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Road Management & Engineering Journal
Copyright © 1997 by TranSafety, Inc.
June 1, 1997
TranSafety, Inc.
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Strategic Highway Research Program Reports on Pothole Repair Survey
California Motorist Convicted of Second-Degree Murder...
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California Motorist Convicted of Second-Degree Murder for Road Workers' Deaths

The Superior Court, Los Angeles County convicted Kenneth Autry of two counts of second-degree murder and two counts of causing bodily injury while driving with a blood alcohol level of .08 percent or more. Autry had a blood alcohol level of .22 percent when he drove onto a freeway median, where he struck and killed two highway construction workers. Subsequently, the vehicle Autry was driving hit a center divider and rolled, injuring Autry's two passengers.

Autry appealed his convictions to the Court of Appeal, Second District, Division 4. The appellate court confirmed the trial court's decisions, modifying the convictions only in reducing Autry's conduct credit for time served by one day.

The Crash

On the morning of April 27, 1992, Kenneth Autry met with his probation officer; he was on probation for a theft offense. At that meeting, the probation officer warned Autry not to drink and drive. Later that day, however, Autry drove his vehicle into the desert, where he drank beer with his friend Richard Bonato and Bonato's friend, Lester Lonian. The three then went to Autry's aunt's home, where they drank more beer. When they decided to go to Los Angeles, Autry continued driving. He stopped en route to buy a case of beer, some of which Autry drank as he drove.

Driving at 70 to 80 miles per hour, Autry was swerving and skidding by the time his vehicle reached the transition from Interstate 15 to Interstate 10. Lonian later testified that he asked Autry to slow down, but Autry told him to shut up. Bonato said he asked Autry to let him drive; he, too, was told to shut up. When Autry almost hit another car, he stopped at the side of the freeway. Bonato's request to drive was now supported by Lonian's "Yeah . . . let him drive, . . . you are buzzing." Autry said, "I've got it under control." He pulled back on Interstate 10, and his two passengers continued asking him to slow down. He responded by telling them to "kick back and shut up."

Autry missed a freeway turn near downtown Los Angeles. Exiting, he ran a red light; a truck nearly broadsided Autry's vehicle. When his passengers again asked that Bonato be allowed to drive, Autry said, "Later." Going southbound on the Long Beach Freeway (now at 80 to 85 miles per hour), Autry vehemently refused to let Bonato drive. Finally, Bonato joined Lonian in the back seat and fastened his seat belt.

About two minutes before the crash that resulted in the present legal case, Autry almost hit Carolyn Fraser's vehicle as he moved into her lane. Fraser later testified that when she drove into the lane behind Autry, she could see a warning sign truck in the freeway median displaying a flashing arrow to direct traffic to the right due to construction in the roadway ahead. In Autry's vehicle, Bonato also saw the warning sign truck. The truck and flashing arrow sign were entirely on the median and did not block the fast lane of the freeway; the actual lane closure was a mile ahead. Bonato warned Autry to move right, but there was no opening in the lane to Autry's right. Since Autry was moving faster than the car in front of him, he moved to the left instead of the right, onto the median strip.

Antonio Fernandez and Amando Rentoria, both highway construction workers, stood at the back of the warning sign truck, between the truck and the center divider. Autry's vehicle hit the warning sign truck and the two men. Subsequently, Autry's vehicle overturned and landed facing the opposite direction. Rentoria died immediately, and Fernandez died later in the hospital. Bonato suffered severe back and internal injuries, while Lonian had head and back injuries.

Autry got out of his vehicle, moved some beer cans into a cooler, shook the lifeless Rentoria, and "told the unconscious Fernandez to get up and show he was alright." Highway Patrol officers arrested Autry and, since he was bleeding, took him to a hospital, where his blood alcohol test showed a level of .22 percent. When told at the hospital that he was under arrest for killing two people, he responded, "F--- 'em. They shouldn't have been out there in the first place."

Trial Court Decisions

At a jury trial, Autry's defense argument was that MCM Construction, a private highway contractor, should have taken more precautions to protect its workers. Specifically, the defendant claimed that the contractor should have provided a truck-mounted attenuator to follow the workers and act as a cushion to absorb the impact of any errant vehicle that might threaten the workers. The defendant pointed out that the California Department of Transportation (CALTRANS) required such protection for its highway workers.

There was dispute at trial as to whether the CALTRANS requirement for an attenuator applied to contractors doing work for CALTRANS. There was also dispute as to whether the CALTRANS requirement established a safety standard for the industry. There was, however, no dispute over the fact that MCM Construction had no such equipment. Moreover, although a defendant's expert testified that such an attenuator would have saved Fernandez and Rentoria, a prosecution expert said Autry would have driven in front of the attenuator and the result would have been the same.

In an additional point of defense, Autry's experts argued the warning sign truck was too near a curve and beyond the overpass, making it difficult to see from a distance. Other motorists testified they were able to see the sign in time to respond appropriately.

The jury convicted Autry of two counts of second-degree murder for the deaths of the highway workers and two counts of causing bodily injury while driving with a blood alcohol level over the legal limit of .08 percent for the injuries to his passengers. The trial court sentenced Autry to the state prison for three years plus two concurrent 15-year-to-life terms.

Appellate Court Decisions

On appeal, Autry made three claims of error:

  1. the evidence [was] insufficient to support the convictions of second degree murder;
  2. the court abused its discretion under Evidence Code section 352 in admitting evidence of statements of appellant's probation officers; and
  3. the court erred regarding jury instructions on appellant's defense of superseding cause.
In addition, the Attorney General raised a question concerning the amount of custody credit Autry received.

The appellate court addressed these claims individually.

Sufficiency of Evidence

To find Autry guilty of second-degree murder, the evidence against him had to prove "implied malice." Referring to People v. Watson ((1991) 30 Cal.3d 290, 179 Cal. Rptr. 43, 637 P.2d 279), the appellate court noted a conviction for implied malice in the case of a drunk driver requires showing that:

. . . the defendant deliberately performed an act, the natural consequences of which are dangerous to life, knowing that the conduct endangers the life of another but acting with conscious disregard for that risk of life.

In People v. Talamantes ((1992) 11 Cal.App. 4th 968, 973, 14 Cal.Rptr.2d 311) the court established four factors necessary to uphold a second-degree murder conviction against a drunk driver. They were:

  1. blood alcohol level above the .08 percent legal limit;
  2. a predrinking intent to drive;
  3. knowledge of the hazards of driving while intoxicated; and
  4. highly dangerous driving.

The court concluded the evidence against Autry met all four factors. As to the first factor, Autry's blood alcohol level was .22 percent. Moreover, he drove several places after he started drinking and even drank while he drove, thus showing evidence of the second factor--intent to drive.

Concerning the third factor, Autry claimed he lacked knowledge of the dangers of driving and drinking. In response, the court mentioned Autry's four prior convictions for drunk driving. Although Autry chose to serve jail time rather than participate in educational programs after those convictions, the court felt the jury could infer that the convictions alone would communicate the dangers of drunk driving to the defendant. Moreover, Autry did enter a residential program at How House, where participants heard horror stories about the consequences of drinking and driving. Finally, Bonato and Lonian gave Autry frequent warnings that he was driving dangerously during the time just before the fatal crash. These warnings, the court felt, would certainly make up for any insufficiency in the defendant's previous formal education concerning the dangers of drunk driving. Thus, the court concluded there was evidence to support the third factor.

Addressing the fourth factor, the court mentioned that Autry was speeding and swerving out of control. He also pulled over on the freeway after one near crash and later inadvertently exited the freeway. Finally, his passengers reported three near collisions before the fatal crash. All these actions constituted dangerous driving.

Making an additional argument, Autry pointed out that the warning sign truck was on a curve and beyond the underpass; therefore, he claimed it was not readily visible to motorists. Considering the testimony of other drivers that they could easily see the warning arrow, the court concluded it was not inappropriate for the jury to reject this argument.

The court concluded, "Substantial evidence supports the verdict."

Admissibility of Probation Officer Evidence

Autry claimed the trial court should have excluded testimony from two probation officers because of the potential for prejudicing the jury by making them aware Autry was on probation. Moreover, the probation was not for drunk driving; therefore, Autrey argued, it was not related to this case.

The trial court allowed the testimony, informing the jury that the probation was not related to drunk driving but not disclosing the cause of the probation (theft offense). One probation officer testified to having visited Autry's home in October of 1992 and to warning him not to drink and drive since "the consequence might be that he would kill another person or be killed himself and then leave his children without a parent at all." The other probation officer gave testimony that on the morning of the fatal crash he advised Autry not to drink and drive.

The appellate court concluded the value of this testimony in proving that the defendant knew of the dangers of drinking and driving outweighed the danger of prejudice and decided the trial court had not erred in admitting the testimony.

Instructions on Intervening Cause

The defendant argued that the failure of MCM Construction to provide a crash attenuator truck to protect its workers was an intervening cause. As an intervening cause, that failure was represented as the sole cause of the crash, thus relieving the defendant of responsibility for the deaths. To support this defense, the defendant requested the court submit certain instructions to the jury regarding intervening cause. On the other hand, if the lack of an attenuator was judged to be a concurrent cause (one that contributed to the injury or death but was not the sole cause of that injury or death), then the defendant would remain fully responsible for the deaths.

The appellate court agreed with the trial court that the defendant's evidence did not show the lack of an attenuator was an intervening cause or the sole cause of this crash. The courts felt that the absence of an attenuator did not, in itself, cause the deaths; that absence only failed to break the chain of events caused by the defendant's behavior. As a matter of law, the "defendant cannot complain because no force intervened to save him from the natural consequences of his criminal act." Therefore, the trial court was not deemed to be in error when it gave general instructions on cause rather than the defendant's specific instructions on intervening cause.

In an additional complaint against the jury instructions, the defendant said that giving the jury CALJIC No. 3.41 (1992 rev.) "improperly lessened the prosecution's burden of proof, because it require[d] the defendant's conduct to be (merely) a 'substantial factor' in bringing about the deaths, rather than requiring that the defendant's conduct cause the deaths as a direct, natural, and probable consequence." CALJIC No. 3.41 states:

If you find that the defendant's conduct was a cause of injuries or deaths to other persons, then it is no defense that the conduct of some other person, even the injured or deceased person, contributed to the injuries or deaths.

The appellate court felt that instructions on CALJIC No. 3.41, given in conjunction with the other jury instructions, were appropriate for this case.

Custody Credit

The Attorney General reviewed the computation of Autry's custody credit for time served and advised that the defendant should receive credit for one less day. The trial court granted 646 days credit for actual custody and 323 days of conduct credit. When the Attorney General refigured the defendant's conduct credit under the California Penal Code's formula, the resulting figure was 322 days. The trial court's computational error resulted in Autry's receiving a sentence that was unauthorized by law. Correcting this error, the appellate court revised the judgment against Autry to allow for one day less of conduct credit. In all other aspects, the appellate court affirmed the trial court's decisions.

[The People v. Kenneth Autry (Cal.App. 2 Dist. 1995) can be found in West Publishing Vol. 43 California Reporter, 2d Series, 135]

Copyright © 1997 by TranSafety, Inc.


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