Does the implied malice test need to include a high probability of death?

California, United States of America


The following excerpt is from People v. Delgadillo, B281230 (Cal. App. 2018):

Defendant contends this instruction is inadequate because it fails to convey that implied malice requires "proof beyond a reasonable doubt that he committed an act involving a high degree of probability that death would result." Based on his view that the "high probability of death" formulation is more stringent than the "natural consequences" test, defendant argues the trial court had a sua sponte duty to add the "high probability of death" formulation to the implied malice instruction. He claims it is incongruous that even though "[i]mplied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence" (People v. Watson, supra, 30 Cal.3d at p. 296), only the gross negligence instruction contains language regarding "a high risk of death or great bodily injury." (CALCRIM No. 590.)

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