Is there malice to be found liable for second degree murder?
The following excerpt is from Spivey v. Rocha, 194 F.3d 971 (9th Cir. 1999):
Under California law, malice is an essential element of second degree murder. See Jackson v. Superior Court of City and County of San Francisco, 62 Cal.2d 521, 42 Cal.Rptr. 838 (1965). Therefore, Spivey argues that liability for murder predicated on the basis that murder may be the natural and probable consequence of a simple battery conflicts with California's legislative determination that the "unlawful killing of a human being without malice . . . in the commission of an unlawful act, not amounting to felony" is properly classified as manslaughter. Cal. Penal Code S 192, subd. (b).
Under California law, however, it is correct to instruct a jury that:
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