By Shaun Cunningham, 3L
Staff Writer
Milad Moulayi is the first minor in Orange County (possibly the first in the nation) to be charged and convicted of second-degree murder for a DUI death. In California, second-degree murder carries a sentence of 15 years to life in prison.
California is one of few states where deaths resulting from drunk driving are charged as murder. Prior to Watson, 1981, DUI deaths were not charged or prosecuted as manslaughter. In Watson, 637 P.2d 279, the California Supreme Court held that second-degree “murder may be charged when the facts surrounding a vehicular homicide support a finding of implied malice. [Specifically,] malice may be implied when a person, knowing that his conduct will endanger the life of another, nonetheless acts deliberately with conscious disregard for life.” The Court reasoned that one who willfully “consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle… may be held to exhibit a conscious disregard of the safety of others.”
In her dissent, Chief Justice Bird argued that the majority “fail to demonstrate… respondent had a conscious disregard for life. Can a conscious disregard for life be established by the fact that several hours before the accident respondent drove his car to a bar? The majority’s reasoning that such an inference may be drawn to support a finding of implied malice will be used to establish second degree murder in every case in which a person drives a car to a bar… or a party, drinks alcohol so that he is under its influence, drives away and is involved in a fatal accident.” Justice Bird’s slippery slope argument accurately describes contemporary California law, subsequent cases have expanded the Watson holding.
Although Milad was 17 when the accident occurred, he was charged as an adult. Additionally, Milad has never been in any trouble with alcohol and the law. He has no prior DUI record.
However, the DA contended that Milad “should be convicted of second-degree murder because he knew that driving under the influence was dangerous to human life but he decided to do so anyway.” The DA used evidence of a juvenile judge revoking Milad’s learners permit the day before the accident and telling him that “driving carries an intense amount of responsibility.” The prosecutor also elicited testimony of friends asking Milad not to drive the night of the accident. However, if anyone that night had an real understanding of the danger of driving under the influence, then Milad would not have driven under the influence.
When I met Milad, the first thing that struck me is the warmth of his presence. Although his body is wrapped in chains and we were separated by glass, I could feel the magnetism of his personality. When we spoke of MacKenzie (the 16 year old victim), he expressed sorrow and remorse. MacKenzie is described by her friends and family as an outspoken and inspiring young woman. Although MacKenzie left us, Milad lives with the reality of her loss every moment of every day.
Though no one can ever change the events of the night of August of 2008, we can work to ensure that no one else makes the mistake Milad Moulayi made. Milad spoke at length about sharing his experience with other youths.
Judge Singer will sentenced Milad on October 2nd, 2009 in Dept. 36 of the Santa Ana Courthouse. What happened to Milad is one of the greatest injustices to occur in Orange County in years. The way the case was presented, the jury could only choose between convicting Milad for murder or letting him go (there was no lesser included offense of manslaughter). Most drunk driving related deaths charged as second-degree murder use implied malice as the theory of awareness of the danger of driving under the influence, which is established through prior convictions of drunk driving. Part of a DUI conviction includes mandatory alcohol education. As for a murder-2 prosecution, evidence of the class content is presented to the jury. Milad had no prior trouble with alcohol and the law.
The District Attorney, by overcharging in this case, might be wasting an opportunity to help the community. Moreover, it costs $40,000-50,000 a year to incarcerate Milad. The longer Milad sits in a cell, the longer our children and fellow citizens face the tragic dangers of kids mixing alcohol and cars because that is one less person out there telling his story. We must remember that many children are clueless when it comes to alcohol, but they will listen to someone their same age. Banishing Milad for murder will not bring MacKenzie back. Milad (now 18) wants to share his experience to ensure that no more families lose their MacKenzie Frazees. Empathy is a much better deterrent than fear. If even one person experiences Milad’s message, the death of MacKenzie Frazee will not be in vain.
In the words of Brandy Lara, MacKenzie’s best friend, “MacKenzie would have wanted everyone to learn and gain knowledge from this situation. Milad lost a good friend too, and he shouldn’t lose his life. He made a mistake, and the community could learn from it. The kids in our schools need to hear Milad’s story so they don’t make the same mistake.” Through Milad’s efforts Mackenzie’s untimely passing can serve to help our community and do what MacKenzie did best, inspire and touch the lives of those around her. We must do our best to prevent the same thing from happening to other youths, and that does not mean throwing Milad away.
