Return to CALJIC Part 5-8 – Contents
F 8.31 n1 Intoxication May Negate Implied Malice.
See FORECITE F 8.47b.
F 8.31 n2 Implied Malice Cross-Reference.
See FORECITE F 8.11 generally for additional issues regarding implied malice.
F 8.31 n3 Implied Malice Theory Must Be Limited To The Perpetrator.
In cases involving theories of both aiding and abetting and implied malice, there is a danger that the implied malice instruction (CJ 8.31) may allow a conviction of an accomplice without a finding of all the requisite elements of aiding and abetting. This is so because the jury may find under CJ 8.31 that the accomplice’s alleged acts of aiding and abetting constituted implied malice even though the accomplice was not the actual killer. [See Brief Bank # B-671 for additional briefing on this issue.]
F 8.31 n4 Improper To Instruct That Implied Malice May Be Inferred From Defendant’s Willful Consumption Of Alcohol With Knowledge That He/She Would Be Driving.
See Brief Bank # B-847 on this issue.
F 8.31 n5 Implied Malice: Subjective Belief — Applicability To Death Of Fetus.
(See FORECITE F 8.10c.)
F 8.31 n7 Felony Murder And Implied Malice: Mental States Distinguished.
See FORECITE F 8.11 n10.
F 8.31 n8 Distinction Between Disregard For Human Safety vs. Human Life.
See FORECITE F 8.11 n11.
F 8.31 n6 Duress To Negate Implied Malice.
See FORECITE F 4.40 n12.
Second Degree Murder: High Probability Of Death
*Modify ¶ 3 of CJ 8.31 to read as follows [added material 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.
[Given in People v. Dado (2001) San Bernardino County Superior Court # FBA 04789.]
Points and Authorities
In People v. Watson (81) 30 C3d 290, 296-97, 300 [179 CR 43], the court held that the “high probability of death” standard is required to show implied malice. (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, 859-60 [“grave risk of death”, strong likelihood”, “obvious likelihood”]; 2 LaFave and Scott, Crim. Law (1986) § 7.4, p. 200 [“very high degree of risk”].)
In sum, the implied malice instruction should be modified as set forth above. (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.) 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.)
Moreover, 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.)
[See Brief Bank # B-506 for the amicus briefing in Nieto-Benitez.]
Homicide: Causation. See FORECITE F 8.55a.
Modification When Crime Involves Fetal Victim
*Modify CJ 8.31 in paragraphs which include “human being(s)” as follows:
(See FORECITE F 5.00b.)