CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, January 29, 2005

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]

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Tracked on Jan 29, 2005 3:34:26 PM


Train Wrecking is a "specific intent" crime. It requires an intent on the part of the perpetrator to derail the train.

If the prosecutors cannot prove that the defendant had this intent, they can still convict him of second degree murder under an "implied malice" theory. Under that theory, they would have to prove that the defendant was subjectively aware of the danger (to human life) of parking a vehicle on the tracks, yet consciously disregarded that danger.

Second degree murder convictions, however, would not make the defendant eligible for the death penalty. But he could recieve 11 consecutive sentences of 15 years to life.

Posted by: Paul | Jan 29, 2005 11:05:21 AM

Great minds think alike (or at least my mind can imitate a great mind).

I posted on this today at CrimLaw:

Posted by: ken | Jan 29, 2005 2:26:33 PM

Thinking about this more, I would be willing to go as far as criminal negligence or involuntary manslaughter. However California code sec. 192 states the following:

" "Gross negligence," as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290."

It is the part about 'implied malice' that troubles me.

Sec. 192(b) speaks of involuntary manslaughter and defines it as
"Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(b)Involuntary-in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle."

Can this be construed as an act committed in the driving of a vehicle?

I also posted this comment on crimlaw blog at

Posted by: Tejas | Jan 29, 2005 3:22:29 PM

In California, the difference between second degree murder (upon a theory of "implied malice") and voluntary manslaughter (upon a theory of "gross negligence") is that the former requires, inter alia, SUBJECTIVE awareness on the part of the defendant that his conduct is dangerous to human life. Voluntary manslaughter does not have this subjective element.

"Implied malice" second degree murder has been characterized as follows: "I know what I am doing is very dangerous to human life, but I don't care, I'm going to do it regardless."

"Implied malice" prosecutions are generally, but not exclusively, based upon scenarios where the defendant has repeatedly been convicted of drunk driving/dui, has attended the dui classes that teach him how dangerous dui is, and then goes out gets drunk, drives and kills someone -- so-called Watson murder.

In the California train wreck case, the prosecution, in order to convict the defendant of second degree murder (on an "implied malice" theory) will have to prove that he was aware of the danger to life of leaving a vehicle parked on the tracks. This should be pretty easy since everyone (assuming they are not "insane") would be aware of this danger. The prosecution would then have to prove that the defendant "consciously" disregarded this danger.

Given the emotion of this case, it is not likely that the jurors will be looking at the technical elements of the crime with a fine-toothed comb. Rather, they are more likely to quickly convict the defendant of 11 counts of second degree murder, and just as quickly, reject his "mental state" defense that is certain to be set forth.

In all likelihood, the jury would be instructed on voluntary manslaughter (based upon "gross negilgence") as a "lesser included offense" to second degree, implied malice, murder.

Posted by: Paul | Jan 29, 2005 5:37:20 PM

The comments about depraved heart murder I think are correct, but that's second degree; what's interesting about this case is the possibility of capital murder. Based on what I know now, if I were the prosecutor, as a legal matter, I would not be certain that capital murder is a nonstarter.

Posted by: Jack | Jan 29, 2005 5:48:26 PM

If it can be shown that the Metrolink train was "used, operated or employed" in "interstate" commerce, the Feds could prosecute under 18 U.S.C. 1992.

Cases construing that section have held that specific intent is not required. In addition, under subdivison (b), the defendant would be subject to the death penalty.

Would be interesting to know if the LA DA has been discussing this issue with the US Attorney in Southern California?

Posted by: Paul | Jan 29, 2005 6:41:54 PM

Is implied malice (second degree) murder a capital felony?

At least (attempted) suicide is not a crime anymore.

Posted by: Tejas | Jan 29, 2005 7:47:45 PM

California state prosecutors have to convict the defendant of at least one count of first degree murder to get death.

Posted by: | Jan 30, 2005 9:20:40 AM

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