Can a driver who kills another while driving under the influence of alcohol or drugs be convicted of second degree murder if the driver acted with implied malice?

One who kills another while driving under the influence of alcohol or drugs may be convicted of second degree murder if the driver acted with implied malice. (People v. Watson (1981) 30 Cal.3d 290, 294, 296-297.) "Malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.]" (Id. at p. 296.) "[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved . . . . [Citation.]" (Id. at pp. 296-297, italics added.)

People v. Johnson (1994) 30 Cal.App.4th 286 rejected an argument similar to the one made here, i.e., that the defendant's prior convictions were not "`substantially relevant to prove his actual [subjective] knowledge of the great risk to human life from driving under the influence'" if "there was no evidence presented . . . [he] actually attended [a program in which he received detailed information about the special risks to others associated with driving while intoxicated.]" (Id. at p. 290.) "[A]ppellant has failed to establish that evidence of previous drunk driving convictions alone (in the absence of proof of participation in a drinking driver program in association with those convictions) is inadmissible to establish that he or she subjectively appreciated those risks." (Id. at p. 291.)