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People v. Benitez12/3/1992
ection 188, "may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or [as relevant here] when the circumstances attending the killing show an abandoned and malignant heart."
The jury was instructed in the elements of murder. Because the term "abandoned and malignant heart" is opaque to the average juror, the jury was told in accordance with CALJIC Nos. 8.11 and 8.31 that it could return a verdict for second degree murder if it found that defendant had killed the victim and "1. The killing resulted from an intentional act, 2. The natural consequences of the act are dangerous to human life, and 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." As the majority opinion notes, the jury specifically found defendant guilty of second degree murder on the basis of "implied (not express) malice."
In People v. Dellinger (1989) 49 Cal. 3d 1212, 1221-1222 [264 Cal. Rptr. 841, 783 P.2d 200], we approved the language of the current version of
CALJIC Nos. 8.11 and 8.31. We relied on People v. Watson (1981) 30 Cal. 3d 290 [179 Cal. Rptr. 43, 637 P.2d 279] (Watson). Watson declared that implied malice exists "when a person does an act, the natural consequences of which are dangerous to life . . .. Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. (People v. Washington (1965) 62 Cal. 2d 777, 782 [44 Cal. Rptr. 442, 402 P.2d 130].)" ( at p. 300, internal quotation marks omitted.) Watson also stated that "Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence . . ." ( at p. 296), and that ". . . malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. . . ." (ibid., italics deleted).
As the majority opinion observes, by harmonizing the language of a long line of cases Watson culminated a decades-long effort to interpret for the jury section 188's cryptic "abandoned and malignant heart" language. (See People v. Sedeno (1974) 10 Cal. 3d 703, 719, 722-723 [112 Cal. Rptr. 1, 518 P.2d 913]; People v. Poddar (1974) 10 Cal. 3d 750, 757 [111 Cal. Rptr. 910, 518 P.2d 342]; People v. Phillips (1966) 64 Cal. 2d 574, 587 [51 Cal. Rptr. 225, 414 P.2d 353]; People v. Conley (1966) 64 Cal. 2d 310, 321 [49 Cal. Rptr. 815, 411 P.2d 911]; People v. Washington (1965) 62 Cal. 2d 777 [44 Cal. Rptr. 442, 402 P.2d 130]; People v. Thomas (1953) 41 Cal. 2d 470 [261 P.2d 1] (conc. opn. of Traynor, J.).) Justice Traynor's oft-quoted Concurring opinion in Thomas stated that implied malice "is shown when . . . the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death." (41 Cal. 2d at p. 480.) The Concurring opinion provided
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