What is the difference between second degree murder and implied malice?

California, United States of America


The following excerpt is from People v. Winn, A144071 (Cal. App. 2016):

Murder is the unlawful killing of a human being with malice, express or implied. ( 187; People v. Beltran (2013) 56 Cal.4th 935, 941-942.) In acquitting Winn of murder, therefore, the jury found that he killed Rendleman without malice.

Winn believes it is significant that the jury did not find implied malice, since the jury was instructed that implied malice exists if the killing resulted from an intentional act, the natural and probable consequences of which are dangerous to human life, and the act was "deliberately performed with knowledge of the danger to, and with conscious disregard for, human life." (Italics added. See CALJIC No. 8.11.) He interprets the acquittal to mean that the jury did not believe Winn realized the risk of his actions. (Citing People v. Cleaves (1991) 229 Cal.App.3d 367, 378 ["the essential distinction between second degree murder based on implied malice and involuntary manslaughter is the subjective versus objective criteria to evaluate the defendant's state of mindi.e. if the defendant commits an act which endangers human life without realizing the risk involved, he is guilty of manslaughter, whereas if he realized the risk and acted in total disregard of the danger, he is guilty of murder based on implied malice"].)

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