In a personal injury action, does the failure to request a supplemental Page 15 instruction of implied malice constitute an ineffective assistance of counsel claim?
California, United States of America
The following excerpt is from People v. Delgadillo, B281230 (Cal. App. 2018):
In any event, the failure to request a supplemental instruction was not prejudicial. (See People v. Cudjo, supra, 6 Cal.4th at p. 615 [prejudice is necessary element of ineffective assistance of counsel claim].) Even had the jury been given the "high probability of death" formulation of implied malice, it would have reached the same verdict. The questions posed by the jury regarding the implied malice instruction do not create a reasonable doubt that the verdict would have been the same had the additional instruction been given.
As previously discussed, the evidence of gross negligence and implied malice was undisputed. Because a "high risk of death" is synonymous with a "high probability of death," the likelihood that the "high probability of death" formulation would have resulted in a more favorable verdict is exceedingly slim. We therefore conclude the failure to request a supplemental
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instruction was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
The judgment is affirmed.
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