People v. Benitez12/3/1992
89) 49 Cal. 3d 1212, 1217-1222 [264 Cal. Rptr. 841, 783 P.2d 200].) Initially, the controlling decisions upheld a jury instruction that relied on the statutory definition of implied malice, permitting the jury to find malice if the killing were done with "an abandoned and malignant heart." (See, e.g., People v. Thomas (1953) 41 Cal. 2d 470, 480 [261 P.2d 1] (conc. opn. of Traynor, J.).) Subsequent decisions determined, however, that such an instruction was too cryptic. (See, e.g., People v. Sedeno, supra, 10 Cal. 3d at pp. 722-723; People v. Phillips (1966) 64 Cal. 2d 574, 587 [51 Cal. Rptr. 225, 414 P.2d 353].) In People v. Phillips, supra, we observed that an instruction which relies on the term "abandoned and malignant heart" invites confusion and unguided speculation, for it "could lead the jury to equate the malignant heart with an evil Disposition or a despicable character; the jury, then, in a close case, may convict because it believes the defendant a 'bad man.' " (64 Cal. 2d at p. 587, fn. omitted.)
Two lines of decisions developed, reflecting judicial attempts to "translate this amorphous anatomical characterization of implied malice into a tangible standard a jury can apply." (People v. Protopappas (1988) 201 Cal. App. 3d 152, 162-163 [246 Cal. Rptr. 915]; see also People v. Dellinger, supra, 49 Cal. 3d at p. 1218.) One strand held that malice could be implied where "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." (People v. Thomas, supra, 41 Cal. 2d at p. 480 (conc. opn. of Traynor, J.); see also People v. Poddar (1974) 10 Cal. 3d 750, 756-757 [111 Cal. Rptr. 910, 518 P.2d 342]; People v. Conley, supra, 64 Cal. 2d at p. 321; People v. Washington (1965) 62 Cal. 2d 777 [44 Cal. Rptr. 442, 402 P.2d 130].) The alternate strand held that malice could be implied where the killing was proximately caused by " 'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.' " (People v. Phillips, supra, 64 Cal. 2d at p. 587; People v. Sedeno, supra, 10 Cal. 3d at p. 719.)
In People v. Watson (1981) 30 Cal. 3d 290 [179 Cal. Rptr. 43, 637 P.2d 279], we observed that the language employed in defining implied malice in the two strands of cases was substantively similar. ( at p. 300.) We therefore concluded that second degree murder with implied malice has been committed "when a person does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . . [Citations.] 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. [Citation.]" (Ibid., italics added, internal quotation marks deleted.)
Thus, we held in Watson that the two definitions of impl
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