California, United States of America
The following excerpt is from People v. Cleaves, 229 Cal.App.3d 367, 280 Cal.Rptr. 146 (Cal. App. 1991):
First degree murder and second degree murder premised on express malice involve the specific intent to kill, whereas second degree murder premised on implied malice involves a general intent to do the act and the mental state of knowledge and conscious disregard for the risk to human life. (See People v. Murtishaw (1981) 29 Cal.3d 733, 764-765, 175 Cal.Rptr. 738, 631 P.2d 446.)
Since Cleaves was charged with both specific intent and general intent crimes, we will assume arguendo 14 the trial court had a sua sponte duty to give CALJIC No. 3.30, which refers to concurrence between act and general intent, 15 in addition to CALJIC No. [229 Cal.App.3d 381] 3.31. (See People v. Beach, supra, 147 Cal.App.3d at p. 627, 195 Cal.Rptr. 381; People v. Gonzalez, supra, 81 Cal.App.3d at p. 279, 146 Cal.Rptr. 417.) Additionally, since second degree murder based on implied malice is a general intent crime but with the requirement of a certain mental state, to avoid confusion the trial court then should also have given CALJIC No. 3.31.5, or a modification thereof. 16
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