People v. Benitez12/3/1992
erly could be based on defendant's retrieval of a lethal weapon, his immediate return to the scene of a heated argument, and his pointing of the loaded revolver at his adversary-- even if the weapon discharged accidentally, and even though the underlying offense committed by defendant (brandishing a firearm) is classified as a misdemeanor. We granted review to address this contention.
III. DISCUSSION
A. SECOND DEGREE MURDER WITH IMPLIED MALICE
Second degree murder is defined as the unlawful killing of a human being with malice aforethought, but without the additional elements--i.e., willfulness, premeditation, and deliberation--that would support a conviction of first degree murder. (§ 187, subd. (a), 189; People v. Jeter (1964) 60 Cal. 2d 671, 675 [36 Cal. Rptr. 323, 388 P.2d 355]; People v. Brust (1957) 47 Cal. 2d 776, 783 [306 P.2d 480]; People v. Thomas (1945) 25 Cal. 2d 880, 903-904 [156 P.2d 7]; 1 Witkin & Epstein, Cal. Criminal Law (2d. ed. 1988) Crimes Against the Person, § 486, pp. 548-549.) In contrast, manslaughter is the unlawful killing of a human being without malice. (§ 192; People v. Forbs (1965) 62 Cal. 2d 847, 852 [44 Cal. Rptr. 753, 402 P.2d 825]; People v. Coad (1986) 181 Cal. App. 3d 1094, 1106 [226 Cal. Rptr. 386]; 1 Witkin & Epstein, supra, § 487, 510, at pp. 549, 576-579.)
Malice, for the purpose of defining murder, may be express or implied. (§ 188.) It is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." (§ 188; People v. Mattison (1971) 4 Cal. 3d 177, 182 [93 Cal. Rptr. 185, 481 P.2d 193].) Implied malice is present "when no considerable provocation appears, or
when the circumstances attending the killing show an abandoned and malignant heart." (§ 188; People v. Mattison, supra.) Thus, the mental state comprising malice is independent of that encompassed within the concepts of willfulness, deliberation, and premeditation. (See § 187-189; People v. Sedeno (1974) 10 Cal. 3d 703, 722 [112 Cal. Rptr. 1, 518 P.2d 913] [disapproved on other grounds in People v. Flannel (1979) 25 Cal. 3d 668, 684-685, fn. 12 (160 Cal. Rptr. 84, 603 P.2d 1)]; People v. Bender (1945) 27 Cal. 2d 164, 180-182 [163 P.2d 8]; People v. Holt (1944) 25 Cal. 2d 59, 70 [153 P.2d 21].) Ill will toward, or hatred of, the victim are not prerequisites of malice as that term is used in the statutory definition of murder. (People v. Sedeno, supra, 10 Cal. 3d 703; People v. Conley (1966) 64 Cal. 2d 310, 321 [49 Cal. Rptr. 815, 411 P.2d 911]; People v. Bender, supra, 27 Cal. 2d at p. 180; 1 Witkin & Epstein, supra, Crimes Against the Person, § 488, pp. 550-552.) When it is established that the killing was the result of an intentional act committed with express or implied malice, no other mental state need be shown in order to establish malice aforethought. (§ 188.)
B. CALJIC NO. 8.31
Translation of the statutory elements of implied malice into plain, understandable jury instructions has undergone an evolutionary process. (See People v. Dellinger (19
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