Does the Attorney General have to reverse a finding of malice before a jury in a murder trial where the trial court's response to the question was incorrect?

The italicized portion of the trial court's response to the jury's question contains an incorrect statement of the law. Malice aforethought may be express or implied. (Pen. Code, 188.) While express malice requires proof that the defendant had the intent to kill, implied malice is the intentional commission of an act, the natural and probable consequence of which is dangerous to human life, with knowledge that the act was dangerous to human life and with conscious disregard therefor. (Pen. Code, 188; People v. Blakeley (2000) 23 Cal.4th 82, 87.) Because malice aforethought could be established without a showing of an intent to kill, the court's response to the jury was incorrect.

When the trial court misinstructs the jury on an element of the offense, reversal is required unless the prosecutor shows the error was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Wilkins (2013) 56 Cal.4th 333, 348.) Here, the Attorney General essentially concedes the trial court's error, by arguing only that the error was harmless beyond a reasonable doubt.

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