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F 8.51 n1 Involuntary Manslaughter: Unlawful Act Must Be Dangerous Under The Circumstances.
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 8.51 was amended to include the definition of an unlawful killing previously identified in FORECITE [unlawful act which must be dangerous under the circumstances of its commission].
F 8.51a
Murder And Manslaughter Distinguished:
Application Of Manslaughter To Dangerous Acts Whether Lawful Or Unlawful
*Modify first paragraph of CJ 8.51 to provide as follows [deleted language is between <<>>]:
There are many acts which <<are lawful but nevertheless>> endanger human life.
Points and Authorities
When a death results from the commission of an act which is “dangerous to human life,” it is the actor’s mental state that determines the extent of criminal liability. The crime is second degree murder if the defendant acted with “actual knowledge” of life endangerment and conscious disregard for life. (See People v. Cameron (94) 30 CA4th 591, 600 [36 CR2d 656].) This is a subjective standard. (People v. Watson (81) 30 C3d 290, 296-97 [179 CR 43].) On the other hand, the crime is involuntary manslaughter if the defendant acted “without due caution and circumspection” or, in other words, with gross negligence. (PC 192(b).) This is an objective standard based on the reasonable person concept. (See People v. Humphrey (96) 13 C4th 1073, 1083 [56 CR2d 142].)
The CJ instructions on these concepts are not models of clarity. Implied malice is defined as an act which “was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” (CJ 8.11 and CJ 8.31.) On the other hand, according to CJ 8.46, gross negligence (lack of due caution …) requires, inter alia, a negligent act which is “contrary to a proper regard for human life.” It is doubtful that the jurors could readily glean the essential “subjective-objective” distinction between murder and manslaughter from these instructions alone.
In this context CJ 8.51 (¶ 2) is of critical importance because it expressly explains to the jury that the crucial distinction between murder and manslaughter is whether the defendant “realized the risk and acted in total disregard of the danger to human life….” However, CJ 8.51 erroneously limits this essential principle language to “lawful acts.” Because unlawful as well as lawful acts may be utilized to prove implied malice (see People v. Nieto-Benitez (92) 4 C4th 91, 111 [13 CR2d 864]), CJ 8.51 should be modified as set forth above to assure that the jury understands that any act, whether lawful or unlawful, which is relied upon to sustain the murder charge must be committed with the requisite awareness of the risk to human life. [See Brief Bank # B-758 for additional briefing on this issue.]
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 FORECITE PG VII(C).]
F 8.51b
Improper Theory of Murder
*Modify CJ 8.51, ¶ 1, Sentence 1 to provide as follows:
If you find all of the elements of second degree murder based on the commission or attempted commission of the crime of ____, upon which I have previously instructed you, then the killing is murder.
Points and Authorities
The first sentence of the first paragraph of CJ 8.51 as it currently stands suggests to the jury that the crime of murder is committed if death is caused “while committing a felony which is dangerous to human life.” This is erroneous and misleading because the felony predicate to second degree felony murder must be “inherently dangerous” (see CJ 8.51 5th ed.) and more importantly the jury must find a specific intent to commit a discrete felony which the trial court has determined to be inherently dangerous as a matter of law. (See People v. Patterson (89) 49 C3d 615, 626-27, 640-41 [262 CR 195]; see also CJ 8.32.) Hence, CJ 8.51 should be revised as set forth above to avoid the danger that the jury will rely on CJ 8.51 as a separate theory to find murder without finding the requisite elements of felony murder.
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 FORECITE PG VII(C).]
