What is the test for implied malice in support of a charge of second degree murder?

California, United States of America


The following excerpt is from People v. Barber, G040210 (Cal. App. 5/26/2009), G040210. (Cal. App. 2009):

"Murder is the unlawful killing of a human being . . . with malice aforethought." (Pen. Code, 187, subd. (a).) "Such malice 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. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. . . ." (Pen. Code, 188.) Penal Code "[s]ection 189 defines first degree murder as all murder committed by specified lethal means `or by any other kind of willful, deliberate, and premeditated killing,' or a killing which is committed in the perpetration of enumerated felonies; all other kinds of murder are of the second degree." (People v. Watson (1981) 30 Cal.3d 290, 295.)

Malice, in support of a charge of second degree murder, "may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations]." (People v. Watson, supra, 30 Cal.3d at p. 296.) "`One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.'" (Id. at pp. 300-301.)

Defendant contends that there was insufficient evidence of implied malice to support the second degree murder conviction. We disagree.

"`The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We turn now to the evidence.

Other Questions


How have courts reduced the charge of second degree murder from first degree to second degree? (California, United States of America)
Can a defendant be charged with second degree murder in connection with a vehicular homicide where the facts surrounding the crime support a finding of implied malice? (California, United States of America)
What is the effect of voluntary intoxication on implied malice supporting the charge of second degree murder against appellant? (California, United States of America)
What is implied malice for the implied malice of a defendant in the second degree felony-murder doctrine? (California, United States of America)
Can a defendant seek to overturn a conviction for second-degree murder by appealing against the finding that the trial court failed to instruct on the charge of second degree murder? (California, United States of America)
Can a defendant who requests instruction on a lesser-related charge of assault that includes the elements of implied malice murder be able to complain about the second degree murder instruction on appeal? (California, United States of America)
What is the test for a jury to convict appellant of second degree murder based solely on evidence of the crime of second-degree murder? (California, United States of America)
Is a defendant's argument that he is not guilty of the crime of second degree murder of a fetus challenge his guilt of second-degree murder? (California, United States of America)
Can a jury convict a defendant of second degree murder under the second degree felony-murder rule? (California, United States of America)
Can a jury convict a defendant of second degree murder under the second degree felony-murder rule? (California, United States of America)
X



Alexi white


"The most advanced legal research software ever built."

Trusted by top litigators from across North America.