Dellinger

I dissent. The majority conclude that the “wanton disregard of human life” definition of implied malice required a finding of the defendant’s subjective awareness of the life threatening risk and that there was no error in instructing the jury in the language of the 1983 revision of CALJIC Nos. 8.11 or 8.31. The majority rely on several cases which use language the same as or similar to the quoted phrase.

However, our concern is not with legal definitions and precedents to define the term. We must view the instruction as “a reasonable juror could have interpreted the instruction.” (Sandstrom v. Montana (1978) 442 U.S. 510, 514 [ 61 L.Ed.2d 39, 45 , 99 S.Ct. 2450 ].) When this is done, it is clear that the quoted phrase encompasses cases not only where defendant realized the risk but also where he acted recklessly violating his duty to care for the child even though he did not realize the risk of his conduct. Moreover, the balance of the instruction, stating “conscious” disregard of the risk as an alternative to “wanton” disregard of the risk, made it likely that a jury would understand that two tests were stated and only one required subjective awareness of the risk. In the…

*1215 Opinion

We granted review in this case to determine whether CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.), the standardized instruction defining implied malice, adequately informs the jury that implied malice requires a finding of the defendant’s subjective awareness or appreciation of the life-threatening risk created by his conduct. For the reasons set forth hereafter, we conclude that it does.

Although we hold that the “wanton disregard for human life” definition of implied malice embodied in the 1983 revision of CALJIC No. 8.11 independently conveys the “subjective awareness” requirement to the jury, we are nevertheless persuaded that, by contemporary standards, it is a superfluous charge. The better practice in the future is to instruct juries solely in the straightforward language of the second definition in that instruction—that malice is implied when the killing results from an intentional 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. (People v. Phillips (1966) 64 Cal.2d 574, 587-588 [ 51…

We granted review in this case to determine whether CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.), the standardized instruction defining implied malice, adequately informs the jury that implied malice requires a finding of the defendant's subjective awareness or appreciation of the life-threatening risk created by his conduct. For the reasons set forth hereafter, we conclude that it does.

Although we hold that the "wanton disregard for human life" definition of implied malice embodied in the 1983 revision of CALJIC No. 8.11 independently conveys the "subjective awareness" requirement to the jury, we are nevertheless persuaded that, by contemporary standards, it is a superfluous charge. The better practice in the future is to instruct juries solely in the straightforward language of the second definition in that instruction — that malice is implied when the killing results from an intentional 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. ( People v. Phillips (1966) 64 Cal.2d 574, 587-588…