"Implied Malice" for Murder in California

Implied malice is a mental state and form of malice aforethought. Malice aforethought is required for a person to be found liable for the crime of murder in California. Even if a killing is unintentional, malice aforethought for murder may be implied where the accused consciously disregards a risk to human life.

California Penal Code section 188 provides the definition:

"[Malice aforethought] is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."

California courts have interpreted this language to mean a killing that shows "a conscious disregard for life." In such cases, the killer understands the potentially deadly consequences of his or her conduct and does it anyway.

The following are some example situations where malice aforethought may be implied:

  • A truck driver who knows his brakes may not function properly but continues to drive at high speeds on inclined roadways,[1]
  • A military veteran with firearms training who brandishes a loaded handgun and accidentally shoots an associate,[2] 
  • Joining in a group prison assault on one inmate that includes extended violence and use of blunt weapons,[3] and 
  • When previously convicted of DUI, a motorist drives drunk and causes a crash, killing another person.[4]

As the final example notes, implied malice can be the basis of a murder charge when a DUI driver causes a death in California (known as a Watson murder).[5]

Malice also may be implied in some prescription and illicit drug overdoses. Perhaps the most famous case in the U.S. of a doctor being found guilty of murder for prescribing drugs was in California in 2016. The jury found implied malice aforethought in Dr. Hsui-Ying "Lisa" Tseng's alleged over-distribution of potent drugs to several patients. Her patients had abused the prescriptions to their deaths. Illicit drug sales knowingly made to persons susceptible to overdose may also lead to a finding of implied malice. 

Defense strategies to negate a finding of implied malice include arguing that: 

  • the accused actually didn't realize the risk to human life, or
  • the accused realized a risk for injury but not death.  

An unlawful killing with implied malice aforethought is considered second-degree murder in California.[6] The crime's penalty is a fine of up to $10,000 and fifteen years to life in a California state prison.[7]

Where malice aforethought is absent, the accused may still face manslaughter charges for negligent conduct leading to death. Involuntary manslaughter under California Penal Code 192(b) PC and vehicular manslaughter under California Penal Code 192(c) PC are potential charges. If the accused was under the influence of alcohol or drugs, potential charges may include gross vehicular manslaughter while intoxicated under California Penal Code 191.5(a) PC and vehicular manslaughter while intoxicated under California Penal Code 191.5(b) PC.

In this article, our California criminal defense attorneys answer frequently-asked-questions about California law on implied malice: 

1. What is implied malice aforethought?

The malice aforethought requirement for murder under California Penal Code 187 PC can be implied. This happens when a person's intentional and dangerous conduct shows a conscious disregard for the value of human life.

Example: Several friends are drinking alcohol heavily one afternoon on the front porch of a residence. One gets out his loaded shotgun, takes off the safety, and jokes as if he's going to shoot it at one of the others. He repeatedly points the gun in the direction of one of the others. The gun goes off, killing the other person.[8]

In this case the killer didn't intend to kill. But drinking heavily and pointing a loaded shotgun at another person is extremely risky and deadly behavior. If the killer knew this, and he almost certainly did, malice may be implied.

Implied malice does not require behavior with "a high probability of death," however.[9] It requires only that the intended act is sufficiently dangerous to human life.

Malice may even be implied from intentional misdemeanors in California when they are sufficiently dangerous to life.[10] The requirement for a felony leading to someone's death is a separate basis for criminal homicide. It's known as felony murder in California.[11]

1.1. Comparison with "express malice"

The other form of malice aforethought is known as "express malice." Oftentimes in murder cases, malice is directly apparent. By his or her actions, the killer clearly intended to kill the victim. This "intent to kill" constitutes express malice.

Example: Consider again the example above of friends drinking alcohol at home and playing with a loaded shotgun. If instead of one recklessly discharging the gun in the direction of another, the shooting could have been intentional.

Imagine that the shotgun wielder is arguing with one of his associates. He takes the gun after the argument and threatens to shoot the other. Then, as his associate tries to back away slowly, the gun wielder aims, shoots, and kills the other person. Malice is now clear and express. His act wasn't merely dangerous to life; it was intentionally deadly. 

Malice is implied, on the other hand, when the killer did not intend to kill. He instead acted with a conscious disregard for life. 

2. How is implied malice proven?

Implied malice is proven when the facts surrounding someone's death show that the person responsible acted intentionally with a conscious disregard for life.

Penal Code 188 states: "[Malice aforethought] is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." Courts have noted, however, that this concept is difficult to explain in plain language.[12]

California courts have used various phrases over the years to refer to the concept. In addition to the definition in Penal Code 188, it's been described as committing an act that shows:

  • a base, antisocial motive,
  • a wanton disregard for life,
  • a conscious disregard for life, and/or
  • extreme indifference to the value of life.[13]   

While these phrases use different language, they articulate the same standard.[14]

Courts now explain malice to be implied when the killing results from an act that is:

  1. intentional,
  2. the natural consequences of which are dangerous to life,
  3. which was deliberately performed by a person who knows that his or her conduct endangers the life of another,
  4. who therefore acts with a conscious disregard for life.[15]

This "conscious disregard for human life" language is now recognized by courts in California as the accepted phrasing.[16].

To imply malice in a criminal homicide, courts and juries will evaluate the facts and evidence. If they believe that the accused consciously disregarded human life through his or her intentional and dangerous conduct, they may find malice aforethought.

3. When is malice implied in drunk driving deaths (Watson murders)?

The seminal case on drunk driving deaths in California is People v. Watson in 1981. The California Supreme Court found that drunk driving deaths may support a murder charge when someone "does an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life."[17]

Drunk driving deaths, therefore, may or may not imply malice. It depends on the facts of the case. The required elements are simply the "conscious disregard for human life" standard as applied to drunk driving circumstances.

3.1. Factors in Watson murders 

California courts since the Watson case have clarified relevant factors. Malice is likely to be implied from drunk driving deaths when the responsible driver:

  1. Knew about the dangers of drunk driving,
  2. Showed a pre-drinking intent to drive after drinking,
  3. Became legally intoxicated, and
  4. Engaged in highly dangerous driving.[18]

Not all of these factors must be proven. But they are all relevant and favor finding a Watson murder.[19]

Example: Oliver has several past DUI arrests. One evening he parks his car near a downtown bar. He spends a couple hours in the bar drinking several alcoholic beverages. While legally drunk, he decides to go home. He leaves the establishment, enters his car, and drives several blocks. He fails to negotiate a turn correctly and leaves his lane. He rams into two persons crossing an intersection crosswalk. One of the persons dies from the injuries.

Here Oliver probably meets the criteria for implied malice. His past DUI arrests make it almost certain that he knows of the risks of drunk driving. The fact that he drove and parked his car by the bar indicates he intended to drink and then drive himself home afterwards. He drank until he was drunk. And his driving activity itself became dangerous and illegal.

A key legal question in potential Watson murders is whether the driver actually knew of the danger his or her driving poses. This is needed to show a "conscious disregard" for life.[20]

In 2005 California enacted a law that all persons convicted of "driving under the influence" (DUI) be advised of the dangers of drunk driving.[21] Such persons are informed about the risk to human life. And they are told that in deadly drunk driving cases malice may be implied.

Even without a prior DUI conviction, however, malice may be implied.[22] A person may know of the danger in other ways.

Example: Shelly meets some friends on a Friday night for drinks. She drinks her own alcoholic beverages and takes sips of other people's. Her friends want to leave and offer her a ride home. She says she wants to stay and "party."

Just before 11 p.m., the bar refused to serve her more drinks. Several others in the bar tell her she "could hurt herself or somebody else" if she drives. Others offered her a free cab ride from cabs present at the location's parking lot.

Shelly rejects the advice and instead drives away in her car. Given Shelly's state, the bartender calls 911. Police locate Shelly and attempt to pull her over. Instead, she gives chase and increases her speed substantially. She drives across several lanes at high speed. She careens into a pedestrian, who dies.[23]

Even if Shelly has no prior DUIs, she was repeatedly warned of the dangers of driving drunk. And she rebuffed numerous attempts to avoid the risky and deadly activity. Malice may be implied.

3.2 Alternative charges 

When drunk driving cases do not show implied malice, the accused may still be guilty of a lesser homicide. Manslaughter in California includes provisions for being intoxicated and deviating, or grossly deviating, from a reasonable standard of care while driving.[24]

In these situations, the accused may be liable for either:

  • Vehicular manslaughter while intoxicated, or
  • Gross vehicular manslaughter while intoxicated.[25]

These crimes occur in drunk driving cases where the driver's conduct violates certain traffic laws and shows ordinary or gross negligence. The question of negligence (and the level) depends on how a reasonable person would have acted. Where a person is negligent but didn't act with malice aforethought, he may be liable for a type of manslaughter (less than murder).

Example: While driving, a woman remembers an important cell phone texting conversation. She grabs her phone and begins to key in text. She loses sight of the road, however. She veers into a bicyclist who is lawfully moving on the roadway. If the bicyclist dies, the woman may have committed vehicular manslaughter.[26] 

If a serious felony was committed during the drunk driving event, the crime may qualify as felony murder. Besides malice aforethought, California has a criminal statute for murder based on the commission of one or more dangerous felonies.[27] If death results from the commission of a dangerous felony, the accused may face a felony murder charge.

4. When is malice implied in drug overdose deaths?

Malice may be implied from drug overdoses where a prescribing doctor's conduct consciously disregards a risk of overdose or deadly drug abuse. California does not have a specific statutory section for drug-based killings, as do states like North Carolina.[28] But California's traditional murder and manslaughter crimes may be applied to these circumstances.

4.1. Prescription drug deaths

Prescription drug deaths have been rising nationally in recent years. As a result, prosecutors are beginning to charge criminally doctors who overprescribe dangerous drugs. A landmark prosecution occurred in 2016 in California. Rowland Heights area Dr. Hsiu-Ying "Lisa" Tseng was found liable for second-degree murder. She was sentenced to 30 years in state prison.

Tseng was an osteopath specializing in internal medicine. Prosecutors argued that her prescriptions for powerful, addiction medications led to nine overdoses in less than three years. She was convicted of murder in 2009 for the deaths of three patients.[29] Jurors were convinced that she consciously disregarded the risks to these patients. 

"Over-prescription" of drugs has not led to many doctors being charged with murder. But the Tseng case shows that malice may be implied in drug distribution cases.

Tseng's case may be contrasted with another famous homicide in California -- that of Dr. Conrad Murray, who was pop star Michael Jackson's personal physician. Murray had prescribed a surgical anesthetic that eventually killed Jackson. Dr. Murray, however, was convicted of involuntary manslaughter. The jury was not convinced that he consciously disregarded the risk to Jackson's life.[30] Rather, he was seen as acting without reasonable caution. He allegedly should have been more aware of the risk. He didn't consciously disregard a deadly risk. 

4.2. Illicit drug dealing deaths

Prosecutions have begun around the country even for illicit dealers that push drugs. As with prescription distribution, malice may be implied where someone dies from an overdose provided by his or her illicit dealer. A dealer might consciously disregard a risk that a customer may overdose or abuse the drug(s) with deadly consequences. If so, a jury may find implied malice for murder.

5. What are strategies to find that malice shouldn't be implied?

Strategies to negate a finding of implied malice focus on showing that the accused actually didn't comprehend the level of risk. Such arguments, therefore, include the following:

  • Even if most people would have understood the danger, the accused actually did not; and 
  • The accused was consciously aware of a danger for injury only, not for death.

5.1. Even if most people would have understood the danger, the accused actually did not.

Malice may only be implied when the accused personally recognized and disregarded the risk. If the accused can show that he or she did not understand the riskiness of the conduct, there is no malice aforethought.[31] This is true even if most people would have understood the risk. The rule is personal and subjective.

Example: Carla is in college and is new to rave culture. She's started experimenting with pills at parties. She recently purchased a large number of different pills and doesn't really understand their purposes or properties. At a party she encourages some eighteen-year-old friends to each ingest a large number of her pills. One friend dies from the pills' effects.

Many people, even young people like Carla, may understand the deadly risk of such conduct. But it's possible that Carla did not. Some young people acting as Carla did would have been consciously disregarding a risk to human life. If Carla actually didn't understand the risk, however, malice would not be implied.

Implied malice is sometimes confused with the concepts of "criminal negligence" and "gross negligence." The legal definition of negligence in California is the failure to follow a standard of care.[32] Negligent behavior can also lead to criminal homicide charges, such as vehicular manslaughter or involuntary manslaughter.[33]

The difference is that while negligence relates to an objective standard of care, malice is a subjective mental state. The question with negligence is whether a reasonable person would have understood the risk.  With implied malice, the question is whether this defendant personally understood the risk. It doesn't matter whether or not a reasonable person would have. 

Example: In the situation above, Carla may have been criminally negligent. If most people of Carla's age, situation, and experience, would have understood the risk of passing out the pills and encouraging her eighteen-year-old friends to take them, her actions might constitute negligence.

Because negligence is the standard for involuntary manslaughter, Carla may still be criminally responsible. But she lacked malice aforethought and therefore didn't commit murder.

Likewise, if one's state of impairment, e.g., intoxication, made it impossible to consciously disregard a risk to life, malice cannot be implied.[34]

Example: In the situation above, imagine that Carla takes some pills herself and is highly impaired. Her eighteen year old friends come to ask her for some pills. In her confused state, however, Carla thinks that she is giving them Tylenol. A friend dies from ingesting the pills.

If a jury believes that Carla's impairment caused her not to understand what she was giving them, malice would not be implied. Carla didn't consciously disregard the risk. Her impairment prevented her understanding of the risk and her actions.

5.2. The accused was consciously aware of the danger for injury only, not death.

Malice is only implied when someone disregards substantial risk to human life. It is not implied when a victim dies from unlucky or unfortunate circumstances or when the killer only knew of a risk for injury.[35]

Example: Two men get into an argument at a bar. They decide to "take it outside." Outside they begin to fight, and one punches the other in the face. The man who was hit loses his balance and falls and spins to try to regain his balance. In doing so, his head strikes the corner of a nearby iron fence pole. This collision causes a hemorrhage in his head that kills him.[36]

Here the man who threw the punch almost certainly didn't foresee death as a natural and probable outcome. Neither man believed their fight to be potentially deadly. At most they foresaw some injury to the other person. Malice would not be implied.

Courts have implied malice in more extreme cases, however, where the conduct towards serious injury is sufficiently dangerous.

Example: A man gets a running start, jumps off a curb down towards another man, and punches the man in the head. The victim was already exhausted from fighting with someone else. The victim doesn't see it coming. The blow sends the victim head-first into the pavement. His head collides into the pavement with a crack loud enough to be heard in a nearby neighbor's home. He dies from the injury.[37]

In this case, the attacker's actions could be considered indifferent to the consequences to the victim's life. The attacker's behavior in the circumstances was much riskier and potentially life-threatening. If the attacker realized this and disregarded the risk, a jury may find malice aforethought to be implied.

6. What are the penalties for murder with implied malice? 

California considers a criminal homicide with implied malice aforethought to be second-degree murder.[38] Penalties include a fine of up to $10,000 and a state prison sentence of fifteen years to life.[39]

Additionally, civil liability may require payment of monetary damages for:

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Legal References

  1. Facts based on People v. Superior Court (Costa), 183 Cal. App. 4th 690, 107 Cal. Rptr. 3d 576 (Ct. App. 2010). 
  2. Facts based on People v. McNally, 236 Cal App. 4th 1419, 187 Cal. Rptr. 3d 391 (Ct. App. 2015). 
  3. Facts based on People v. Guillen, 227 Cal. App. 4th 934 (174 Cal. Rprt. 3d 703 (Ct. App. 2014). 
  4. Facts based on People v. David, 230 Cal. App. 1109, 281, Cal. Rptr. 656 (Ct. App. 1991).
  5. People v. Watson, 30 Cal. 3d 290, 179 Ca. Rptr. 43, 637 P.2d 279 (1981). 
  6. California Penal Code sects. 187-88 PC.
  7. California Penal Code sect. 190(c) PC. 
  8. People v. McNally, 236 Cal. App. 4th 1419, 187 Cal. Rptr. 3d 391 (Ct. App. 2015). 
  9. People v. Knoller, 41 Cal. 4th 139, 152, 59 Cal. Rptr. 3d 157, 166, 158 Pd.3d 731, 738 (Cal. 2007) (rejecting the language of "a high probability that [the act] will result in death" for the newer, "better practice"). 
  10. Witkin, Cal. Crim. Law 4th Crimes--Person sect. 211 (2012) (citing People v. Nieto Benitez, 4 Cal. 4th 91, 13 Cal. Rptr. 2d 864, 840 P.2d 969 (Cal. 1992)). 
  11. California Penal Code sect. 189 PC. 
  12. People v. Bryant, 56 Cal. 4th 959, 157 Cal. Rptr. 522, 301 P.3d 1136 (2013) ("As we have noted, [the topic] is quite vague and permits, even requires, judicial interpretation" (quotations and citations omitted)); People v. Dellinger, 49 Cal. 3d 1212, 1218, 264 Cal. Rptr. 841, 844, 738 P. 2d 200, 204 (1990) (discussing the "attempt[s] to define the concept in tangible terms a jury could understand and apply").  
  13. See Witkin, Cal. Crim. Law. 4th, sect. 211, above. 
  14. See People v. Nieto Benitez, 4 Cal. 4th 91, 111, 13 Cal. Rptr. 2d 864, 876, 840 P. 2d 969, 981 (Cal. 1992) (citing People v. Watson). 
  15. People v. Nieto Benitez, 4 Cal. 4th at 106-07. 
  16. People v. Bryant, 56 Cal. 4th at 967-68. 
  17. People v. Talamantes, 11 Cal. App. 4th 968, 973, 14 Cal. Rptr. 2d 311, 313 (Ct. App. 1992) (citing People v. Watson).
  18. People v. Batchelor, 229 Cal. App. 4th 1102, 1114, 178 Cal. Rptr. 3d 28, 39 (Ct. App. 2014 (citing People v. Talamantes).
  19. People v. Talamantes, 11 Cal. App. at 973.
  20. People v. Watson, 30 Cal. 3d at 300-01.
  21. California Vehicle Code sect. 23593(a). Advisory Statement to be given by court to person convicted of violation of specified sections.
  22. People v. Johnigan, 196 Cal. App 4th 1084, 1091, 128 Cal. Rptr. 3d 190, 197 (Ct. App. 2011) ("We hold that there is no requirement of a 'predicate act,' i.e., a prior DUI or an alcohol-related accident necessary to establish implied malice.")
  23. Facts based on People v. Johnigan, 196 Cal. App. 4th 1084. 
  24. See California Penal Code sect. 191.5 PC. 
  25. California Penal Code sect. 191.5(a)-(b) PC. 
  26. Facts based on People v. Nicolas, 8 Cal. App. 5th 1165, 214 Cal. Rptr. 3d 467 (Ct. App. 2017).  
  27. California Penal Code sect. 189 PC.
  28. N.C. Gen. Stat. sect. 14-17(b)(2). 
  29. Gerber, Marissa (2016). Doctor convicted of murder for patients' drug overdoses gets 30 years to life in prison. Los Angels Times. Retrieved from: http://www.latimes.com/local/lanow/la-me-ln-doctor-murder-overdose-drugs-sentencing-20160205-story.html (Feb. 26, 2018). 
  30. Conviction of Michael Jackson's doctor upheld (2014). The Guardian. Retrieved from: https://www.theguardian.com/world/2014/jan/16/michael-jackson-doctor-conviction-upheld (Feb. 26, 2018). 
  31. "[W]e have applied different tests in determining the required mental states of gross negligence or malice. a finding of gross negligence is my by applying an objective test: if a reasonable person in the defendant's position would have been aware of the risk involved .... However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard." People v. Watson, 30 Cal. 3d at 296. 
  32. People v. Watson, 30 Cal. 3d at 295-98. 
  33. See same. 
  34. People v. Rich, 45 Cal. 3d 1036, 1109, 248 Cal. Rptr. 510, 556-57, 755 P.2d 960, 1006-07 (Cal. 1988), as modified on denial of reh'g (Aug. 25, 1988).
  35. People v. Cravens, 53 Cal. 4th 500, 507, 136 Cal. Rptr. 3d 40, 46, 267 P.3d 1113, 1118 (Cal. 2012) (stating that "conscious disregard of the danger to human life ... is not satisfied by conscious disregard of the risk of serious bodily injury (internal quotes and citations omitted). 
  36. Facts based on comparison facts presented in People v. Cravens, 53 Cal. 4th 500. 
  37. Facts based on People v. Cravens, 53 Cal. 4th 500.
  38. California Penal Code 187 PC. 
  39. California Penal Code 190(b) PC: "Except [for the special circumstances] provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life."

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