusion. (Lead opn., p. 128.) That, of course, is the point. If a similar case did exist, however it was decided, it would tend to undermine, not support, my view that this was a highly extraordinary accident. But the reverse is also true. My colleagues both correctly note that the first defendant to cause harm in a particular way should not necessarily be free from prosecution; but to apply that particular rule to these unusual facts is to jettison the exception for highly extraordinary events while pretending it still exists.
6. I join in the unpublished portions of the lead opinion.


text:
The Supreme Court has pronounced that the interpretation of the defraud element in the defraud conspiracy merely means a conspiracy to impair or impeded the lawful function of the IRS. I have noted before that this Supreme Court expansion of the meaning of the textual element of defraud has been subject to question. United States v. Coplan, 703 F.3d 46 (2d Cir. 2012), here, cert. denied 134 S.Ct. 71 (2013); See Coplan #1 - Panel Questions Validity of Klein Conspiracy (Federal Tax Crimes Blog 12/1/12), here. Basically, the Second Circuit panel majority opinion questioned the Supreme Court's prior interpretations culminating in Hammerschmidt v. United States, 265 U.S. 182 (1924) that expanded the scope of the defraud conspiracy beyond the usual meaning of the word fraud or defraud. The Second Circuit panel stated that, in view of the Supreme Court's holding in Hammerschmidt and its own holding in Klein, it could do no more than express the concern that the Supreme Court's interpretation went beyond the text of the statute.
Fitzpatrick and Morosco complain that section 371's defraud clause — criminalizing any conspiracy "to defraud the United States, or any agency thereof in any manner or for any purpose" — is unconstitutionally vague as applied to them. For those not in the know, a law is unconstitutionally vague if it fails to give ordinary people fair notice of what is forbidden, or if it fails to give the designated enforcers (police, prosecutors, judges, and juries) explicit standards (thus creating a risk of arbitrary enforcement). See Welch v. United States, 136 S. Ct. 1257, 2016 WL 1551144, at *3 (2016). Of course the requisite fair warning can come from judicial decisions construing the law. See, e.g., United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997). And judges have no business junking a statute simply because we could have written it "with greater precision." Rose v. Locke, 423 U.S. 48, 49, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975).
Helpfully, both sides agree — rightly — that Fitzpatrick and Morosco preserved their vagueness claim below (via a motion to dismiss the indictment) and that our review is de novo. See, e.g., United States v. Hussein, 351 F.3d 9, 14 (1st Cir. 2003). Also helpfully, both sides concede that binding precedent squarely forecloses this claim.1Link to the text of the note And we second that assessment.
Start with Fitzpatrick's and Morosco's most loudly trumpeted point. As they tell it, section 371's "defraud" clause only bans conspiracies to deprive the government of property and money by dishonest schemes, a reading (they add) that jibes with the common-law understanding of "defraud." And such a reading would help them (they continue) because they never scammed the government out of property or money. Unhappily for them, years' worth of Supreme Court precedent holds that section 371 "is not confined to fraud as that term has been defined in the common law," see Dennis v. United States, 384 U.S. 855, 861, 86 S. Ct. 1840, 16 L. Ed. 2d 973 (1966); that defrauding the government under section 371 means obstructing the operation of any government agency by any "deceit, craft or trickery, or at least by means that are dishonest," see Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S. Ct. 511, 68 L. Ed. 968 (1924); and that the conspiracies need not aim to deprive the government of property or money, see id., because the act is written "broad enough . . . to include any conspiracy for the purpose of impairing, obstructing, or defeating the lawful function of any" government "department," see Haas v. Henkel, 216 U.S. 462, 479, 30 S. Ct. 249, 54 L. Ed. 569 (1910). Ever faithful to high-Court holding, our caselaw rejects the idea that section 371 only bars conspiracies to defraud the government out of property or money. See United States v. Barker Steel Co., 985 F.2d 1123, 1136 (1st Cir. 1993) (relying on Supreme-Court cases interpreting section 371 and its basically "similar predecessors"); Curley v. United States, 130 F. 1, 6-10 (1st Cir. 1904) (explaining that "defraud" in section 371's forerunner has a broader meaning than the common-law definition — and justifiably so because the statute's aim is to protect the government, and deceit can impair the workings of government even if the conspiracy does not take the government's property or money). Obviously then, this facet of Fitzpatrick's and Morosco's vagueness thesis goes nowhere.
READERS SHOULD NOTE THE CLARIFICATION BELOW AS OF 6/6/16 AT 3:45 AM.
3. One of the obstructions charged relates to Zukerman passing false information to IRS Appeals through two attorneys at a Washington Law Firm. That alone made me curious as to which firm and attorneys were used in the scheme, but I have not been able to find out that information. And, the Government seems to have gotten access to the communications between Zukerman and the attorneys. Since I assume that such information and documents were not given to the Government with Zukerman's consent, As the press release indicates, the attorney-client privilege was pierced by the Government pursuant to district court and Second Circuit opinions. The Second Circuit opinion is In re Grand Jury Subpoenas Dated March 2, 2015, 628 F. App'x 13 (2d Cir. 2015), here. I discussed that Second Circuit opinion in a prior blog entry, Second Circuit Affirms Application of Crime-Fraud Exception to the Attorney-Client Privilege (Federal Tax Crimes Blog 10/10/15), here.
At that conference, the Government will request that the Court address potential conflicts issues relating to the defendant's current counsel, from the law firm of Williams & Connolly. More specifically, we will request that Your Honor conduct a Curcio proceeding, see United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), which requires the Court to address with the defendant directly his desire to proceed with defense counsel who face potential waivable conflicts of interest - here, James Bruton and James Fuller, partners from Williams & Connolly, both of whom currently represent the defendant in this criminal case, and both of whom are potential witnesses against the defendant at any future trial or hearing. Mr. Bruton and Mr. Fuller are potential witnesses as a result of the defendant's use of those attorneys to convey false information to the Internal Revenue Service during a civil audit - offense conduct that is not only described at length in the Superseding Indictment (See Ind. ¶¶ 28-34) but was also the subject of a grand jury ''crime-fraud'' ruling by Judge Caproni that was affirmed by the Second Circuit Court of Appeals. See In re: Grand Jury Subpoenas, 2015 WL 5806060 (2d Cir. 2015) (upholding district court's crime/fraud ruling requiring attorneys for Zukerman to disclose attorney/client communications that resulted in submission to IRS of tax protest letter that included false facts).
In sum, we believe that the potential conflict can be waived by the defendant, but only after the Court conducts a proceeding pursuant to Curcio and its progeny. Consistent with the approach we have taken in prior proceedings of this sort, the Government expects to submit to Your Honor by early next week a set of questions that should be asked of the defendant at the Curcio hearing, in order to determine that the defendant understands the nature of the potential conflicts and that he knowingly desires to proceed with his counsel, notwithstanding the potential conflicts.
James A. Bruton, III, Esq.
Messrs. Bruton and Zinn are with the firm of Williams & Connolly ("W&C"), headquartered in Washington, DC. I infer from the designation of Mr. Putzel, who is not with W&C, that he is an independent attorney advising Zukerman of the potential conflicts.
Most readers will already know of the indictment of Morrris E. Zukerman, an affluent alleged tax cheat. The indictment is here and the Press Release from the USAO SDNY is here. One of the news items about this indictment is: Jesse Drucker, Oil Investor Zukerman Dodged $45 Million in Taxes, U.S. Says (Bloomberg News 5/23/16), here.
MORRIS E. ZUKERMAN, a Manhattan businessman who owns companies involved in energy investments, was charged today in a three-count Indictment with engaging in multi-year tax fraud schemes pursuant to which he evaded over $45 million in income and other taxes.
ZUKERMAN, the principal of M.E. Zukerman & Co. (“MEZCO”), an investment firm located in Manhattan, schemed to evade taxes based on income received from the January 2008 sale of a petroleum products company (the “Oil Company”) he co-owned (through a MEZCO subsidiary) with a public company. ZUKERMAN schemed to evade the reporting of the sale – which resulted in the receipt by the MEZCO subsidiary of $130 million in gross sales proceeds – by falsely telling his accountants in mid-2008 that he had transferred ownership of the MEZCO subsidiary to a family trust in early 2007. In support of the story he gave to the accountants, ZUKERMAN created backdated documents such as promissory notes and a board resolution purporting to show the transfer of the subsidiary to his family trust in 2007. The false documents allowed ZUKERMAN to remove the MEZCO subsidiary from the consolidated tax reporting being handled by the accountants for MEZCO and thereby evade the reporting to the IRS of the sale of the Oil Company, as well as the payment of over $35 million in corporate income taxes.
Following the sale of the Oil Company, ZUKERMAN transferred the proceeds of the sale from the MEZCO subsidiary to his family trust and various corporations he controlled, including a company called Zukerman Investments. Between 2008 and 2013, ZUKERMAN directed that over $50 million of the funds transferred to Zukerman Investments be used to purchase paintings by European artists from the 15th through the 19th centuries (the “Old Master paintings”), which ZUKERMAN used to decorate his Upper East Side apartment and the apartments of two family members – Family Member-1 and Family Member-2.
There are legitimate uses for offshore companies and trusts. We do not intend to suggest or imply that any persons, companies or other entities included in the ICIJ Offshore Leaks Database have broken the law or otherwise acted improperly. Many people and entities have the same or similar names. We suggest you confirm the identities of any individuals or entities located in the database based on addresses or other identifiable information. If you find an error in the database please get in touch with us.
The page has links and allows users to download the database (or subsets of it in csv format) here. I love databases but am not familiar with the database ICIJ uses: Neo4j, here, a graph database engine that structures data in nodes (the icons you see in the visualization) and edges (the links between nodes). I plan to try to dig into the database later, but will probably first poke around the cvs files (viewable in Excel) to see the scope of what is there.
ICIJ releases database revealing thousands of secret offshore companies (ICIJ 5/9/16), here.
Scott Shane and Eric Lipton, Panama Papers Source Offers to Aid Inquiries if Exempt From Punishment (New York Times 5/6/16), here.
The anonymous source behind the huge leak of documents known as the Panama Papers has offered to aid law enforcement officials in prosecutions related to offshore money laundering and tax evasion, but only if assured of protection from punishment.
“Legitimate whistle-blowers who expose unquestionable wrongdoing, whether insiders or outsiders, deserve immunity from government retribution,” the source, who has still not revealed a name or nationality, said in a statement issued Thursday night.
John Doe noted that journalists who have viewed the papers have said they will not turn over the full archive of 11.5 million documents. “I, however, would be willing to cooperate with law enforcement to the extent that I am able,” the source wrote.
The statement, which was issued Thursday night under the condition that it not be reported until Friday morning, gave some hints about John Doe’s political views and concerns. They include income inequality, the American campaign finance system and the “revolving door” of United States officials who take jobs at banks or other companies they once regulated.
What do today’s actions do to help address this kind of financial abuse?
Today, the Treasury Department took several steps to increase transparency and disclosure requirements.
First, the Treasury Department finalized its “customer due diligence” rule, which requires financial institutions – such as banks , mutual funds, and other financial institutions – to find out and verify who actually owns and profits from the companies that make use of their services, i.e, the “beneficial owner.” Under this rule, if an entity (like a shell company) opens an account at a financial institution, that institution will be required to identify and verify the real people actually behind that entity. And law enforcement can then seek out that information from those institutions.
By requiring disclosure of beneficial ownership information, we will increase financial transparency and give financial institutions and law enforcement the ability to identify the assets and accounts of criminals and national security threats.
Now, while the beneficial owners of shell companies often exploit weak rules in offshore tax havens, gaps also exist in U.S. tax rules that foreigners can currently exploit to set up and hide their assets or financial activity in an anonymous shell company in the United States.
So the second step Treasury took today is to propose a rule that would plug this gap by requiring certain foreign-owned companies to obtain a tax identification number from the IRS, thereby requiring these entities to report ownership and transaction information to the IRS.
Taken together, these steps go a long way in helping to combat money laundering and tax evasion, but additional tools are needed to promote transparency and strengthen law enforcement. And only Congress can help on that front.
Readers interested in DPAs likely will want to read the opinion in United States v. Fokker, ___ F.3d ___, 2016 U.S. App. LEXIS 6176 (DC Cir. 2016), here. Bottom line, the decision gives wide deference to prosecutiorial discretion in charging decisions and limits the district court's discretionary oversight in accepting DPAs. The opinion is notable for its content, but also notable because it is written by Judge Srinivasan, Wikipedia here, who was recently on the short list for appointment to the Supreme Court and who, likely, will be on the short list for the next President, to use President Obama's phrase, "whoever she is." I focus in this blog only on the content of the opinion limiting the district court's discretion.
The Constitution allocates primacy in criminal charging decisions to the Executive Branch. The Executive’s charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring, and whether to dismiss charges once brought. It has long been settled that the Judiciary generally lacks authority to second-guess those Executive determinations, much less to impose its own charging preferences. The courts instead take the prosecution’s charging decisions largely as a given, and assume a more active role in administering adjudication of a defendant’s guilt and determining the appropriate sentence.
In certain situations, rather than choose between the opposing poles of pursuing a criminal conviction or forgoing any criminal charges altogether, the Executive may conclude that the public interest warrants the intermediate option of a deferred prosecution agreement (DPA). Under a DPA, the government formally initiates prosecution but agrees to dismiss all charges if the defendant abides by negotiated conditions over a prescribed period of time. Adherence to the conditions enables the defendant to demonstrate compliance with the law. If the defendant fails to satisfy the conditions, the government can then pursue the charges based on facts admitted in the agreement.
This case arises from the interplay between the operation of a DPA and the running of time limitations under the Speedy Trial Act. Because a DPA involves the formal initiation of criminal charges, the agreement triggers the Speedy Trial Act’s time limits for the commencement of a criminal trial. In order to enable the government to assess the defendant’s satisfaction of the DPA’s conditions over the time period of the agreement—with an eye towards potential dismissal of the charges—the Speedy Trial Act specifically allows for a court to suspend the running of the time within which to commence a trial for any period during which the government defers prosecution under a DPA.
We vacate the district court’s denial of the joint motion to exclude time under the Speedy Trial Act. We hold that the Act confers no authority in a court to withhold exclusion of time pursuant to a DPA based on concerns that the government should bring different charges or should charge different defendants. Congress, in providing for courts to approve the exclusion of time pursuant to a DPA, acted against the backdrop of long-settled understandings about the independence of the Executive with regard to charging decisions. Nothing in the statute’s terms or structure suggests any intention to subvert those constitutionally rooted principles so as to enable the Judiciary to second-guess the Executive’s exercise of discretion over the initiation and dismissal of criminal charges.
In vacating the district court order, we have no occasion to disagree (or agree) with that court’s concerns about the government’s charging decisions in this case. Rather, the fundamental point is that those determinations are for the Executive—not the courts—to make. We therefore grant the government’s petition for a writ of mandamus and remand for further proceedings consistent with this opinion.
Frederik Obermaier, Bastian Obermayer, Vanessa Wormer and Wolfgang Jaschensky, About the Panama Papers (Süddeutsche Zeitung), here. A great report (with links) from the newspaper and reporters that originally obtained the data.
Coming Soon: ICIJ to Release Panama Papers Offshore Companies Data (ICIJ 4/26/16), here.
The International Consortium of Investigative Journalists will release on May 9 a searchable database with information on more than 200,000 offshore entities that are part of the Panama Papers investigation.
While the database opens up a world that has never been revealed on such a massive scale, the application will not be a “data dump” of the original documents – it will be a careful release of basic corporate information .
ICIJ won’t release personal data en masse; the database will not include records of bank accounts and financial transactions, emails and other correspondence, passports and telephone numbers. The selected and limited information is being published in the public interest.
Meanwhile ICIJ, the German newspaper Süddeutsche Zeitung which received the leak, and other global media partners, including several new outlets in countries where ICIJ has not been able to report, will continue to investigate and publish stories in the weeks and months to come.
Meta S. Brown, Why Panama Papers Journalists Use Graph Databases (Forbes 4/30/16), here.

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