People v. Benitez12/3/1992
SUPREME COURT OF CALIFORNIA
No. S022789
1992.CA.40130 ; 13 Cal. Rptr. 2d 864; 840 P.2d 969; 4 Cal. 4th 91
Decided: December 3, 1992.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARTIN NIETO BENITEZ, DEFENDANT AND APPELLANT.
Superior Court of Orange County, No. C-76032, Francisco P. Briseno, Judge.
Stephen Gilbert, under appointment by the Supreme Court, for Defendant and Appellant.
Fern M. Laethem, State Public Defender, Philip M. Brooks, Deputy State Public Defender, Ronald Y. Butler, Public Defender (Orange), Carl C. Holmes, Chief Deputy Public Defender, Deborah Ann Kwast, Assistant Public Defender, Thomas Havlena and Denise M. Gragg, Deputy Public Defenders, as Amici Curiae on behalf of Defendant and Appellant.
John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart and George Williamson, Chief Assistant Attorneys General, Harley D. Mayfield and Gary W. Schons, Assistant Attorneys General, Robert M. Foster, Rudolf Corona, Jr., Raquel M. Gonzalez and Nancy L. Palmieri, Deputy Attorneys General, for Plaintiff and Respondent.
Opinion by George, J., with Lucas, C. J., Panelli, Arabian and Baxter, JJ., Concurring. Separate Concurring opinion by Mosk, J., with Kennard, J., Concurring.
George
This case presents the question whether the act of brandishing a firearm may constitute an act sufficiently dangerous to life to support a conviction of second degree murder on an implied malice theory. (Pen. Code, § 187, subd. (a), 189.) The Court of Appeal held that although the act of intentionally firing a handgun could support a finding of malice, the act of intentionally brandishing a handgun, as a matter of law, could not support such a finding. Because the trial court's instructions permitted the jury to base a finding of malice on defendant's intentional brandishing of a firearm, the Court of Appeal concluded that defendant's conviction of second degree murder must be reversed.
We conclude the Court of Appeal erred in reversing defendant's conviction. Although a jury may determine, under the circumstances of a particular case, that a defendant's brandishing of a firearm did not pose a sufficient danger to human life to establish that the defendant acted with malice, in other circumstances the act of brandishing a firearm may be sufficiently dangerous to human life to support a finding of malice. The Court of Appeal erroneously concluded that the trial court in this case instructed the jury that defendant's brandishing of a firearm was sufficient to constitute malice; however, in fact, the trial court did not improperly remove this issue from the consideration of the jury. Instead, the trial court's instructions left it to the jury to determine whether, under all the circumstances of the case, the
natural consequences of defendant's brandishing of the firearm were dangerous to human life, and whether defendant brandished the firearm with knowledge of the danger to, and with conscious disregard for, human life. In our view, the trial court did not err in so instructing the jury, and the Court of Appeal erred in reversing the judgment on this ground.
I. FACTS
On July 8, 1989, in the early evening, defendant was at the intersection of Jeffrey Drive and Lynne Avenue in Anaheim, eating his dinner near a catering truck. Defendant was seated
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