People v. Nieto Benitez

GEORGE, J.

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I. FACTS

On July 8, 1989, in the early evening, defendant was at the intersection of Jeffrey Drive and Lynne Avenue in Anaheim, eating his dinner near a catering truck. Defendant was seated on a milk crate, while directly behind him, the victim, known as Guero, and another man, identified only as Caballo, were engaged in horseplay. Guero reached around Caballo and attempted to tip over Caballo's plate. In response, Caballo spun around and threw the entire plate of food at Guero. When Guero ducked, the plate of food struck defendant on the back of his head, the food falling down defendant's back and staining his shirt.

Defendant threw away his plate and took off his shirt. Holding the shirt in his hand, he walked over to where Guero and Caballo stood, and asked, "Who is going to wash my shirt?"

Guero and Caballo feigned ignorance, and Guero then replied, "We're not going to wash your shirt." Defendant insisted that one of them wash his shirt. Guero, who was holding a broomstick, responded, "[N]o way, it was an accident."

An argument ensued. Guero said, "What are you going to do about it? You going to bring a gun or knife or what?" He added, "It was an accident, anyway, so why don't you go ahead and leave?"

Defendant replied, "It's going to be an accident if a bullet goes off and hits one of you, too."

Guero, becoming angry, responded, "Okay, go ahead and bring it. Bring what you want, a knife or a gun." Guero, holding the broomstick, turned and walked away.

Defendant, who lived nearby, went home and told his roommate, Carlos Arreola, that some persons had been playing around near the catering truck, and that one of them had thrown food on his shirt. Defendant's shirt was stained, and he was angry. He told Arreola that he was going to go back and make those "cabrones" wash his shirt. Defendant went to his room, obtained a clean shirt, and then left his apartment, repeating that he was going to make those "cabrones" wash his shirt. The evidence suggested that defendant concealed on his person a handgun and extra ammunition before leaving the apartment.

Defendant returned to the catering truck a few minutes later. Appearing frightened and angry, he walked to within three feet of Guero. Broomstick in hand, Guero stepped closer to defendant. When Guero asked defendant what he wanted, defendant inquired who was going to wash his shirt. Guero replied that no one was. In response, defendant said, "Well, then one of you two is going to leave."

After defendant and Guero argued for two or three minutes, Guero said either "Let's get it on," or "Take out your knife or whatever you have." Guero, dropping the broomstick, lunged toward defendant as if to grab or punch him.

Guero never reached defendant. As Guero lunged forward, defendant drew a firearm from his waistband, his finger on the trigger. The evidence was in conflict as to whether defendant pointed the gun horizontally (toward Guero) or vertically (toward the sky). One witness, Hector Reynoso, testified that defendant pointed the weapon toward Guero. Similarly, another witness, 12-year-old Israel Alvarado, testified that defendant "shot at" Guero. On cross-examination, however, Alvarado testified that defendant "didn't have time to point" the firearm at Guero. On redirect examination, Alvarado denied having seen defendant point it upwards, and denied having so informed the defense investigator, Alfredo Rasch. (Rasch subsequently testified during the defense that, prior to trial, Alvarado told him defendant had pointed the weapon upwards.)

The weapon fired as it was drawn. Guero slumped to the ground, having suffered a mortal bullet wound to the neck. Defendant ran to his apartment, chased by a bottle-throwing crowd of Guero's friends. At his apartment, defendant told his roommate, Carlos Arreola, "I think I killed the 'cabron,' a marijuano.' "Defendant paced about the apartment, the weapon in his hand and a box of ammunition in his pocket. He was nervous and sorry, repeatedly asking, "Oh my God, what have I done?" At one point, he attempted to jump from the second-story window of his apartment, but Arreola intervened.

. . . In response to a call from an unidentified person, police officers were dispatched to the scene of the shooting, and then arrived at defendant's apartment, where defendant surrendered without incident.

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Guero died at the hospital approximately one hour after the shooting. . . There was stippling around the entrance wound, indicating the bullet was fired from a short distance, probably six inches or less.

Defendant did not testify at trial. Rather, he sought to demonstrate through the testimony of others that he had not pointed the firearm toward Guero, and therefore could not have intended to kill him. . . .

II. PROCEDURAL HISTORY

A. THE TRIAL COURT'S INSTRUCTIONS TO THE JURY

Following the parties' presentation of evidence, the prosecutor, in making his closing argument, asked the jury to return a verdict of first degree murder. Defense counsel, in closing, argued that defendant was, at most, guilty of manslaughter. . . [O]f particular relevance to the present discussion, is the trial court's instruction of the jury pursuant to CALJIC No. 8.31, which provides: "Murder of the second degree is [also] the unlawful killing of a human being when:

1. The killing resulted from an intentional act,

2. The natural consequences of the act are dangerous to human life, and

3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.

When the killing is the direct result of such an act, it is not necessary to establish that the defendant intended that his act would result in the death of a human being."

During its deliberations, the jury asked the court to explain the term, "intentional act," as used in CALJIC No. 8.31. The prosecutor requested that the court answer the jury's question by referring specifically to the "pulling of a handgun in the manner described" as one example of an "intentional act" as that term is used in CALJIC No. 8.31. Defense counsel objected to the prosecutor's request, contending that "the pulling of the handgun . . . is an act precedent to death resulting, but it is not itself the intentional act that is referred to in [CALJIC No.] 8.31."

The trial court rejected defense counsel's argument, adopting instead the prosecutor's proposed answer to the jury's inquiry. . . .

Twenty-five minutes after receiving the court's response to its question, the jury returned its verdict finding defendant guilty of second degree murder. . . . The court sentenced defendant to serve a term of 15 years to life in state prison, plus an additional 2 years based on the firearm-use enhancement . . ., for a total sentence of 17 years to life.

B. COURT OF APPEAL DECISION

Defendant appealed from the judgment, contending the trial court committed instructional error in informing the jury that a finding of implied malice could be based solely on the intentional act of drawing a firearm. Defendant argued the trial court had ignored the requirement that the act underlying the finding of implied malice be the proximate cause of death. According to defendant, the correct response to the jury's inquiry would have stated that brandishing a firearm in the presence of another person constitutes a misdemeanor, but that a death resulting from such an act is manslaughter, not murder. According to defendant, deliberately firing a handgun could constitute a predicate act supporting a finding of implied malice, but "pulling" the handgun could not.

A majority in the Court of Appeal agreed with defendant, holding that defendant's conviction should be reversed. The dissenting justice concluded that defendant's act of brandishing the firearm, when viewed in the context of defendant's overall course of conduct, was sufficient to support a finding of implied malice, and that defendant's conviction should be affirmed.

The People petitioned for review, . . . 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. . . . In contrast, manslaughter is the unlawful killing of a human being without malice. . . .

Malice, for the purpose of defining murder, may be express or implied. . . . It is express "when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature." . . . Implied malice is present "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." . . . Thus, the mental state comprising malice is independent of that encompassed within the concepts of willfulness, deliberation, and premeditation. . . . Ill will toward, or hatred of, the victim are not prerequisites of malice as that term is used in the statutory definition of murder. . . . 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. . . .

B. CALJIC NO. 8.31

Translation of the statutory elements of implied malice into plain, understandable jury instructions has undergone an evolutionary process. . . . 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." . . . Subsequent decisions determined, however, that such an instruction was too cryptic. . . . 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.' " . . .

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." . . . 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." . . . 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.' " . . .

In People v. Watson . . ., we observed that the language employed in defining implied malice in the two strands of cases was substantively similar. . . . 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. . . . 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. . . .

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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. (2) 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.

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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 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. . . . " '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. . . . 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. . . .

In contrast, a murder committed with implied malice requires that the prosecution demonstrate the defendant in fact acted with malice. . . . The concept of implied malice has both a physical and a mental component. . . . The physical component is satisfied by the performance of " 'an act, the natural consequences of which are dangerous to life.' " . . . 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. . . .' " . . . 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. . . .

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. . . . The "natural consequences" . . . 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", 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 resulting from the accidental discharge of a firearm, even one brandished in violation of section 417, is, at most, manslaughter. In support of this argument, defendant relies on the provisions of section 192, subdivision (b); which define manslaughter to include an "unlawful killing of a human being without malice . . . in the commission of an unlawful act, not amounting to a felony . . .."

Defendant's argument rests on a misinterpretation of section 192, subdivision (b). The statute does not classify all killings resulting from the commission of a misdemeanor as manslaughter. Rather, the statute's threshold provision--ignored by defendant--is that only those unlawful killings committed without malice are defined as manslaughter. . . . It is well established that a defendant who commits an unlawful killing with malice, but whose underlying offense is classified as a misdemeanor, is not insulated by that classification from liability for murder.

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Other authority also supports the People's contention that, where the defendant obtains a lethal weapon and then engages the victim in an argument, malice may be implied--from the circumstances leading to the killing--to support a conviction of second degree murder. . . .

Thus, the classification of the underlying offense as a misdemeanor does not in itself preclude a resulting death from constituting murder. The circumstance that an act may be punishable as a misdemeanor does not render it incapable of being performed in a manner that, under the circumstances, is sufficiently dangerous to human life to support a jury's finding of implied malice. . . . Even if the act results in a death that is accidental, as defendant contends was the case here, the circumstances surrounding the act may evince implied malice. . . .

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IV. CONCLUSION

We reverse the judgment of the Court of Appeal and remand the matter to that court with directions to affirm the judgment of the trial court.

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