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People v. Benitez12/3/1992
THE ABSTRACT" THE OFFENSE OF BRANDISHING A FIREARM
Defendant contends his act of brandishing a firearm cannot supply the implied malice necessary to support a murder conviction. In advancing this argument, defendant seeks to focus attention on the nature of the underlying act "in the abstract," rather than on defendant's specific course of conduct in the present case. As we shall explain, however, defendant's argument is based upon a distinct body of law that interprets the felony-murder rule and is thus inapplicable in the present context.
Where the felony-murder rule is applicable, a court looks to the underlying felony in the abstract in order to determine whether the underlying felony was so inherently dangerous that malice can be ascribed to the defendant without reference to the particular facts of the case. (See, e.g., People v. Patterson (1989) 49 Cal. 3d 615, 622-626 [262 Cal. Rptr. 195, 778 P.2d 549] [furnishing cocaine]; People v. Burroughs (1984) 35 Cal. 3d 824, 829-833 [201 Cal. Rptr. 319, 678 P.2d 894] [practice of medicine without a license]; People v. Henderson (1977) 19 Cal. 3d 86, 93-96 [137 Cal. Rptr. 1, 560 P.2d 1180] [aggravated false imprisonment]; People v. Phillips, supra, 64 Cal. 2d at pp. 582-585 [chiropractor's misrepresentations]; People v. Williams (1965) 63 Cal. 2d 452, 458 [47 Cal. Rptr. 7, 406 P.2d 647] [conspiracy to possess Methedrine].) " 'The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally, by holding them strictly responsible for killings they commit' " during the course of enumerated felonies. (People v. Mattison, supra, 4 Cal. 3d at p. 185; People v. Washington, supra, 62 Cal. 2d at p. 781.) For certain felonies deemed inherently dangerous to human life, the rule operates to render irrelevant any evidence of actual malice or of the lack thereof. (People v. Satchell (1971) 6 Cal. 3d 28, 43 [98 Cal. Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383]; People v. Dillon (1983) 34 Cal. 3d 441, 475 [194 Cal. Rptr. 390, 668 P.2d 697].)
In contrast, a murder committed with implied malice requires that the prosecution demonstrate the defendant in fact acted with malice. (See People v. Protopappas, supra, 201 Cal. App. 3d at pp. 162-164.) The concept of implied malice has both a physical and a mental component. (People v. Patterson, supra, 49 Cal. 3d at p. 626.) The physical component is satisfied by the performance of " 'an act, the natural consequences of which are
dangerous to life.' " (Ibid., quoting People v. Watson, supra, 30 Cal. 3d at p. 300.) The mental component, as set forth earlier, involves an act " '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. Dellinger, supra, 49 Cal. 3d at pp. 1218-1219.) Whether a defendant's underlying acts are inherently dangerous in the abstract is not dispositive in the jury's determination as to whether a defendant acted with malice.
Thus, the analytical approach applicable to murder committed with implied malice differs significantly from that applicable to felony murder. (See People v. Dillon, supra, 34 Cal. 3d
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