The misstatement of the legal definition of implied malice has led to the reversal of a second-degree murder conviction in California.

During defendant John Fay’s murder trial that caused the death of Anthony Davis, the prosecutor said that Fay had the mental state for implied malice because he was “aware that his conduct was dangerous to others,” and he did not “care if someone is hurt or killed.” The district court found this definition to be a misstatement of the law made by Los Angeles Superior Court trial judge Nicole C. Bershon.

In addition, because allowing this definition to be given to jurors was not harmless error, Fay’s murder conviction was reversed by a unanimous three-judge panel from Division One of California’s Second District Court of Appeal. The opinion was authored by Presiding Justice Francis Rothschild.

The legal definition of implied malice according to California Penal Code Section 187 states that the defendant had implied malice if: (1) the act was intentionally committed, (2) the natural and probable consequences of the act were dangerous to human life, (3) the actor knew his act was dangerous to human life, and (4) the actor deliberately acted with conscious disregard for human life.

Rothschild’s opinion began with a statement of the facts: Fay was homeless and living outside a public library on February 2, 2020, when Davis approached him and his possessions on a bicycle. The two men “exchanged vulgarities” for several minutes. Davis then tried to hit Fay, and Fay punched him 12 times on the side of his head, causing him to become unconscious. Davis later died at the scene from what the medical examiner said was “concussive/posttraumatic apnea due to blunt head trauma and acute alcohol intoxication.”

During the trial Fay testified that he had intended to inflict “…just enough physical pain so that , but not enough to kill him.”

The appellate court’s opinion then focused on the trial court’s discussions of implied malice. The prosecutor told the jury about the elements of the included lesser offenses and instructed the jury that “…in order to prove murder or voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter.”

The jury began deliberating, but after two hours asked the judge for clarification of the meaning of implied malice. They submitted the following question: “Is there any other written definition or guidance pertaining to the definition of ‘dangerous to human life’? Does that mean the act was likely to result in death?” Judge Bershon told the jurors that they had already received the desired definition in their jury instructions. The jury later told the court it was “deadlocked.”

The jury asked for additional clarification of the definition of implied malice. The court responded by telling the jurors they “could not insert additional language (into an instruction) that isn’t there.” Bershon said, “The language is what the language is…” The jury remained deadlocked.

The following day, over defendant’s objection, the court allowed the prosecutor to present an additional argument that became the key reversal issue. During his argument, the prosecutor said that “proving that an act is “dangerous to human life” does not require the prosecution to prove “that the act is likely to cause death.” He also said, “…in everyday language,” acting “with conscious disregard for human life” means: “I know my conduct is dangerous to others, but I don’t care if someone is hurt or killed.”

He continued by telling the jurors, “What you may be trying to do is say I don’t care if someone is killed. That’s not the standard. The standard for this charge is I don’t care if someone is hurt or killed.” The prosecutor then summarized, “Defendant didn’t care that Anthony Davis was hurt. He didn’t care.” Defense counsel did not object.

The jury then deliberated for another hour and asked the court another question, regarding the source of a quote that the prosecutor had used when he said that being hurt, not just killed, was enough for implied malice. The prosecutor said the quote was from the precedent of People v. Olivas, (172 Cal.App.3d 984). Bershon said the prosecutor did not misstate the law, although she “expressed concern” about not being informed that the prosecutor would rely on the Olivas language.

Rothschild’s opinion agreed that the written jury instruction correctly stated the law. However, she did not agree that the prosecutor had done so as well. She wrote, “The prosecutor’s statement implies that the mens rea (knowledge of wrongdoing) for implied malice would be satisfied if the defendant acted with conscious disregard for harming another.” She cited (People v. Knoller (2007) 41 Cal.4th 139, 152, a California Supreme Court case that said “when the defendant is aware of the risk of causing serious bodily injury to another…the bar is set too low.” “Here,” she commented, “the prosecutor set the bar even lower; it was apparently enough for the defendant merely to be aware that he could “hurt” someone, even without causing serious bodily injury.”

Knoller, she wrote, said it is “well settled, that “a killer acts with implied malice only when acting with an awareness of endangering human life.” Thus, “implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.”

The opinion then turned to an additional mistake the trial court made when the court “compounded the prosecutor’s error when, in response to the jury’s question as to the source of the statement, it informed the jury that it is based on ‘case law decisions.’ The court’s response effectively endorsed the prosecutor’s misstatement and gave it the force of law on a par with the formal instructions the jury had received. The combination of the prosecutor’s misstatement and the court’s endorsement of that misstatement allowed the jury to apply an incorrect legal principle to the evidence and convict defendant on an invalid theory of law.”

The appellate opinion concluded by stating, “The errors are not harmless under any standard... Thus, a deadlocked seven-five split turned into a unanimous guilty verdict within one hour of the court’s response to the jury’s last question. The prejudice is unmistakable.”