In what circumstances will a defendant be found guilty of second-degree murder for waving his pistol in the direction of an intruder?

In People v. Hubbard (1923) 64 Cal.App. 27, 220 P. 315, the defendant's pistol discharged during a dispute in which he had attempted to eject the [4 Cal.4th 109] victim, an intruder, from his residence. The defendant in that case testified that he neither removed the safety device nor pulled the trigger, but instead had waved the pistol in an effort to "bluff" the intruder. He testified further that the weapon fired accidentally during the ensuing fracas. The appellate court reversed a judgment of second degree murder based on the trial court's failure to give a requested instruction regarding the defendant's right to use reasonable force to eject the intruder. The court observed, however, that even if the defendant's underlying act of waving the pistol were found to constitute a violation of the law (a misdemeanor), the unintentional killing still could be murder if the jury determined that the natural consequences of the unlawful act were dangerous to human life. (Id. at pp. 37-38, 220 P. 315.) In such a situation, malice is implied. (Id. at p. 38, 220 P. 315.)

In People v. Curry (1961) 192 Cal.App.2d 664, 13 Cal.Rptr. 596, the defendant initially fired his rifle at a construction crew working in a nearby apartment building. The police were notified and, as they encircled the defendant's residence, he fired his rifle again, killing one of the officers. In affirming the defendant's conviction of second degree murder on an implied-malice theory, the appellate court rejected the defendant's challenge to the following jury instruction: " 'Murder may be committed without a specific intent to take human life. To be so committed, however, the defendant must intend to commit acts that are likely to cause death and that show a conscious disregard for human life. [p] Thus if the natural consequences of an unlawful act be dangerous to human life, then an unintentional killing proximately caused by such act will be murder in the second degree, even though the unlawful act amounted to no more than a misdemeanor. In such case, the malice aforethought is implied from the wanton recklessness.' " (Id. at pp. 674-675, 13 Cal.Rptr. 596.) The appellate court upheld the instruction as "a correct statement of the law." (Id. at p. 675, 13 Cal.Rptr. 596.)