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People v. Benitez12/3/1992
ied malice which had evolved from the foregoing cases actually articulated one and the same standard. (People v. Watson, supra, 30 Cal. 3d at p. 300; People v. Dellinger, supra, 49 Cal. 3d at p. 1219.) As we observed in Dellinger, however, the drafters of the fourth edition of CALJIC, in formulating CALJIC No. 8.11 (an instruction virtually identical to CALJIC No. 8.31), substituted the disjunctive "or" for Watson 's transitional words, " hrased in a different way." (49 Cal. 3d at p. 1219.) This wording in the instruction caused confusion in the decisions of the Courts of Appeal as to whether the term "wanton disregard for human life" adequately conveyed the subjective-awareness component of implied malice. (Ibid., citing the cases.) We concluded in Dellinger that instructing the jury with this term was adequate, but that due to the obscure phraseology of the term, the better practice in the future would be to charge juries "solely in the straightforward language of the 'conscious disregard for human life' definition of implied malice." ( at p. 1221.) This preferred definition--without its counterpart of "wanton disregard for human life"--is set forth in the fifth edition (1988) versions of CALJIC Nos. 8.11 and 8.31, which we approved in Dellinger. (49 Cal. 3d at p. 1222.)
C. WHETHER THE TRIAL COURT COMMITTED INSTRUCTIONAL ERROR IN RESPONDING TO THE JURY'S INQUIRY
The issue presented in defendant's case, unlike that posed in Dellinger, supra, 49 Cal. 3d 1212, does not turn on that portion of the implied-malice definition relevant to defendant's state of mind. Rather, the present controversy relates to the nature of the act (as the term is used in CALJIC No. 8.31) that can give rise to a conviction on a theory of implied malice.
As noted above, the jury in the present case asked the trial court to define the term "intentional act" as used in CALJIC No. 8.31. The court responded by informing the jury that "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. . . ."
The People contend the trial court properly instructed the jury, and assert that brandishing a loaded firearm in a threatening manner, when viewed in context, may constitute a sufficiently dangerous act to support a finding that defendant acted with implied malice.
In reply, defendant contends that the trial court's response permitted the jury to imply malice from defendant's act of "pulling a handgun," an offense punishable as a misdemeanor under section 417, subdivision (a)(2). (See fn. 8, ante.) Defendant's contention rests on parallel assertions: (1) because the act of brandishing a firearm is not "inherently dangerous," it was insufficient to support a finding that defendant acted with implied malice; and (2) because (as noted by the Court of Appeal majority) the killing was "involuntary" and occurred in the commission of an unlawful act, not amounting to a felony (i.e., while defendant brandished a firearm), the death that resulted from defendant's act involved, at most, a manslaughter pursuant to section 192, subdivision (b), and not a murder. Defendant also contends, in an argument unrelated to the propriety of the trial court's response to the jury's inquiry, that CALJIC No. 8.31 misstates the law.
We agree with the People that the trial court properly instructed the jury and, for the reasons set forth below, conclude that defendant's assertions are without merit.
1. IN DETERMINING WHETHER IMPLIED MALICE WAS SHOWN, THE JURY WAS NOT REQUIRED TO CONSIDER "IN
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