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People v. Benitez12/3/1992
at pp. 476-477; see also People v. Patterson, supra, 49 Cal. 3d at p. 629 ["Notions of implied malice have never before been imported into felony murder . . .."] (conc. and dis. opn. of Lucas, C. J.).) Nevertheless, by arguing that misdemeanor brandishing of a firearm is not inherently dangerous, defendant attempts to borrow from the analysis applicable to felony murder in order to escape the applicability of the principles involved in the concept of implied malice. Defendant's contention lacks support. Numerous cases have held that even where the felony-murder rule is inapplicable because the underlying felony is not inherently dangerous, the defendant still may be tried on a theory of implied malice. (See, e.g., People v. Satchell, supra, 6 Cal. 3d at p. 43 [ex-felon's possession of concealed firearm]; People v. Lopez (1971) 6 Cal. 3d 45, 53 [98 Cal. Rptr. 44, 489 P.2d 1372] [escape from county jail]; see also People v. Fuller (1978) 86 Cal. App. 3d 618, 628-629 [150 Cal. Rptr. 515]) [upholding application of felony-murder rule in case involving high-speed automobile chase, and observing that defendants also could be prosecuted on a theory of implied malice]; 1 Witkin & Epstein, supra, Crimes Against the Person, § 494, pp. 558-559.)
By asserting that the jury, in considering the matter of implied malice, should have limited its inquiry to the inherent dangerousness of the offense of brandishing a firearm, defendant seeks to diminish the significance of the circumstances surrounding his own conduct. The very nature of implied malice, however, invites consideration of the circumstances preceding the fatal act. (See People v. Goodman (1970) 8 Cal. App. 3d 705, 708 [87 Cal. Rptr. 665] [conviction of murder with implied malice upheld where underlying intentional act was assault with a deadly weapon], disapproved on other grounds, People v. Beagle (1972) 6 Cal. 3d 441, 451-452 [99 Cal. Rptr. 313, 492 P.2d 1]; see also CALJIC No. 8.11.) The "natural consequences" (People v. Watson, supra, 30 Cal. 3d at p. 300) of a person's act in brandishing a firearm necessarily relate to the context in which the act was committed: for example, the brandishing (and subsequent discharge) of a firearm during a heated dispute justifiably could lead a jury to reach a
verdict different from one which might be reached in a case involving an accidental shooting during a friendly hunt for wild game. Thus, in determining in the case at bar whether defendant intentionally committed an act "the natural consequences of which are dangerous to life" (ibid.), the jury was entitled to consider all of the events leading up to the shooting--defendant's dispute with, and threats directed toward, the victim, as well as defendant's retrieval of a loaded handgun and extra ammunition, his prompt return to the scene of the argument, his initiation of the final confrontation, and his drawing of the loaded handgun with his finger on the trigger as the victim lunged toward him.
For the foregoing reasons, we reject defendant's assertion that the trial court erred in not limiting the jury to consideration of the underlying offense in the abstract.
2. DEATH RESULTING FROM THE COMMISSION OF A MISDEMEANOR CAN SUPPORT A MURDER CONVICTION IF MALICE IS SHOWN
Defendant contends the jury's finding that he acted with implied malice suggests that the shooting was accidental. Defendant further contends that an unlawful killing res
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