California, United States of America
The following excerpt is from People v. Silva, E065151 (Cal. App. 2018):
An accidental shooting can be second degree murder or involuntary manslaughter depending on the defendant's knowledge. (See People v. Thomas (2012) 53 Cal.4th 771, 814-815 [conviction for second degree murder for a claimed accidental shooting during an argument]; People v. Mehserle (2012) 206 Cal.App.4th 1125, 1141-1142.) The mental state for involuntary manslaughter differs from the mental state for implied malice murder. "'Implied malice contemplates a subjective awareness of a higher degree of risk than does gross [(i.e., criminal)] negligence, and involves an element of wantonness which is absent in gross negligence. [Citations.]' [Citation.] 'A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depends upon a
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determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]' [Citation.]" (Id. at p. 1142; People v. McNally (2015) 236 Cal.App.4th 1419, 1426 ["'the state of mind of a person who acts with conscious disregard for life [(i.e., implied malice)] is, "I know my conduct is dangerous to others, but I don't care if someone is hurt or killed."'"].)
3. Analysis.
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