Filed 6/18/24 P. v. Dungan CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

opinions not certified for publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOHN RODERICK DUNGAN,

 Defendant and Appellant.

2d Crim. No. B323384

(Super. Ct. No. 19CR10611)

(Santa Barbara County)

ORDER MODIFYING

OPINION AND DENYING

REHEARING

[NO CHANGE IN

JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on May 30, 2024,

be modified as follows:

On page 3, the last two sentences of the third full 

paragraph are modified to read:

At the time of the collision the seatbelt was not 

buckled. There was evidence he did not take evasive 

action to avoid the collision.

There is no change in judgment.
2

Appellant’s petition for rehearing is denied.

YEGAN, Acting P. J. BALTODANO, J. CODY, J.
Filed 5/30/24 P. v. Dungan CA2/6 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOHN RODERICK DUNGAN,

 Defendant and Appellant.

2d Crim. No. B323384

(Super. Ct. No. 19CR10611)

(Santa Barbara County)

John Roderick Dungan drove into oncoming traffic at over a 

hundred miles per hour, killing the driver of an oncoming car and 

her two young children. Dungan appeals from the judgment after 

the jury acquitted him of first degree murder and convicted him 

of three counts of second degree murder (Pen. Code, §§ 187, subd. 

(a), 189, subd. (b)).

1 The trial court sentenced him to 45 years to 

life in prison. 

Dungan contends there was insufficient evidence of malice

to support convictions for murder. He also contends the trial 

1 Undesignated statutory references are to the Penal Code. 
2

court erred when it precluded argument regarding a lesser 

related offense; limited psychiatric testimony; and admitted 

opinions of investigating officers, a text message, and 

photographs of letters. He additionally contends cumulative 

error mandates reversal. We correct errors in the abstract of 

judgment. In all other respects, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Traffic collision

On October 25, 2019, Dungan drove his Camaro in Santa 

Barbara toward State Route 154 (SR-154). At 4:31 p.m., Dungan

texted a friend, Ricardo F., asking him to send a message to a 

woman Dungan knew in junior high school. He wanted to 

express his feelings for her and to say, “I just wanted to let you 

know that way too late rather than regret never having told you 

it ever.” One minute later, Dungan texted, “Have a nice life 

Ricardo, thanks for being a good friend.” 

Dungan entered westbound SR-154, a winding mountain 

road. At 4:33 p.m., he texted his parents: “Even though you may 

have disappointed me sometimes, I still love you both.” 

As SR-154 approached Cold Spring Bridge, it narrowed to

one lane in each direction divided by a double yellow line. The 

posted speed limit was 55 miles per hour (mph). Signs advised to 

not pass, and that a narrow bridge was ahead. The bridge has 

one lane in each direction, with no shoulder. 

Carrie Purcell was driving westbound on SR-154 at about 

60 or 65 mph. There were no cars in front of her in her lane. She 

saw Dungan pass her on the left in the oncoming traffic lane 

going 90 mph or more. All the Camaro’s tires were in the 

eastbound lane. She could see Dungan was heading toward 

oncoming cars and there would be a collision. She stopped right 
3

before the bridge to avoid being involved in the collision. 

Nicholas Goddard was driving an SUV eastbound on 

SR-154 near the bridge directly behind a Chevrolet Volt. He saw 

the Camaro fully in the lane on the wrong side of the road driving 

in a straight line into the path of the Volt. 

At 4:45 p.m., Dungan hit the Volt head-on.2 The driver was 

Vanessa Bley. Her children, Lucienne, age 2, and Desmond, age 

4 months, were in the back seat, strapped into car seats. The 

Volt burst into flames. All three victims died of blunt force 

trauma.

Examination of the Camaro and its event data recorder

showed Dungan’s speed at 111 mph five seconds before impact. 

He accelerated to 119 mph at the time of impact with full throttle 

application. He unbuckled his seat belt right before the collision. 

There was no evidence he took evasive action to avoid the 

collision. 

Evidence of suicidal intent

The prosecution presented evidence that Dungan 

intentionally caused the collision based on his statements 

suggesting he was suicidal. Eight months before the collision, he 

sent a text message to friends that stated in part: “I’m too 

sensitive for this reality with a cursed blessing/blessed curse that 

makes life in this body on this planet not worth living. Enough is 

enough. If noone [sic] can/will help me solve this problem or kill 

me, then I will try as hard as I can to solve it myself and either 

succeed or die. . . . If I don’t make it, I apologize to everyone I did 

not get to say goodbye to.” Based on this text, Dungan was 

2 Dungan presented evidence that the collision was “offset” 

in that the center to center-left of each vehicle took the brunt of 

the collision. 
4

placed on a mental health welfare hold. 

On unknown dates, Dungan sent texts to Ricardo F. that 

expressed “suicidal ideation.” The day before the collision, 

Dungan asked his mother to tell the cat he loved him. On the 

morning of the collision, Dungan texted his parents, “I hope one 

day after I’m gone you realize what you did wrong and 

understand that I loved you.” That afternoon, Dungan’s mother 

found a note on the dashboard of her vehicle that expressed his 

innocence in a criminal case pending against him. It continued, 

“I am too sensitive for this reality and I am done [a]llowing an 

unjust justice system to push me around and bully me. [¶] I love 

you all, [¶] Goodbye [¶] – John Dungan.” 

Dungan’s mother texted a photograph of the note to the 

mental health facility where he was residing. When a mandated 

reporter at the facility received the text, she called 911 due to a 

“potential risk” of suicide. 

After the collision, police searched Dungan’s journals. The 

final entry, dated the day of the collision, said, “I did alright.” It 

ended with the word “Goodbye.” None of his other journal entries 

said “goodbye.” 

Three days after the collision, photographs of several 

letters purportedly authored by Dungan were anonymously 

dropped off at the California Highway Patrol (CHP) office. Some 

of the letters thanked individuals for being Dungan’s friend or for 

being “part of my life.” Several of the letters asked the recipients 

to “accept this gold” as a symbol of Dungan’s gratitude, or had 

Post-it notes stating “Put 1 oz gold in here.” 

DISCUSSION

Evidence of malice

Dungan contends the evidence did not establish either 
5

express or implied malice. We disagree.

We “ ‘ “review the whole record in the light most favorable 

to the judgment below to determine whether it discloses 

substantial evidence—that is, evidence which is reasonable, 

credible, and of solid value—such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable 

doubt.” [Citation.]’ [Citations.] ‘Substantial evidence includes 

circumstantial evidence and any reasonable inferences drawn 

from that evidence.’ ” (People v. Clark (2011) 52 Cal.4th 856, 942-

943.) The substantial evidence test also applies to the intent 

element of the crime. (Id. at pp. 945-946.)

Murder requires express or implied malice. (§ 188, subd. 

(a).) “Malice is express when there is manifested a deliberate 

intention to unlawfully take away the life of a fellow creature.” 

(§ 188, subd. (a)(1).) “Murder is committed with implied malice 

when ‘the killing is proximately caused by “ ‘an act, the natural 

consequences of which are dangerous to life, which act was 

deliberately performed by a person who knows that his conduct 

endangers the life of another and who acts with conscious 

disregard for life.’ ” ’ ” (People v. Reyes (2023) 14 Cal.5th 981, 

988.) “Implied malice requires that the defendant act with a 

wanton disregard of the high probability of death,” including a 

subjective awareness of such risk. (People v. Moore (2010) 187 

Cal.App.4th 937, 941.) The jury may infer malice “ ‘from the 

defendant’s acts and the circumstances of the crime.’ ” (People v. 

Avila (2009) 46 Cal.4th 680, 701.)

In our view, Dungan drove with conscious disregard for life. 

On a windy day at almost 5:00 p.m., he drove on a winding 

mountain road while texting. He disregarded the “do not pass” 

sign, crossed over the double yellow lines, drove with his entire 
6

vehicle in the opposing traffic lane, and accelerated to 119 mph 

directly toward the victims’ vehicle without taking evasive action.

Because it “takes no leap of logic for the jury to conclude” that 

Dungan “acted with wanton disregard of the near certainty that 

someone would be killed” (People v. Moore, supra, 187 

Cal.App.4th at pp. 941-942), we conclude substantial evidence 

supports the murder convictions. 

In addition to Dungan’s life-threatening driving, there was 

substantial evidence of implied malice based on the theory that 

Dungan intended to commit suicide by intentionally causing a

collision. Dungan suggests alternative interpretations for some 

of his statements, e.g., that he intended to see Ricardo F. again 

and was just being “dramatic.” “But it is the jury’s province, in a 

homicide case, to . . . probe defendant’s state of mind, and 

determine whether or not a defendant killed with implied 

malice.” (In re Ferrell (2023) 14 Cal.5th 593, 607.) “ ‘[T]he 

judgment may not be reversed simply because the circumstances 

might also reasonably be reconciled with a contrary finding.’ ” 

(People v. Avila, supra, 46 Cal.4th at p. 703.)

Lesser related offense

Dungan contends the trial court abused its discretion when 

it precluded jury argument that he was guilty of only gross 

vehicular manslaughter. Again, we disagree.

Dungan requested a jury instruction for the uncharged 

lesser related offense of gross vehicular manslaughter (CALCRIM 

No. 592). The prosecution objected and the court denied the 

request. Dungan does not challenge this ruling on appeal. 

Neither vehicular manslaughter (§ 192, subd. (c)(2)) nor 

gross vehicular manslaughter (§ 192, subd. (c)(1)) is a lesser 

included offense of murder because neither the elements of 
7

murder nor the accusatory pleading required driving a vehicle. 

(People v. Bettasso (2020) 49 Cal.App.5th 1050, 1057-1059; People 

v. Wolfe (2018) 20 Cal.App.5th 673, 685-686.) Without the 

consent of the prosecutor, the court had no obligation to instruct 

on a lesser related offense such as gross vehicular manslaughter. 

(People v. Birks (1998) 19 Cal.4th 108, 136.) 

Dungan told the court he intended to argue to the jury that 

“there are other crimes short of murder that . . . may apply . . . 

that are less than murder but don’t require an outright 

acquittal.” The court ruled that Dungan “could not discuss the 

elements of any type of manslaughter or discuss manslaughter as

a charge but that it was permissible to talk about that the 

prosecution has filed this as a murder or nothing situation and 

. . . acquittal on murder is not the same in this situation as lack 

of criminal culpability.” 

Without mentioning manslaughter, Dungan’s counsel

argued that the jury was “stuck with” the prosecution’s “murder 

or nothing” charging decision, and that finding Dungan not guilty 

of murder would not mean it was an accident, or excusable 

homicide, or that he was innocent, or that “a horrible crime 

wasn’t committed.”

The trial court did not abuse its broad discretion to limit 

the scope of closing arguments. (§ 1044; People v. Simon (2016) 1 

Cal.5th 98, 147-148.) Because the distinctions between homicide 

offenses are technical, we disagree with Dungan’s contention that 

he was entitled to argue gross vehicular manslaughter as a 

“matter[] of common knowledge.” (People v. Farmer (1989) 47 

Cal.3d 888, 922.) It would have confused the jurors’ task to argue 

that Dungan may have committed a specific crime that was 

neither charged nor defined. Instead, counsel was “allowed to 
8

‘make his central point and to argue in general terms’ ” that 

Dungan might be guilty of some offense less than murder. 

(Simon, at p. 147.) 

The jury was instructed that an unlawful killing, 

“depending on the circumstances,” is “either murder or 

manslaughter,” and the jury must decide “what specific crime 

was committed.” (CALCRIM No. 500 (modified).) But the 

instructions did not define manslaughter. The prosecution told 

the trial court that leaving in the reference to manslaughter was 

“an oversight.” In light of this instruction, Dungan contends that 

allowing him to argue manslaughter would have enlightened 

rather than confused the jurors. But the trial court did not abuse 

its discretion in concluding otherwise.

Psychiatric testimony

Dungan contends the trial court erred when it precluded

psychiatric testimony regarding lack of suicidal ideation at the 

time of the collision. 

After Dungan’s arrest, forensic psychologist Trayci Dahl, 

Ph.D., interviewed Dungan and gave him psychological tests. 

Dungan sought to call Dr. Dahl to testify he “was not suffering 

from a clinical diagnosis of clinical depression with suicidal 

ideation” at the time of the collision. The court ruled that “to

testify that Mr. Dungan was not suicidal on the day of the 

incident or at the moment of the collision is essentially saying 

that the defendant did not have the intent to kill. . . . Mr. 

Dungan’s intent at the time in question is an issue that must be 

left in the capable hands of the trier of fact.”

The court nonetheless ruled that Dr. Dahl could testify that 

Dungan “suffers from a mental illness and . . . what symptoms 

that mental illness manifests.” The defense chose not to call Dr. 
9

Dahl. Instead, they called a psychiatrist, Dr. Adham Malaty. He

concluded Dungan was not suicidal when he evaluated him nine 

days after the collision. Dr. Malaty was unable to determine if

the collision was a suicide attempt. But because “there were a lot 

of red flags,” Dr. Malaty recommended discharging Dungan “back 

to jail with suicide precautions.” 

“Evidence of mental disease, mental defect, or mental 

disorder is admissible solely on the issue of whether or not the 

accused actually formed a required specific intent, premeditated, 

deliberated, or harbored malice aforethought.” (§ 28, subd. (a), 

italics added.) But “[n]othing in [section 28] shall limit a court’s 

discretion, pursuant to the Evidence Code, to exclude psychiatric 

or psychological evidence on whether the accused had a mental 

disease, mental defect, or mental disorder at the time of the 

alleged offense.” (§ 28, subd. (d); see Evid. Code, § 352.) 

Section 29 prohibits expert testimony “about a defendant’s 

mental illness, mental disorder, or mental defect . . . as to 

whether the defendant had or did not have the required mental 

states, which include, but are not limited to, purpose, intent, 

knowledge, or malice aforethought, for the crimes charged.” It 

“prohibits an expert witness from giving an opinion about the 

ultimate fact whether a defendant had the required mental state 

for conviction of a crime.” (People v. Ochoa (1998) 19 Cal.4th 353, 

431.)

There is authority that supports the exclusion of evidence 

here. In People v. Nunn (1996) 50 Cal.App.4th 1357, 1364, an 

expert’s “opinion that appellant had fired impulsively was 

inadmissible since it was a conclusion concerning appellant’s 

intent at the time of the shooting.” (Id. at p. 1362.) The 

psychologist could testify that Nunn’s “condition could result in 
10

appellant acting impulsively under certain particular 

circumstances,” but not “that appellant had acted impulsively, 

that is, without the intent to kill, that is, without express malice 

aforethought.” (Id. at p. 1365, italics added.) And in People v. 

Pearson (2013) 56 Cal.4th 393, the court excluded evidence that 

before shooting and killing two of his former coworkers, the

defendant “ ‘thought’ about committing a ‘101 California’ ”

(referring to a recent workplace mass murder) because it

“essentially asked the expert to provide an opinion about the

required mental state (premeditation and deliberation) and thus

was improper under section 29.” (Id. at pp. 442, 444.)

But other authority would allow Dr. Dahl’s testimony. In 

People v. Cortes (2011) 192 Cal.App.4th 873, the expert should 

have been permitted to testify that the defendant “ ‘entered a 

dissociative state after he began to stab [the victim],’ ” from 

which the jury could infer he lacked malice, premeditation, or 

deliberation. (Id. at pp. 909, 912, italics omitted.) And in People 

v. Herrera (2016) 247 Cal.App.4th 467, a divided panel of this 

division concluded that the trial court improperly excluded expert 

evidence that the defendant suffered from a peritraumatic 

dissociative state at the time of the offense, which deprived him 

of evidence that “he might not have deliberately premeditated the 

infliction of [21] wounds on the victim.” (Id. at pp. 475, 478.)

We need not decide if limiting Dr. Dahl’s testimony here 

was error because it was harmless. Regardless of any evidence of 

suicidal ideation, we conclude that implied malice was 

established by overwhelming evidence. Dungan drove on the 

wrong side of a winding narrow mountain road and accelerated to 

119 mph directly into the path of an oncoming vehicle evincing 

“wanton disregard of the near certainty that someone would be 
11

killed.” (People v. Moore, supra, 187 Cal.App.4th at p. 941.) It is 

not “reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of the 

error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) And under 

Chapman v. California (1967) 386 U.S. 18, 24, we conclude the 

error was harmless beyond a reasonable doubt. (See People v. 

Halvorsen (2007) 42 Cal.4th 379, 408-409 [§ 29 violation 

harmless under Watson and Chapman].)

Opinion testimony

Dungan contends the trial court prejudicially abused its 

discretion when it permitted two law enforcement officers to 

testify the collision was intentional. We are not persuaded.

Sheriff’s Detective Michael Carlson was assigned to the 

coroner’s bureau for nine years and investigated over a thousand 

deaths. Based on his investigation, Carlson testified: “[I]f there 

would have been no indication of the suspect in this case having 

suicidal ideation and making the statements that he wanted to 

collide with someone on 154”

3 then he “would be dealing with an

accident. But in this case it changes the manner of death 

completely when there’s an intentional act that occurs.”

CHP Detective Jeffrey Clements testified as the lead 

investigator. Based on his investigation and interviews,

Clements testified: “The highway patrol defines a traffic collision 

as an unintended event that causes damage or injury. So in this 

case it was my belief that this was intentional.” Clements

clarified that he was not giving an opinion of “the state of mind of 

3 The court overruled the objection that the testimony was 

speculation. Dungan correctly notes that there was no other 

evidence that Dungan said he wanted to collide with someone on 

SR-154. 
12

the defendant.” The trial court overruled objections based on 

improper opinion testimony and relevancy. 

Expert testimony is admissible on a subject “sufficiently 

beyond common experience” if based on matter “of a type that 

reasonably may be relied upon by an expert.” (Evid. Code, § 801, 

subds. (a) & (b).) A police officer trained and experienced in 

traffic accident investigations may testify regarding the cause of 

an accident. (People v. Singh (1995) 37 Cal.App.4th 1343, 1362-

1364, 1377-1378 [opinion that accidents were staged]; Enos v. 

Montoya (1958) 158 Cal.App.2d 394, 399 [opinion of what speed 

reasonable].) An expert may testify to an opinion that “embraces

the ultimate issue to be decided by the trier of fact.” (Evid. Code, 

§ 805; People v. Spence (2012) 212 Cal.App.4th 478, 509.) We 

review admission of such evidence for abuse of discretion. (People 

v. Waidla (2000) 22 Ca1.4th 690, 717-718.) 

We conclude the trial court did not abuse its discretion in 

admitting these opinions. The detectives’ testimony that the 

collision was intentional was reasonably based upon their review 

of the facts. Moreover, admission of this testimony was not 

prejudicial because it is not reasonably probable a result more 

favorable to Dungan would have been reached in the absence of 

this evidence. (People v. Bowker (1988) 203 Cal.App.3d 385, 395.)

Text message

Dungan also contends the trial court abused its discretion 

when it admitted a text message Dungan sent eight months 

before the collision stating he was “too sensitive for this reality” 

and that life was “not worth living.”

We conclude there was no abuse of discretion here. (People 

v. Waidla, supra, 22 Cal.4th at p. 717.) The text message was 

relevant to whether Dungan intended suicide at the time of the 
13

collision and no more prejudicial than Dungan’s other texts and 

letters. The age of the text message affects its weight, not its 

admissibility. (People v. Scott (2011) 52 Cal.4th 452, 490 [habit of 

staying out late several months before crime]; People v. Taylor

(2001) 26 Cal.4th 1155, 1172-1173 [statement of intent three 

years earlier].) 

Letters

Dungan contends that photographs of letters, envelopes, 

and Post-it notes anonymously provided to the CHP four days 

after the accident were insufficiently authenticated, irrelevant, 

and unduly prejudicial. We disagree.

The letters were signed “John Dungan” or “John.” An 

investigating officer testified the letters were all on the same type 

of lined paper, with similar handwriting, and used the same type 

of pen. The officer properly opined that the letters had the same 

handwriting as the journal entries he had seen. (Evid. Code, 

§ 1416.) In addition, Dungan’s journal entry the day before the 

collision mentioned wanting to deliver a letter to the addressee of 

one of the letters. The letter was thus “authenticated by evidence 

that the writing refers to or states matters that are unlikely to be 

known to anyone other than the person who is claimed by the 

proponent of the evidence to be the author of the writing.” (Evid. 

Code, § 1421.)

We conclude the trial court properly exercised its discretion 

to determine the preliminary fact of sufficiency of the evidence of 

authenticity of the writings. (Evid. Code, § 403, subd. (a)(3); 

People v. Lucas (1995) 12 Cal.4th 415, 466.) And the jury 

determined the authenticity of the letters and was properly 

instructed to consider Dungan’s oral or written statements only if 

it decided he made them. (CALCRIM No. 358: see Evid. Code, 
14

§ 1417.) “ ‘The fact conflicting inferences can be drawn regarding 

authenticity goes to the document’s weight as evidence, not its 

admissibility.’ ” (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) 

Dungan also contends the letters were irrelevant because 

they did not prove an intent to commit suicide. We disagree 

because the jury could reasonably conclude that the letters 

showed suicidal intent. They thanked several people, including 

childhood friends, for their friendship. One letter said, “I am 

satisfied with your chapter in my life story.” Another said, “I 

wish I had been a better person for you in this [life].” A 

reasonable inference is that Dungan was saying goodbye to 

individuals who had been meaningful in his life, and bequeathing 

them his gold. “The existence of [a] possible conflicting inference 

goes to the weight rather than the admissibility of the [evidence], 

because conflicting inferences are for the jury to resolve.” (People 

v. Garcia (1988) 201 Cal.App.3d 324, 329.)

Cumulative error

Dungan contends that cumulative errors constitute 

prejudicial error. The claim is rejected because “ ‘ “defendant 

received due process and a fair trial.’ ” ” (People v. Rivas (2013) 

214 Cal.App.4th 1410, 1436.)

Abstract of judgment

We agree with the parties that section 1 of the abstract of 

judgment must be corrected to include the offenses of which 

Dungan was convicted (counts 1, 2, and 3: Pen. Code, § 187, subd. 

(a)), the year they were committed (2019), the date of conviction 

(August 2, 2022), that the convictions were by jury, and the 

sentences are consecutive; and in section 8 to delete the 

inapplicable references to sections 667, subdivisions (b)-(i) and

1170.12 (Three Strikes Law).
15

DISPOSITION

We order the abstract of judgment to be corrected as stated 

above. (§ 1260.) The trial court shall prepare an amended 

abstract of judgment and send a certified copy to the Department 

of Corrections and Rehabilitation. In all other respects, the 

judgment is affirmed.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

YEGAN, Acting P. J.

CODY, J.
Thomas R. Adams, Judge

Superior Court County of Santa Barbara

______________________________

Victor J. Morse, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Steven D. Matthews and Michael J. Wise, 

Deputy Attorneys General, for Plaintiff and Respondent.