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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Leland DELLINGER, Defendant and Appellant.

No. G004160.

Decided: May 31, 1988

Appellate Defenders and Richard P. Siref, San Diego, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., M. Howard Wayne and Raquel M. Gonzalez, Deputy Attys. Gen., for plaintiff and respondent.


On May 29, 1979, two-year-old Jaclyn died from blunt force trauma to her head.   Ingestion of cocaine, found in both her stomach and liver, was a contributing cause of death.   Her stepfather, Leland Dellinger, who was caring for Jaclyn when she sustained the fatal injuries, claimed she had fallen down a staircase in in the apartment.   The prosecution argued Dellinger either inflicted the injuries or gave her cocaine.   The jury convicted him of second degree murder.

Dellinger contends the jury was instructed erroneously on the law of implied malice, and based on that instruction may have convicted him without finding he subjectively appreciated the life threatening nature of his acts.   We agree.   The standard jury instruction on implied malice is potentially misleading, the prosecution exacerbated the error in closing argument, and the jury specifically inquired about the difference between second degree murder and manslaughter during their six days of deliberation.   Thus, we cannot conclude the instructional error was harmless beyond a reasonable doubt.   The judgment must be reversed.


Instructional Error

 The concept of implied malice was explained to the jury pursuant to CALJIC No. 8.11, which in relevant part is as follows:  “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, anti-social 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 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. 1983).)   The definition was repeated for the jury in CALJIC No. 8.31 as one type of second degree murder.

Unquestionably, to harbor implied malice a defendant must actually appreciate the risk his actions could cause another person's death.  (People v. Watson (1981) 30 Cal.3d 290, 296–297, 179 Cal.Rptr. 43, 637 P.2d 279;  State of California ex rel. Dept. of Transportation v. Superior Court (1985) 37 Cal.3d 847, 856, 210 Cal.Rptr. 219, 693 P.2d 804.)   Nevertheless, this simple concept has endured a tortuous semantical history.   The Supreme Court in Watson attempted to embrace what it believed was the synonymous language used in two separate lines of cases, stating, “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’ ”․'   [Citation.]  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., 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

The drafters of CALJIC, however, substituted “or” for the Supreme Court's transition “[p]hrased in a different way,” and then, inexplicably, added in a comment that the CALJIC committee expressed “no opinion as to ․ whether the two concepts of implied malice are intended to be synonymous or alternatives.”  (CALJIC No. 8.11 (4th ed. 1983), and comment following.)   Since the Supreme Court had already expressed its opinion that the tests are two ways of saying the same thing, the committee's gratuitous editorializing is especially puzzling.

The trial courts are now saddled with the confusion wrought by the committee's alteration and accompanying commentary, as recently noted by our colleagues in Division 1 of this district.  “This unfortunate substitution leads to the implication that there are two different tests for implied malice, the first of which does not require [subjective awareness].   This interpretation is wrong, for as the Watson court stated:  ‘[A] finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.’  (Id. at pp. 296–297, 179 Cal.Rptr. 43, 637 P.2d 279, original italics.)  [¶] It is clear that at the very least CALJIC No. 8.11 is confusing on this point.”  (People v. James (1987) 196 Cal.App.3d 272, 290, 241 Cal.Rptr. 691.   See also People v. Walsh (1988) 200 Cal.App.3d 307, 245 Cal.Rptr. 862.)

Not everyone agrees.   In People v. Flores (1986) 178 Cal.App.3d 74, 223 Cal.Rptr. 465 the court stated without elaboration that “[t]he specific phrase, ‘which act is done for a base, antisocial purpose and with wanton disregard for human life,’ requires the jury to question appellant's subjective thoughts while committing the crime.”  (Id., at p. 80, 223 Cal.Rptr. 465.)   Unfortunately, our experience with a number of second degree murder cases tells us otherwise.   We have repeatedly seen prosecutors argue that CALJIC No. 8.11 contains two implied malice tests, one of which does not require subjective awareness.1  And we have seen trial judges fail to correct the error, even in the face of defense requests, because they, too, have been misled by the instruction.

The origins of the confusion are linguistic.   Few of us would use an archaic phrase like “wanton disregard for human life” in daily speech.   If such language must be used to instruct lay people about the complex law of homicide, we should at least define the dustier terms.   Yet nowhere in CALJIC is “wanton” explained.   Even the dictionary is little help;  “wanton” is variously defined as:  “1. Immoral or unchaste;  lewd.   2.a. Maliciously cruel;  merciless.   b. Characterized by malicious cruelty;  unjust.   3. Freely extravagant;  excessive:  wanton spending.   4. Luxuriant;  overabundant:  wanton tresses.   5. Frolicsome;  playful.   6. Obs. Rebellious;  refractory.”  (The American Heritage Dictionary (2d college ed. 1982) p. 1362.)   Nowhere is “wanton” defined as “knowing.”   And as Justice Kremer pointed out in People v. Walsh, supra, 200 Cal.App.3d at p. 314, 245 Cal.Rptr. 862:  “Nor does the word ‘disregard’ convey conscious appreciation;  indeed the word is defined as meaning ‘to pay no attention to:  treat as unworthy of regard or notice.’  [Citation.]”   How can jurors be expected to understand that “wanton disregard for human life” means “consciously appreciating and disregarding the danger to human life?”

It is unfortunate so basic a concept as implied malice remains muddled when CALJIC No. 8.11 could easily be modified to provide jurors with a plain English explanation of subjective awareness.   For instance, malice can be implied when (1) a defendant intentionally does something very likely to cause death, (2) he knows the act endangers life, (3) but he does it anyway.   Although we would lose the opportunity to ponder the subtleties of “wanton disregard” and “base antisocial purpose,” jurors, assigned the ominous responsibility of deciding guilt or innocence, would have a standard able to be understood and applied.   They would also have a meaningful distinction between second degree implied malice murder and involuntary manslaughter.

We urge the CALJIC committee to consider revising No. 8.11 along the lines we have suggested.   In the case at hand, the instruction was misleading since it can be interpreted to contain two implied malice tests, one not requiring subjective awareness.   The court erred by reading it to the jury.


Was the Instructional Error Prejudicial?

We cannot affirm Dellinger's conviction unless the instructional error was harmless beyond a reasonable doubt.  (See Rose v. Clark (1986) 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460.)   There is more than reasonable doubt here.

First, the case was close and entirely circumstantial.   While the prosecution theorized Dellinger either struck the victim in the back of the head with his hand, shook her and then slammed her head into a padded surface, or gave her cocaine, the defense claimed she had fallen down seven carpeted stairs.

Experts for both sides tried to determine the instrumentality probably responsible for the injuries the victim sustained.   Their conclusions were evenly divided.   Both experts called by the prosecution concluded it was unlikely a fall down the stairs would cause a fractured skull, bruising to the soft tissue area of the neck and shoulders, and damage to the spinal cord.   The forensic pathologist opined someone had struck the victim on the back of the head with a bare hand, while the pediatrician specializing in child abuse testified she was probably shaken and then slammed against a padded surface.   But the defense pathologist and a pediatric neurosurgeon concluded the injuries were consistent with a fall down stairs, and both rejected the two different instrumentalities postulated by the prosecution.   We can infer the jurors struggled with the testimony;  they deliberated for six days.

Secondly, the prosecutor compounded any potential confusion by his concluding remarks about the implied malice instruction.  “Now we get to—you talk about the second degree murder, implied malice.   That's where the case lies.   An act dangerous to life.  [¶] Now, ladies and gentlemen, malice is described and malice is—when malice is described, you hear malice a couple different times, okay, in the definition of second degree murder, implied malice theory.   This is what you're going to hear.   You're going to hear that malice is implied.   When the killing results from an intentional act involving a high degree or [sic] probability that it will result in death which act is done for a base antisocial purpose, and with wanton disregard for human life, that's second degree murder.   You don't have to have an intent to murder, intent to kill, no deliberation or lapse of time.  [¶] Now, you see an “or” here on the chart.   This is what I just read, these are the three elements, and there's another additional three that you can—both sets of definitions are used to arrive at the same conclusion.   That's second degree murder.   If you don't like one, you can use the other․  [¶]  You get the other definition, when the killing results from an intentional 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, you have the intentional act.”  (Emphasis added.)

Even if the two definitions of implied malice theoretically are synonymous, the prosecutor misstated the law to the jury.   He emphasized the now infamous “or” and then forthrightly admonished the jurors, “If you don't like one, you can use the other.”   In other words, if you cannot find Dellinger subjectively appreciated the life threatening nature of his acts, then perhaps those base antisocial acts were done in “wanton disregard.”   Therefore, the jury was told Dellinger could be convicted of second degree murder even if he did not realize the child's life was endangered.   Without the prosecutor's argument we would have been left to speculate as to how the jury might have interpreted No. 8.11.   But as matters stand the instruction's potential for confusion is obvious.   In light of these remarks, the instructional error was prejudicial.

This is particularly true given the number of possible ways in which the child died.   The jury obviously rejected Dellinger's story.   It is not clear, however, whether they found he gave her cocaine, left the cocaine in a place accessible to her, or whether he struck and/or shook her.   His subjective awareness of the risk of death might vary considerably depending on the instrumentality of death.   And the jury clearly was troubled with the distinction between second degree murder and manslaughter, having requested clarification from the judge during their fourth day of deliberations.   Their confusion coupled with the prosecutor's erroneous admonitions makes it impossible to characterize the instructional error as harmless beyond a reasonable doubt.

 The judgment is reversed.2

I concur CALJIC No. 8.11 is misleading but I write separately because I do not agree with all of the majority's reasoning regarding the instruction's prejudicial effect.

The majority concludes the prosecutor, by telling the jury the two definitions of implied malice were different, “compounded” the instructional error.   My colleagues maintain the jury was asked to disregard the requirement of subjective appreciation.   But the prosecutor did not say the two were different;  he merely told the jury, “If you don't like one, you can use the other.”   In other words, he argued there were two workable definitions that “arrive at the same conclusion.”   Moreover, later in his summation, the prosecutor, in arguing Dellinger's guilt, discussed the subjective appreciation standard appropriately applying it to the facts.

The majority describes the case as close, emphasizing the conflicting opinions of the experts.   Indeed, all of the experts were highly qualified, and the jury would have been faced with a difficult task if this was the only evidence.   It was not.

The jury also learned Dellinger had recently struck Jaclyn with such force a handprint-shaped bruise appeared on her back.   Further, Jaclyn had bruises on her back and buttock area that pre-dated her fatal injuries.   On the day of her death, Dellinger gave Jaclyn a baby bottle full of wine because she was “fussy.”   Finally, a potentially lethal dose of cocaine was found in Jaclyn's body.   Although he was the only person with Jaclyn, Dellinger denied giving her cocaine or possessing it in the apartment.   The existence of strong circumstantial evidence pointing toward Dellinger's guilt refutes the claim the case was close.

Nor do I find the length of deliberations,1 by itself, a compelling factor in the analysis.   It is not surprising, considering the technical nature of the evidence, deliberations lasted several days.   I would expect no less of a conscientious jury confronted with detailed testimony from numerous experts,2 covering technical fields of knowledge.

I am nevertheless compelled to concur in the result.   The jury was concerned about the instruction;  they requested clarification of the murder and manslaughter definitions.   They deliberated nearly two more days after receiving a written copy of CALJIC No. 8.11.   Thus, I cannot say the instructional confusion engendered by CALJIC No. 8.11 was harmless beyond a reasonable doubt.


1.   We by no means imply this is done by all, or even most, prosecutors.  (See, e.g., People v. Protopappas (1988) 192 Cal.App.3d 1175, 246 Cal.Rptr. 915, for an excellent prosecution argument on the subjective awareness requirement.)   But it happens with enough regularity to alert us that reasonable people can interpret the instruction erroneously.

2.   Dellinger also claims the trial court erred by allowing testimony he struck Jaclyn approximately a month before her death, leaving a handprint-shaped bruise on her lower back.   We previously held the admission of this evidence was proper because “Dellinger's mental state was ‘actually in dispute’ and his prior assault was relevant to prove the willfulness and deliberation necessary to a finding of first degree murder.”  (People v. Dellinger (1984) 163 Cal.App.3d 284, 299, 209 Cal.Rptr. 503.)   Our analysis remains unchanged, even though on retrial he was tried for second degree murder.   His mental state remained at issue and his prior assaultive conduct in reasonably close proximity to Jaclyn's death was relevant to the existence of implied malice.Furthermore, for purposes of retrial, we also reject Dellinger's contention the court erred by admitting evidence he had given Jaclyn wine in her bottle.   Dellinger admitted giving her wine on the very afternoon she died because she was fussy.   Since the act was part of the events attending the death itself, the court did not abuse its discretion in finding the admission was both relevant and not unduly prejudicial.

1.   The actual deliberations were less than six days.   One morning was abbreviated because the trial court conducted voir dire over a newspaper article covering the case.   Another afternoon was spent listening to the court reporter read testimony.   And the jury deliberated just 15 minutes the first day.

2.   Three pathologists, a pediatrician, a neurosurgeon and a criminalist testified.

WALLIN, Associate Justice.

CROSBY, J., concurs.