 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Benitez12/3/1992
ulting from the accidental discharge of a firearm, even one brandished in violation of section 417, is, at most, manslaughter. In support of this argument, defendant relies on the provisions of section 192, subdivision (b); which define manslaughter to include an "unlawful killing of a human being without malice . . . . . . in the commission of an unlawful act, not amounting to a felony . . .."
Defendant's argument rests on a misinterpretation of section 192, subdivision (b). The statute does not classify all killings resulting from the commission of a misdemeanor as manslaughter. Rather, the statute's threshold provision--ignored by defendant--is that only those unlawful killings committed without malice are defined as manslaughter. (§ 192.) It is well established that a defendant who commits an unlawful killing with malice, but whose underlying offense is classified as a misdemeanor, is not insulated by that classification from liability for murder.
In People v. Hubbard (1923) 64 Cal. App. 27 [220 P. 315], the defendant's pistol discharged during a dispute in which he had attempted to eject the
victim, an intruder, from his residence. The defendant in that case testified that he neither removed the safety device nor pulled the trigger, but instead had waved the pistol in an effort to "bluff" the intruder. He testified further that the weapon fired accidentally during the ensuing fracas. The appellate court reversed a judgment of second degree murder based on the trial court's failure to give a requested instruction regarding the defendant's right to use reasonable force to eject the intruder. The court observed, however, that even if the defendant's underlying act of waving the pistol were found to constitute a violation of the law (a misdemeanor), the unintentional killing still could be murder if the jury determined that the natural consequences of the unlawful act were dangerous to human life. (at pp. 37-38.) In such a situation, malice is implied. (at p. 38.)
In People v. Curry (1961) 192 Cal. App. 2d 664 [13 Cal. Rptr. 596], the defendant initially fired his rifle at a construction crew working in a nearby apartment building. The police were notified and, as they encircled the defendant's residence, he fired his rifle again, killing one of the officers. In affirming the defendant's conviction of second degree murder on an implied-malice theory, the appellate court rejected the defendant's challenge to the following jury instruction: " 'Murder may be committed without a specific intent to take human life. To be so committed, however, the defendant must intend to commit acts that are likely to cause death and that show a conscious disregard for human life. Thus if the natural consequences of an unlawful act be dangerous to human life, then an unintentional killing proximately caused by such act will be murder in the second degree, even though the unlawful act amounted to no more than a misdemeanor. In such case, the malice aforethought is implied from the wanton recklessness.' " ( at pp. 674-675.) The appellate court upheld the instruction as "a correct statement of the law." ( at p. 675.)
More recently, in People v. Benson (1989) 210 Cal. App. 3d 1223 [259 Cal. Rptr. 9], the defendant entered the bedroom of an acquaintance, brandishing a pistol and demanding that the acquaintance return defendant's makeup bag. An argument ensued, the gun fired, and the acquaintance died from the resulting gunshot wound. The defendant argued at trial that the gun fired accidentally when the victim's sister charged into the bedroom. In affirming defendant's conviction of second
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 California DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|