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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Juan Gerardo GUZMAN, Defendant and Appellant.


Decided: May 29, 1987

Richard Jay Moller, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Peter Quon, Jr., and Gil P. Gonzalez, Deputy Attys. Gen., for plaintiff and respondent.


Juan Guzman appeals his second-degree murder conviction, alleging the court gave the jury an erroneous definition of implied malice.   We agree, and cannot find the error harmless beyond a reasonable doubt.


On the night of September 15, 1983, Guzman and a number of his friends had a beach party;  they planned to drink beer, smoke marijuana and enjoy a fire.   The fire ring next to theirs was occupied by Paul Martino and his friends.   Each group was unacquainted with the other.

Shortly after arriving, Guzman and his friend Richard Serrano left for about an hour and a half to visit some girls who lived in Santa Ana.   Both young men had been drinking beer before arriving at the beach.   En route to the girls' home, while there, and on the return trip Serrano and Guzman drank more beer.   During their absence, the Martino and Guzman groups became embroiled in a dispute over firewood.1

The incident's bitter aftertaste resulted in the exchange of taunts and epithets throughout the night.   By the time Guzman and Serrano returned to the beach, the conflict had escalated beyond name-calling into a near fistfight aborted only by police intervention.   Guzman and Serrano, who had not been involved, rejoined their friends for a minute or two, and then crossed Pacific Coast Highway to patronize a fast-food restaurant.   On the way back Guzman and Serrano met two group members who had also bought food.   Then Jaime Ochoa joined the four.

Ochoa was smarting from another skirmish with the Martino group that had just occurred near the restroom.   A verbal altercation had ensued, followed by Ochoa's throwing a fake punch at Martino.   Tempers were flaring when two officers in a police cruiser arrived and told everyone to leave because the beach was closed.   Ochoa rejoined his friends and reported what had happened.   Martino's group stood in the parking lot discussing the restroom incident.   Two additional friends who had just arrived joined the Martino group.

Four members of the Guzman group (including Guzman and Ochoa) approached Martino's group.   Someone from Guzman's group called out, “Who's talking shit?” 2  Guzman, who was holding a five-to six-inch knife down by his leg, challenged the group to fight.   They declined.   Ochoa threw a punch at Martino, then hit one of Martino's friends in the eye.   A melee ensued.   Someone yelled, “He has a knife,” and everyone in Martino's group except Martino himself fled.   Three people were dragging Martino and swinging him in the parking lot when one of them made a stabbing motion.   Martino yelled, “I've been stabbed,” and ran.   The people who had been hitting Martino chased him briefly but stopped when he ran to a pickup truck for help.   Martino died of a single stab wound to the right upper abdomen.

Guzman, who was drunk and had been smoking marijuana earlier that night, passed out in the truck on the way home.

The next day Ochoa arranged a meeting between himself, Guzman and off-duty Long Beach Police Officer Max Baxter.   Baxter's wife was a co-worker of Ochoa and Guzman's at a local hospital.   Officer Baxter had agreed to meet with the two young men in a purely civilian capacity, to advise them what to do.   At the outset of the conversation he promised not to arrest them or report the incident.

Guzman told Baxter a fight had erupted by the restroom.   Initially unaware he even had a knife, Guzman knew that during the brawl he had stabbed someone in a “reflex action.”   He told Baxter “somebody was coming at him,” and another person “could have hit him.”   He did not realize what he had done until afterwards.   Guzman did not think the person was badly hurt because he took off running.   Officer Baxter kept his word not to arrest Guzman or report their conversation.

Guzman's employer, a neighbor, friends and family vouched for his peaceful character, even when drunk.   Guzman had no prior criminal record, despite having grown up in a neighborhood infamous for its violent gangs.


Guzman raises a host of issues, one of which is dispositive.   He argues the second degree murder implied malice instruction failed to inform the jury a defendant must know his conduct endangers the life of another, and that in his case, the error was fatal.   We agree.

 The malice aforethought necessary for a second degree murder conviction may be implicit.   Our Supreme Court restated the rule in People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, to clarify the requirement a defendant must actually understand the life-threatening quality of his act.  “We have said that second degree murder based on implied malice has been committed when a person does ‘ “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ ”․'  [Citations.]  Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.  [Citation.]”  (Id., at p. 300, 179 Cal. Rptr. 43, 637 P.2d 279, emphasis supplied.)

After the Watson decision, CALJIC No. 8.11 was revised to reflect the “subjective awareness” element of implied malice.   This updated instruction was given to the jury in our case.   It reads in relevant part:  “Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life or when the killing results from an intentional act, the natural consequences of which are dangerous to human life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”  (CALJIC No. 8.11 (4th ed. 1986 pocket pt.), emphasis supplied.)

 CALJIC No. 8.11 incompletely tracks the language of Watson, substituting “or” for “[p]hrased in a different way.”   The instruction is thus susceptible of two interpretations:  (1) The definitions of implied malice are synonymous, each requiring knowledge by the defendant that his act endangers another, or (2) There are two different tests for implied malice, one of which does not require knowledge.   The latter conclusion is legally erroneous, and the Attorney General concedes the two concepts are intended to be synonymous.3  Unfortunately, he was not present to advise the trial prosecutor, who argued to the jury the tests are different in that one omits the element of knowledge.

Defense counsel argued manslaughter was the proper verdict.   He correctly told the jury Guzman could not be convicted of implied malice murder unless when he stabbed Martino, he knew what he was doing and understood his actions could kill.   The attorney contended Guzman was so intoxicated he acted in a reflex manner, never appreciating the risk of death his act created.

In rebuttal, the prosecutor had this to say:  “[¶ ] There was some discussion about the definition of malice aforethought, and defense counsel threw in very quickly a couple of things.   And they are important, so I'm going to cover them again here.  [¶ ] When he talked about the definition of malice aforethought, he left out this word ‘or.’   And when you listen to the instruction, there are two definitions of implied malice.   There is the intentional dangerous act for a base, anti-social purpose, done in wanton disregard for human life.   That's one.  [¶ ] The next thing is an act that's likely to cause death done with knowledge of the danger of the act with wanton disregard for human life.  [¶ ] And what defense counsel did when he talked about these was that he put this knowledge element up here and made it a part of both definitions.   And that is not the case. Just keep those things straight.  [¶ ] So what we're talking about is an intentional dangerous act for a base, anti-social purpose, with a wanton disregard for life on the one hand, and then this knowledge element is in the other after the ‘or.’  [¶ ] So it is one way or the other.   You don't have to have—you don't lump them both together.”  (Emphasis supplied.)

 The trial judge did not correct the prosecutor, and defense counsel did not object to the misstatement of law, which would have been an idle act under the circumstances.4  He had previously alerted the court to the problem with CALJIC No. 8.11 and drafted a substitute instructing the jury knowledge of the risk of death one's act creates is a component of implied malice.   The instruction was refused.   Immediately after final remarks defense counsel asked the court to reconsider, saying the prosecutor's argument to the jury graphically illustrated the need for clarification, and that as matters stood the jurors were left with no distinction between second degree murder and involuntary manslaughter.   The motion to reconsider was denied.


We are not the first court to discern the flaws in CALJIC No. 8.11 as presently worded.   In People v. Kreutzer ** (April 28, 1987, D004013), Division One of this court addressed the problem of the instruction's arguably alternative definition of implied malice.   There, as here, the People contended juries are adequately informed of the subjective awareness requirement under either prong of CALJIC No. 8.11.   Kreutzer claimed a murder conviction was possible under the first definition with no determination of subjective awareness.   Justice Wiener wrote:  “[The] argument is a sound one unless ‘wanton disregard’ means the same thing as ‘conscious disregard.’   To those versed in legal lore, the term ‘wanton disregard’ conjures various images but the dictionary definition for ‘wanton’ hardly makes clear it is a synonym for ‘conscious.’ To the extent jurors ever speculate on the meaning of ‘wanton disregard,’ we do not think they would necessarily conclude it requires a finding of subjective awareness.”  (Id., fn. omitted.)

 “Wanton disregard” is as vague and archaic a term as the “abandoned and malignant heart” rejected in People v. Poddar (1974) 10 Cal.3d 750, 757, 111 Cal.Rptr. 910, 518 P.2d 342.5  We agree with Justice Wiener that CALJIC No. 8.11 should be simplified, using the language of our time, to read that “malice is implied when the killing results from an unjustified intentional act, the natural consequences of which are dangerous to life, where it is shown that the defendant consciously disregarded the high degree of probability that the act would result in death.”  (Id.,) 6  Any confusing additional language about wanton disregard for human life should be discarded altogether.

 Even if the People were correct that the first prong of CALJIC No. 8.11 can be equated with the second, the prosecutor here argued just the opposite.   He insisted defense counsel had misled the jurors in saying knowledge was required in either case, and pointed to the CALJIC instruction's alternative language as proof.

Our case was close in many respects.   Guzman's intoxication was uncontroverted, and the knifing was clearly out of character for him.   Only one quick stab was inflicted.   Guzman did not customarily carry a knife except in the crime-plagued area where he worked;  he had the weapon with him that night fortuitously.  (A co-worker had asked him to take it home.)   All evening the fatal confrontation had been developing, with escalating verbal and physical exchanges between two groups of immature youngsters fueled with alcohol and, in some cases, marijuana.   Guzman's statements to Officer Baxter evinced a confusion consistent with a drunken, “loaded” young man with little memory of the fateful events.   A manslaughter verdict might well have been returned had the jury been properly instructed.

The jurors made several requests of the trial court.   They wanted the definitions of murder, voluntary manslaughter and involuntary manslaughter reread.   They asked “the difference between intoxication and being high on marijuana.”   The meaning of the term “unconscious” was questioned.   And most tellingly, one juror asked if the court could define malice aforethought “in laymen's terms.”   The court responded by rereading the byzantine CALJIC No. 8.11 instruction.

Under the circumstances it is impossible to say the instructional error was harmless beyond a reasonable doubt.  (See Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 3103–3109, 92 L.Ed.2d 460.)   We need not reach Guzman's other contentions.

The judgment is reversed.


1.   Upon seeing Guzman's group running low on firewood, Martino's group had offered some of theirs.   It was accepted with thanks.   Later in the evening, a few of Martino's group were returning from the restroom when they noticed more of their wood being taken by members of the Guzman group.   The Guzman group insisted an absent member of Martino's group had authorized them to use it;  the others disbelieved them.   Angry words were exchanged and the Martino group repossessed the firewood.

2.   Testimony differed as to the speaker's identity.   One witness thought the knife-wielder was the source, but Ochoa thought it was he himself.

3.   The CALJIC drafters have refused to take a stand on whether No. 8.11 should be interpreted as containing two concepts of implied malice or one.  (See CALJIC No. 8.11 (4th ed. pocket pt.), Comment, p. 87.)   Their insistence on preserving ambiguity by inserting the nebulous “or” in CALJIC No. 8.11 has led to the present problem.  Watson's “phrased in a different way” argot obviously implies the definitions were intended to be synonymous (although the “wanton disregard” language is anachronistic and confusing).   If the tests are synonymous, both require knowledge.   Lest there be any doubt, the Supreme Court recently joined the two concepts in State of California ex. rel. Dept. of Transportation v. Superior Court (1985) 37 Cal.3d 847, 210 Cal.Rptr. 219, 693 P.2d 804.   Discussing petitioner's prospective murder trial, the court stated:  “[T]he murder charges will likely be tried on a theory of implied malice.   The trier of fact will need to decide whether (1) Ms. Hall intentionally committed an act with a high probability that it would result in death, and (2) she subjectively appreciated the risk created by her act.  [Citations.]”  (Id., at p. 856, 210 Cal.Rptr. 219, 693 P.2d 804.)   No legitimate argument can still be made that subjective awareness is not always a requisite of implied malice.   The CALJIC drafters should change the instruction accordingly.

4.   In any event, the court must correctly instruct sua sponte on relevant general principles of law. (People v. Wickersham (1982) 32 Cal.3d 307, 331, 185 Cal.Rptr. 436, 650 P.2d 311.)   Certainly no such principles exceed in importance the elements of the crime.

FOOTNOTE.   Editor's Note:  The Supreme Court denied review and ordered the above opinion not be officially published on July 30, 1987.

5.   We disagree with the court in People v. Flores (1986) 178 Cal.App.3d 74, 223 Cal.Rptr. 465, that the “wanton disregard” language “requires the jury to question [the defendant's] subjective thoughts [sic] while committing the crime.” (Id., at p. 80, 223 Cal.Rptr. 465.)   We note, however, that the court in Flores did not confront a situation where the prosecutor expressly argued to the jury that under its rubric subjective awareness is not required.

6.   The Kreutzer court found the error harmless beyond a reasonable doubt in light of the overwhelming evidence against the defendant, who had cold-bloodedly shot his victim.   Kreutzer was not intoxicated, and the prosecutor did not urge he could be convicted without subjective awareness of the risk of death his act created.  (People v. Kreutzer, supra.)

TROTTER, Presiding Justice.

WALLIN and CROSBY, JJ., concur.