People v. Acosta

WALLIN, J.

Vincent William Acosta appeals his conviction on three counts of second degree murder ( Penal Code, section 187) and one count of unlawfully driving another's vehicle without consent ( Vehicle Code, section 10851), contending: (1) there was insufficient evidence his conduct was the proximate cause of the deaths; (2) there was insufficient evidence of malice. . . .

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. . . .

Acosta generally drove at speeds between 60 and 90 miles per hour, slowing only when necessary. During several turns, his wheels lost traction. . . . 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.

Menzies Turner, a retired Federal Aviation Administration investigator, testified as an expert and concluded the accident occurred because the Costa Mesa helicopter, the faster of the two aircraft, made a 360-degree turn and closed too rapidly on the Newport Beach helicopter. He opined the Costa Mesa helicopter's pilot violated an FAA regulation prohibiting careless and reckless operation of an aircraft by failing to properly clear the area, not maintaining communication with the Newport Beach helicopter, failing to keep the other aircraft in view at all times, and not changing his altitude. He also testified the Costa Mesa pilot violated another FAA regulation prohibiting operation of one aircraft so close to another as to create a collision hazard.

Turner could not think of any reason for the Costa Mesa helicopter's erratic movement. The maneuver was not a difficult one, and was not affected by the ground activity at the time. He had never heard of a midair collision between two police helicopters involved in tracking a ground pursuit, and had never investigated a midair collision involving helicopters. . . .

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 . . .; People v. Spring. . .). . . .

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.

Proximate cause in criminal cases is determined by ordinary principles of causation. ( People v. Armitage . . .). It is initially a question of fact for the jury to decide. ( People v. Harris . . .). . . .

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, California Criminal Law...), 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. . . .

"Proximate cause" is the term historically used 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 . . . ). 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. That does not mean general guidelines and approaches to analysis cannot be constructed.

The threshold question in examining causation is whether the defendant's act was an "actual cause" of the victim's injury. It is a sine qua non test: But for the defendant's act would the injury have occurred? Unless an act is an actual cause of the injury, it will not be considered a proximate cause. (Perkins & Boyce . . .). . . .

As Perkins and Boyce put it, "Foreseeability' is not a 'test' which can be applied without the use of common sense; it presents one of those problems in which 'we must rely on the common sense of the common man as to common things.' It is employed in the sense of 'appreciable probability.' . . . For the purposes of proximate cause 'an appreciable probability is one which a reasonable man in ordering his conduct in view of his situation and his knowledge and means of knowledge, should, either consciously or unconsciously, take into account in connection with the other facts and probabilities then apparent.'" (Perkins & Boyce . . .).

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 . . . ) 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 . . .). 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. It does not involve the defendant's state of mind, but focuses upon the objective conditions present when he acts. Like numerous other legal definitions, what it means in practice will be determined as case law develops. . . .

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? . . . The analysis ... focuses, as it should, upon the role the defendant's act played in the harm, limiting culpability only where the conduct was de minimis or the result highly extraordinary.

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.

Although an extremely close question, Acosta's conduct was a substantial factor in causing the crash. . . . The only other factor operating at the time was the improper flight pattern of the Costa Mesa pilot. Although Acosta's horrendous driving did not cause the helicopter's improper maneuver, his flight undoubtedly infused excitement and tension into the situation, which can be considered to be a substantial factor. No similar case has held otherwise, although the third party collisions all have involved accidents on the ground.

The result was not highly extraordinary. Although a two-helicopter collision was unknown to expert witness Turner and no reported cases describe one, it was "a possible consequence which reasonably might have been contemplated.'" ( People v. Harris. . . .) Given the emotional dynamics of any police pursuit, there is an "appreciable probability" that one of the pursuers, in the heat of the chase, may act negligently or recklessly to catch the quarry. (Perkins & Boyce. . . . ) That no pursuits have ever before resulted in a helicopter crash or midair collision is more a comment on police flying skill and technology than upon the innate probabilities involved. . . .

[There is no] 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, and the dearth of case law to support a rejection of that finding. Given these circumstances, a finding of proximate cause is appropriate.

[The court proceeded to reverse the conviction for lack of evidence of malice, because there was "no evidence Acosta had a conscious disregard for any risk to the helicopters. Although he stated he knew his conduct was dangerous "to the bone," nothing connected the statement to the aerial surveillance. His knowledge that there were helicopters involved in the pursuit does not suffice. In the absence of more evidence, no reasonable juror could find a conscious disregard for a risk which is barely objectively cognizable."]


CROSBY, J. Concurring and Dissenting.

Whether the defendant may be held criminally culpable for the tragic deaths in this case is the key issue before us. Justice Wallin says yes, but not for murder. . . . I disagree with [him] because the law does not assign blame to an otherwise blameworthy actor when neither the intervening negligent conduct nor the risk of harm was foreseeable. ( Pappert v. San Diego Gas & Electric Company. . . .)

Or, as Justice Cardozo put it, "We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." ( Palsgraf v. Long Island Railroad Company. . . .) The occupants of these helicopters were surely not "within the range of apprehension" of a fleeing criminal on the ground.

To be sure, defendant represented a threat to everyone traveling the same roads and would have been responsible for any injury directly or indirectly caused by his actions in those environs; but to extend that responsibility to persons in the air, whose role was merely to observe his movements, a simple enough task in far speedier helicopters, defies common sense. It was perfectly foreseeable that someone would be hurt on the ground via some sort of causal chain connecting to defendant's conduct; the opposite is true of the airborne observers. They were not in the zone of danger in this case by any stretch of the imagination, and the manner and circumstances of the collision could hardly have reasonably been foreseen. Indeed, the lead opinion admits no similar accident has ever occurred anywhere according to our own research, as well as the trial expert. Although less remote than a dispatcher suffering a coronary, perhaps, this was a "highly extraordinary result" by any measure and, properly viewed, beyond the long arm of the criminal law.