F 8.11

F 8.11 n1 May Intoxication Negate Implied Malice? (PC 188)

In a second degree murder prosecution based upon drunk driving, CJ 4.21 must be given informing the jury that the implied malice element of the offense may be negated by the defendant’s intoxication. (See generally, FORECITE F 4.21; see also FORECITE F 8.47b.)

F 8.11 n2 Improper To Pinpoint Evidence Of Intoxication (PC 188).

In People v. Fugatt DEPUBLISHED (91) 229 CA3d 240 [280 CR 37], the court instructed the jury that if they found “beyond a reasonable doubt that the defendant willfully consumed alcoholic beverages to the point of intoxication, knowing he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, he reasonably may be held to exhibit a conscious disregard of the safety of others.”

The court of appeal held that this instruction improperly commented upon the evidence and therefore — even though the trial court could have commented on the evidence to make the same point — it was improper to instruct the jury in such a manner. (Fugatt at 249; see also FORECITE PG III(B) re: improper prosecution pinpoint instructions.)

F 8.11 n3 Implied Malice: Requirement Of Base Antisocial Motive.

Although CALJIC, in reliance upon California Supreme Court cases, has eliminated the “base antisocial motive” from the definition of implied malice, a close review of the cases demonstrates that the California Supreme Court has never expressly deleted this element. Rather, it seems that the elimination of this element stems from an erroneous citation by People v. Washington (65) 62 C2d 777, 780 [484 CR 442] to People v. Thomas (53) 41 C2d 470, 475 [261 P2d 1].) In this passage, Washington referred to Thomas as support for its statement that “the essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill.” However, page 475 of the Thomas opinion contains no discussion of implied malice. The concurring opinion of Chief Justice Traynor to which the Washington court evidently referred states that implied malice is shown when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (Thomas 41 C2d at 480.) Accordingly, Washington incorrectly assumed, without any consideration of the issue, that Thomas eliminated the “base, antisocial motive” as an element of implied malice. Moreover, none of the cases which subsequently cited Washington for this proposition expressly considered the issue.

In re Christian S. (94) 7 C4th 768 [30 CR2d 33], cited Justice Traynor’s concurrence in Thomas for the proposition that implied malice requires “a base anti-social motive”. [Emphasis by Christian S. court.] Moreover, Christian S. relied upon the existence of such a motive to conclude that imperfect self-defense may negate implied malice. (Christian S., 7 C4th at 780, fn 4.) This supports the notion that a “base anti-social motive” is an element of implied malice upon which the jury should be instructed.

In sum, despite the removal of the base, antisocial motive element from the definition of implied malice by CALJIC and the California Supreme Court, the issue has never been directly resolved. (But see People v. Curtis (94) 30 CA4th 1337, 1352-53 [37 CR2d 304], holding that “base, anti-social motive” is not an element of implied malice unless the defendant places it in issue by raising an affirmative defense.) [Christopher H. Wing, a FORECITE subscriber who identified this issue, has written a thorough brief which traces the roots of the issue back to Washington and Thomas. A copy of this brief is available to FORECITE subscribers. Ask for Brief Bank # B-609.]

F 8.11 n4 Implied Malice: Negation By Imperfect Self-Defense (PC 188).

See FORECITE F 5.17d.

F 8.11 n5 Implied Malice: “Wanton Disregard” Requirement.

In People v. Curtis (94) 30 CA4th 1337, 1353-54 [37 CR2d 304], the court held that it was not error to define implied malice in terms of “conscious” rather than “wanton” disregard for human life.

F 8.11 n6 Malice: No Unanimity As To Theory Of Malice.

People v. Brown (95) 35 CA4th 708, 714 [41 CR2d 321] held that the jury need not unanimously agree upon the theory of malice to convict for second-degree murder.

F 8.11 n7 Definition Of Implied Malice.

See People v. Somersall DEPUBLISHED (99) 75 CA4th 657 [89 CR2d 449] for an extensive review of the law of implied malice. [See Opinion Bank # O-256 for a copy of the Somersall opinion.]

F 8.11 n8 Implied Malice: Mother’s Failure To Care For Newborn Child.

Concealing a pregnancy and giving birth alone at home are not acts which in and of themselves give rise to criminal liability. “[T]he parent of a minor child has a duty to furnish necessary clothing, food, shelter and medical attention for his [or her] minor child.” (People v. Burden (77) 72 CA3d 603, 614 [140 CR 282]; see also People v. Heitzman (94) 9 C4th 189, 198 [37 CR2d 236].) However, malice may not be implied merely from the “failure of good judgment.” (People v. Anderson UNPUBLISHED (99) 77 CA4th 368, 381 [91 CR2d 563].) Hence, a mother who gives unassisted birth to a child who dies shortly after birth is not necessarily guilty of murder. (Ibid.) But giving birth without assistance is a lawful act which might produce death if not undertaken with due caution and circumspection, thus giving rise to involuntary manslaughter liability. (People v. Chavez (47) 77 CA2d 621, 628 [176 P2d 92].)

[See Opinion Bank # O-260 for a copy of the Anderson opinion.]

F 8.11 n9 Implied Malice: Duty To Instruct.

(See People v. Coddington (2000) 23 C4th 529, 591 [97 CR2d 528] [trial court erred in failing to instruct on implied-malice second degree murder where properly instructed jury could have returned second degree verdict on the theory that defendant acted in a panic and pulled cords around victims’ necks to overcome resistance and stop their screaming].)

F 8.11 n10 Felony Murder And Implied Malice: Mental States Distinguished.

See People v. Calderon (2005) 129 CA4th 1301, 1309 [the mental state for felony murder is not the equivalent of implied malice murder].

F 8.11 n11 Distinction Between Disregard For “Human Safety” vs. “Human Life.”

See People v. Calderon (2005) 129 CA4th 1301, 1310 [there is a subtle but inescapable difference between disregard for the safety of persons and disregard for human life].

F 8.11a

Implied Malice: Requirement Of “High Probability Of Death”

(PC 188)

*Modify 5th ¶ of CJ 8.11 to read as follows [added language is capitalized]:

“2. The natural consequences of the act are dangerous to human life, OR, PHRASED IN A DIFFERENT WAY, THERE WAS A HIGH PROBABILITY THAT THE ACT WOULD RESULT IN DEATH.

Points and Authorities

In People v. Watson (81) 30 C3d 290, 300 [179 CR 43], the court stated that the “high probability of death” standard is another way of saying that the natural and probable consequences of the act are dangerous to human life. (See also People v. Dellinger (89) 49 C3d 1212, 1217-18 [264 CR 841]; People v. Patterson (89) 49 C3d 615, 626-27, 640-41 [262 CR 195] [high probability standard necessary for second degree felony murder because that is the standard for implied malice]; Perkins & Boyce, Crim. Law (3d Ed. 1982) pp. 60, 859, 860 [“grave risk of death”, strong likelihood”, “obvious likelihood”]; 2 LaFave and Scott, Crim. Law (1986) § 7.4, p. 200 [“very high degree of risk”]; see also People v. Acosta DEPUBLISHED (91) 232 CA3d 1375 [284 CR 117].)

In People v. Nieto-Benitez (92) 4 C4th 91, 111 [13 CR2d 864], the court held that the two linguistic formulations — “an act, the natural consequences of which are dangerous to life” and “an act [committed] with a high probability that it will result in death” — are equivalent and are intended to embody the same standard. Hence, the court concluded that it is not error to omit the “high probability” language. (Ibid; People v. Curtis (94) 30 CA4th 1337, 1353-54 [37 CR2d 304].) However, the court’s conclusion that the two standards are equivalent is questionable. Certainly an act may be dangerous to life without raising a high probability of death. Hence, the failure to instruct on high probability implicates the defendant’s federal constitutional rights to trial by jury and due process (6th and 14th Amendments) by removing an element of the charge from the jury’s consideration. Thus, despite California’s rejection of this argument, the issue may be litigated in federal court if properly preserved in state court. (See generally, FORECITE PG VII(C).)

Moreover, if the two standards are equivalent, then there is no reason why the above instruction should not be given, at least, upon request. Although Nieto-Benitez declined to recommend modification of the current CALJIC instructions, it would not be error to instruct the jury on both the natural consequences and high probability standards since the terms are “equivalent.” For example, the following language from Watson could properly be added after the “danger-to-life” language: “… or phrased in a different way, there is a high probability that the act will result in death.” (See People v. Watson (81) 30 C3d 290, 300, [179 CR 43].) Also, as suggested by the concurring opinion of Mosk (with Kennard), the failure to give the high probability standard could be the predicate for reversible error in a case with a different factual situation than that presented in Nieto-Benitez. “The clearest language describing the nature of the physical act required to establish implied malice is Watson’s formulation that the act must have contained a high probability that death would result. The legislature has approved this standard (PC 192), and we have never retreated from it. The trial courts would be on safe ground to recite it to the jury.” (Nieto-Benitez 4 C4th at 115, Mosk and Kennard, concurring.)

NOTES

[See Brief Bank # B-506 for a copy of the amicus briefing in Nieto-Benitez.]

F 8.11b

No Aider and Abetter Liability Unless Perpetrator Harbored Express Malice

(PC 188)

*Add to CJ 8.11:

In order to prove a particular defendant guilty as an aider and abettor to the crime of [attempted] murder, each of the following must be proven beyond a reasonable doubt: [¶] 1. [The perpetrator] [insert perpetrator’s name] [personally killed] [committed a direct but ineffectual act toward killing] another human being. [¶] 2. [The perpetrator] [insert perpetrator’s name] committed [the killing] [the ineffectual act] with malice aforethought; namely, a specific intent to kill unlawfully another human being; and, [¶] 3. __________ [insert name of defendant accused of aiding and abetting the perpetrator] had knowledge of the perpetrator’s intent to kill unlawfully; and, [¶] 4. With the intent or purpose of committing, encouraging, or facilitating the commission of murder, by act or advice, aided, promoted, advised and encouraged or instigated the commission of the [attempted] murder.

Points and Authorities

When a defendant is charged with attempted murder or completed malice murder as an aider and abettor the perpetrator (actual killer) must have the requisite express malice (intent to kill) and the jury must be so instructed. (People v. Patterson (89) 209 CA3d 610, 614-15 [257 CR 407].) Moreover, the aider and abettor must act (1) with knowledge of the perpetrator’s “criminal purpose” (i.e., intent to kill unlawfully) and (2) with an intent or purpose to aid and abet the commission of the offense (i.e., the intended murder). (See also, Patterson at 616-17.) (On use of “advised and” in last line see FORECITE F 3.01b.)

Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]

NOTES

This instruction is applicable when murder or attempted murder was the target offense. (See People v. Jones (89) 207 CA3d 1090, 1095 [255 CR 464].) If there is another target offense then the aider and abettor need only have intended to facilitate the commission of that offense. (Ibid; see also, People v. Croy (85) 41 C3d 1, 12 fn 5 [221 CR 592]; CJ 3.02.) However, he must still have acted with knowledge of the perpetrator’s intent to murder or the murder must be a natural and probable consequence of the target crime. (Ibid; see also FORECITE F 3.02, Note 1 et seq.)

The logic of Patterson would seem to be equally applicable to implied malice murder.

F 8.11c

Express Malice Cannot Be Presumed From Commission Of A Dangerous Crime

(PC 188)

*Add to CJ 8.11:

Specific intent to kill unlawfully is a necessary element of attempted murder and the prosecution must prove beyond a reasonable doubt that the defendant harbored such an intent. Intent to kill unlawfully cannot be inferred solely from the commission of another dangerous crime such as __________ (insert appropriate crime, e.g., assault with a deadly weapon, arson, etc.). In addition to proving that defendant committed __________, the prosecution must present other independent evidence which, directly or by solid inference, proves beyond a reasonable doubt that defendant intended to kill.

Points and Authorities

Specific intent to kill is a necessary element of attempted murder. (People v. Collie (81) 30 C3d 43, 62 [177 CR 458].) Therefore, it must be proved and cannot be inferred merely from the commission of another dangerous act but “must be affirmatively proved by direct evidence or by solid inference.” (People v. Belton (80) 105 CA3d 376, 381 [164 CR 340]; see also People v. Snyder (40) 15 C2d 706, 708 [104 P2d 639]; People v. Maciel (25) 71 CA 213, 217-18 [234 P 877]; People v. Miller (35) 2 C2d 527, 532-33 [42 P2d 308].)

F 8.11d

Implied Malice Requires Actual Knowledge Of Danger

(PC 188)

*Modify CJ 8.11 (element 3) to provide as follows [added language is capitalized]:

3. The act was deliberately performed with ACTUAL, SUBJECTIVE knowledge of the danger to, and with conscious disregard for, human life.

Points and Authorities

Implied malice requires knowledge that the defendant’s conduct endangers the life of another coupled with circumstances manifesting a conscious disregard for life. (People v. Whitfield (94) 7 C4th 437, 450-51 [27 CR2d 858].) This is a subjective standard. (People v. Watson (81) 30 C3d 290, 296-97 [179 CR 43].) Accordingly, the defendant must act with “actual knowledge” of life endangerment and conscious disregard for life. (See People v. Cameron (94) 30 CA4th 591, 600 [36 CR2d 656].)

F 8.11e

Malice: Adaption To Include Fetus Murder

*Modify paragraphs 2 and 6 of CJ 8.11 to provide as follows [added language is capitalized]:

“Malice” may be either express or implied.

[Malice is express when there is manifested an intention unlawfully to kill a human being [OR] [FETUS].]

[Malice is implied when:

1. The killing resulted from an intentional act,

2. The natural consequences of the act are dangerous to human life, and

3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life [THE LIFE OF A FETUS].]

Points and Authorities

People v. Dennis (98) 17 C4th 468, 513-15 [71 CR2d 680] recognized that the standard CALJIC instructions on the definition of malice and second-degree murder (CJ 8.11, CJ 8.30, CJ 8.31) are not adapted to apply to the killing of a fetus which is a distinct offense under PC 187(a). Dennis held that the error was waived for failure to request modification of the instruction at trial and further held that there was no evidence that the jury would have misunderstood the instructions. Nevertheless, Dennis implicitly recognizes the obvious fact that the standard CJ instructions should be modified when the murder of a fetus is involved.

F 8.11f

Implied Malice:

Conscious Disregard — Benefit Of Reasonable Doubt Should Be Given To Defendant

*Add to CJ 8.11:

If you have a reasonable doubt as to whether the act was deliberately performed with actual, subjective knowledge of the danger to and with conscious disregard for human life you must give the defendant the benefit of that doubt and find [him] [her] guilty of involuntary manslaughter rather than murder.

Points and Authorities

When the defense theory focuses upon the absence of actual subjective knowledge and conscious disregard as required for implied malice, the defense should have a right to an instruction which relates this defense theory to the prosecution’s burden of proof beyond a reasonable doubt.

As with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as identity (CJ 2.91), alibi (CJ 4.50), unconsciousness (CJ 4.31) or self-defense (CJ 5.15) the jury should be instructed that the defendant need only leave the jury with a reasonable doubt as to the subjective knowledge and conscious disregard element of malice if that is the focus of the defense theory. (See People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [approving CJ 2.91 and CJ 4.50 — which require acquittal if there is a reasonable doubt as to the defense]; see also EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135] and FORECITE PG III(A).)

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]

F 8.11g

Murder: Murder Of Fetus — Defendant Must Have

Actual Knowledge Of The Existence Of The Fetus

(PC 187)

*Add to CJ 8.11:

(See FORECITE F 8.10c.)