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People v. Benitez12/3/1992
examples ( at p. 479) from four cases decided in the district Courts of Appeal: striking the victim with a knife; firing a shotgun at trespassers; shooting with intent to wound; and, in a variation on the classic illustration of "depraved heart" second degree murder, firing shots at random into a crowded dance hall. (See, e.g., People v. Roberts (1992) 2 Cal. 4th 271, 317 [6 Cal. Rptr. 2d 276, 826 P.2d 274].)
In 1983 the Legislature adopted the "high probability of death/natural consequences" standard this court set forth in Watson for implied malice.
(Stats. 1983, ch. 937, § 1, p. 3387, amending § 192.) Therefore, even if I agreed with amicus curiae the State Public Defender that the "high probability of death" language requires a graver act than the "natural consequences dangerous to life" language, and believed that the Legislature's original "abandoned and malignant heart" formulation also set a high standard for the necessary physical act, my view would be purely academic, for the Legislature has decided that the two phrases are synonymous.
But as the State Public Defender observed at oral argument, the fact that lawyers, Judges, and others versed in the law may recognize Watson 's equivalence does not mean that a lay juror necessarily will be able to do so. A problem could well arise in some cases because the language now set forth in CALJIC Nos. 8.11 and 8.31 is technical and abstract and hence less readily understood than the "high probability of death" language. The instructions might therefore cloud a juror's ability to discern whether the facts warrant a murder conviction--especially because the jury would be faced with the certainty that death had occurred.
In determining whether an instruction is erroneous or not, we ascertain whether there is a reasonable likelihood that the jury misconstrued the words in the context of an individual case. (People v. Clair (1992) 2 Cal. 4th 629, 662-663, 688 [7 Cal. Rptr. 2d 564, 828 P.2d 705].) Though there was no such likelihood here, in another case a reasonable likelihood may arise. Consider a situation in which, in a remote part of a rural county, a hunter, for no apparent reason, fired a bullet into the air at a 45-degree angle, causing a human death on the ground some distance away. The act was illegal because it "could result in injury or death" (§ 246.3), and was somewhat dangerous even though performed in a thinly populated area. But let us further hypothesize that death as a result was a freak occurrence: there was uncontested evidence that the bullet was far more likely to strike the ground or a tree than a human being. There was no high probability that the act would result in death; the act's natural consequences were not dangerous to human life. But the "natural consequences dangerous to life" language is vague enough to those unschooled in the nuances of the law of homicide that a lay jury might nevertheless vote to convict the hunter of implied-malice murder. If a reviewing court concluded there was a reasonable likelihood the jury misconstrued the instruction, the judgment of conviction would be reversed.
Under the previous versions of those instructions--which gave the high probability language (CALJIC Nos. 8.11, 8.31 (4th ed. 1979 bound vol.))--
the jury would readily understand the task it faced, for the language was forthright and clear.
To avoid reversals of judgments of conviction that might otherwise be required, I believe we should encourage the trial courts to give the clearest possible exposition of section 188. We have str
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