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92.8 Murder: Unintentional Murder (Malice/Depraved Heart)

    92.8.2 Unintentional Murder: Miscellaneous Issues

    92.8.2.1 Whether Unintentional Murder Requires Actual Knowledge Of Danger
    92.8.2.2 Unintentional Murder: Requirement Of Base Antisocial Motive
    92.8.2.3 Unintentional Murder Based On Omission To Act Or Perform Duty
    92.8.2.4 Unintentional Homicide Theory Must Be Limited To The Perpetrator

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RATIONALE: The instructions should make it clear that unintentional murder requires actual subjective knowledge of the danger.

POINTS AND AUTHORITIES: In California, the implied malice element of unintentional murder requires knowledge that the defendant's conduct endangers the life of another coupled with circumstances manifesting a conscious disregard for life. (People v. Whitfield (CA 1994) 7 C4th 437, 450-51 [27 CR2d 858].) This is a subjective standard. (People v. Watson (CA 1981) 30 C3d 290, 296-97 [179 CR 43].)

    Other jurisdictions require subjective knowledge for depraved heart murder. (See e.g., People v. Goecke (MI 1998) 579 NW2d 868, 878 [court rejects prosecution's claim that for common law murder of this type there is only an objective standard, but then notes that "only a highly unusual case would require a determination of the issue whether the defendant was subjectively aware of the risk created by his conduct"]; State v. Brown (NM 1996) 931 P2d 69, 71-72; see also Model Penal Code § 2:08.)

    However, "[m]ost of the cases are ambiguous on the matter; they tend to speak of conduct which "evinces" or "manifests" or "shows" a depraved heart, without spelling out whether he must actually possess this depraved heart (i.e., have a subjective realization of the risk) or whether it is enough that a reasonable man would have realized the risk and so would have had a depraved heart. The same is true of many statutes, even those found in modern codes. But some of the recent recodifications follow the Model Penal Code in expressly stating that the subjective state of mind of recklessness is required, while a few others express some other mental state." [Footnotes omitted.] (LaFave & Scott, Substantive Criminal Law (West, 1986) § 7.4, p. 204 (1986).)

    "On balance, it would seem that, to convict of murder, with its drastic penal consequences, subjective realization should be required. One who is too absent-minded or feeble-minded to think of the risk ought not to be held guilty of murder, though it does not follow that he should escape all criminal liability, such as conviction of manslaughter or some other crime of negligent homicide." (Id. at 205.)

    Accordingly, the jury should be instructed that the defendant must act with "actual knowledge" of life endangerment and conscious disregard for life. (See People v. Cameron (CA 1994) 30 CA4th 591, 600 [36 CR2d 656]; see also U.S. v. Fleming (4th Cir. 1984) 739 F2d 945, 947-48 ["Malice may be established by evidence of conduct which is ‘reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that defendant was aware of a serious risk of death or serious bodily harm.’ [Citations.]"]; U.S. v. Milton (6th Cir. 1994) 27 F3d 203, 206-208; U.S. v. Black Elk (8th Cir. 1978) 579 F2d 49, 51; State v. Ibn Omar-Muhammad (NM 1985) 694 P2d 922, 926 [instruction on depraved-mind murder which included only an objective standard of knowledge of the risk was improper; jury should have been instructed to find that "defendant knew that his act was greatly dangerous..."].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.13.14 [Murder].

    The malice element of the murder charge requires that the act which caused death be deliberately performed with actual, subjective knowledge of the danger to, and with conscious disregard for, human life.

[Source: FORECITE National™.]

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    92.8.2.2    Unintentional Murder: Requirement Of Base Antisocial Motive

PRACTICE NOTE: Although the California standard pattern instructions (CALJIC) have eliminated the "base antisocial motive" from the definition of implied malice, a close review of the cases demonstrates that the California Supreme Court has never expressly deleted this element. Rather, it seems that the elimination of this element stems from an erroneous citation by People v. Washington (CA 1965) 62 C2d 777, 780 [44 CR 442] to People v. Thomas (CA 1953) 41 C2d 470, 475 [261 P2d 1]. In this passage, Washington referred to Thomas as support for its statement that "the essential element of murder is an intent to kill or an intent with conscious disregard for life to commit acts likely to kill." However, page 475 of the Thomas opinion contains no discussion of implied malice. The concurring opinion of Chief Justice Traynor to which the Washington court evidently referred states that implied malice is shown when "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." (Thomas, 41 C2d at 480.) Accordingly, Washington incorrectly assumed, without any consideration of the issue, that Thomas eliminated the "base, antisocial motive" as an element of implied malice. Moreover, none of the cases which subsequently cited Washington for this proposition expressly considered the issue.

    In re Christian S. (CA 1994) 7 C4th 768 [30 CR2d 33], cited Justice Traynor's concurrence in Thomas for the proposition that implied malice requires "a base anti-social motive." [Emphasis by Christian S. court.] Moreover, Christian S. relied upon the existence of such a motive to conclude that imperfect self defense may negate implied malice. (Christian S., 7 C4th at 780, fn 4.) This supports the notion that a "base anti-social motive" is an element of implied malice upon which the jury should be instructed. (See also People v. Goecke (MI 1998) 579 NW2d 868, 880 ["malice" may be implied when the defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life].)

    In sum, despite the removal of the base, antisocial motive element from the definition of implied malice by CALJIC and the California Supreme Court, the issue has never been directly resolved. (But see People v. Curtis (CA 1994) 30 CA4th 1337, 1352-53 [37 CR2d 304], holding that "base, anti-social motive" is not an element of implied malice unless the defendant places it in issue by raising an affirmative defense.)

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.14 [Murder].

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PRACTICE NOTE: Unintentional murder ("depraved heart"/ "implied malice") has been found in cases of malicious omission such as situations where a parent has maliciously allowed a small child to die of exposure or malnutrition and dehydration. (See People v. Burden (CA 1977) 72 CA3d 603, 620-21 [140 CR 282]; see also Simpkins v. State (MD 1991) 596 A2d 655 [depraved heart murder based on "malicious omission"].)

    However, a failure to act should not be sufficient to support liability for murder unless the defendant's conduct demonstrates extreme indifference. (See People v. Protoppas (CA 1988) 201 CA3d 152, 168 [246 CR 915].)

    If the omission to act was intentional, but without the intention or expectation of fatality, the crime would be involuntary manslaughter because of criminal negligence. (Perkins & Boyce, Criminal Law (Foundation Press, 1982) § 4(g) [Effect of Nonperformance] p. 671 (3d Ed. 1969).)

BRIEFING AVAILABLE:  Click here. [Brief Bank # B-905].

See generally, FORECITE National™ 305.13.14 [Murder].

See FORECITE National™ 92.8.1.2  [Unintentional Murder: Federal Circuit Model  Instructions  and Notes].

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    92.8.2.4    Unintentional Homicide Theory Must Be Limited To The Perpetrator

PRACTICE NOTE: In some cases the prosecution may rely alternatively on both accomplice liability and an actual perpetrator theory based on implied malice or other unintentional theory of homicide. In such case a danger that the unintentional homicide instruction may allow a conviction of an accomplice without a finding of all the requisite elements of accomplice liability. This is so because the jury may find that the accomplice's alleged acts of aiding and abetting constituted the unintentional act even though the accomplice was not the actual killer.

RESEARCH NOTES:

See generally, FORECITE National™ 305.13.14 [Murder].