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People v. Benitez12/3/1992
unsel's argument, adopting instead the prosecutor's proposed answer to the jury's inquiry. The court thus informed the jury: "The word 'intentional' as it is used in CALJIC [No.] 8.31 has no
special or unique legal meaning and should be construed as it would be in everyday language. The word 'act' as it is used in CALJIC [No.] 8.31 refers to an act from which death in fact results. In the instant case the pulling of a handgun in the manner described and/or the shooting of the handgun in the manner described are possible acts for your consideration. There may be others. Whether any such act occurred and whether any such act otherwise meets the requirements of CALJIC [No.] 8.31 is a matter solely for your determination based on the evidence. Please do not construe this proposed explanation of an intentional act to be a comment by the Court on the evidence or a suggestion by the Court on what you should find to be the facts. Please remember that you are the exclusive Judges of the facts and you may disregard any or all of my comments if they do not coincide with your views of the evidence." (The final two sentences were added by the court to the response suggested by the prosecutor.)
Twenty-five minutes after receiving the court's response to its question, the jury returned its verdict finding defendant guilty of second degree murder. The verdict form signed by the foreperson stated: "We the Jury find the Defendant, Martin Nieto Benitez, Guilty of the crime of felony, to wit: Violation of Section 187 of the Penal Code of the State of California (Murder), in the Second Degree. . . ." The jury annotated the verdict form, immediately following the word, "Degree," to include the words, "With Implied (Not Express) Malice." The jury also found true the allegation that defendant had used a firearm in committing the murder. Thereafter, the court denied defendant's motion for new trial pursuant to section 1181, subdivision (5), as well as defendant's motion to modify the verdict to the lesser included offense of involuntary manslaughter, pursuant to section 1181, subdivision (6). The court sentenced defendant to serve a term of 15 years to life in state prison, plus an additional 2 years based on the firearm-use enhancement (§ 12022.5), for a total sentence of 17 years to life.
B. COURT OF APPEAL DECISION
Defendant appealed from the judgment, contending the trial court committed instructional error in informing the jury that a finding of implied malice could be based solely on the intentional act of drawing a firearm. Defendant argued the trial court had ignored the requirement that the act underlying the finding of implied malice be the proximate cause of death. According to defendant, the correct response to the jury's inquiry would have stated that brandishing a firearm in the presence of another person constitutes a misdemeanor, but that a death resulting from such an act is manslaughter, not murder. According to defendant, deliberately firing a handgun could constitute a predicate act supporting a finding of implied malice, but " pulling " the handgun could not.
A majority in the Court of Appeal agreed with defendant, holding that defendant's conviction should be reversed. The Dissenting Justice concluded that defendant's act of brandishing the firearm, when viewed in the context of defendant's overall course of conduct, was sufficient to support a finding of implied malice, and that defendant's conviction should be affirmed.
The People petitioned for review, contending that the Court of Appeal erred in finding instructional error, and asserting that the jury's specific finding of implied malice prop
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