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People v. Benitez12/3/1992
degree murder on a theory of implied malice, the appellate court determined that the defendant's conduct--entering an acquaintance's bedroom while brandishing a loaded handgun-- supported the jury's finding of implied malice. ( at pp. 1228-1231.)
Other authority also supports the People's contention that, where the defendant obtains a lethal weapon and then engages the victim in an
argument, malice may be implied--from the circumstances leading to the killing--to support a conviction of second degree murder. (See, e.g., People v. Rosenkrantz (1988) 198 Cal. App. 3d 1187 [244 Cal. Rptr. 403] [defendant, incensed that his younger brother and an acquaintance had discovered defendant's homosexuality, purchased a semiautomatic weapon went to the acquaintance's residence armed with the weapon, engaged him in an argument, and then fatally shot him]; In re Russell H. (1987) 196 Cal. App. 3d 916 [242 Cal. Rptr. 488] [minor's retrieval of a handgun for the purpose of coercing a drug seller to give him drugs, followed by an argument and discharge of the weapon, resulting in unintentional death of victim]; People v. Summers (1983) 147 Cal. App. 3d 180 [195 Cal. Rptr. 21] [defendant's efforts in locating intended victim, making a special trip to arm himself with a concealed weapon, and then producing the weapon in a threatening fashion in victim's presence provided ample evidence of defendant's implied malice to support second degree murder conviction]; People v. Love (1980) 111 Cal. App. 3d 98 [168 Cal. Rptr. 407] [following argument between defendant and victim over use of victim's vehicle, defendant placed gun near victim's head and, after victim continued to argue, pulled the trigger].)
Thus, the classification of the underlying offense as a misdemeanor does not in itself preclude a resulting death from constituting murder. The circumstance that an act may be punishable as a misdemeanor does not render it incapable of being performed in a manner that, under the circumstances, is sufficiently dangerous to human life to support a jury's finding of implied malice. Even if the act results in a death that is accidental, as defendant contends was the case here, the circumstances surrounding the act may evince implied malice. (See People v. Hubbard, supra, 64 Cal. App. at p. 38; People v. Benson, supra, 210 Cal. App. 3d at pp. 1228-1230; In re Russell H., supra, 196 Cal. App. 3d at pp. 919-923; see also People v. Watson, supra, 30 Cal. 3d at pp. 296-301.)
D. CALJIC NO. 8.31 CORRECTLY STATES THE LAW
Defendant did not challenge the accuracy of CALJIC No. 8.31 at trial. He did not object to the giving of the instruction, nor did he request any
additional instruction explaining that, for the purpose of determining the existence of implied malice, "an act" is one "the natural consequences of which are dangerous to life" only when there is "a high probability that [the act] will result in death." (See People v. Watson, supra, 30 Cal. 3d at p. 300.)
On appeal, however, defendant contends that CALJIC No. 8.31 misstates the law because the instruction omits a requirement that defendant commit the act with a high probability that death will result. (See People v. Watson, supra, 30 Cal. 3d at p. 300.) Defendant argues that such a requirement articulates an elevated standard above that which is incorporated in the current version of CALJIC No. 8.31, which requires an act whose "nat
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