California Train Wreck Case--How Do They Get to Murder?

CourtTV reports that the man whose suicide attempt-gone-bad caused 11 deaths in the big train derailment this week in California could be facing the death penalty.  Prosecutors are still deciding whether to charge him with death specs.  Story . . .  He was attempting to commit suicide by parking his car on train tracks, and then lost his nerve at the last second and bailed.  The train smashed into his car, derailed, and passengers died. 

How do they get to capital murder?  One possibility is First Degree Felony Murder under California Penal Code 189: "All murder . . . which is committed in the perpetration of, or attempt to perpetrate, . . . train wrecking . . . is murder of the first degree." 

This route is may be doubtful.  California Penal Code 218 and 219 deal with train wrecking, so the use of the term in the felony murder statute probably does not  deal with train wrecking in general, divorced from the specific statutory felonies.  However, 218 and 219 apply to train wrecking by fire, which is not what happened in this case.  (218 applies to any person "who unlawfully sets fire to any railroad bridge or trestle, over which any such train, car or engine must pass with the intention of wrecking such train").

A more promising theory is the Special Train Derailment Statute, which has its own death penalty: Cal. Penal Code 219: "Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine and thus derails the same . . . is guilty of a felony and punishable with death or imprisonment in the state prison for life without possibility of parole in cases where any person suffers death as a proximate result thereof . . . ." Evidently there are no cases interpreting the section.

The critical question here is what "with the intention of derailing" means; in Model Penal Code terms, does it mean the defendant's purpose in the sense of subjective goal has to have been derailment, or is the defendant's mere knowledge, awareness of a substantial certainty that the train would derail, enough?  On the evidence as reported in the newspapers, it will be easier to prove knowledge; whether he had the purpose of derailing the train is questionable.

Although there may be a California case giving a clear answer that I [Jack Chin] could not find in a quick search, what I found conflicts about the meaning of the mens rea term "intent" under California law. Compare People v. Osband, 919 P.2d 640, 681 (Cal. 1996) ("To '[i]ntend' means 'to have in mind as a purpose or goal....'" (People v. Balcom (1994) 7 Cal.4th 414, 423, fn. 2, 27 Cal.Rptr.2d 666, 867 P.2d 777") with People v. Smith, 67 Cal.Rptr.2d 604, 613 (Cal. App. 1997) ("'As Professor Perkins puts it: 'Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)."'). 

Other posts on this issue: CrimLaw, DUIBlog, Three Generations. The blogosphere has its doubts about these charges.

There's a federal statute covering similar ground, 18 USC 1992; it has been held not to require a specific intent to derail the train; that derailment is a natural and probable consequence of conduct wilfully performed may be enough. See, e.g., United States v. Alcorn, 329 F.3d 759 (10th Cir. 2003); United States v. Dreding, 547 F.2d 471 (9th Cir. 1976).  However, the language of the federal statute and the California statute is sufficiently different that the federal decisions may not be particularly weighty.

For cases under the predecessor version, see People v. Thompson, 43 P. 748 (Cal. 1896); People v. Thompson, 46 P. 912 (Cal. 1896); for a conviction under a misdemeanor version of the statute holding that no mens rea is required, see People v. Bohmer, 120 Cal. Rptr. 136 (Cal. App. 1975). These and other California court opinions available here.  [Mark Godsey and Jack Chin]