People v. Brown (July 16, 2019, C085998) rejected the view that “to be guilty of first degree murder by poison, the administration of poison itself must be willful, deliberate, and premeditated. Rather, it appears the People need only prove that the killing was caused by administration of poison, and that the killing was done with malice. Such a killing is first degree murder as a matter of law.”
However, the California Supreme Court (No. S257631) is now reviewing this question as follows:
(1) Did the trial court err in instructing the jury on the elements of first degree murder by poison (see People v. Steger(1976) 16 Cal.3d 539, 544–546; People v. Mattison(1971) 4 Cal.3d 177,183–184, 186)? (2) Was any such instructional error prejudicial?
The applicable portion of the appellate opinion in Brown is the following:
Murder by Poison
In two separate but connected arguments, defendant contends no substantial evidence shows that she willfully and deliberately administered poison to the victim in a premeditated manner, and that the trial court should have included these elements in the jury instructions. She reiterates these arguments in her petition for rehearing.
The People argue that defendant forfeited this claim by not objecting or proposing other instructions in the trial court. But if defendant’s claim had merit, it would mean the jury had not been told it had to find all the elements of the offense. “Instructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503.) We reach the merits, but find no error, as we explain.
- The Law
“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) Malice may be express or implied. “Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature. [¶] . . . Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (§ 188, subd. (a)(1) & (2).)
At the time of the killing in this case (November 3, 2014), the first paragraph of section 189 read as follows:
“All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person
outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.” (Stats. 2010, ch. 178, § 51.)
People v. Rodriguez (1998) 66 Cal.App.4th 157 carefully parsed this statute and explained as follows:
“Section 189 establishes three categories of first degree murder. . . . Section 189 . . . first establishes a category of first degree murder consisting of various types of premeditated killings, and specifies certain circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are deemed the equivalent of premeditation. Section 189 secondly establishes a category of first degree felony murders (murders perpetrated during felonies or attempted felonies such as arson, rape, carjacking, etc.). Finally, section 189 establishes a third category consisting of only one item, intentional murder by shooting out of a vehicle with intent to kill.” (People v. Rodriguez, supra, 66 Cal.App.4th at pp. 163-164, italics added, fn. omitted.)
“Thus, if a killing is murder within the meaning of sections 187 and 188, and is by one of the means enumerated in section 189, the use of such means makes the killing first degree murder as a matter of law.” (People v. Mattison (1971) 4 Cal.3d 177, 182.)
In Jennings, supra, 50 Cal.4th 616, defendant argued insufficient evidence supported his poison-murder conviction because the jury found the poison-murder special circumstance not true and because another person, who did not have intent to kill, administered the poison. (Id. at p. 639.) Our Supreme Court distinguished the special circumstance allegation from poison-murder because the special circumstance allegation requires intent to kill, whereas first degree poison-murder only requires implied malice. (Ibid.) It concluded, “even if we were to assume the jury rejected the murder-by-poison special circumstance because it was not persuaded beyond a reasonable doubt that [defendant] intended to kill [the victim] by means of the drugs, the jury still could have reasonably found defendant guilty of first degree murder by poison if it found that either codefendant acted with implied malice. [Citation.]” (Id. at pp. 639-640 (italics added).) This passage of the opinion that we have italicized requires only implied malice to prove poison-murder; it does not require that the administration of poison be undertaken as defendant argues, in a willful, deliberate, and premeditated manner.
In the similar context of lying-in-wait murder which, like poison-murder, is specifically set forth as first degree murder in section 189, we observed, “The Legislature could have concluded that an unlawful killing of a human being with implied malice aforethought (i.e., an unintended killing which results from an intentional act inherently dangerous to human life committed with knowledge of the danger to, and with conscious disregard for, human life [citation] is more deplorable than second degree murder when it is perpetrated by means of lying in wait.” (People v. Laws (1993) 12 Cal.App.4th 786, 793.) And “as defined in section 189, murder perpetrated by means of lying in wait is not the definitional equivalent of premeditated murder. An accused who committed murder perpetrated by means of lying in wait is guilty of first degree murder even if the accused did not have a premeditated intent to kill the victim.” (Ibid.)
Laws held that there is nothing in section 189 that requires lying in wait to have been done with the intent to injure. (Laws, supra, 12 Cal.App.4th at p. 794.) “To impose such a requirement would, in effect, add an additional element to the crime of first degree murder when the murder perpetrated by lying in wait is committed with implied malice. It would require that the killing result from an intentional act, the natural consequences of which are dangerous to human life, deliberately performed with knowledge of the danger to, and with conscious disregard for, human life and performed with the intent to kill or injure. We have no authority to add such an element; imposition of a requirement of independent proof of intent to kill or injure ‘would be a matter for legislative consideration.’ [Citation.] [¶] All that is required of lying in wait is that the perpetrator exhibit a state of mind equivalent to, but not identical to, premeditation and deliberation.” (Id., at pp. 794-795.)
The cases discussed above reject the view that, to be guilty of first degree murder by poison, the administration of poison itself must be willful, deliberate, and premeditated. Rather, it appears the People need only prove that the killing was caused by administration of poison, and that the killing was done with malice. Such a killing is first degree murder as a matter of law.
Defendant’s view to the contrary rests in part on cases involving torture-murder. In People v. Steger (1976) 16 Cal.3d 539, our Supreme Court discussed the justification for the rule requiring that torture be willful, deliberate, and premeditated to support first degree murder. (Id. at pp. 545-547.) The court observed that torture-murder is punished as aggravated murder because “it is the state of mind of the torturer — the cold-blooded intent to inflict pain for person gain or satisfaction — which society condemns. Such a crime is more susceptible to the deterrence of first degree murder sanctions and comparatively more deplorable than lesser categories of murder.” (Id. at p. 546.) In People v. Cook (2006) 39 Cal.4th 566, our Supreme Court summarized the elements of torture-murder as follows: “The elements of torture murder are: (1) acts causing death that involve a high degree of probability of the victim’s death; and (2) a willful, deliberate, and premeditated intent to cause extreme pain or suffering for the purpose of revenge, extortion, persuasion, or another sadistic purpose. [Citing, inter alia, § 189.] The defendant need not have an intent to kill the victim [citation], and the victim need not be aware of the pain. [Citations.]” (Id. at p. 602.) Thus, we agree with defendant that in the context of torture-murder, the People must prove a premeditated intent to inflict extreme and prolonged pain, i.e., to prove that torture (as defined) was used. However, defendant points to no authority explicitly extending this intent requirement to murder by poison, and we have found none.
We decline to extend the requirement merely because the two methods of killing–by torture and by poison–are specifically classified as first degree murder within the same code section. First, as explained above, in Laws we made clear the requirement did not extend to lying in wait, which was also classified as first degree murder by the same statute. Adding a willful, deliberate, and premeditated requirement to the administration of poison is equivalent to adding an intent to injure element to lying-in-wait murder.
Second, we agree with Laws that the Legislature could have concluded that an unlawful killing of a human being by poison, with malice aforethought, was more deplorable than second degree murder.
Third, where a torture-murderer is subject to aggravated punishment due to her state of mind, the cold-blooded intent to inflict pain described in Steger, in the context of poison the defendant is subject to aggravated penalties due to only the method by which the implied malice murder is perpetrated. We thus conclude the court instructed the jury in a manner consistent with the law and did not commit instructional error.
People v. Brown (July 16, 2019, C085998) ___ Cal.App.3d ___ [pp. 12-16]