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People v. Benitez12/3/1992
ural consequences" are dangerous to life. A former version of CALJIC No. 8.31 included the requirement of a "high probability" of death. (People v. Dellinger, supra, 49 Cal. 3d at p. 1217, citing CALJIC No. 8.31 (1983 rev.) (4th ed. pocket pt.).) The State Public Defender, as amicus curiae, urges us to instruct the lower courts that, in a retrial of the present case and in future cases, the high-probability requirement should be reinstated in the instructions defining second degree murder.
We conclude, however, that the present CALJIC No. 8.31 correctly distills the applicable case law. (See People v. Patterson, supra, 49 Cal. 3d at p. 626 [the physical component of implied malice "is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life' " (quoting People v. Watson, supra, 30 Cal. 3d at p. 300)]; People v. Sedeno, supra, 10 Cal. 3d at p. 719; People v. Phillips, supra, 64 Cal. 2d at p. 587.) As noted earlier, we indicated in People v. Watson that the two linguistic formulations--"an act, the natural consequences of which are dangerous to life" and "an act [committed] with a high probability that it will result in death" are equivalent and are intended to embody the same standard. (People v. Watson, supra, 30 Cal. 3d at p. 300; see also People v. Dellinger, supra, 49 Cal. 3d at p. 1219 [" Watson thus made it abundantly clear that the two definitions of implied malice which evolved in the aforementioned cases articulated one and the same standard."].) Accordingly, we find no error in the trial court's use of CALJIC No. 8.31 and decline amicus curiae's invitation to recommend modification of the instruction. (See People v. Dellinger, supra, 49 Cal. 3d at p. 1222 ["We approve of this newly revised malice instruction [referring to CALJIC Nos. 8.11 and 8.31]."].)
Nor did the court respond improperly to the jury's inquiry regarding CALJIC No. 8.31. The court admonished the jury that the word "act" had to be understood in the context of the various requirements of CALJIC No. 8.31. The jury therefore was made aware that it was obligated to determine whether: (1) defendant's drawing his loaded firearm, while facing the victim
at point-blank range, was an intentional act; (2) the natural consequences of that act were dangerous to human life; and (3) the act was performed with knowledge of the danger to, and conscious disregard for, human life. The court's response did not misdirect the jury or relieve the prosecution of its burden of proving that defendant acted with malice.
IV. CONCLUSION
We reverse the judgment of the Court of Appeal and remand the matter to that court with directions to affirm the judgment of the trial court.
Lucas, C. J., Panelli, J. Arabian, J., and Baxter, J., concurred.
Disposition
We reverse the judgment of the Court of Appeal and remand the matter to that court with directions to affirm the judgment of the trial court.
I concur generally with the majority opinion. I write separately because I fear that in a different case the jury may misconstrue the standard instructions on second degree murder on a theory of implied malice. (CALJIC Nos. 8.11 & 8.31 (5th ed. 1988 bound vol.).)
Penal Code sections 187 and 188 define murder and malice. Subdivision (a) of section 187 provides that "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought." "Such malice," continues s
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