1.     Consider why the drafters of the MPC did not include first and second-degree murder. What is the difference between criminal homicide, murder, manslaughter, and negligent homicide? Do you prefer the MPC definition or the common law definitions?

2.     Diagram/list the elements of the various degrees of homicide found in the MPC and state statutes.

3.      Compare the mens rea elements in the MPC’s murder statute with the mens rea elements in California and New York murder statutes.

         What is the closest equivalent to the MPC’s “knowingly” in California or New York?

         What degree of homicide applies to such killings in those jurisdictions?

         Were you to design a homicide statute, would you punish “intentional” killings more harshly than those committed “knowingly”?

         Why or why not?

         Are intentional killings more dangerous than knowing killings?

         Are they more blameworthy?

         Are they less deterrable?

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.2

(1980), 13–16.

1.  Common-Law Background. At common law, murder was defined as the unlawful killing of another human being with “malice aforethought.” Whatever the original meaning of that phrase, over time it became an “arbitrary symbol” used by judges to signify any of a number of mental states deemed sufficient to support liability for murder. Successive generations added new content to “malice aforethought” until it encompassed a variety of mental attitudes bearing no predictable relation to the ordinary sense of the two words. Even today, judges find in the elasticity of this ancient formula a convenient vehicle for announcing new departures in the law of homicide.

Various authorities have given different summaries of the several meanings of “malice aforethought.” Generally, these definitions converge on four constituent states of mind. First and foremost, there was intent to kill. Common-law authorities included in the notion of intent to kill awareness that the death of another would result from one’s actions, even if the actor had no particular desire to achieve such a consequence. Thus, intentional or knowing homicide was murder unless the actor killed in the heat of passion engendered by adequate provocation, in which case the crime was manslaughter. A second species of murder involved intent to cause grievous bodily harm. Again, knowledge that conduct would cause serious bodily injury was generally assimilated to intent and was deemed sufficient for murder if death of another actually resulted. A third category of murder was sometimes called depraved-heart murder. This label derived from decisions and statutes condemning as murder unintentional homicide under circumstances evincing a “depraved mind” or an “abandoned and malignant heart.” Older authorities may have described such circumstances as giving rise to an “implied” or “presumed” intent to kill or injure, but the essential concept was one of extreme recklessness regarding homicidal risk. Thus, a person might be liable for murder absent any actual intent to kill or injure if he caused the death of another in a manner exhibiting a “wanton and wilful disregard of an unreasonable human risk” or, in confusing elaboration, a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty.” The fourth kind of murder was based on intent to commit a felony. This is the origin of the felony-murder rule, which assigns strict liability for homicides committed during the commission of a felony. These four states of mind exhausted the meaning of “malice aforethought”; the phrase had no residual content.

2.     Antecedent Statutory Variations. Prior to the recodification effort begun by the Model Penal Code, most American jurisdictions maintained a law of murder built around these common-law classifications. The most significant departure was the division of murder into degrees, a change initiated by the Pennsylvania legislation of 1794. That statute provided that “all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate [and] premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder in the second degree.” The thrust of this reform was to confine the death penalty, which was then mandatory on conviction of any common-law murder, to homicides judged to be particularly heinous. Other states followed the Pennsylvania practice until at one time the vast majority of American jurisdictions differentiated degrees of murder and the term “first-degree murder” passed into common parlance.

Leaving the question of felony-murder aside, the extent to which the common law had been modified in other ways prior to the drafting of the Model Penal Code varied considerably from jurisdiction to jurisdiction.

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.3

(1980), 44–46.

1.     Common-Law Background. Initially, the common law did not distinguish murder from manslaughter. Early statutes, however, sought to differentiate among criminal homicides for the purpose of withdrawing benefit of clergy from the more heinous killings. This initiative led to the division of criminal homicides into murder, which retained its status as a capital crime, and the lesser offense of manslaughter. The courts defined murder in terms of the evolving concept of “malice aforethought” and treated manslaughter as a residual category for all other criminal homicides. Thus, in its classic formulation, manslaughter consisted of homicide without malice aforethought on the one hand and without justification or excuse on the other.

Traditional statements of the English law as it further evolved divided the offense into two types. First, homicide, even if intentional, was said to be without malice and therefore was considered manslaughter if committed in the heat of passion upon adequate provocation. Second, homicide was also manslaughter if it resulted from an act that was regarded as unduly dangerous to life or limb or from an act that was otherwise unlawful. This category thus encompassed conduct that was insufficiently reckless or negligent to constitute “depraved-heart” murder but at the same time exhibited culpability greater than needed for ordinary conceptions of civil negligence. It also included cases where the actor caused the death of another in the commission of an unlawful act, sometimes described as the misdemeanor-manslaughter analogue to the felony-murder rule. Courts commonly referred to the first category as voluntary manslaughter and the second as involuntary manslaughter, although the distinction had no grading significance at common law.

2.      Antecedent Statutory Variations. Virtually every state recognized the crime of manslaughter at the time the Model Penal Code was drafted. The majority of states, however, offered no explicit definition of the offense and hence determined its content by reference to the common law. 

An article in the Baltimore Law Review examines the classifications of common law homicide in detail. In relevant part, the article notes that: 

Common law homicide was classified as justifiable, excusable or felonious. Justifiable homicide included the execution of a lawful death sentence and the slaying of an outlaw resisting capture. Excusable homicide included killings that were accidental, prompted by self-defense or perpetrated by an infant or person of unsound mind. Although criminal, excusable homicide was deserving of a pardon from the king. The third class of homicide, felonious homicide, was divided into two main categories, murder and all other forms of homicide without justification or excuse. 

Although the penalty for felonious homicide was death, anyone who could read was entitled to a commutation of the death sentence under the device known as “the benefit of clergy.” Because of the obvious inadequacy of reading ability as the sole criterion for determining the degree of punishment, the benefit of clergy was abolished by a series of statutes for those homicides committed with malice aforethought. The device was retained, however, for other types of felonious homicides. Thus, the presence or absence of malice aforethought became the criterion for distinguishing murder, or nonclergyable felonious homicide, punishable by death, from felonious homicide subject to the benefit of clergy, later termed manslaughter. The remaining development of common law murder revolves in large part around the evolution of the various meanings of the term “malice aforethought.” 

There were also a few states, typified by Florida, that carried forward the substance of the common-law offense by defining manslaughter as “the killing of a human being by the act, procurement or culpable negligence of another where such killing shall not be justifiable or excusable homicide nor murder.” A more common variation was reflected in the federal manslaughter provision:

Manslaughter is the unlawful killing of a human being without malice. It is of two kinds:

Voluntary—Upon a sudden quarrel or heat of passion.

Involuntary—In the commission of an unlawful act not amounting to a felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death.

Statutes that followed this pattern typically departed from the common law by providing a grading differential between voluntary and involuntary manslaughter.

According to a November 2020 Report generated by the Council on Criminal Justice, homicide rates spiked dramatically across 21 U.S. cities during the pandemic. In 2020, the average city homicide rate was 32% higher during the pandemic (March to October 2020), 42% higher during the summer (June to August 2020), and 34% higher during the fall (September and October 2020) than it was in 2019. Year-to-date (January to October 2020), the average city homicide rate was 29% higher in 2020 than it was in 2019. 

Fatal shootings by on-duty police officers in the U.S. also increased during 2020. According to the Washington Post’s Police Shootings Database, 1,021 people were shot and killed by police in 2020 as compared to the 999 people killed by police in 2019. With the exception of a slight decrease in 2016, fatal police shootings by on-duty officers in the U.S. have been steadily increasing since 2015. And while African-Americans account for only 13% of the U.S. population, they are killed by police at more than twice the rate of White Americans. 

Although it does not yet contain homicide data for 2020, The Federal Bureau of Investigation reports in its Crime Data Explorer that in 2019 there were 14,185 homicides. Of those victims, 78% were male, whereas only 21% were female. The overwhelming number of killers were also male (63%), with females making up only 8% of killers and offenders with unreported sex making up 27%. Regarding victim race, African-Americans comprised 54% of victims and White Amercans made up 42%. Finally, 42% of homicides were committed by people who knew the victim, whereas only 10% of homicides were committed by strangers (48% of relationships were unknown). 

CA Penal Code § 187

(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:

(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.

(2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.

(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.

CA Penal Code § 188

Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.

CA Penal Code § 189

All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.

As used in this section, "destructive device" means any destructive device as defined in Section 16460, and explosive" means any explosive as defined in Section 12000 of the Health and Safety Code.

As used in this section, "weapon of mass destruction" means any item defined in Section 11417.

To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.

CA Penal Code § 189.5

(a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.

(b) Nothing in this section shall apply to or affect any proceeding under Section 190.3 or 190.4.

CA Penal Code § 190

(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.

(b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.

(c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true:

(1) The defendant specifically intended to kill the peace officer.

(2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer.

(3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022.

(4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5.

(d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.

(e) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce any minimum term of a sentence imposed pursuant to this section. A person sentenced pursuant to this section shall not be released on parole prior to serving the minimum term of confinement prescribed by this section.

CA Penal Code § 190.03

(a) A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole.

(b) The term authorized by subdivision (a) shall not apply unless the allegation is charged in the accusatory pleading and admitted by the defendant or found true by the trier of fact. The court shall not strike the allegation, except in the interest of justice, in which case the court shall state its reasons in writing for striking the allegation.

(c) For the purpose of this section, "hate crime" has the same meaning as in Section 422.55.

(d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.

CA Penal Code § 190.05

(a) The penalty for a defendant found guilty of murder in the second degree, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life. For purposes of this section, a prior prison term for murder of the first or second degree is that time period in which a defendant has spent actually incarcerated for his or her offense prior to release on parole.

(b) A prior prison term for murder for purposes of this section includes either of the following:

(1) A prison term served in any state prison or federal penal institution, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of confinement, as punishment for the commission of an offense which includes all of the elements of murder in the first or second degree as defined under California law.

(2) Incarceration at a facility operated by the Youth Authority for murder of the first or second degree when the person was subject to the custody, control, and discipline of the Director of Corrections.

(c) The fact of a prior prison term for murder in the first or second degree shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by the court sitting without a jury.

(d) In case of a reasonable doubt as to whether the defendant served a prior prison term for murder in the first or second degree, the defendant is entitled to a finding that the allegation is not true.

(e) If the trier of fact finds that the defendant has served a prior prison term for murder in the first or second degree, there shall be a separate penalty hearing before the same trier of fact, except as provided in subdivision (f).

(f) If the defendant was convicted by the court sitting without a jury, the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty or nolo contendere, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If the new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in the state prison for a term of 15 years to life.

(g) Evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026, shall be considered at any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

(h) In the proceeding on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition, and physical condition.

However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

Except for evidence in proof of the offense or the prior prison term for murder of the first or second degree which subjects a defendant to the punishment of life without the possibility of parole, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(1) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of the prior prison term for murder.

(2) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(3) The presence or absence of any prior felony conviction.

(4) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(5) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(6) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his or her conduct.

(7) Whether or not the defendant acted under extreme duress or under the substantial domination of another person.

(8) Whether or not at the time of the offense the ability of the defendant to appreciate the criminality of his or her conduct or to conform his or her conduct to the requirements of law was impaired as a result of mental disease or defect, or the effects of intoxication.

(9) The age of the defendant at the time of the crime.

(10) Whether or not the defendant was an accomplice to the offense and his or her participation in the commission of the offense was relatively minor.

(11) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of life without the possibility of parole if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances, the trier of fact shall impose a sentence of confinement in the state prison for 15 years to life.

(i) Nothing in this section shall be construed to prohibit the charging of finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

CA Penal Code § 190.1

A case in which the death penalty may be imposed pursuant to this chapter shall be tried in separate phases as follows:

(a) The question of the defendant's guilt shall be first determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged as enumerated in Section 190.2 except for a special circumstance charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.

(b) If the defendant is found guilty of first degree murder and one of the special circumstances is charged pursuant to paragraph (2) of subdivision (a) of Section 190.2 which charges that the defendant had been convicted in a prior proceeding of the offense of murder of the first or second degree, there shall thereupon be further proceedings on the question of the truth of such special circumstance.

(c) If the defendant is found guilty of first degree murder and one or more special circumstances as enumerated in Section 190.2 has been charged and found to be true, his sanity on any plea of not guilty by reason of insanity under Section 1026 shall be determined as provided in Section 190.4. If he is found to be sane, there shall thereupon be further proceedings on the question of the penalty to be imposed. Such proceedings shall be conducted in accordance with the provisions of Section 190.3 and 190.4.

CA Penal Code § 190.2 

(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:

(1) The murder was intentional and carried out for financial gain.

(2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second degree murder, shall be deemed murder in the first or second degree.

(3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.

(4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

(5) The murder was committed for the purpose of avoiding or preventing a lawful arrest, or perfecting or attempting to perfect, an escape from lawful custody.

(6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.

(7) The victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or  reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties; or the victim was a peace officer, as defined in the above-enumerated sections, or a former peace

officer under any of those sections, and was intentionally killed in retaliation for the performance of his or her official duties.

(8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; or the victim was a federal law enforcement officer or agent, and was intentionally killed in retaliation for the performance of his or her official duties.

(9) The victim was a firefighter, as defined in Section 245.1, who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a firefighter engaged in the performance of his or her duties.

(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness; or the victim was a witness to a crime and was intentionally killed in retaliation for his or her testimony in any criminal or juvenile proceeding. As used in this paragraph, "juvenile proceeding" means a proceeding brought pursuant to Section 602 or 707 of the Welfare and Institutions Code.

(11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor's office in this or any other state, or of a federal prosecutor's office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(14) The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity. As used in this section, the phrase "especially heinous, atrocious, or cruel, manifesting exceptional depravity" means a conscienceless or pitiless crime that is unnecessarily torturous to the victim.

(15) The defendant intentionally killed the victim by means of lying in wait.

(16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.

(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:

(A) Robbery in violation of Section 211 or 212.5.

(B) Kidnapping in violation of Section 207, 209, or 209.5.

(C) Rape in violation of Section 261.

(D) Sodomy in violation of Section 286.

(E) The performance of a lewd or lascivious act upon the person of a child under the age of 14 years in violation of Section 288.

(F) Oral copulation in violation of Section 288a.

(G) Burglary in the first or second degree in violation of Section 460.

(H) Arson in violation of subdivision (b) of Section 451.

(I) Train wrecking in violation of Section 219.

(J) Mayhem in violation of Section 203.

(K) Rape by instrument in violation of Section 289.

(L) Carjacking, as defined in Section 215.

(M) To prove the special circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if there is specific intent to kill, it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder.

(18) The murder was intentional and involved the infliction of torture.

(19) The defendant intentionally killed the victim by the administration of poison.

(20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim's official duties.

(21) The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death. For purposes of this paragraph, "motor vehicle" means any vehicle as defined in Section 415 of the Vehicle Code.

(22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang.

(b) Unless an intent to kill is specifically required under subdivision (a) for a special circumstance enumerated therein, an actual killer, as to whom the special circumstance has been found to be true under Section 190.4, need not have had any intent to kill at the time of the commission of the offense which is the basis of the special circumstance in order to suffer death or confinement in the state prison for life without the possibility of parole.

(c) Every person, not the actual killer, who, with the intent to kill, aids, abets, counsels, commands, induces, solicits, requests, or assists any actor in the commission of murder in the first degree shall be punished by death or imprisonment in the state prison for life without the possibility of parole if one or more of the special circumstances enumerated in subdivision (a) has been found to be true under Section 190.4.

(d) Notwithstanding subdivision (c), every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in paragraph (17) of subdivision (a) has been found to be true under Section 190.4.

The penalty shall be determined as provided in this section and Sections 190.1, 190.3, 190.4, and 190.5.

CA Penal Code § 190.25

(a) The penalty for a defendant found guilty of murder in the first degree shall be confinement in state prison for a term of life without the possibility of parole in any case in which any of the following special circumstances has been charged and specially found under Section 190.4, to be true: the victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended in the air, used for the transportation of persons for hire, or the victim was a station agent or ticket agent for the entity providing such transportation, who, while engaged in the course of the performance of his or her duties was intentionally killed, and such defendant knew or reasonably should have known that such victim was the operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley, or other motor vehicle operated on land, including a vehicle operated on stationary rails or on a track or rail suspended
in the air, used for the transportation of persons for hire, or was a station agent or ticket agent for the entity providing such transportation, engaged in the performance of his or her duties.

(b) Every person whether or not the actual killer found guilty of intentionally aiding, abetting, counseling, commanding, inducing, soliciting, requesting, or assisting any actor in the commission of murder in the first degree shall suffer confinement in state prison for a term of life without the possibility of parole, in any case in which one or more of the special circumstances enumerated in subdivision (a) of this section has been charged and specially found under Section 190.4 to be true.

(c) Nothing in this section shall be construed to prohibit the charging or finding of any special circumstance pursuant to Sections 190.1, 190.2, 190.3, 190.4, and 190.5.

CA Penal Code § 190.3

If the defendant has been found guilty of murder in the first degree, and a special circumstance has been charged and found to be true, or if the defendant may be subject to the death penalty after having been found guilty of violating subdivision (a) of Section 1672 of the Military and Veterans Code or Sections 37, 128, 219, or 4500 of this code, the trier of fact shall determine whether the penalty shall be death or confinement in state prison for a term of life without the possibility of parole. In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to, the nature and circumstances of the present offense, any prior felony conviction or convictions whether or not such conviction or convictions involved a crime of violence, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the express or implied threat to use force or violence, and the defendant's character, background, history, mental condition and physical condition.

However, no evidence shall be admitted regarding other criminal activity by the defendant which did not involve the use or attempted use of force or violence or which did not involve the express or implied threat to use force or violence. As used in this section, criminal activity does not require a conviction.

However, in no event shall evidence of prior criminal activity be admitted for an offense for which the defendant was prosecuted and acquitted. The restriction on the use of this evidence is intended to apply only to proceedings pursuant to this section and is not intended to affect statutory or decisional law allowing such evidence to be used in any other proceedings.

Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.

The trier of fact shall be instructed that a sentence of confinement to state prison for a term of life without the possibility of parole may in future after sentence is imposed, be commuted or modified to a sentence that includes the possibility of parole by the Governor of the State of California.

In determining the penalty, the trier of fact shall take into account any of the following factors if relevant:

(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.

(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.

(c) The presence or absence of any prior felony conviction.

(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

(e) Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act.

(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.

(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect, or the affects of intoxication.

(i) The age of the defendant at the time of the crime.

(j) Whether or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor.

(k) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.

After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.

CA Penal Code § 190.4

(a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1.

In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.

If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people.

If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing.

In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury, nor shall such jury retry the issue of the truth of any of the special circumstances which were found by an unanimous verdict of the previous jury to be untrue. If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court shall dismiss the jury and in the court's discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.

(b) If defendant was convicted by the court sitting without a jury the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole.

(c) If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes.

(d) In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered an any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase.

(e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances  referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings.

The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant's automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People's appeal pursuant to paragraph (6).

CA Penal Code § 190.41

Notwithstanding Section 190.4 or any other provision of law, the corpus delicti of a felony-based special circumstance enumerated in paragraph (17) of subdivision (a) of Section 190.2 need not be proved independently of a defendant's extrajudicial statement.

CA Penal Code § 190.5

(a) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who is under the age of 18 at the time of the commission of the crime. The burden of proof as to the age of such person shall be upon the defendant.

(b) The penalty for a defendant found guilty of murder in the first degree, in any case in which one or more special circumstances enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4, who was 16 years of age or older and under the age of 18 years at the time of the commission of the crime, shall be confinement in the state prison for life without the possibility of parole or, at the discretion of the court, 25 years to life.

(c) The trier of fact shall determine the existence of any special circumstance pursuant to the procedure set forth in Section 190.4.

CA Penal Code § 190.6

(a) The Legislature finds that the sentence in all capital cases should be imposed expeditiously.

(b) Therefore, in all cases in which a sentence of death has been imposed on or after January 1, 1997, the opening appellate brief in the appeal to the State Supreme Court shall be filed no later than seven months after the certification of the record for completeness under subdivision (d) of Section 190.8 or receipt by the appellant's counsel of the completed record, whichever is later, except for good cause. However, in those cases where the trial transcript exceeds 10,000 pages, the briefing shall be completed within the time limits and pursuant to the procedures set by the rules of court adopted by the Judicial Council.

(c) In all cases in which a sentence of death has been imposed on or after January 1, 1997, it is the Legislature's goal that the appeal be decided and an opinion reaching the merits be filed within 210 days of the completion of the briefing. However, where the appeal and a petition for writ of habeas corpus is heard at the same time, the petition should be decided and an opinion reaching the merits should be filed within 210 days of the completion of the briefing for the petition.

(d) The failure of the parties or the Supreme Court to meet or comply with the time limit provided by this section shall not be a ground for granting relief from a judgment of conviction or sentence of death.

CA Penal Code § 190.7

(a) The "entire record" referred to in Section 190.6 includes, but is not limited to, the following:

(1) The normal and additional record prescribed in the rules adopted by the Judicial Council pertaining to an appeal taken by the defendant from a judgment of conviction.

(2) A copy of any other paper or record on file or lodged with the superior or municipal court and a transcript of any other oral proceeding reported in the superior or municipal court pertaining to the trial of the cause.

(b) Notwithstanding this section, the Judicial Council may adopt rules, not inconsistent with the purpose of Section 190.6, specifically pertaining to the content, preparation and certification of the record on appeal when a judgment of death has been pronounced.

CA Penal Code § 190.8

(a) In any case in which a death sentence has been imposed, the record on appeal shall be expeditiously certified in two stages, the first for completeness and the second for accuracy, as provided by this section. The trial court may use all reasonable means to ensure compliance with all applicable statutes and rules of court pertaining to record certification in capital appeals, including, but not limited to, the imposition of sanctions.

(b) Within 30 days of the imposition of the death sentence, the clerk of the superior court shall provide to trial counsel copies of the clerk's transcript and shall deliver the transcript as provided by the court reporter. Trial counsel shall promptly notify the court if he or she has not received the transcript within 30 days.

(c) During the course of a trial in which the death penalty is being sought, trial counsel shall alert the court's attention to any errors in the transcripts incidentally discovered by counsel while reviewing them in the ordinary course of trial preparation. The court shall periodically request that trial counsel provide a list of errors in the trial transcript during the course of trial and may hold hearings in connection therewith.

Corrections to the record shall not be required to include immaterial typographical errors that cannot conceivably cause confusion.

(d) The trial court shall certify the record for completeness and for incorporation of all corrections, as provided by subdivision (c), no later than 90 days after entry of the imposition of the death sentence unless good cause is shown. However, this time period may be extended for proceedings in which the trial transcript exceeds 10,000 pages in accordance with the timetable set forth in, or for good cause pursuant to the procedures set forth in, the rules of court adopted by the Judicial Council.

(e) Following the imposition of the death sentence and prior to the deadline set forth in subdivision (d), the trial court shall hold one or more hearings for trial counsel to address the completeness of the record and any outstanding errors that have come to their attention and to certify that they have reviewed all docket sheets to ensure that the record contains transcripts for any proceedings, hearings, or discussions that are required to be reported and that have occurred in the course of the case in any court, as well as all documents required by this code and the rules adopted by the Judicial Council.

(f) The clerk of the trial court shall deliver a copy of the record on appeal to appellate counsel when the clerk receives notice of counsel's appointment or retention, or when the record is certified for completeness under subdivision (d), whichever is later.

(g) The trial court shall certify the record for accuracy no later than 120 days after the record has been delivered to appellate counsel. However, this time may be extended pursuant to the timetable and procedures set forth in the rules of court adopted by the Judicial Council. The trial court may hold one or more status conferences for purposes of timely certification of the record for accuracy, as set forth in the rules of court adopted by the Judicial Council.

(h) The Supreme Court shall identify in writing to the Judicial Council any case that has not met the time limit for certification of the record for completeness under subdivision (d) or for accuracy under subdivision (g), and shall identify those cases, and its reasons, for which it has granted an extension of time. The Judicial Council shall include this information in its annual report to the Legislature.

(i) As used in this section, "trial counsel" means both the prosecution and the defense counsel in the trial in which the sentence of death has been imposed.

(j) This section shall be implemented pursuant to rules of court adopted by the Judicial Council.

(k) This section shall only apply to those proceedings in which a sentence of death has been imposed following a trial that was commenced on or after January 1, 1997.

CA Penal Code § 190.9

(a) (1) In any case in which a death sentence may be imposed, all proceedings conducted in the superior court, including all conferences and proceedings, whether in open court, in conference in the courtroom, or in chambers, shall be conducted on the record with a court reporter present. The court reporter shall prepare and certify a daily transcript of all proceedings commencing with the preliminary hearing. Proceedings prior to the preliminary hearing shall be reported but need not be transcribed until the court receives notice as prescribed in paragraph (2).

(2) Upon receiving notification from the prosecution that the death penalty is being sought, the clerk shall order the transcription and preparation of the record of all proceedings prior to and including the preliminary hearing in the manner prescribed by the Judicial Council in the rules of court. The record of all proceedings prior to and including the preliminary hearing shall be certified by the court no later than 120 days following notification unless the time is extended pursuant to rules of court adopted by the Judicial Council. Upon certification, the record of all proceedings is incorporated into the superior court record.

(b) (1) The court shall assign a court reporter who uses computer-aided transcription equipment to report all proceedings under this section.

(2) Failure to comply with the requirements of this section relating to the assignment of court reporters who use computer-aided transcription equipment is not a ground for reversal.

(c) Any computer-readable transcript produced by court reporters pursuant to this section shall conform to the requirements of Section 271 of the Code of Civil Procedure.

CA Penal Code § 191

The rules of the common law, distinguishing the killing of a master by his servant, and of a husband by his wife, as petit treason, are abolished, and these offenses are homicides, punishable in the manner prescribed by this Chapter.

CA Penal Code §191.5

(a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) (1) Except as provided in subdivision (d), gross vehicular manslaughter while intoxicated in violation of subdivision (a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.   

(2) Vehicular manslaughter while intoxicated in violation of subdivision (b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

(d) A person convicted of violating subdivision (a) who has one or more prior convictions of this section or of paragraph (1) of subdivision (c) of Section 192, subdivision (a) or (b) of Section 192.5 of this code, or of violating Section 23152 punishable under Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted of Section 23153 of, the Vehicle Code, shall be punished by imprisonment in the state prison for a term of 15 years to life.

Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the term imposed pursuant to this subdivision.

(e) This section shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

(f) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(g) For the penalties in subdivision (d) to apply, the existence of any fact required under subdivision (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact.

CA Penal Code § 192

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

(a) Voluntary--upon a sudden quarrel or heat of passion.

(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.

(c) Vehicular--

(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

(2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

(3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.

This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

"Gross negligence," as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

CA Penal Code § 192.5 

Vehicular manslaughter pursuant to subdivision (b) of Section 191.5 and subdivision (c) of Section 192 is the unlawful killing of a human being without malice aforethought, and includes:

(a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(e) A person who flees the scene of the crime after committing a violation of subdivision (a), (b), or (c), upon conviction, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision.

CA Penal Code § 193

(a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.

(b) Involuntary manslaughter is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.

(c) Vehicular manslaughter is punishable as follows:

(1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.

(2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year.

(3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.

CA Penal Code § 193.5

Manslaughter committed during the operation of a vessel is punishable as follows:

(a) A violation of subdivision (a) of Section 192.5 is punishable by imprisonment in the state prison for 4, 6, or 10 years.

(b) A violation of subdivision (b) of Section 192.5 is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

(c) A violation of subdivision (c) of Section 192.5 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.

(d) A violation of subdivision (d) of Section 192.5 is punishable by imprisonment in the county jail for not more than one year.

Penal Code § 193.7

A person convicted of a violation of subdivision (b) of Section 191.5 that occurred within seven years of two or more separate violations of Section 23103, as specified in Section 23103.5, of, or Section 23152 or 23153 of, the Vehicle Code, or any combination thereof, that resulted in convictions, shall be designated as an habitual traffic offender subject to paragraph (3) of subdivision (e) of Section 14601.3 of the Vehicle Code, for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350 of the Vehicle Code.

Penal Code § 193.8

(a) An adult, who is the registered owner of a motor vehicle or in possession of a motor vehicle, shall not relinquish possession of the vehicle to a minor for the purpose of driving if the following conditions exist:

(1) The adult owner or person in possession of the vehicle knew or reasonably should have known that the minor was intoxicated at the time possession was relinquished.

(2) A petition was sustained or the minor was convicted of a violation of Section 23103 as specified in Section 23103.5, 23140, 23152, or 23153 of the Vehicle Code or a violation of Section 191.5 or subdivision (a) of Section 192.5.

(3) The minor does not otherwise have a lawful right to possession of the vehicle.

(b) The offense described in subdivision (a) shall not apply to commercial bailments, motor vehicle leases, or parking arrangements, whether or not for compensation, provided by hotels, motels, or food facilities for customers, guests, or other invitees thereof. For purposes of this subdivision, hotel and motel shall have the same meaning as in subdivision (b) of Section 25503.16 of the Business and Professions Code and food facility shall have the same meaning as in Section 113785 of the Health and Safety Code.

(c) If an adult is convicted of the offense described in subdivision (a), that person shall be punished by a fine not exceeding one thousand dollars  ($1,000), or by imprisonment in a county jail not exceeding six months, or by both the fine and imprisonment. An adult convicted of the offense described in subdivision (a) shall not be subject to driver's license suspension or revocation or attendance at a licensed alcohol or drug education and counseling program for persons who drive under the influence.

CA Penal Code § 194

To make the killing either murder or manslaughter, it is not requisite that the party die within three years and a day after the stroke received or the cause of death administered. If death occurs beyond the time of three years and a day, there shall be a rebuttable presumption that the killing was not criminal. The prosecution shall bear the burden of overcoming this presumption. In the computation of time, the whole of the day on which the act was done shall be reckoned the first.

CA Penal Code § 195

Homicide is excusable in the following cases:

1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.

2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.

CA Penal Code § 196

Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either--

1. In obedience to any judgment of a competent Court; or,

2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,

3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.

CA Penal Code § 197

Homicide is also justifiable when committed by any person in any of the following cases:

1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,

2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,

3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,

4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.

CA Penal Code § 198

A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.

CA Penal Code § 198.5

Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant or substantial physical injury.

CA Penal Code § 199

The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.

Enactment. Chapter 25 was added December 6, 1972, P.L.1482, No.334, effective in six months.

Cross References. Chapter 25 is referred to in sections 911, 2602 of this title; section 5432 of Title 20 (Decedents, Estates and Fiduciaries); sections 2511, 5329, 6344 of Title 23 (Domestic Relations); sections 5985.1, 6302 of Title 42 (Judiciary and Judicial Procedure).

§ 2501. Criminal homicide.

(a) Offense defined.--A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.

(b) Classification.--Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.

Cross References. Section 2501 is referred to in section 5708 of this title; section 4503 of Title 42 (Judiciary and Judicial Procedure).

§ 2502. Murder.

(a) Murder of the first degree.--A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

(b) Murder of the second degree.--A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.

(c) Murder of the third degree.--All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.

(d) Definitions.--As used in this section the following words and phrases shall have the meanings given to them in this subsection:

"Fireman." Includes any employee or member of a municipal fire department or volunteer fire company.

"Hijacking." Any unlawful or unauthorized seizure or exercise of control, by force or violence or threat of force or violence.

"Intentional killing." Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

"Perpetration of a felony." The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

"Principal." A person who is the actor or perpetrator of the crime.

(Mar. 26, 1974, P.L.213, No.46, eff. imd.; Apr. 28, 1978, P.L.84, No.39, eff. 60 days)

Cross References. Section 2502 is referred to in sections 2507, 2602, 5708, 6105 of this title; section 3304 of Title 5 (Athletics and Sports); section 5329 of Title 23 (Domestic Relations); sections 1515, 5551, 9711.1, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 6124, 7122 of Title 61 (Prisons and Parole).

§ 2503. Voluntary manslaughter.

(a) General rule.--A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

(b) Unreasonable belief killing justifiable.--A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

(c) Grading.--Voluntary manslaughter is a felony of the first degree.

(Nov. 17, 1995, 1st Sp.Sess., P.L.1144, No.36, eff. 60 days)

 1995 Amendment. Act 36, 1st Sp.Sess., amended subsec. (c).

Cross References. Section 2503 is referred to in sections 5708, 6105 of this title; sections 1515, 9711, 9802 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103, 7122 of Title 61 (Prisons and Parole).

§ 2504. Involuntary manslaughter.

(a) General rule.--A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.

(b) Grading.--Involuntary manslaughter is a misdemeanor of the first degree. Where the victim is under 12 years of age and is in the care, custody or control of the person who caused the death, involuntary manslaughter is a felony of the second degree.

(July 6, 1995, P.L.251, No.31, eff. 60 days)

Cross References. Section 2504 is referred to in sections 2711, 6105 of this title; section 1611 of Title 75 (Vehicles).

§ 2505. Causing or aiding suicide.

(a) Causing suicide as criminal homicide.--A person may be convicted of criminal homicide for causing another to commit suicide only if he intentionally causes such suicide by force, duress or deception.

(b) Aiding or soliciting suicide as an independent offense.--A person who intentionally aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor of the second degree.

§ 2506. Drug delivery resulting in death.

(a) Offense defined.--A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.

(b) Penalty.--A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.

(c) Proof of sentencing.--(Deleted by amendment).

(d) Authority of court in sentencing.--(Deleted by amendment).

(e) Appeal by Commonwealth.--(Deleted by amendment).

(f) Forfeiture.--Assets against which a forfeiture petition has been filed and is pending or against which the Commonwealth has indicated an intention to file a forfeiture petition shall not be subject to a fine. Nothing in this section shall prevent a fine from being imposed on assets which have been subject to an unsuccessful forfeiture petition.

(Dec. 22, 1989, P.L.773, No.109, eff. imd.; Feb. 18, 1998, P.L.102, No.19, eff. 60 days; July 7, 2011, P.L.220, No.40, eff. 60 days)

Cross References. Section 2506 is referred to in section 3308 of this title; section 9714 of Title 42 (Judiciary and Judicial Procedure); sections 3903, 4103 of Title 61 (Prisons and Parole).

§ 2507. Criminal homicide of law enforcement officer.

(a) Murder of a law enforcement officer of the first degree.--A person commits murder of a law enforcement officer of the first degree who intentionally kills a law enforcement officer while in the performance of duty knowing the victim is a law enforcement officer.

(b) Murder of a law enforcement officer of the second degree.--A person commits murder of a law enforcement officer of the second degree who engages as a principal or an accomplice in the perpetration of a felony during which a law enforcement officer is killed while in the performance of duty.

(c) Manslaughter of a law enforcement officer in the first degree.--A person commits a felony in the first degree who does any of the following:

(1) Without lawful justification kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing:

(i) the person is acting under a sudden and intense passion resulting from serious provocation by the victim killed; or

(ii) the person is acting under a sudden and intense passion resulting from serious provocation by another individual whom the actor endeavors to kill, but the person negligently or accidentally causes the death of the victim.

(2) Intentionally or knowingly kills a law enforcement officer while in the performance of duty and with knowledge that the victim was a law enforcement officer, if at the time of the killing the person believes the circumstances to be such that, if they existed, would justify the killing under Chapter 5 (relating to general principles of justification), but his belief is unreasonable.

(d) Manslaughter of a law enforcement officer in the second degree.--A person commits a felony of the second degree who, as a direct result of the doing of an unlawful or lawful act in a reckless or grossly negligent manner, causes the death of a law enforcement officer while in the performance of duty and the person knew or should have known the victim was a law enforcement officer.

(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Law enforcement officer." This term shall have the same meaning as the term "peace officer" is given under section 501 (relating to definitions).

"Perpetration of a felony." As defined under section 2502(d) (relating to murder).

(Oct. 17, 2008, P.L.1628, No.131, eff. 60 days)

2008 Amendment. Act 131 added section 2507.

Cross References. Section 2507 is referred to in section 9714 of Title 42 (Judiciary and Judicial Procedure).

§ 125.00 Homicide defined.

Homicide means conduct which causes the death of a person or an unborn child with which a female has been pregnant for more than twenty-four weeks under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, criminally negligent homicide, abortion in the first degree or self-abortion in the first degree.

§ 125.05 Homicide, abortion and related offenses; definitions of terms.

The following definitions are applicable to this article:

1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive.

2. "Abortional act" means an act committed upon or with respect to a female, whether by another person or by the female herself, whether she is pregnant or not, whether directly upon her body or by the administering, taking or prescription of drugs or in any other manner, with intent to cause a miscarriage of such female.

3. "Justifiable abortional act." An abortional act is justifiable when committed upon a female with her consent by a duly licensed physician acting (a) under a reasonable belief that such is necessary to preserve her life, or, (b) within twenty-four weeks from the commencement of her pregnancy. A pregnant female's commission of an abortional act upon herself is justifiable when she acts upon the advice of a duly licensed physician (1) that such act is necessary to preserve her life, or, (2) within twenty-four weeks from the commencement of her pregnancy. The submission by a female to an abortional act is justifiable when she believes that it is being committed by a duly licensed physician, acting under a reasonable belief that such act is necessary to preserve her life, or, within twenty-four weeks from the commencement of her pregnancy.

§ 125.10 Criminally negligent homicide.

A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.

Criminally negligent homicide is a class E felony.

§ 125.11 Aggravated criminally negligent homicide.

A person is guilty of aggravated criminally negligent homicide when, with criminal negligence, he or she causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.

Aggravated criminally negligent homicide is a class C felony.

§ 125.12 Vehicular manslaughter in the second degree.

A person is guilty of vehicular manslaughter in the second degree when he or she causes the death of another person, and either:

(1) operates a motor vehicle in violation of subdivision two, three, four or four-a of section eleven hundred ninety-two of the vehicle and traffic law or operates a vessel or public vessel in violation of paragraph (b), (c), (d) or (e) of subdivision two of section forty-nine-a of the navigation law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such motor vehicle, vessel or public vessel in a manner that causes the death of such other person, or

(2) operates a motor vehicle with a gross vehicle weight rating of more than eighteen thousand pounds which contains flammable gas, radioactive materials or explosives in violation of subdivision one of section eleven hundred ninety-two of the vehicle and traffic law, and such flammable gas, radioactive materials or explosives is the cause of such death, and as a result of such impairment by the use of alcohol, operates such motor vehicle in a manner that causes the death of such other person, or

(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of subdivision one of section 25.24 of the parks, recreation and historic preservation law or operates an all terrain vehicle as defined in paragraph (a) of subdivision one of section twenty-two hundred eighty-one of the vehicle and traffic law in violation of subdivision two, three, four, or four-a of section eleven hundred ninety-two of the vehicle and traffic law, and as a result of such intoxication or impairment by the use of a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, operates such snowmobile or all terrain vehicle in a manner that causes the death of such other person. If it is established that the person operating such motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle caused such death while unlawfully intoxicated or impaired by the use of alcohol or a drug, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle, vessel, public vessel, snowmobile or all terrain vehicle in a manner that caused such death, as required by this section.

Vehicular manslaughter in the second degree is a class D felony.

§ 125.13 Vehicular manslaughter in the first degree.

A person is guilty of vehicular manslaughter in the first degree when  he or she commits the crime of vehicular manslaughter in the second  degree as defined in section 125.12 of this article, and either:

(1) commits such crime while operating a motor vehicle while such  person has .18 of one per centum or more by weight of alcohol in such  person's blood as shown by chemical analysis of such person's blood,  breath, urine or saliva made pursuant to the provisions of section  eleven hundred ninety-four of the vehicle and traffic law;

(2) commits such crime while knowing or having reason to know that:

(a) his or her license or his or her privilege of operating a motor  vehicle in another state or his or her privilege of obtaining a license  to operate a motor vehicle in another state is suspended or revoked and  such suspension or revocation is based upon a conviction in such other  state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or  his or her privilege of operating a motor vehicle in the state or his or  her privilege of obtaining a license issued by the commissioner of motor  vehicles is suspended or revoked and such suspension or revocation is  based upon either a refusal to submit to a chemical test pursuant to  section eleven hundred ninety-four of the vehicle and traffic law or  following a conviction for a violation of any of the provisions of  section eleven hundred ninety-two of the vehicle and traffic law;

(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;

(4) causes the death of more than one other person;

(5) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or

(6) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child. If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by  the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the  use of alcohol or a drug, or by the combined influence of drugs or of  alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.

Vehicular manslaughter in the first degree is a class C felony.

§ 125.14 Aggravated vehicular homicide.

A person is guilty of aggravated vehicular homicide when he or she engages in reckless driving as defined by section twelve hundred twelve of the vehicle and traffic law, and commits the crime of vehicular manslaughter in the second degree as defined in section 125.12 of this article, and either:

(1) commits such crimes while operating a motor vehicle while such person has .18 of one per centum or more by weight of alcohol in such person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva made pursuant to the provisions of section eleven hundred ninety-four of the vehicle and traffic law;

(2) commits such crimes while knowing or having reason to know that:

(a) his or her license or his or her privilege of operating a motor vehicle in another state or his or her privilege of obtaining a license to operate a motor vehicle in another state is suspended or revoked and such suspension or revocation is based upon a conviction in such other state for an offense which would, if committed in this state, constitute a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law; or (b) his or her license or his or her privilege of operating a motor vehicle in this state or his or her privilege of obtaining a license issued by the commissioner of motor vehicles is suspended or revoked and such suspension or revocation is based upon either a refusal to submit to a chemical test pursuant to section eleven hundred ninety-four of the vehicle and traffic law or following a conviction for a violation of any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law;

(3) has previously been convicted of violating any of the provisions of section eleven hundred ninety-two of the vehicle and traffic law within the preceding ten years, provided that, for the purposes of this subdivision, a conviction in any other state or jurisdiction for an offense which, if committed in this state, would constitute a violation of section eleven hundred ninety-two of the vehicle and traffic law, shall be treated as a violation of such law;

(4) causes the death of more than one other person;

(5) causes the death of one person and the serious physical injury of At least one other person;

(6) has previously been convicted of violating any provision of this article or article one hundred twenty of this title involving the operation of a motor vehicle, or was convicted in any other state or jurisdiction of an offense involving the operation of a motor vehicle which, if committed in this state, would constitute a violation of this article or article one hundred twenty of this title; or

(7) commits such crime while operating a motor vehicle while a child who is fifteen years of age or less is a passenger in such motor vehicle and causes the death of such child.

If it is established that the person operating such motor vehicle caused such death or deaths while unlawfully intoxicated or impaired by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, then there shall be a rebuttable presumption that, as a result of such intoxication or impairment by the use of alcohol or a drug, or by the combined influence of drugs or of alcohol and any drug or drugs, such person operated the motor vehicle in a manner that caused such death or deaths, as required by this section and section 125.12 of this article.

Aggravated vehicular homicide is a class B felony.

§ 125.15 Manslaughter in the second degree.

A person is guilty of manslaughter in the second degree when:

1. He recklessly causes the death of another person; or

2. He commits upon a female an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or

3. He intentionally causes or aids another person to commit suicide.

Manslaughter in the second degree is a class C felony.

§ 125.20 Manslaughter in the first degree.

A person is guilty of manslaughter in the first degree when:

1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; or

3. He commits upon a female pregnant for more than twenty-four weeks an abortional act which causes her death, unless such abortional act is justifiable pursuant to subdivision three of section 125.05; or

4. Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person.

Manslaughter in the first degree is a class B felony.

§ 125.21 Aggravated manslaughter in the second degree.

A person is guilty of aggravated manslaughter in the second degree when he or she recklessly causes the death of a police officer or peace officer where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer.

Aggravated manslaughter in the second degree is a class C felony.

§ 125.22 Aggravated manslaughter in the first degree.

A person is guilty of aggravated manslaughter in the first degree when:

1. with intent to cause serious physical injury to a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or a peace officer, he or she causes the death of such officer or another police officer or peace officer; or

2. with intent to cause the death of a police officer or peace officer, where such officer was in the course of performing his or her official duties and the defendant knew or reasonably should have known that such victim was a police officer or peace officer, he or she causes the death of such officer or another police officer or peace officer under circumstances which do not constitute murder because he or she acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to aggravated manslaughter in the first degree or manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision.

Aggravated manslaughter in the first degree is a class B felony.

§ 125.25 Murder in the second degree.

A person is guilty of murder in the second degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime; or

(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime; or

2. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person; or

3. Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or

4. Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person; or

5. Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person.

Murder in the second degree is a class A-I felony.

§ 125.26 Aggravated murder.

A person is guilty of aggravated murder when:

1. With intent to cause the death of another person, he or she causes the death of such person, or of a third person who was a person described in subparagraph (i), (ii) or (iii) of paragraph (a) of this subdivision engaged at the time of the killing in the course of performing his or her official duties; and

(a) Either:

(i) the intended victim was a police officer as defined in subdivision thirty-four of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was a police officer; or

(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or

(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his or her official duties, and the defendant knew or reasonably should have known that the victim was an employee of a state correctional institution or a local correctional facility; and (b) The defendant was more than eighteen years old at the time of the commission of the crime; or

2. (a) With intent to cause the death of a person less than fourteen years old, he or she causes the death of such person, and the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subdivision, "torture" means the intentional and depraved infliction of extreme physical pain that is separate and apart from the pain which otherwise would have been associated with such cause of death; and

(b) The defendant was more than eighteen years old at the time of the commission of the crime.

3. In any prosecution under subdivision one or two of this section, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the first degree, manslaughter in the first degree or any other crime except murder in the second degree; or

(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, aggravated manslaughter in the second degree, manslaughter in the second degree or any other crime except murder in the second degree.

Aggravated murder is a class A-I felony.

§ 125.27 Murder in the first degree.

A person is guilty of murder in the first degree when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person; and

(a) Either:

(i) the intended victim was a police officer as defined in subdivision 34 of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was a police officer; or

(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or

(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was an employee of a state correctional institution or a local correctional facility; or

(iv) at the time of the commission of the killing, the defendant was confined in a state correctional institution or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the killing, the defendant had escaped from such confinement or custody while serving such a sentence and had not yet been returned to such confinement or custody; or

(v) the intended victim was a witness to a crime committed on a prior occasion and the death was caused for the purpose of preventing the intended victim's testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced, or the intended victim had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution for such prior testimony, or the intended victim was an immediate family member of a witness to a crime committed on a prior occasion and the killing was committed for the purpose of preventing or influencing the testimony of such witness, or the intended victim was an immediate family member of a witness who had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution upon such witness for such prior testimony. As used in this subparagraph "immediate family member" means a husband, wife, father, mother, daughter, son, brother, sister, stepparent, grandparent, stepchild or grandchild; or

(vi) the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement; or

(vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree, or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime or in the course of and furtherance of immediate flight after attempting to commit the crime of murder in the second degree; provided however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant's criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant's criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter; or

(viii) as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction; or

(ix) prior to committing the killing, the defendant had been convicted of murder as defined in this section or section 125.25 of this article, or had been convicted in another jurisdiction of an offense which, if committed in this state, would constitute a violation of either of such sections; or

(x) the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death. As used in this subparagraph, "torture" means the intentional and depraved infliction of extreme physical pain; "depraved" means the defendant relished the infliction of extreme physical pain upon the victim evidencing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain; or

(xi) the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan; or

(xii) the intended victim was a judge as defined in subdivision twenty-three of section 1.20 of the criminal procedure law and the defendant killed such victim because such victim was, at the time of the killing, a judge; or

(xiii) the victim was killed in furtherance of an act of terrorism, as defined in paragraph (b) of subdivision one of section 490.05 of this chapter; and

(b) The defendant was more than eighteen years old at the time of the commission of the crime.

2. In any prosecution under subdivision one, it is an affirmative defense that:

(a) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree; or

(b) The defendant's conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime except murder in the second degree.

Murder in the first degree is a class A-I felony.

§ 125.40 Abortion in the second degree.

A person is guilty of abortion in the second degree when he commits an abortional act upon a female, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

Abortion in the second degree is a class E felony.

§ 125.55 Self-abortion in the first degree.

A female is guilty of self-abortion in the first degree when, being pregnant for more than twenty-four weeks, she commits or submits to an abortional act upon herself which causes her miscarriage, unless such abortional act is justifiable pursuant to subdivision three of section 125.05.

Self-abortion in the first degree is a class A misdemeanor.

§ 125.60 Issuing abortional articles.

A person is guilty of issuing abortional articles when he manufactures, sells or delivers any instrument, article, medicine, drug or substance with intent that the same be used in unlawfully procuring the miscarriage of a female.

Issuing abortional articles is a class B misdemeanor.

Sec. 53a-54a. Murder. (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.

(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a) of this section, on the question of whether the defendant acted with intent to cause the death of another person.

(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is (1) a capital felony committed prior to April 25, 2012, by a person who was eighteen years of age or older at the time of the offense, punishable in accordance with subparagraph (A) of subdivision (1) of section 53a-35a, (2) murder with special circumstances committed on or after April 25, 2012, by a person who was eighteen years of age or older at the time of the offense, punishable as a class A felony in accordance with subparagraph (B) of subdivision (1) of section 53a-35a, or (3) murder under section 53a-54d committed by a person who was eighteen years of age or older at the time of the offense.

Sec. 53a-54b. Murder with special circumstances. A person is guilty of murder with special circumstances who is convicted of any of the following and was eighteen years of age or older at the time of the offense: (1) Murder of a member of the Division of State Police within the Department of Emergency Services and Public Protection or of any local police department, a chief inspector or inspector in the Division of Criminal Justice, a state marshal who is exercising authority granted under any provision of the general statutes, a judicial marshal in performance of the duties of a judicial marshal, a constable who performs criminal law enforcement duties, a special policeman appointed under section 29-18, a conservation officer or special conservation officer appointed by the Commissioner of Energy and Environmental Protection under the provisions of section 26-5, an employee of the Department of Correction or a person providing services on behalf of said department when such employee or person is acting within the scope of such employee's or person's employment or duties in a correctional institution or facility and the actor is confined in such institution or facility, or any firefighter, while such victim was acting within the scope of such victim's duties; (2) murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain; (3) murder committed by one who has previously been convicted of intentional murder or of murder committed in the course of commission of a felony; (4) murder committed by one who was, at the time of commission of the murder, under sentence of life imprisonment; (5) murder by a kidnapper of a kidnapped person during the course of the kidnapping or before such person is able to return or be returned to safety; (6) murder committed in the course of the commission of sexual assault in the first degree; (7) murder of two or more persons at the same time or in the course of a single transaction; or (8) murder of a person under sixteen years of age.

Sec. 53a-54c. Felony murder. A person is guilty of murder when, acting either alone or with one or more persons, such person commits or attempts to commit robbery, home invasion, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, such person, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

Sec. 53a-54d. Arson murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section who was eighteen years of age or older at the time of the offense shall be punished by life imprisonment and shall not be eligible for parole.

Sec. 53a-55. Manslaughter in the first degree: Class B felony. (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.

(b) Manslaughter in the first degree is a class B felony.

Sec. 53a-55a. Manslaughter in the first degree with a firearm: Class B felony: Five years not suspendable. (a) A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a-55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm. No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.

(b) Manslaughter in the first degree with a firearm is a class B felony and any person found guilty under this section shall be sentenced to a term of imprisonment in accordance with subdivision (5) of section 53a-35a of which five years of the sentence imposed may not be suspended or reduced by the court.

Sec. 53a-56. Manslaughter in the second degree: Class C felony. (a) A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person; or (2) he intentionally causes or aids another person, other than by force, duress or deception, to commit suicide.

(b) Manslaughter in the second degree is a class C felony.

Sec. 53a-56a. Manslaughter in the second degree with a firearm: Class C felony: One year not suspendable. (a) A person is guilty of manslaughter in the second degree with a firearm when he commits manslaughter in the second degree as provided in section 53a-56, and in the commission of such offense he uses or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, rifle, machine gun or other firearm. No person shall be found guilty of manslaughter in the second degree and manslaughter in the second degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information.

(b) Manslaughter in the second degree with a firearm is a class C felony for which one year of the sentence imposed may not be suspended or reduced by the court.

Sec. 53a-56b. Manslaughter in the second degree with a motor vehicle: Class C felony. (a) A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.

(b) Manslaughter in the second degree with a motor vehicle is a class C felony and the court shall suspend the motor vehicle operator's license or nonresident operating privilege of any person found guilty under this section for one year. The court shall also order such person not to operate any motor vehicle that is not equipped with an approved ignition interlock device, as defined in section 14-227j, for a period of two years after such person's operator's license or nonresident operating privilege is restored by the Commissioner of Motor Vehicles.

Sec. 53a-57. Misconduct with a motor vehicle: Class D felony. (a) A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.

(b) Misconduct with a motor vehicle is a class D felony.

Sec. 53a-58. Criminally negligent homicide: Class A misdemeanor. (a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant caused such death by a motor vehicle.

Notes and Questions

1.    The Case and its Aftermath. Following Guthrie’s second trial, he was again convicted of first degree murder and sentenced to life in prison with the possibility of parole. He then made a subsequent appeal in 1997, which was denied by the Court. For information on the procedural history of Guthrie, please see this website. 

Guthrie has been denied parole at least three times (2003, 2006, and 2009) since becoming eligible. The National Organization of Parents of Murdered Children, Inc. has been involved in Guthrie’s parole denial. This organization strives to “give survivors a sense of control, as well as a positive outlet for the anger, frustration and disillusionment with the criminal justice system.” According to its website, the organization allows parents of homicide victims “to participate in the parole process by attempting to keep murderers behind bars for their minimum sentence, thus protecting society from potential repeat offenders.”

As of August 2021, Guthrie, 53, remains in prison with a parole hearing scheduled for 2023.

2.    Changing the Facts. Consider the elements required for both first and second degree murder. Based on the facts of this case, which degree of homicide do you think Guthrie was guilty of? Would your answer change if the facts instead indicated that Guthrie did not remove his gloves prior to stabbing the victim? 

3.   Changing the Law. Recall California’s homicide statutes. Based on the facts of this case, which degree of homicide do you think Guthrie would be guilty of in California? What statutory language in the California Penal Code did you find most helpful in making this assessment?

4.     Mental Health and the Criminal Justice System. As you read in the Guthrie case, the defendant suffered “from a host of psychiatric problems,” including panic attacks, chronic depression, body dysmorphic disorder, and borderline personality disorder. According to the National Alliance on Mental Illness, nearly 15% of men and 30% of women booked into jails live with serious mental illness. Despite these large numbers, the vast majority of these individuals are booked on nonviolent crimes. Once in jail, many individuals are denied proper mental health treatment and end up getting worse, instead of better. Considering that people experiencing a mental health crisis are more likely to encounter police than receive medical help, how do you think the criminal justice system could change to better care for people experiencing mental health crises?

One article offers the solution of “mental health courts, [which are] a form of collaborative court based on the highly successful drug court model that provides services and treatments to participants while emphasizing collaborative problem solving between all parties.” While not a perfect solution, it paves the way for a conversation amongst future lawyers regarding how to create a better system. 

5.    Supplemental Reading. For those interested in a deeper dive into the implications of incarcerating individuals with mental health disorders in facilities that are improperly trained to handle inmates with mental health needs, the article “Mentally Ill Individuals in Jails and Prisons” offers a helpful background and proposes interesting solutions. See Edward P. Mulvey and Carol A. Schubert. Mentally Ill Individuals in Jails and Prisons, 46 Crime & Just. 231 (2016). 

6.    Mental Illness and the Death Penalty. For information on mental illness and the death penalty, see also Herbert Richardson’s Background and Clemency Petition. 

Notes and Questions

1.  In the Aftermath of the Case. After Midgett was decided, the Arkansas Attorney General’s office drafted a bill with the intention of “broadening the scope of first degree murder to include cases of child abuse resulting in death.” The Arkansas legislature subsequently amended their law to provide that   “[a] person commits murder in the first degree if … [u]nder circumstances manifesting cruel and malicious indifference to the value of human life, he knowingly causes the death of a person fourteen years of age or younger.” Paul H. Taylor, Criminal Law—Child Abuse Resulting in Death—Arkansas Amends Its First Degree Murder Statute, 10 U. ARK. LITTLE ROCK L. REV. 785 (1988).

Would this amendment have changed the outcome in Midgett? Why or why not?

Midgett's parental rights were subsequently terminated with respect to his other children.  A bit more background information is contained in an opinion regarding that proceeding.

2.  Changing the Facts. Assume the facts of Midgett, except that on the night of Ronnie Jr.’s death, Ronnie Jr. broke a vase in the family home. Before beating Ronnie Jr., Ronnie Jr.’s sister recalled hearing the defendant tell Ronnie Jr. “I’m going to kill you for that!” If you were Midgett’s defense counsel, how might you argue that Midgett’s actions were not premeditated or deliberate?

3.   Comparing Two Crimes. After reading both Guthrie and Midgett, does the crime committed in the Guthrie case seem worse than the one in Midgett? (Guthrie is still in prison over 25 years after his crime, while Midgett's sentence was reduced to 20 years.) Is the problem with the statute or the application of it? Do you think the problem has been remedied by the statutory amendment in Note 1?

4.    Child Abuse at Common Law. For more information on the history of child abuse and whether parents could be charged with killing their children at common law, please see Stephen J. Pfohl’s Article: The “Discovery” of Child Abuse. 

5.     Secondary Trauma. The facts in Midgett, as with much of the material in this class, is tough to read. Some of you may be experiencing what is known as “secondary trauma”--the mental toll exacted by working with, reading about, or witnessing acts of violence. Some of you may find this reading helpful in managing the distress that comes from reading some of the materials found in this casebook. 

Notes and Questions

1.  Forrest and its aftermath. State v. Forrest is the first case in which the North Carolina Supreme Court addressed the issue of “mercy killing.” According to a North Carolina Law Review article, defendants in mercy killing cases are rarely convicted of murder because their stories are often sympathetic to juries. What role, if any, did motive play in the court’s ruling in Forrest? Do you think motive should matter in assessing blameworthiness? 

2.    Comparing Two Cases. Do you find Mr. Forrest less blameworthy than Mr. Midgett? Is your answer based on a legal principle, and, if so, how would you articulate that principle? If it isn’t, and it is simply based on your moral intuitions, then what does that say about the objectivity and consistency of law? Does justice simply depend on the state actors' sensibilities in any given case? 

3.  The Homicide Trio. Forrest, Guthrie, and Midgett are three cases designed to work together to achieve the particular ends of showing that moral culpability or blameworthiness does not always map onto legal culpability and punishment. Guthrie provides the groundwork for premeditation, exposing the limited utility of premeditation both as a legal construct and also as a metric for identifying the most heinous killings. With this in mind, consider the outcomes in Forrest and Midgett.

Does Forrest shows a “wrong” result, i.e. a defendant is found guilty of murder because of premeditation evidence, in spite of the lack of malice, as least in the colloquial sense of the word? Do you agree that Midgett showcases a “wrong” result in the opposite direction -- a heinous killing that might merit our harshest punishment is nonetheless deemed only second-degree due to (what the Court deems) a lack of premeditation? 

Think about these cases as you reflect on the relationship between morality and the law. Do these cases demonstrate that punishment is based more on the satisfaction of the elements of a statute than blameworthiness?

4.    Benevolent Murder. The aphorism “the road to hell is paved with good intentions” is particularly relevant to this case because while Forrest intended to put his father out of his misery, he still committed murder. Should benevolent intent be a factor when considering how to charge the perpetrator of a crime?

Herbert Lee Richardson Background

Herbert Lee Richardson Clemency Petition

Notes and Questions

1.    Biases of the Reasonable Man. In California, the standard for adequate provocation "is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion […] to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” People v. Berry, 18 Cal. 3d 509, 515 (1976), (citing People v. Logan,  175 Cal. 45, 49 (1917)). 

        Do you see any inherent bias in the way such a standard is worded? Would an "ordinary man" react differently in a provocative situation than an "ordinary woman"?

        At common law, witnessing one's spouse in the act of adultery was grounds to mitigate murder to manslaughter. Consider that adultery was once viewed as the “'highest invasion of [a husband’s] property,” and that “a ‘reasonable man’ might be provoked to kill his adulterous wife, but not his adulterous fiancée or common-law wife.” Brief for San Francisco Domestic Violence Consortium et al. as Amici Curiae Supporting the People of the State of California, People v. Beltran, 56 Cal. 4th 935 (2013) (No. S192644.), 2012 WL 1859371 at 7-8.

        Can courts now use this justification to mitigate a husband’s killing of his adulterous wife from murder to manslaughter?

        Could the same justification be used to defend a wife who killed her adulterous husband?  

2.    Are Words Ever Enough? Do you believe that there is ever a circumstance in which words could constitute adequate provocation?

        Suppose that P is a person of color who hears a rumor that X, Y, and Z murdered somebody in a hate crime. He is walking home alone when all of a sudde, he is surrounded by several people wearing Swastikas. He recognizes X, Y, and Z in the group. They yell racial slurs at him and promise to hurt him and his family. If P kills one of them and asserts a provocation defense, will he succeed under Girouard?  Would it make a difference if he had personally witnessed the prior hate-crime murder? In Girouard, the court ruled that “words alone are not adequate provocation,” reasoning that Joyce’s words were not “accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm.” But what if the words constitute real threats? Is there a substantive difference between the weight of the words used by X, Y, and Z (racial slurs and threats) and words agreeing to commit a criminal conspiracy? For more on the intersection between race and criminal law, see Cynthia Lee’s Article: Race and the Criminal Law Curriculum.

3.    Further Thinking. “Under the common law, the doctrine of provocation developed along the lines of fixed categories of conduct by the victim, paradigms of misbehavior, which the law recognized as sufficiently provocative to mitigate what would otherwise be malicious conduct by the defendant." Brown v. United States, 584 A.2d 537 (D.C. App. 1990). As cited in Girouard, examples of the categorical acts that constitute adequate provocation to mitigate murder to manslaughter include "discovering one’s spouse in the act of sexual intercourse with another; mutual combat; assault and battery […] injury to one of the defendant’s relatives or to a third party, and death resulting from resistance of an illegal arrest."  

        However, the modern trend in many states, including California, "move[s] away from specified categories of provocation to a more generalized standard based on the concept of an ordinary person of average disposition, leaving for the jury whether the given facts show adequate provocation." People v. Beltran, 56 Cal. 4th 935, 947 (2013).

        What problems do you see with the common law provocation doctrine limiting provocation to explicitly stated behaviors? What does the common law assume about an objective, “reasonable man”? Are the flaws in these assumptions remedied by inviting the jury to decide what an “ordinary person of average disposition” is? Is the absence of objective evidence to support such inferences a fatal flaw, or is it actually consistent with the jury's role throughout the US criminal legal system? 

4.    How Much Evidence? Typically, it is left to the jury to decide what constitutes a "reasonable opportunity for the passion to cool." How should we determine what is a "reasonable opportunity for the passion to cool?" Does this standard necessarily bar evidence of provocative conduct that occurred long before the killing?

        Imagine that student A is deathly allergic to peanuts. Even their scent causes A to suffer anaphylaxis, which of course induces great fear in A. B, knowing of A's situation, purposefully brings a bag of peanuts to class and opens them next to A. A goes into anaphylactic shock and is hospitalized overnight. The next day, A returns to class and kills B. What result under Girouard? What result under Maher v. People, 10 Mich. 212 (1862) (stating “the principle involved in the question [of what constitutes adequate provocation] would seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment” (emphasis added))? What result under the common law provocation rule’s objective examples? What result under California law? 

        Now imagine that for years, M has been bullied by T. One day, M finally snaps in direct response to one of T's abusive episodes and kills T. Should evidence illustrating M and T's earlier interactions be taken into consideration when deciding whether M has a provocation defense or should the jury only consider the event immediately preceding M's killing of T? What result under Girouard? What result under Maher? If the jury used Beltran (note 3, above) could they decide whether the time it takes to react to bullying is a part of what constitutes the reaction of an ordinary person of average disposition? If so, should the defense and prosecution be allowed to present evidence of what “most people” would do? What result under the common law provocation rule’s objective examples?

        What about this family, apparently provoked by a campaign of vandalism targeting their home?  If they had killed the "right person," would that change your opinion?  Should it?

5.    Excuse and Justification. Are these examples excuses--things that we do not punish as harshly because “most people act that way”--or justifications--circumstances that justify the act? What about the common law provocation doctrine involving a wife’s infidelity? (See Note 1, above) How might this be complicated by gender (see note 8, below)?

6.    Another Hypothetical. Suppose a woman, D, hears that her son has been hit by a blue SUV and is severely injured. A witness with faulty memory recites the license plate. After several hours, D identifies what she believes is the car involved in the accident and confronts the driver of the car, V. In reality, V had nothing to do with the accident. However, blinded by her rage, D ends up killing V. What result under Girouard? Under the MPC? 

7.    Taunting Between Strangers. Suppose a fight between strangers at a bar ensues. One patron begins taunting another and yells, “if you have a pistol, take it out and use it!” The other patron walks outside of the bar to his car, retrieves his gun, and returns to the bar. He shoots the victim several times, killing him. Arguing as the prosecution and then as the defense, does this taunting constitute adequate provocation in a Girouard jurisdiction? What about under California law? See People v. Manriquez, 37 Cal. 4th 547, 584, 123 P.3d 614 (2005).

8.    Traditional Common Law Approach. Common law held that a “reasonable man” must be judged by a wholly objective test, completely eliminating a defendant's physical condition and characteristics. If, as in Girouard, the words-alone rule were abandoned, would you change the common law’s view on a “reasonable man”? What if the defendant was only 4 feet 5 inches tall, and the victim 6 feet--should the court be permitted to consider the defendant’s physical stature in deciding whether there was adequate provocation? What language indicates that physical characteristics/size differences came into play in Girouard? What result if Joyce had advanced combat training and Steven had not? 

9.     Gender and the Reasonable Man. Consider the common law’s “reasonable man” standard as you read through these statistics.

•         “Of the [homicide] offenders for whom gender was known, 90.3 percent were males.” U.S. Department of Justice Federal Bureau of Investiagtion, Uniform Crime Report: Crime in the United States (2010)
•         “Females are generally murdered by people they know. In 64% of female homicide cases in 2007, females were killed by a family member or intimate partner.” Bureau of Justice Statistics, Victims of Violence (2009)
•         Over half of female homicides are products of intimate partner violence. Center of Disease Control. Petrosky E., et al. Racial and Ethnic Differences in Homicides of Adult Women and the Role of Intimate Partner Violence, MMWR Morb mortal Wkly Rep 2017; 66: 741-746 (2003-2014)

        Often, adequate provocation reflects a traditional male view of self control, mostly because homicide statistics are largely male dominated. Should jurors consider gender when deciding whether the accused falls under a “reasonable man” standard? How should jurors judge the accused if she identifies as a woman and claims she was adequately provoked - by the reasonable man standard, or something else? 

        If men are statistically more likely to be violent, does that mean that the law should regard women who kill as less reasonable when they respond with violence to provocation?  What is the ongoing utility for the provocation defense, in the face of gender and other disparities? (i.e. does it help safeguard values such as fairness or blameworthiness?).    

10.    A True Hypothetical. Consider the case of Commonwealth v. Carr, 398 Pa. Super. 306, 580 A.2d 1362 (1990). Sarah was on a hike when she stopped to have a snack. She pulled out a sandwich and sat on a nearby rock. When she put her backpack down, a knife fell out of her pocket, landing next to her foot. John, a man who grew up afraid of knives, spotted Sarah. He saw the knife and became enraged. John pulled out his gun, shooting Sarah five times and killing her. John defended himself stating that he shot Sarah in the heat of passion, caused by serious provocation of seeing the knife, which reminded him of an abusive childhood. He presented evidence that his step-father used to threaten John with knives.

        The court concluded that evidence of John’s fears was inadmissible: “It is not adequate provocation to reduce an unlawful killing from murder to voluntary manslaughter. It is not an event which is sufficient to cause a reasonable person to become so impassioned as to be incapable of cool reflection.” Id. The court continued, arguing that John’s past did not establish adequate provocation.

        Imagine you are John’s defense counsel. What statutes, legal standards, or case langage from the above materials would be most helpful in arguing that John’s childhood background should mitigate the murder charge to manslaughter? 

        Now imagine you are prosecuting John for the death of Sarah. What statutes, legal standards, or case language would be most helpful in arguing that John’s childhood is irrelevant? 

        Would your analysis of adequate provocation change if Sarah hypothetically yelled, “Stop staring at me, freak!” If so, why? What part of the provocation doctrine would that fall under?

11.    Examining Beltran. The Beltran case involved a man in a long-term abusive relationship with the victim, his former girlfriend. (There was a history of restraining orders and multiple 911 calls). He killed her after a violent argument, during which she told him “I killed your bastard. I got an abortion.” Beltran sought, but was denied, an instruction on provocation. He was convicted of second degree murder. 

        Do you believe that there is ever a circumstance in which words could constitute adequate provocation? 

12.    Prison Hypothetical. Suppose a prisoner becomes upset at how a guard is treating him. In particular, the guard accuses the prisoner of wearing something not allowed in prison, and the guard tries to remove the article of clothing from the prisoner. The prisoner extricates himself from the situation, goes back to his cell, grabs a shiv, and then returns to stab the guard. What would be the result of pleading extreme emotional distress per the Model Penal Code? What about “heat of passion” per the common law (Girouard) approach? Does the stressful environment of prison, combined with abuse from the prison guards, justify stabbing a guard when the guard attempts to forcibly take something from the prisoner that the prisoner sees as valuable? For more, see Johnson v. State, 2016 Ark. 156, 489 S.W.3d 668 (2016).

13.    Extreme Emotional Disturbance. The MPC states that a criminal homicide constitutes manslaughter when “a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.”  States such as Oregon also use language of “extreme emotional disturbance” in their manslaughter statutes. When reading the next case, consider whether the MPC approach solves any problems you may have identified with adequate provocation, and/or whether it introduces any new problems. 

Notes and Questions

1.    Elements of Extreme Emotional Distress. The defendant must prove by a preponderance of the evidence that (a) the emotional disturbance is not a mental disease or defect equivalent to insanity, (b) the defendant experienced a particularly overwhelming situation, and (c) the defendant had an extreme emotional reaction to it, resulting in a loss of self-control, which was overcome by powerful emotions, such as passion, anger, or fear.  See State v. Elliott, 177 Conn. 1, 411 A.2d 3 (1979).

Per Model Penal Code Section 210.3:

(1) Criminal homicide constitutes manslaughter when: 

(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

Why must a defendant prove his burden by only a preponderance of the evidence? Does this change make a mitigation to provocation more or less likely? How would you characterize the burden of proof in Girouard--who has to prove adequate provocation (the burden of proof) and by what standard of proof (beyond a reasonable doubt, clear and convincing evidence, a preponderance of the evidence, etc.)? 

2.    Another Hypothetical. A man from Kentucky by the name of Bob is the father of a seventeen year-old daughter, Annamae. He has never shown any propensity towards violence, nor does he generally look at acts of violence favorably. Bob holds a belief, however, that Californians are infected with a certain parasite that can kill Kentuckians with whom they are in physical contact. Bob sees Annamae talking with Chad, her friend from California. Bob also sees her touching his hand. Bob becomes fearful for Annamae’s life and tells Chad to let go of her hand. Chad lets go, looks at Bob in bewilderment, and says, “Dude, you gotta chill, what is going on?” This only makes Bob more furious because of Chad’s apparent lack of concern for Annamae’s safety, at which point Bob pulls out his revolver and shoots and kills Chad. In view of Ott, how should this case be analyzed? 

3.    Passion’s Progress. Can a more subjective analysis mitigate homicides? Many intimate partner homicides occur after “departure claims,” where the decedent announces in deeds, such as moving furniture out, or words, such as filing for divorce or stating future plans, that he/she is leaving the relationship. Professor Victoria Nourse, who compared cases that apply the MPC’s “extreme mental or emotional disturbance” standard to cases that use common law standards, found that 26% of MPC claims that reached juries involved “departure” claims, whereas none of these claims reached juries in jurisdictions using the common law approach. Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1353 (1997). Essentially, when cases were able to reach juries, there was a question of fact that needed answering, which allowed for more evidence to be submitted. In many cases, the victim was killed when he/she moved furniture out, announced his/her departure, or filed for divorce. Professor Nourse further discovered that when a defendant in a criminal homicide case alleged infidelity after the relationship had ended, the case would reach the jury 88% of the time in MPC states versus 39% of the time in common law jurisdictions. Id. at 1362. With these results in mind, Professor Nourse concluded that the MPC produced “illiberal and often perverse” results. Id. at 1332. 

Based on these facts, should we specify statutory language to cover these sets of facts? What would an abolitionist approach to this problem look like? Could we avoid the harm entirely with more adequate support systems or affordable housing?  

For more on the nexus between housing insecurity and domestic violence, see John Pavao, Jennifer Alvarez, Nikki Baumrind, Marta Induni, and Rachel Kimerling’s Study: Intimate Partner Violence and Housing Instability. 

4.    Objective and Subjective. Recall the Oregon statute. What language in the Oregon statute suggests an objective standard of extreme emotional disturbance? What language suggests a subjective standard? If you were a prosecutor, which standard (objective or subjective) would you want to take precedence over the other? How would you make this argument? 

What about if you were practicing as a defense attorney? Is there a benefit to this hybrid approach? Is it confusing or flexible?

5.    Gender and the Law. Voluntary manslaughter has been said to “ha[ve] never been a female-friendly doctrine.” Emily L. Miller, (Wo)manslaughter: Voluntary Manslaughter, Gender, and the Model Penal Code, 50 Emory L.J. 665, 667 (2001). Some scholars have even called for the abolition of the heat-of-passion factor, and the argument is summarized as follows:

Provocation is a male-centered and male-dominated defense. Although the defense is supposedly founded on compassion for ordinary human infirmity, it is really a legal disguise to partially excuse male aggression by treating men “as natural aggressors, and in particular women's natural aggressors.” Men who are provoked desire to inflict retaliatory suffering on those who have attacked their self-worth. More often than not, the self-worth “attackers'' are women. In studies of battered women, for example, violence is prompted by male possessiveness and sexual jealousy; a male's feelings of self-worth require “absolute possession of a woman's sexual fidelity, of her labour, and of (on demand) her presence, love, and attention in general.” In reality, therefore, the defense simply reinforces precisely what the law should seek to eradicate, namely, “men's violence against women, and their violence in general.” Joshua Dressler, Why Keep the Provocation Defense?: Some Reflections on A Difficult Subject, 86 Minn. L. Rev. 959, 975-976 (2002). 

Professor Nourse is in favor of keeping the provocation defense, but making it available in fewer circumstances, because “the defendant’s claim to our compassion must put him in a position of normative equality vis-a-vis his victim.” She further comments that this only exists when society “shares” the defendant’s rage, such that the provoker’s conduct would result in criminal punishment. Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331, 1396 (1997). Because adultery is no longer a crime in almost all jurisdictions, this would lead to a revocation of a provocation defense when a defendant kills in the heat of passion that stems from the victim’s infidelity. Thus, without any other defenses or mitigating factors available, the defendant would be guilty of murder.

Regarding viewpoints on keeping versus abolishing the defense, which of these do you find more persuasive? Would it be better to abolish provocation as a defense? Or do you think it would be better to retain the defense, and if so, do you prefer the common law heat-of-passion doctrine or the MPC’s “extreme mental or emotional disturbance” provision? 

6.      Abolition. If we were to abolish provocation as a mitigating factor, how might we replace it? Should it be replaced, or should it be removed entirely? The United Kingdom replaced provocation as a mitigating factor with the statutory partial defense called “loss of control” as codified in the Coroners and Justice Act (2009):

1. Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if-

   a. D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control, 

   b. the loss of self-control had a qualifying trigger, and 

   c. a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. 

2. For the purpose of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
3. In subsection (1)(c), the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.

Under this Act, a “qualifying trigger” for D’s loss of self-control is one attributable to:

1. D’s fear of serious violence from V against D or “another identified person”; or
2. a thing or things done or said (or both) which-

   a. constituted circumstances of an extremely grave character, and 

   b. caused D to have a justifiable sense of being seriously wronged; or

3. a combination of the matters mentioned [above].

The only major traditional category of adequate provocation that does not involve an actual or threatened physical assault, adultery is often referred to as “the paradigm example of provocation adequate to mitigate murder to voluntary manslaughter.” Applying social science data and feminist theory regarding domestic violence, Donna K. Coker reexamines the connection between heat of passion and adultery law in her article, Donna K. Coker, Heat of Passion and Wife Killing: Men Who Batter/Men Who Kill, 2 S. Cal. Rev. L. & Women’s Stud. 71 (1992). (Read at least pp 71-75.)

For a disturbing, compelling analysis of the ways in which courts have used the modernized "extreme emotional disturbance" standard to reduce murder to manslaughter in cases involving women killed by their partners after attempting to exit the relationship, see Victoria Nourse, Passion’s Progress: Modern Law Reform and the Provocation Defense, 106 Yale L.J. 1331-1448 (1997). (Read at least pp 1331-1351.)

[No. S134543. May 31, 2007.]

THE PEOPLE, Plaintiff and Appellant, v. MARJORIE KNOLLER, Defendant and Appellant.

Counsel

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Amy Haddix, Deputy Attorneys General, for Plaintiff and Appellant.

Dennis Patrick Riordan, under appointment by the Supreme Court, Riordan & Morgan, Donald M. Morgan and Dylan Schaffer for Defendant and Appellant.

Opinion

KENNARD, J.

On January 26, 2001, two dogs owned by defendant Marjorie Knoller and her husband, codefendant Robert Noel, attacked and killed Diane Whipple in the hallway of an apartment building in San Francisco. Defendant Knoller was charged with second degree murder (Pen. Code, § 189)1 and involuntary manslaughter (§ 192, subd. (b)); codefendant Noel, who was not present at the time of the attack on Whipple, was charged with involuntary manslaughter but not murder. Both were also charged with owning a mischievous animal that caused the death of a human being, in violation of section 399.

After a change of venue to Los Angeles County, a jury convicted defendants on all counts. Both moved for a new trial. (See § 1181, subd. 6 [a trial court may grant a new trial when “the verdict or finding is contrary to law or evidence”].) The trial court denied Noel’s motion. It granted Knoller’s motion in part, giving her a new trial on the second degree murder charge, but denying her motion for a new trial on the other two crimes of which she was convicted (involuntary manslaughter and possession of a mischievous animal that causes death).

With respect to Knoller, whose conviction of second degree murder was based on a theory of implied malice, the trial court took the position that, to be guilty of that crime, Knoller must have known that her conduct involved a high probability of resulting in the death of another. Finding such awareness lacking, the trial court granted Knoller’s motion for a new trial on the second degree murder conviction.

The trial court sentenced both defendants to four years’ imprisonment, the maximum term for involuntary manslaughter (§ 193, subd. (b)), staying the sentences for the section 399 violations. Defendants appealed from their convictions, and the People appealed from the order granting Knoller a new trial on the murder count. The Court of Appeal consolidated the appeals.

The Court of Appeal reversed the trial court’s order granting Knoller a new trial on the second degree murder charge. It remanded the case to the trial court for reconsideration of the new trial motion in light of the Court of Appeal’s holding that implied malice can be based simply on a defendant’s conscious disregard of the risk of serious bodily injury to another. In all other respects, the Court of Appeal affirmed the convictions of both defendants.

Both defendants petitioned this court for review. We granted only Knoller’s petition, limiting review to two questions: “(1) Whether the mental state required for implied malice includes only conscious disregard for human life or can it be satisfied by an awareness that the act is likely to result in great bodily injury,”2 and “(2) Whether the trial court abused its discretion in granting Knoller’s motion for new trial under Penal Code section 1181 [, subdivision 6].”

With respect to the first issue, we reaffirm the test of implied malice we set out in People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353] and, as mentioned on page 152, post, reiterated in many later cases: Malice is implied when the killing is proximately caused by “ ‘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.’ ” (People v. Phillips, supra, at p. 587.) In short, implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less.

Measured against that test, it becomes apparent that the Court of Appeal set the bar too low, permitting a conviction of second degree murder, based on a theory of implied malice, if the defendant knew his or her conduct risked causing death or serious bodily injury. But the trial court set the bar too high, ruling that implied malice requires a defendant’s awareness that his or her conduct had a high probability of resulting in death, and that granting defendant Knoller a new trial was justified because the prosecution did not charge codefendant Noel with murder. Because the trial court used an incorrect test of implied malice, and based its decision in part on an impermissible consideration, we conclude that it abused its discretion in granting Knoller a new trial on the second degree murder count. It is uncertain whether the court would have granted the new trial had it used correct legal standards. We therefore remand the matter to the Court of Appeal, and direct it to return the case to the trial court with directions to reconsider defendant Knoller’s new trial motion in light of the views set out in this opinion.

I. Facts and Proceedings

In 1998, Pelican Bay State Prison inmates Paul Schneider and Dale Bretches, both members of the Aryan Brotherhood prison gang, sought to engage in a business of buying, raising, and breeding Presa Canario dogs. This breed of dog tends to be very large, weighing over 100 pounds, and reaching over five feet tall when standing on its hind legs. A document found in defendants’ apartment describes the Presa Canario as “a gripping dog . . . [f] . . . always used and bred for combat and guard . . . [and] used extensively for fighting . . . .”

Prisoners Schneider and Bretches relied on outside contacts, including Brenda Storey and Janet Coumbs, to carry out their Presa Canario business. Schneider told Coumbs that she should raise the dogs.

As of May 1990, Coumbs possessed four such dogs, named Bane, Isis, Hera, and Fury. Hera and Fury broke out of their fenced yard and attacked Coumbs’s sheep. Hera killed at least one of the sheep and also a cat belonging to Coumbs’s daughter. Coumbs acknowledged that Bane ate his doghouse and may have joined Fury in killing a sheep.

Defendants Knoller and Noel, who were attorneys representing a prison guard at Pelican Bay State Prison, met inmate Schneider at the prison sometime in 1999. In October 1999, defendants filed a lawsuit on behalf of Brenda Storey against Coumbs over the ownership and custody of the four dogs. Coumbs decided not to contest the lawsuit and to turn the dogs over to defendants. Coumbs warned Knoller that the dogs had killed Coumbs’s sheep, but Knoller did not seem to care.

Defendant Knoller thereafter contacted Dr. Donald Martin, a veterinarian for 49 years, and on March 26, 2000, he examined and vaccinated the dogs. With his bill to Knoller, Dr. Martin included a letter, which said in part: “I would be professionally amiss [sic] if I did not mention the following, so that you can be prepared. These dogs are huge, approximately weighing in the neighborhood of 100 pounds each. They have had no training or discipline of any sort. They were a problem to even get to, let alone to vaccinate. You mentioned having a professional hauler gather them up and taking them. . . . Usually this would be done in crates, but I doubt one could get them into anything short of a livestock trailer, and if let loose they would have a battle, [f] To add to this, these animals would be a liability in any household, reminding me of the recent attack in Tehama County to a boy by large dogs. He lost his aim and disfigured his face. The historic romance of the warrior dog, the personal guard dog, the gaming dog, etc. may sound good but hardly fits into life today.” Knoller thanked Dr. Martin for the information and said she would pass it on to her client.

On April 1, 2000, both defendants and a professional dog handler took custody of the dogs from Coumbs. Bane then weighed 150 pounds and Hera 130 pounds. Coumbs told both defendants that she was worried about the dogs, that Hera and Fury should be shot, and that she was also concerned about Bane and Isis.

Hera remained for a short time at a kennel in San Mateo County while Bane was sent to a facility in Los Angeles County. Both defendants soon became concerned for the health of the two dogs. On April 30, 2000, defendants brought Hera to their sixth-floor apartment at 2398 Pacific Avenue in San Francisco. Bane arrived in September 2000. Codefendant Noel purchased dog licenses, registering himself and Knoller as the dogs’ owners.

A later search of defendants’ apartment showed that they frequently exchanged letters with Pelican Bay inmates Schneider and Bretches. Over 100 letters were sent and received between March and December 2000, apparently under the guise of attorney-client correspondence.3 In the letters, defendants discussed a commercial breeding operation, considering various names such as GuerraHund Kennels, Wardog, and finally settling on Dog-O-War. Prisoners Schneider and Bretches’s notes on a Web site for the business described Bane as “Wardog,” and “Bringer of Death: Ruin: Destruction.”

Between the time defendants Noel and Knoller brought the dogs to their sixth-floor apartment in San Francisco and the date of the fatal mauling of Diane Whipple on January 26, 2001, there were about 30 incidents of the two dogs being out of control or threatening humans and other dogs. Neighbors mentioned seeing the two dogs unattended on the sixth floor and running down the hall. Codefendant Noel’s letters to prisoner Schneider confirmed this, mentioning one incident when defendant Knoller had to let go of the two dogs as they broke from her grasp and ran to the end of the hall. Noel described how the dogs even pushed past him and “took off side by side down the hall toward the elevator in a celebratory stampede!! 240 lbs. of Presa wall to wall moving at top speed!!!” In a letter to inmate Schneider, defendant Knoller admitted not having the upper body strength to handle Bane and having trouble controlling Hera.

When neighbors complained to defendants Noel and Knoller about the two dogs, defendants responded callously, if at all. In one incident, neighbors Stephen and Aimee West were walking their dog in a nearby park when Hera attacked their dog and “latched on” to the dog’s snout. Noel was unable to separate the dogs, but Aimee threw her keys at Hera, startling Hera and causing Hera to release her grip on the Wests’ dog. On another day, Stephen West was walking his dog when he encountered Noel with Bane. Bane lunged toward West’s dog, but Noel managed to pull Bane back. When Stephen West next saw Noel, West suggested that Noel muzzle the dogs and talk to dog trainer Mario Montepeque about training them; Noel replied there was no need to do so. Defendants Knoller and Noel later encountered Montepeque, who advised defendants to have their dogs trained and to use a choke collar. Defendants disregarded this advice. On still another occasion, when dog walker Lynn Gaines was walking a dog, Gaines told Noel that he should put a muzzle on Bane; Noel called her a “bitch” and said the dog Gaines was walking was the problem.

There were also instances when defendants’ two dogs attacked or threatened people. David Moser, a fellow resident in the apartment building, slipped by defendants Knoller and Noel in the hallway only to have their dog Hera bite him on the “rear end.” When he exclaimed, “Your dog just bit me,” Noel replied, “Um, interesting.” Neither defendant apologized to Moser or reprimanded the dog. Another resident, Jill Cowen Davis, was eight months pregnant when one of the dogs, in the presence of both Knoller and Noel, suddenly growled and lunged toward her stomach with its mouth open and teeth bared. Noel jerked the dog by the leash, but he did not apologize to Davis. Postal carrier John Watanabe testified that both dogs, unleashed, had charged him. He said the dogs were in a “snarling frenzy” and he was “terrified for [his] life.” When he stepped behind his mail cart, the dogs went back to Knoller and Noel. On still another occasion, the two dogs lunged at a six-year-old boy walking to school; they were stopped less than a foot from him.

One time, codefendant Noel himself suffered a severe injury to his finger when Bane bit him during a fight with another dog. The wound required surgery, and Noel had to wear a splint on his arm and have two steel pins placed in his hand for eight to 10 weeks.

Mauling victim Diane Whipple and her partner Sharon Smith lived in a sixth-floor apartment across a lobby from defendants. Smith encountered defendants’ two dogs as often as once a week. In early December 2000, Whipple called Smith at work to say, with some panic in her voice, that one of the dogs had bitten her. Whipple had come upon codefendant Noel in the lobby with one of the dogs, which lunged at her and bit her in the hand. Whipple did not seek medical treatment for three deep, red indentations on one hand. Whipple made every effort to avoid defendants’ dogs, checking the hallway before she went out and becoming anxious while waiting for the elevator for fear the dogs would be inside. She and Smith did not complain to apartment management because they wanted nothing to do with defendants Knoller and Noel.

On January 26, 2001, Whipple telephoned Smith to say she was going home early. At 4:00 p.m., Esther Birkmaier, a neighbor who lived across the hall from Whipple, heard dogs barking and a woman’s “panic-stricken” voice calling, “Help me, help me.” Looking through the peephole in her front door, Birkmaier saw Whipple lying facedown on the floor just over the threshold of her apartment with what appeared to be a dog on top of her. Birkmaier saw no one else in the hallway. Afraid to open the door, Birkmaier called 911, the emergency telephone number, and at the same time heard a voice yelling, “No, no, no” and “Get off.” When Birkmaier again approached her door, she could hear barking and growling directly outside and a banging against a door. She heard a voice yell, “Get off, get off, no, no, stop, stop.” She chained her door and again looked through the peephole. Whipple’s body was gone and groceries were strewn about the hallway. Birkmaier called 911 a second time.

At 4:12 p.m., San Francisco Police Officers Sidney Laws and Leslie Forrestal arrived in response to Birkmaier’s telephone calls. They saw Whipple’s body in the hallway; her clothing had been completely ripped off, her entire body was covered with wounds, and she was bleeding profusely. Defendant Knoller and the two dogs were not in sight.

The officers called for an ambulance. Shortly thereafter, defendant Knoller emerged from her apartment. She did not ask about Whipple’s condition but merely told the officers she was looking for her keys, which she found just inside the door to Whipple’s apartment.

An emergency medical technician administered first aid to Whipple, who had a large, profusely bleeding wound to her neck. The wound was too large to halt the bleeding, and Whipple’s pulse and breathing stopped as paramedics arrived. She was revived but died shortly after reaching the hospital.

An autopsy revealed over 77 discrete injuries covering Whipple’s body “from head to toe.” The most significant were lacerations damaging her jugular vein and her carotid artery and crushing her larynx, injuries typically inflicted by predatory animals to kill their prey. The medical examiner stated that although earlier medical attention would have increased Whipple’s chances of survival, she might ultimately have died anyway because she had lost one-third or more of her blood at the scene. Plaster molds of the two dogs’ teeth showed that the bite injuries to Whipple’s neck were consistent with Bane’s teeth.

Animal control officer Andrea Runge asked defendant Knoller to sign over custody of the dogs for euthanasia. Knoller, whom Runge described as “oddly calm,” agreed to sign over Bane, but she refused to sign over Hera for euthanasia and she refused to help the animal control officers with the animals, saying she was “unable to handle the dogs.” When tranquilizer darts malfunctioned and failed to quiet Bane, “come-along” poles were used by animal control officers backed up by officers with guns drawn. Hera too was controlled by officers with “come-along” poles.

On February 8, 2001, both defendants appeared on the television show Good Morning America and basically blamed mauling victim Whipple for her own death. Defendant Knoller claimed that Whipple had already opened her apartment door when something about her interested Bane. He broke away, pulled Knoller across the lobby, and jumped up on Whipple, putting his paws on either side of her. Knoller said she pushed Whipple into Whipple’s apartment, fell on top of Whipple, and then tried to shield Whipple with her own body. But Whipple’s struggles must have been misinterpreted by the dog, and when Whipple struck Knoller with her fist, the dog began to bite Whipple. Knoller claimed that Whipple had ample opportunity to just slam the door of her apartment or stay still on the floor.

Codefendant Noel did not testify, but he presented evidence of positive encounters between the two dogs and veterinarians, friends, and neighbors. Defendant Knoller did testify in her own defense. She referred to herself, her husband, and Pelican Bay prisoner Schneider as the “triad,” and she spoke of Schneider as her “son.” The two dogs had become a focal point in the relationship. She denied reading literature in the apartment referring to the vicious nature of the dogs. She thought the dogs had no personality problems requiring a professional trainer. She denied receiving or otherwise discounted any warnings about the two dogs’ behavior and she maintained that virtually all the witnesses testifying to incidents with the dogs were lying. She said she never walked both dogs together. Ordinarily, she would walk Hera and codefendant Noel would walk Bane, because she had insufficient body strength to control Bane. But after Noel was injured while breaking up a fight between Bane and another dog, Knoller would sometimes walk Bane, always on a leash. She said she had just returned from walking Bane on the roof of the apartment building, and had opened the door to her apartment while holding Bane’s leash, when Bane dragged her back across the lobby toward Whipple, who had just opened the door to her own apartment. The other dog, Hera, left defendants’ apartment and joined Bane, who attacked Whipple. Knoller said she threw herself on Whipple to save her. She denied that Hera participated in the attack. She acknowledged not calling 911 to get help for Whipple.

Asked whether she denied responsibility for the attack on Whipple, Knoller gave this reply: “I said in an interview that I wasn’t responsible but it wasn’t for the—it wasn’t in regard to what Bane had done, it was in regard to knowing whether he would do that or not. And I had no idea that he would ever do anything like that to anybody. How can you anticipate something like that? It’s a totally bizarre event. I mean how could you anticipate that a dog that you know that is gentle and loving and affectionate would do something so horrible and brutal and disgusting and gruesome to anybody? How could you imagine that happening?”

In rebuttal, the prosecution presented evidence that the minor character of defendant Knoller’s injuries—principally bruising to the hands—indicated that she had not been as involved in trying to protect mauling victim Whipple as she had claimed. Dr. Randall Lockwood, the prosecution’s expert on dog behavior, testified that good behavior by a dog on some occasions does not preclude aggressive and violent behavior on other occasions, and he mentioned the importance of training dogs such as Bane and Hera not to fight.

The jury found Knoller guilty of second degree murder; it also found both Knoller and Noel guilty of involuntary manslaughter and owning a mischievous animal that caused the death of a human being. Both defendants moved for a new trial. The trial court denied Noel’s motion. We quote below the pertinent statements by the trial court in granting Knoller’s motion for a new trial on the second degree murder count.

The trial court observed: “The law requires that there be a subjective understanding on the part of the person that on the day in question—and I do not read that as being January 26th, 2001 because by this time, with all of the information that had come out dealing with the dogs, the defendants were fully on notice that they had a couple of wild, uncontrollable and dangerous dogs that were likely going to do something bad. [f] Is the ‘something bad’ death? That is the ultimate question in the case. There is no question but that the something bad was going to be that somebody was going to be badly hurt. I defy either defendant to stand up and tell me they had no idea that those dogs were going to hurt somebody one day. But can they stand up and say that they knew subjectively—not objectively and that’s an important distinction—that these dogs were going to stand up and kill somebody?” (Italics added.)

The trial court continued: “I am guided by a variety of principles. One of them is that public emotion, public outcry, feeling, passion, sympathy do not play a role in the application of the law. The other is that I am required to review all of the evidence and determine independently rather than as a jury what the evidence showed. I have laid out most of the evidence as it harms the defendants in this case. Their conduct from the time that they got the dogs to the time—to the weeks after Diane Whipple’s death was despicable. . . .

“There was one time on the stand, Ms. Knoller, when I truly believed what you said. You broke down in the middle of a totally scripted answer and you actually, instead of crying, you actually got mad and you said you had no idea that this dog could do what he did and pounded the table. I believed you. That was the only time, but I did believe you.” The court then described the definition of second degree murder as requiring that one “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being.” (Italics added.)

The trial court went on: “What we have in this case as it relates to Ms. Knoller is the decision to take the dog outside, into the hallway, up to the roof, go to the bathroom, bring it back down and put it in the apartment. There was no question but that taking the dog out into the hallway by that very act exposed other people in the apartment, whether they are residents there or guests, invitees to what might happen with the dog. When you take everything as a totality, the question is whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability that day, or on the day before on the day after,—I reject totally the argument of the defendants that she had to know when she walked out the door—she was going to kill somebody that morning. The Court finds that the evidence does not support it.” (Italics added.)

The trial court concluded it had “no choice, . . . taking the Legislature’s scheme, the evidence that was received, as despicable as it is, but to determine not that [defendant Knoller] is acquitted of second degree murder but to find that on the state of the evidence, I cannot say as a matter of law that she subjectively knew on January 26th that her conduct was such that a human being was likely to die.” (Italics added.)

The trial court mentioned another consideration: “The Court also notes a great troubling feature of this case that Mr. Noel was never charged [with murder] as Ms. Knoller was. In the Court’s view, given the evidence, Mr. Noel is more culpable than she. Mr. Noel personally knew that she could not control those dogs. He could not control those dogs. Mr. Noel was substantially haughtier than she was. In brushing off all of the incidents that happened out in the street, Mr. Noel knew as a theological certainty that that dog, which had recently been operated on, was taking medication that had given it diarrhea, was going to go out into the hallway or out into the street possibly, at the hands of Ms. Knoller. He . . . left her there to do that. . . . And yet Mr. Noel was not charged [with murder]. Equality of sentencing and the equal administration of justice is an important feature in any criminal court. That played a role as well.” The trial court then granted defendant Knoller’s motion for a new trial on the second degree murder count.

As noted earlier, both defendants as well as the prosecution appealed. The Court of Appeal reversed the trial court’s order granting Knoller’s motion for a new trial on the second degree murder count. It disagreed with the trial court that a second degree murder conviction, based on a theory of implied malice, required that Knoller recognized “her conduct was such that a human being was likely to die.” The Court of Appeal held that a second degree murder conviction can be based simply on a defendant’s “subjective appreciation and conscious disregard of a likely risk of . . . serious bodily injury.” In all other respects, the Court of Appeal affirmed both defendants’ convictions.

II. The Elements of Implied Malice

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) At issue here is the definition of “implied malice.”

Defendant Knoller was convicted of second degree murder as a result of the killing of Diane Whipple by defendant’s dog, Bane. Second degree murder is the unlawful killing of a human being with malice aforethought but without the additional elements, such as willfulness, premeditation, and deliberation, that would support a conviction of first degree murder. (See §§ 187, subd. (a), 189.) Section 188 provides: “[Malice may be either express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

The statutory definition of implied malice, a killing by one with an “abandoned and malignant heart” (§ 188), is far from clear in its meaning. Indeed, an instruction in the statutory language could be misleading, for it “could lead the jury to equate the malignant heart with an evil disposition or a despicable character” (People v. Phillips, supra, 64 Cal.2d at p. 587) instead of focusing on a defendant’s awareness of the risk created by his or her behavior. “Two lines of decisions developed, reflecting judicial attempts ‘to translate this amorphous anatomical characterization of implied malice into a tangible standard a jury can apply.’” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103 [13 Cal.Rptr.2d 864, 840 P.2d 969], quoting People v. Protopappas (1988) 201 Cal.App.3d 152, 162-163 [246 Cal.Rptr. 915].) Under both lines of decisions, implied malice requires a defendant’s awareness of the risk of death to another.

The earlier of these two lines of decisions, as this court observed in People v. Nieto Benitez, supra, 4 Cal.4th at pages 103-104, originated in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1], which stated that malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (We here refer to this as the Thomas test.) The later line dates from this court’s 1966 decision in People v. Phillips, supra, 64 Cal.2d at page 587: Malice is implied when the killing is proximately caused by “ ‘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.’ ” (The Phillips test.)

In People v. Watson (1981) 30 Cal.3d 290, 300 [179 Cal.Rptr. 43, 637 P.2d 279], we held that these two definitions of implied malice in essence articulated the same standard. Concerned, however, that juries might have difficulty understanding the Thomas test’s concept of “wanton disregard for human life,” we later emphasized that the “better practice in the future is to charge juries solely in the straightforward language of the ‘conscious disregard for human life’ definition of implied malice,” the definition articulated in the Phillips test. (People v. Dellinger (1989) 49 Cal.3d 1212, 1221 [264 Cal.Rptr. 841, 783 P.2d 200].) The standard jury instructions thereafter did so. (See CALJIC No. 8.11; Judicial Council of Cal. Crim. Jury Instns. (2006) CALCRIM No. 520.) Since 1989, our decisions have articulated the standard we set out in Dellinger and in CALJIC No. 8.11. (See, e.g., People v. Randle (2005) 35 Cal.4th 987, 994 [28 Cal.Rptr.3d 725, 111 P.3d 987]; People v. Taylor (2004) 32 Cal.4th 863, 867-868 [11 Cal.Rptr.3d 510, 86 P.3d 881]; People v. Lasko (2000) 23 Cal.4th 101, 107 [96 Cal.Rptr.2d 441, 999 P.2d 666]; People v. Hansen (1994) 9 Cal.4th 300, 308 [36 Cal.Rptr.2d 609, 885 P.2d 1022]; People v. Whitfield (1994) 7 Cal.4th 437, 450 [27 Cal.Rptr.2d 858, 868 P.2d 272]; People v. Nieto Benitez, supra, 4 Cal.4th at pp. 104, 111.) The trial court here instructed the jury in the language of CALJIC No. 8.11.

III. The Court of Appeal’s Test for Implied Malice

As discussed in the preceding part, the great majority of this court’s decisions establish that a killer acts with implied malice only when acting with an awareness of endangering human life. This principle has been well settled for many years, and it is embodied in the standard jury instruction given in murder cases, including this one. The Court of Appeal here, however, held that a second degree murder conviction, based on a theory of implied malice, can be based simply on a defendant’s awareness of the risk of causing serious bodily injury to another.

In support of that view, the Court of Appeal pointed to three decisions of this court: People v. Conley (1966) 64 Cal.2d 310 [49 Cal.Rptr. 815, 411 P.2d 911] (Conley), People v. Poddar (1974) 10 Cal.3d 750 [111 Cal.Rptr. 910, 518 P.2d 342] (Poddar), and People v. Coddington (2000) 23 Cal.4th 529 [97 Cal.Rptr.2d 528, 2 P.3d 1081] (Coddington). We discuss each case below.

In Conley, supra, 64 Cal.2d 310, the defendant, after consuming copious quantities of alcohol, went to the home of his former lover and her husband, where he shot and killed both of them. He was convicted of two counts of first degree murder. The issue on appeal was whether the trial court should have instructed the jury on diminished mental capacity caused by intoxication. This court held that it should have so instructed because “[a]n awareness of the obligation to act within the general body of laws regulating society . . . is included in the statutory definition of implied malice in terms of the abandoned and malignant heart . . . .” (Id. at p. 322.) In explaining that holding, Conley stated that a person who carefully weighs the course of action he is about to take and chooses to kill his victim, after considering the reasons for and against it, “is normally capable also of comprehending the duty society places on all persons to act within the law.” (Ibid.) Conley continued: “If, despite such awareness, he does an act that is likely to cause serious injury or death to another, he exhibits that wanton disregard for human life or antisocial motivation that constitutes malice aforethought.” (Ibid., italics added.)4 It is this sentence from Conley on which the Court of Appear relied. But that language from Conley described the defendant’s act (the objective component of implied malice), not the defendant’s mental state (the subjective component of implied malice); it is therefore irrelevant to the issue here, which concerns the subjective component—whether the defendant must be aware of the risk of death or only a risk of serious bodily injury.

Conley, supra, 64 Cal.2d 310, did not discuss whether implied malice could be based merely on a defendant’s awareness of the risk of serious bodily injury to another but not the risk of death resulting from the defendant’s actions. That issue, presented here, did not arise in Conley, because there the defendant, who said he was going to kill the victims and did so, could not claim he was aware only of the risk of causing serious bodily injury.

In cases decided shortly before and after Conley, we reiterated the established definition of implied malice as requiring an awareness of the risk that the defendant’s conduct will result in the death of another. One year before Conley was filed, we stated in People v. Washington (1965) 62 Cal.2d 777, 780, 782 [44 Cal.Rptr. 442, 402 P.2d 130], that implied malice required a “conscious disregard for life.” Conley did not at all suggest that it intended to depart from the view expressed in Washington. And two months after Conley, this court in People v. Phillips, supra, 64 Cal.2d at page 582, endorsed its earlier statement in Washington that implied malice requires a “conscious disregard for life." (Italics added.)

We now turn to Poddar, supra, 10 Cal.3d 750, the second of the three decisions that the Court of Appeal cited. In that case, the defendant went to the home of a woman he had dated casually, shot her with a pellet gun, and then killed her with a knife. He was convicted of second degree murder. This court held that the trial court’s jury instruction on second degree murder was defective because it did not explain the concept of diminished capacity as set out in Conley, supra, 64 Cal.2d 310. (Poddar, supra, 10 Cal.3d at pp. 757-759.) In its discussion of diminished capacity, Poddar stated that to prove implied malice, “it must be shown that the accused was both aware of his duty to act within the law and acted in a manner likely to cause death or serious bodily injury despite such awareness.” (Id. at p. 758, italics added.) As in Conley, Poddar referred to serious bodily injury in describing the defendant’s act, the objective component of implied malice. Poddar did not say that the defendant’s mental state, the subjective component of implied malice, at issue here, could be satisfied by proof that the defendant acted with an awareness that his conduct could cause serious bodily injury. Indeed, the defendant in Poddar never claimed that he was unaware that his acts could cause death.

Even if the above discussed language from Conley, supra, 64 Cal.2d at page 322, and from Poddar, supra, 10 Cal.3d at page 758, could be viewed as implying that a second degree murder conviction, on a theory of implied malice, could be based simply on a defendant’s awareness of the risk of causing serious bodily injury, rather than death, that language would lack authoritative force. “ ‘It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered.’ ” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 [36 Cal.Rptr.3d 495, 123 P.3d 931], quoting Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [81 Cal.Rptr.2d 521, 969 P.2d 613].) “An appellate decision is not authority for everything said in the court’s opinion but only ‘for the points actually involved and actually decided.’ ” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620 [71 Cal.Rptr.2d 830, 951 P.2d 399].) Because the facts and issues in Conley, supra, 64 Cal.2d 310, and in Poddar, supra, 10 Cal.3d 750, did not encompass the question whether implied malice could be based on a defendant’s awareness of the risk of serious bodily injury alone, the language the Court of Appeal cited from Conley and Poddar lacks authoritative force.

This brings us to Coddington, supra, 23 Cal.4th 529, the last in the trio of decisions relied on by the Court of Appeal. In that case, the defendant lured teenage girls to his mobilehome by telling them they would star in an antidrug video, and then raped them and committed other sexual offenses. He killed two older women who had accompanied the girls as chaperones. The defendant was convicted of two counts of first degree murder with special circumstances, as well as various other offenses, and he was sentenced to death.

Among the many issues the defendant in Coddington raised on appeal was a claim that the trial court had erred in not instructing the jury on second degree murder based on implied malice. Responding to that claim, the Attorney General argued in Coddington that such an instruction was not needed because there was no evidence that the defendant’s offense was less than first degree murder, and that the defendant’s conduct proved that he “acted with actual or presumptive knowledge that serious bodily injury was likely to occur.” (Coddington, supra, 23 Cal.4th at p. 592, italics added.) This court rejected the Attorney General’s argument, explaining that such a mental state (actual or presumptive knowledge that serious bodily injury is likely to occur) “permits an inference of implied malice . . . and does not support a conclusion that no instruction on second degree murder on a theory of implied malice was necessary.” (Ibid.)

Notwithstanding Coddington’s offhand comment that knowledge of the risk of serious bodily injury permits an inference of implied malice, Coddington reiterated the established rule that a trial court must instruct on second degree murder based on implied malice whenever there is evidence “from which the jury could have inferred that appellant acted without intent to kill even though his conduct posed a high risk of death.” (Coddington, supra, 23 Cal.4th at p. 593, italics added.) Thus, Coddington’s offhand comment cannot be viewed as implicitly overruling the decisions of this court discussed earlier (see, ante, at p. 152) declaring that implied malice requires an awareness of the risk of death.

In sum, the three decisions on which the Court of Appeal relied lack persuasive force. Neither Conley, supra, 64 Cal.2d 310, nor Poddar, supra, 10 Cal.3d 750, addressed the issue presented here: whether implied malice can be based on a defendant’s awareness of the risk of great bodily injury but not death resulting from the defendant’s actions. With respect to the comment in Coddington, supra, 23 Cal.4th at page 592, suggesting that knowledge of the likelihood of serious bodily injury permits an inference of implied malice, it is inconsistent not only with the holding in that case but also with the views expressed in other decisions of this court. (See, ante, at p. 152.) We conclude that a conviction for second degree murder, based on a theory of implied malice, requires proof that a defendant acted with conscious disregard of the danger to human life. In holding that a defendant’s conscious disregard of the risk of serious bodily injury suffices to sustain such a conviction, the Court of Appeal erred.

IV. The Trial Court’s Grant of a New Trial on the Second Degree Murder Charge

We now turn to the second issue raised by the petition for review—whether the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge. Such an abuse of discretion arises if the trial court based its decision on impermissible factors (see People v. Carmody (2004) 33 Cal.4th 367, 378 [14 Cal.Rtpr.3d 880, 92 P.3d 369]) or on an incorrect legal standard (see Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435—436 [97 Cal.Rptr.2d 179, 2 P.3d 27]; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [146 Cal.Rptr. 623, 579 P.2d 514]).

In granting Knoller a new trial, the trial court properly viewed implied malice as requiring a defendant’s awareness of the danger that his or her conduct will result in another’s death and not merely in serious bodily injury. (See, ante, at pp. 149-151.) But the court’s ruling was legally flawed in other respects. As we explain below, the trial court based its ruling on an inaccurate definition of implied malice, and it inappropriately relied on the prosecutor’s failure to charge codefendant Noel with murder.

As discussed earlier in part II, this court before its decision in People v. Dellinger, supra, 49 Cal.3d 1212, had defined implied malice in two similar but somewhat different ways. Under the Thomas test, malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.); see also Poddar, supra, 10 Cal.3d at pp. 756-757.) Under the Phillips test (People v. Phillips, supra, 64 Cal.2d at p. 587), malice is implied when the killing is proximately caused by “ ‘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.’ ” In People v. Dellinger, supra, 49 Cal.3d 1212, we observed that although these two tests “articulated one and the same standard” (id. at p. 1219), the Thomas test contained “obscure phraseology” and had “become a superfluous charge,” so that the “better practice in the future” would be for trial courts to instruct juries in the “straightforward language” of the Phillips test (Dellinger, at p. 1221).5

Here, the trial court properly instructed the jury in accordance with the Phillips test. But when the court evaluated defendant Knoller’s new trial motion, it relied on language from the Thomas test, and as explained below, its description of that test was inaccurate. The court stated that a killer acts with implied malice when the killer “subjectively knows, based on everything, that the conduct that he or she is about to engage in has a high probability of death to another human being” and thus the issue in this case was “whether or not as a subjective matter and as a matter of law Ms. Knoller knew that there was a high probability” that her conduct would result in someone’s death. (Italics added.) But “high probability of death” is the objective, not the subjective, component of the Thomas test, which asks whether the defendant’s act or conduct “involves a high degree of probability that it will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.).) The subjective component of the Thomas test is whether the defendant acted with “a base, antisocial motive and with wanton disregard for human life.” (Ibid.) Nor does the Phillips test require a defendant’s awareness that his or her conduct has a high probability of causing death. Rather, it requires only that a defendant acted with a “ ‘conscious disregard for human life’ ” (People v. Dellinger, supra, 49 Cal.3d at p. 1221; see People v. Phillips, supra, 64 Cal.2d at p. 587).

As just shown, in treating the objective component of the Thomas test as the subjective component of that test, the trial court applied an erroneous definition of implied malice in granting defendant Knoller a new trial on the second degree murder charge.

In ruling on Knoller’s motion for a new trial, the trial court also commented that, in its view, codefendant Noel was more culpable than defendant Knoller, and that the district attorney’s failure to charge Noel with murder was a “troubling feature of this case” that “played a role as well” in the court’s decision to grant Knoller a new trial on the second degree murder charge. Dissimilar charging of codefendants, however, is not among the grounds for a new trial in section 1181. Although section 1181 states that a defendant’s new trial motion may be granted only on the grounds stated in that section, several courts have held that new trials may nonetheless be granted on grounds not enumerated in the statute when necessary to protect a defendant’s constitutional right to a fair trial. (See, e.g., People v. Oliver (1975) 46 Cal.App.3d 747, 751 [120 Cal.Rptr. 368] [judicial misconduct]; People v. Davis (1973) 31 Cal.App.3d 106, 109 [106 Cal.Rptr. 897] [unexpected absence of witness].) No published decision, however, has ever approved granting a new trial based on differential treatment of defendants. (See generally People v. Belmontes (1988) 45 Cal.3d 744, 810-813 [248 Cal.Rptr. 126, 755 P.2d 310] [disposition of codefendant’s case is irrelevant to jury’s determination at penalty phase of capital case].)

We specifically do not address whether a new trial could be granted on such a ground, an issue that would involve significant separation of powers considerations. Even assuming a new trial could be granted on such a ground, it is not justified here. Defendant Knoller and codefendant Noel were not similarly situated with regard to their dog Bane’s fatal mauling of Whipple in the hallway of the apartment building where they all lived. The immediate cause of Whipple’s death was Knoller’s own conscious decision to take the dog Bane unmuzzled through the apartment building, where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him. Bringing a more serious charge against the person immediately responsible for the victim’s death was a permissible exercise of prosecutorial discretion, not grounds for a new trial.

V. Conclusion and Disposition

In sum, the trial court abused its discretion in granting defendant Knoller a new trial on the second degree murder charge. That court erroneously concluded both that Knoller could not be guilty of murder, based on a theory of implied malice, unless she appreciated that her conduct created a high probability of someone’s death, and that a new trial was justified because the prosecution did not charge codefendant Noel with murder. It is uncertain whether the trial court would have reached the same result using correct legal standards. Moreover, the Court of Appeal, in reversing the trial court’s order, also erred, mistakenly reasoning that implied malice required only a showing that the defendant appreciated the risk of serious bodily injury. Under these circumstances, we conclude that the matter should be returned to the trial court to reconsider its new trial order in light of the views set out in this opinion.

The Court of Appeal’s judgment is reversed and the matter is remanded to that court, with directions to return the case to the trial court for reconsideration of defendant Knoller’s new trial motion in accord with the views expressed in this opinion.

George, C. J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.

The petition of appellant The People for a rehearing was denied July 18, 2007.

1

All further statutory citations are to the Penal Code.

2

Our order limiting the issues referred to “great bodily injury,” but the Court of Appeal decision referred to “serious bodily injury.” The two terms are “‘essentially equivalent’” (People v. Burroughs (1984) 35 Cal.3d 824, 831 [201 Cal.Rptr. 319, 678 P.2d 894]), and although there are some differences in the statutory definitions (compare § 243, subd. (f)(4) [defining “serious bodily injury”] with § 12022.7, subd. (f) [defining “great bodily injury”]), those differences are immaterial here.

3

The trial court ruled that letters written by or addressed to codefendant Noel were admissible against defendant Knoller, and vice versa, on a theory that raising the Presa Canario dogs was a joint enterprise. The Court of Appeal rejected defendants’ challenge to this ruling. Both defendants raised the issue in their respective petitions for review. We denied Noel’s petition, and in granting Knoller’s petition we limited review to other issues.

4

In People v. Flannel (1979) 25 Cal.3d 668, 679 [160 Cal.Rptr. 84, 603 P.2d 1], we quoted that passage from Conley, supra, 64 Cal.2d 310 at page 322, in summarizing the doctrine of diminished capacity; we then explained how imperfect self-defense—the issue in Flannel— differed from diminished capacity. Not at issue in Flannel was the distinction between a defendant’s awareness of the risk of serious bodily injury and awareness of the risk of death.

5

For trial courts too, the better practice in the future would be to use the Phillips test, rather than the Thomas test, in ruling on motions for a new trial as well as other matters in which the definition of implied malice is in issue.

 Notes and Questions

1.     Aftermath. In 2008, Marjorie Knoller was sentenced to 15 years to life in prison for second degree murder. At the sentencing hearing, the court noted that "Knoller had not bothered to put a muzzle on her aggressive 140-pound Presa Canario dog before taking it out of the apartment. Knoller did not call for help, retrieve a weapon or dial 911 while the animal was mauling Diane Whipple for at least 10 minutes . . . ."

In 2019, Marjorie Knoller became eligible for parole and was subsequently denied. The parole board will decide on her parole status again in 2022. Knoller’s husband, Robert Noel, served four years for involuntary manslaughter and died in June 2018 in a La Jolla nursing home according to this article from the Mercury News.

        For further reading on the aftermath of People v. Knoller please see this Rolling Stone Article and the Memorial of Diane Alexis Whipple.  

2.     Test Your Thinking. Based on the law set out in the case, applied to the facts of the case, should Knoller be convicted of second degree murder or should the conviction be mitigated to a lesser offense? Explain your reasoning.

3.     Implied Malice. In its discussion, the court attempts to clarify implied malice—defined as “abandoned and malignant heart” in the applicable California statute—by emphasizing that the defendant must act with an awareness that the act endangers human life and must have a conscious disregard for life. Should depraved heart killings necessarily be considered less culpable than intentional killings? See if you can come up with your own hypothetical. Does your hypothetical disprove the rule or merely suggest that the rule has limitations? 

4.     Professional Responsibility. Recall that Knoller was more than just a layperson: she was an attorney. Should she bear any heightened responsibility for her actions?

        In California (Knoller's state), attorneys are subject to the California Rules of Professional Conduct, adopted by the State Bar of California and approved by the Supreme Court of California in order to promote the administration of justice, protect the public, and uphold the integrity of the legal system. Rule 1.0 of the California Rules of Professional Conduct establishes standards of professional conduct for lawyers that, when violated, act as a basis for formal discipline.

        Lawyers are also bound by applicable law. In California, these include the State Bar Act (Business and Professions Code section 6000 et seq.); opinions of California courts; and the opinions of professional ethics committees (see Rule 1.0 of the California Rules of Professional Conduct). As such, when an attorney commits a criminal act, they may be in violation of an applicable Penal Code section and subject to punishment under criminal law, and they may also be in violation of Rule 8.4(b) of the California Rules of Professional Conduct and subject to discipline under applicable Business and Professions Code sections. 

        Moreover, a conviction of a felony or misdemeanor involving moral turpitude—and in fact any act involving moral turpitude—constitutes cause for disbarment or suspension (Cal. Bus. & Prof. Code §§ 6101 and 6106) and by the California Supreme Court (Cal. Bus. & Prof. Code §§ 6100 and 6102), which typically accords great weight to the recommendation of discipline by the California State Bar. Toll v. State Bar of Cal., 12 Cal. 3d 824, 831 (1974). Moral turpitude has been defined as an act of “baseness, vileness or depravity in the private and social duties which a [person] owes to...society” and as an act “contrary to justice, honesty, modesty, or good morals.” In re Disbarment of Craig, 12 Cal. 2d 93, 97 (1938). Unsurprisingly, murder constitutes an act of moral turpitude. In re Kirschke, 16 Cal. 3d 902 (1976). However, it is important to recognize that other misconduct, even that not involving moral turpitude, may lead to discipline. For example, one attorney was placed on disciplinary probation for three years after being convicted on two occasions of driving under the influence (under Vehicle Code section 23152). In re Kelley, 52 Cal. 3d 487 (1990).

        To get an idea of other misconduct and the disciplinary measures taken, see the discipline summaries, based on orders listed on the California State Bar website.

        If you were in charge of disbarment, would you seek to disbar Knoller for an act of moral turpitude? Would your decision on disbarment employ a different evidentiary standard from that needed to prove guilt on the charge of murder? How would you characterize the purpose of disbarment: is it a punishment? deterrence? protection for the integrity of the legal profession? something else?

5.     LGBT Rights and Wrongful Death. Reckless action such as Knoller’s can lead not only to criminal charges, but to recovery for the victim’s spouse via the tort of “wrongful death.”

        Sharon Smith, Diane Whipple’s partner, became an activist for the LGBT community. Along with the National Center for Lesbian Rights and attorney Michael Cardoza, Smith paved the way for same-sex partners to be able to sue for wrongful death. For more information, please see the Memorial of Diane Alexis Whipple. 

6.     Noting the Difference. What is the difference between People v. Thomas and People v. Phillips, the two lines of decisions that interpret the “depraved heart” / “implied malice” standard under California law? Which one does the court adopt in Knoller? Would the case have come out differently if the court had applied a different legal standard? How does it compare to the MPC? 

7.     A Hypothetical. Mr. Moore was upset after having been burglarized. He got in his Nissan Pathfinder and sped along Hill Ave at an estimated 80 mph--well in excess of the 35mph speed limit. He passed another car, crossing over a solid double-yellow line into on-coming traffic and causing cars to swerve. As he approached the intersection of Hill Ave and Washington Blvd, he checked his speedometer and saw he was going 80 mph. He saw a red light ahead, and saw a Toyota Corolla (smaller car) crossing the intersection. Because he was going too fast, he did not try to stop, but instead ran the intersection, striking the Toyota, breaking the driver’s arm and causing it to strike a third car, which had been waiting to turn left. The driver in the third car was instantly killed. Moore did not get out of his car to check on the victims, but instead continued to drive north on Hill Ave. 

        When police finally stopped and arrested Moore, he said he did not intend to kill anyone, but that he believed he was going too fast to stop. Asked why he didn’t stop, he said, “Yeah man. I cut them in half, dude. It’s a wonder I survived.” He added, “Leaving the scene wasn’t really the problem . . . they were dead,” and said he’d planned, after the accident, to “go clean up, probably have a beer, sit down and watch television.” People v. Moore, 187 Cal.App.4th 937 (2010).

        What’s the highest homicide charge the state of California could realistically bring against Moore? What are the best/worst facts for the state? How would the state’s charges and arguments shift if this case arose under the MPC?

Notes and Questions

1.    Causation and Concurrence of the Elements. As in any case, in order to find Walker guilty, the prosecution must establish that the defendant's act, or failure to act, was the proximate cause of the victim's death. In addition, in every case, there must be a concurrence of mens rea and actus reus at the specific time of the alleged crime. Typically, causation and concurrence of the elements are self-evident: X shoots Y, intending to cause death, and Y dies. X's act occurred concurrently with the requisite mens rea, and is the proximate cause of Y's death.

        These two requirements can be complicated to establish in cases alleged failure to act. Note how the outcome of this case turns on the fact that Walker continued to pursue spiritual healing, in spite of the fact that the disease was worsening. Yet it is not a crime to pursue spiritual (or any altenative) healing in the first place. The interesting legal question involves discerning the point at which not getting Western medical care became a crime. To convict Walker, the state had to show that she had a duty to act, and the breach of that duty caused Shauntay's death.

        Would the result in Walker change if Shauntay’s illness had progressed far more rapidly, such that Shauntay died 48 hours after first spiking a fever? How might the defense raise a "concurrence of the elements" challenge in such a case? How might the defense argue against proximate cause? 

        What result if Walker had tried faith healing for the first four days of Shauntay’s illness, and then, when the stiff neck developed, brought her daughter to doctors, who tried, but failed to save Shauntay’s life because the illness was too far advanced? Can you articulate the concurrence of the elements and the causation challenge? How must the state respond to it?

2.    Ordinary Negligence. Was Walker negligent in seeking only spiritual treatment for her child in the ordinary (tort/civil) sense? That is, would a reasonable person have done what she did in that situation? Did it matter that Walker was a Christian Scientist, and believed in the power of prayer to heal? Recall the provocation standard illustrated under Beltra (note 3, supra). Do we look at the reasonable Christian Scientist? The reasonable person, irrespective of religion? 

        Consider additional fact changes. If Walker was raised within her church, and had never obtained Western medical care nor been educated about its benefits, should a court take these facts into consideration when determining guilt? What if, instead, if Walker could not afford medical treatment. Should a court take into account her financial situation?

3.    Criminal Negligence. The standard applied in California (and almost everywhere else today) is not ordinary negligence but criminal negligence. As the California Supreme Court put it, criminal negligence is “aggravated, culpable, gross, or reckless” such that the conduct is such a departure from that of an ordinary person “as to be incompatible with a proper regard for human life.” In criminal law, the phrase “gross negligence” is sometimes used to interchangably with "criminal negligence."  

4.    Objective and Subjective. Part of the criminal negligence standard, as discussed above, is objective in asking about the conduct of an ordinary (reasonable) person. However, there is also a subjective component. This excerpt from renowned jurist, Oliver Wendell Holmes, explains:

The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen.

On the other hand, there must be actual present knowledge of the present facts which make an act dangerous. The act is not enough by itself. * * *

* * * For instance, if a workman on a house-top at mid-day knows that the space below him is a street in a great city, he knows facts from which a man of common understanding would infer that there were people passing below. He is therefore bound to draw that inference, or, in other words, is chargeable with knowledge of that fact also, whether he draws the inference or not. If, then, he throws down a heavy beam into the street, he does an act which a person of ordinary prudence would foresee is likely to cause death, or grievous bodily harm, and he is dealt with as if he foresaw it, whether he does so or not. O.W. Holmes, Jr., The Common Law 53–55 (1881).

5.    The Model Penal Code. Consider the Model Penal Code’s definition of negligence in § 2.02(2)(d):

(d)    Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation

        Does the MPC contain a subjective component, as well? If Walker were tried in a MPC jurisdiction, what form of homicide would she be guilty of (if any)? (See MPC Sections 210-210.4)

6.    What to Charge? Prosecutors are planning to bring homicide charges against D after her 10-month-old son died in a vehicle parked outside her home last June. D admitted to having left her son in the car for an hour while her son’s father, who did not reside with them, came to visit. While her son was inside the car, the outside temperature rose to 89 degrees, making it over 100 degrees inside the vehicle. An autopsy confirmed that her son's body temperature had been dangerously elevated. D also admitted to having smoked marijuana the day of her son’s death.

        You are a law clerk in the District Attorney’s office. Consider how these facts might support prosecution under the statutes below, and advise the prosecution on how to proceed.

MS Code § 97-3-19 (2014)

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:…

(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be second-degree murder;…

MS Code § 97-3-47 (2013)

Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.

7.    Native American context. One particularly complex illustration of the complicated relationship between parental autonomy and criminal negligence arises when parents avoid taking children for medical care because they fear loss of custody. Between 1958 and 1967, the Child Welfare League of America campaigned to remove Native American children from their families and place them with white families. Deb Haaland, My grandparents were stolen from their families as children. We must learn about this history, Wash. Post (Jun. 25, 2021). During this period of time, between 25-35% of Native children were removed from their families; of those, 85% were placed outside of their communities, even if relatives were fit and willing to take in the children. Id. (In Summer 2021, nearly 1,000 Indigenous children in unmarked graves on the grounds of government residential boarding schools in Canada catalyzed a reckoning with the child-removal policies that marked official government policies in both the United States and Canada. For more background, see  My grandparents were stolen from their families as children. We must learn about this history).

        Were you the defense lawyer on appeal for the convictions in State v. Williams, can you think of a way to use this background to argue that your clients should have been found non-negligent, and therefore not guilty? 

        If you would acquit Bernice and Walter Williams, would you do so under the same facts, save that the parents decided against taking their child to the doctor because they lacked proof of citizenship?

        Because they lacked health insurance?

470 Md. 86, 233 A.3d 136

Court of Appeals of Maryland.

STATE of Maryland

v.

Muriel MORRISON

No. 56, Sept. Term, 2019

|

July 28, 2020

Attorneys and Law Firms

Argued by Cathleen C. Brockmeyer, Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD), on brief for Petitioner.

Argued by Haley Licha, Assistant Public Defender (Michael R. Braudes, Assistant Public Defender and Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD), on brief for Respondent.

Michelle Daugherty Siri, Esquire, Laure Ruth, Esquire, The Women’s Law Center of Maryland, Inc., 305 West Chesapeake Ave., Suite 201, Towson, MD 21204, Steven M. Klepper, Esquire, Megan L. Micco, Esquire, Kramon & Graham, P.A., One South Street, Suite 2600, Baltimore, MD 21202-3201, for Amicus Curiae The Women’s Law Center of Maryland, Inc. in Support of Respondent.

Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Opinion

Hotten, J., which Barbera, C.J., Watts and Booth, JJ., join.

A jury in the Circuit Court for Baltimore City convicted Respondent, Muriel Morrison (“Ms. Morrison”), of involuntary manslaughter, reckless endangerment, and neglect of a minor, stemming from the death of her infant. The infant died as a result of “asphyxia from probable overlay”¹ after Ms. Morrison “co-slept”² with her four-month-old infant and her four-year-old daughter, following a virtual evening of drinking beer with friends via Facebook livestream. Ms. Morrison appealed her convictions to the Court of Special Appeals, which reversed in part.³ The State timely appealed the decision of the Court of Special Appeals. We granted certiorari to address the following question, which we have slightly rephrased:

Was the evidence sufficient to permit a rational trier of fact to find that [Ms. Morrison] was guilty of involuntary manslaughter and reckless endangerment in the death of her infant beyond a reasonable doubt?^[4]

We answer that question in the negative and affirm the judgment of the Court of Special Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Underlying Incident

As reflected from the trial testimony, during September 2013, Ms. Morrison resided in a three-story rowhouse in Baltimore City with her two youngest daughters, four-month-old I.M. and her four-year-old sister (“the four-year-old”).⁵ Ms. Morrison awoke around 7:45 a.m. on September 2, 2013 and discovered that I.M. was unresponsive. The night before, Ms. Morrison participated in a virtual “[M]oms’ night out[ ]” with girlfriends and consumed approximately four cups of beer.⁶ Approximately two and a half hours later, she fell asleep in the bed she shared with her two minor daughters. At some point, the four-year-old awoke and observed Ms. Morrison sleeping on top of I.M. The four-year-old unsuccessfully attempted to awaken Ms. Morrison by yelling and “thr[o]w[ing] stuff” at her.

Ms. Morrison later awoke to find the four-year-old playing on the floor next to the bed and I.M., closer to the edge of the bed, unconscious. I.M.’s lips were blue and her body was cold to the touch. The four-year-old told Ms. Morrison that she had “rolled on top of the baby” in her sleep. Ms. Morrison unsuccessfully attempted to perform CPR and called 911 twice⁷ before the paramedics and police arrived at her home. I.M. was transported to Johns Hopkins Hospital (the “hospital”) for treatment, but was pronounced dead upon arrival. The medical examiner determined that the cause of death was “asphyxiation from probable overlay,” as a result of Ms. Morrison sleeping on top of the infant.

Ms. Morrison was subsequently charged with involuntary manslaughter, first-degree assault, second-degree assault, and reckless endangerment, in connection with I.M.’s death. A grand jury returned an indictment for all charges, except first-degree assault and added a charge for neglect of a minor.

II. Legal Proceedings

A. The Circuit Court Proceeding

At trial, the State called as its first witness, Jamel Jones (“Mr. Jones”), one of the paramedics who responded to the 911 call. Mr. Jones testified that the four-year-old advised him that her younger sister had stopped breathing. As Mr. Jones approached the top of the stairs, he observed Ms. Morrison carrying an unresponsive I.M. in her arms. When his efforts to resuscitate I.M. proved unsuccessful, he transported I.M. to the hospital, where she was later pronounced deceased.

Ms. Morrison’s four-year-old daughter—who was seven years old at the time of trial—testified that she woke up and went downstairs to get some juice. When she returned to the bedroom, she observed her mother lying on top of I.M. The four-year-old alleged that she threw unidentified items at her mother and yelled, “Mom, you’re on my baby sister,” but Ms. Morrison remained in a “deep sleep.” She testified that I.M. slept in the middle between her and her mother. She described her mother as laying on her left side, facing I.M.—a position that defense counsel regarded in closing argument as consistent with “care feeding[.]” That is “where the baby is just on the nipple . . . resting and relaxing.”⁸ The four-year-old also testified that her father called on Ms. Morrison’s cell phone while the four-year-old attempted to awaken Ms. Morrison, but the ringing of the phone did not awaken her. She further advised that I.M. was crying when Ms. Morrison laid on top of her, but she was not making any noise when the phone rang. Additionally, the four-year-old indicated that her mother appeared to have “woke[n] up out of her deep, deep sleep[,]” only briefly, after the phone call ended, but Ms. Morrison continued laying on I.M. and purportedly told the four-year-old that I.M. was okay before going back to sleep. The four-year-old also testified that she again tried to awaken Ms. Morrison, but was “too tired” and fell back asleep.

Sergeant Laron Wilson (“Sgt. Wilson”), the police officer who responded to the 911 call, testified that he received a call for a “child non-breather” around 8:37 a.m. on September 2, 2013. According to Sgt. Wilson, the paramedics had already taken I.M. to the hospital, but Ms. Morrison remained upstairs, where she sat on the edge of the bed, staring blankly. Sgt. Wilson asked Ms. Morrison if she was alright, and Ms. Morrison responded, “No. I killed my baby.” She further stated: “I got drunk and killed my baby.” Sgt. Wilson did not recall observing any behavior consistent with being under the influence of alcohol.

Latonya Townsend (“Ms. Townsend”), a licensed clinical social worker in the Pediatric Emergency Department at the hospital, testified regarding her interview of Ms. Morrison. According to Ms. Townsend, Ms. Morrison informed her that she drank “a few beers” the night before, after putting the children to bed. Ms. Townsend also recalled Ms. Morrison telling her that she had not consumed alcohol in quite some time prior to that evening. She also informed Ms. Townsend that when she woke up the next morning, she noticed that I.M.’s lips were blue and her body was cold. In addition, Ms. Townsend testified that Ms. Morrison told her she was not sure what happened to I.M. and that Ms. Townsend would have to talk to her four-year-old.

Detective Jonathan Jones (“Det. Jones”), a homicide detective with the Baltimore City Police Department (“BPD”), was also called as a witness.⁹ He testified that at the hospital, Ms. Morrison told him

she had laid her children . . . her baby down in the bed with her four-year-old. Then she went on to begin drinking between that---she laid her children down between . . . 10 p.m. and 12 a.m., and then she began to drink. She doesn’t know what happened after that. She woke up, and . . . the baby was unresponsive.

Additionally, the State introduced recorded statements that Ms. Morrison made to Det. Jones and Sgt. Richard Purtell at the police station after being advised of her Miranda rights.¹⁰ In her recorded statement to the police, Ms. Morrison advised that she did not know what happened, that she had been “drinking a 40^[11] like for . . . maybe an hour” earlier that evening, and that her four-year-old told her that she “rolled over” on I.M. Ms. Morrison recalled changing I.M.’s diaper around 2:30 a.m. She also stated that she drank more than half of the 40-ounce.¹² Det. Jones later transferred Ms. Morrison to Mercy Hospital for a blood alcohol concentration test. However, the collected blood sample was not tested because the “window of opportunity to . . . accurately test the blood for alcohol had already gone through the window.”¹³ Det. Jones also testified that he never detected the smell of alcohol on her breath or person.¹⁴

Next, the State introduced videotaped deposition testimony from the medical examiner, Dr. Ana Rubio (“Dr. Rubio”).¹⁵ Although Dr. Rubio was unable to conclusively determine the infant’s cause of death, Dr. Rubio opined that it was likely caused by “asphyxiation from overlay[,]” because the police investigative report reflected that I.M. was found unconscious under her mother¹⁶ and the autopsy did not reveal the presence of any traumatic injuries or “natural disease processes[.]” Regarding the manner of death, Dr. Rubio determined that I.M.’s death was accidental. When asked about other potential causes of death, such as Sudden Infant Death Syndrome¹⁷ (“SIDS”), Dr. Rubio testified that she was unable to either identify or rule out SIDS as the cause of death, since the possibility of asphyxiation is enhanced when the infant is sleeping with others.

At the close of the State’s case, Ms. Morrison moved for judgment of acquittal, but the motion was denied.¹⁸ Following the denial of her motion, Ms. Morrison was called as the sole witness for the defense. She testified that during the day on September 1, 2013, she and her daughters had a “tire out day, which is a day [she] spen[t][ ] doing activities all day[,] instead of keeping them in the house.” She further testified that, later that evening, she was on her porch drinking, while participating in “a [virtual] mom[‘s] night out” with friends to celebrate the upcoming school year. Ms. Morrison put the four-year-old to bed to watch a movie sometime after 10 p.m. She stayed on the porch rocking I.M. until I.M. fell asleep, then put I.M. in the bed with the four-year-old, and returned to the porch. A neighbor offered Ms. Morrison one 12-ounce can of beer, and she later “sent for” another 12-ounce can and a “40.” Ms. Morrison recalled having about four cups of beer that evening. She waited until 2:30 a.m. for the children’s father to arrive, and when he failed to do so, she went inside. Thereafter, Ms. Morrison was able to continue with her usual routine of “pumping”¹⁹ her breastmilk, changing I.M.’s diaper, locking the doors, and turning the television channel to PBS, before getting into bed with her daughters and falling asleep.

She recalled that the four-year-old awakened and told her that the children’s father was on the phone, but by the time Ms. Morrison picked up the phone, he was no longer on the line. Ms. Morrison testified that the four-year-old then went to the bathroom and when she returned, Ms. Morrison pretended to sleep and placed her arm over I.M. so that the four-year-old would also fall back asleep. Ms. Morrison testified that she awoke naturally around 7:45 a.m. and observed that I.M. appeared “listless” at the end of the bed. She also recounted telling Sgt. Wilson, “No matter what, it’s my fault. I couldn’t save her[,]” after the paramedics rushed I.M. to the hospital.

At trial, an issue arose regarding the risks of parents sleeping in same bed with their children. The State argued that Ms. Morrison was given a “Pack ‘n Play” for I.M. and informed of the importance of having a safe sleeping environment before I.M. was discharged from the hospital, but she chose to share a bed with I.M. despite the risk. Ms. Morrison testified that she did not use the “Pack ‘n Play” that the hospital provided to her because “critters”—mice and ants—would crawl inside, and she did not want them in the “Pack ‘n Play” with I.M.²⁰ Regarding the sleeping arrangement, Ms. Morrison also testified that she shared a bed with her mother as a child, her mother had done the same with her grandmother, and that she had engaged in the practice with each of her other children, as did many of the other mothers she knew. According to Ms. Morrison, caregivers sleeping in the same bed with their children was prevalent in her family and community. She recalled that hospital staff briefly discussed sleep safety with her when I.M. was born, but no one detailed the risks associated with co-sleeping. The prosecution argued that her decision to sleep in the same bed with her four-month-old infant after a night of drinking was “extremely reckless” and “creat[ed] a substantial harm” to her now deceased child. At the close of all of the evidence, Ms. Morrison renewed her motion for judgment of acquittal, but the motion was again denied.

At the conclusion of the three-day trial, the jury returned a verdict for the State, convicting Ms. Morrison of the charges of reckless endangerment, neglect of a minor, and involuntary manslaughter. She was sentenced to a total of twenty years with all suspended—ten years for involuntary manslaughter to be served consecutive to a five-year term for reckless endangerment and a five-year term for neglect of a minor—followed by the imposition of a five-year period of supervised probation.

B. Opinion of the Court of Special Appeals

In noting her timely appeal to the Court of Special Appeals, Ms. Morrison argued that (1) the evidence was insufficient to support her convictions for involuntary manslaughter, reckless endangerment and neglect of a minor, and (2) any remaining convictions should merge for sentencing purposes. Morrison, 2019 WL 3992051 at *1. The Court of Special Appeals agreed that the evidence was insufficient to support Ms. Morrison’s convictions for involuntary manslaughter and reckless endangerment, but did not conclude Ms. Morrison had preserved her argument regarding neglect of a minor. Id.

Regarding the sufficiency issue, the Court of Special Appeals held that Ms. Morrison’s conduct was insufficient to support a finding of “gross negligence,” which was required for the involuntary manslaughter conviction. Id. at *5. The court reasoned that Maryland appellate courts had not addressed the question of gross negligence as it pertains to the sleeping arrangement between a mother and her children. Id. The court specifically distinguished cases from other jurisdictions, observing that “[u]nlike the defendant in State v. Merrill, 269 P.3d 196 (Utah Ct. App. 2012), Ms. Morrison has never had a child die from co-sleeping, and there was no suggestion that she was aware that co-sleeping could be deadly, even if risky.” Id.

The Court of Special Appeals also concluded that there was no evidence that Ms. Morrison had a history of alcoholism like the defendant in Bohannon v. State, 230 Ga. App. 829, 498 S.E.2d 316 (Ga. Ct. App. 1998). Id. The court observed that, “Ms. Morrison drank beer and fell deeply asleep, but there was no reason on this record for her to believe that her drinking or co-sleeping, individually or in combination, posed a deadly threat to her child.” Id. Although Ms. Morrison may have displayed poor judgment by sleeping in the same bed as I.M., following her consumption of alcohol, the court did not determine that her negligence rose to the level of “wanton and reckless disregard for human life[ ]” that is required to sustain a conviction for involuntary manslaughter. Id.

Regarding the reckless endangerment charge, the Court of Special Appeals held that the evidence was insufficient because in “[v]iewing the evidence in the light most favorable to the [prosecution],” the evidence could not support the conviction beyond a reasonable doubt. Id. at *6. According to the court, “there was no evidence either that she was intoxicated when she co-slept when her infant daughter, or that imbibing . . . beer posed a substantial risk to [I.M.]’s continued health.” Id. Similar to the charge for involuntary manslaughter, the Court of Special Appeals found that the State fell short of establishing that Ms. Morrison acted with “conscious disregard[,]” or “wanton indifference” to the possibility that her actions would place I.M. in harm’s way. Id.

DISCUSSION

I. Standard of Review

The sufficiency of the evidence is viewed in the light most favorable to the prosecution. Corbin v. State, 428 Md. 488, 514, 52 A.3d 946, 961 (2012) (internal citations omitted). “[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Smith v. State, 415 Md. 174, 184, 999 A.2d 986, 991 (2010) (emphasis in original). The purpose of our review is not to engage in a “review of the record that would amount to, in essence, a retrial of the case.” Titus v. State, 423 Md. 548, 557, 32 A.3d 44, 49–50 (2011). As such, the appellate court does not “re-weigh” the credibility of witnesses or attempt to resolve any conflicts in the evidence. Fuentes v. State, 454 Md. 296, 307–08, 164 A.3d 265, 272 (2017).

We do, however, assess “whether the verdict was supported by sufficient evidence, direct or circumstantial, which could convince a rational trier of fact of the defendant’s guilt of the offenses charged[.]” White v. State, 363 Md. 150, 162, 767 A.2d 855, 862 (2001) (internal citations omitted). Although circumstantial evidence alone is sufficient to support a conviction, “the inferences . . . must rest on more than mere speculation or conjecture.” Smith, 415 Md. at 185, 999 A.2d at 992. Those inferences must “afford the basis for an inference of guilt beyond a reasonable doubt.” Id. (internal citations omitted).

II. Parties’ Contentions

The State argues that the evidence was sufficient to permit a rational trier of fact to find that Ms. Morrison’s conduct amounted to gross negligence. According to the State, Ms. Morrison engaged in a practice—co-sleeping—that had been proven to be dangerous and, in addition to sharing a bed with her daughters, she drank enough alcohol to effectively “pass out.” The State contends that this alone was sufficient for a finding of gross negligence:

[Her] admission that she was drunk when she lay down in bed with I.[M.], that she then fell asleep, that she did not know and could not remember what happened, that she did not wake up when the phone rang, and that [four-year old-daughter] could not wake [Ms.] Morrison by “thr[o]w[ing] stuff” at her, is the kind of evidence that this Court has recognized supports a finding on gross negligence.

The State argues that the Court of Special Appeals focused on whether Ms. Morrison was aware of the risks associated with the sleeping arrangement, instead of applying the reasonable person standard applicable to gross negligence cases. According to the State, Ms. Morrison’s “awareness” of those risks does not absolve her of wrongdoing where the standard is that of an objectively reasonable person. The State did not explicitly address the merits of the reckless endangerment charge, stating only that “[a] conviction for reckless endangerment also requires proof of the defendant’s gross negligence.”

 Ms. Morrison argues that the Court of Special Appeals did not err because a reasonable trier of fact could not find sufficient evidence that Ms. Morrison acted with willful or wanton disregard for human life, or recklessly engaged in behavior that was substantially likely to cause death or serious bodily harm. Comparing the case at bar to Hall v. State,²¹ a criminal child neglect case, Ms. Morrison avers that her actions did not “objectively give rise to a high degree of risk to a child.” 448 Md. 318, 139 A.3d 936 (2016). In her brief, Ms. Morrison distinguished Cornell v. State, 159 Fla. 687, 32 So.2d 610 (1947), in which an infant was smothered to death after her grandmother became severely intoxicated, contending that the defendant’s actions in that case were far more egregious than Ms. Morrison’s. Ms. Morrison maintained that sharing a bed with her children was not inherently risky and that she was unaware that co-sleeping after drinking beer posed a high degree of risk to I.M.’s life. Additionally, Ms. Morrison asserts that “it is inconceivable that more than half of American mothers would choose to engage in behavior that posed an actual, substantial risk of death or serious injury to their children.”²²

III. Sufficiency of the Evidence

A. The Court of Special Appeals correctly held that the evidence was insufficient to sustain the conviction for involuntary manslaughter based on gross negligence.

Evidence is legally sufficient if any rational jury could find “the essential elements of the crime beyond a reasonable doubt.” State v. Coleman, 423 Md. 666, 672, 33 A.3d 468, 471 (2011) (internal citations omitted). As such, we begin our analysis with the essential elements of the underlying crime. Neither the parties nor the Court of Special Appeals addressed whether there was sufficient evidence of actual and legal causation, and we need not address the issue sua sponte. Therefore, our review is limited to whether any reasonable jury could have found that Ms. Morrison’s conduct was grossly negligent.

1. The Gross Negligence Involuntary Manslaughter Standard.

Common law involuntary manslaughter is generally defined as an “unintentional killing of a human being, irrespective of malice.”²³ State v. Thomas, 464 Md. 133, 152, 211 A.3d 274, 285 (2019) (citing State v. Albrecht, 336 Md. 475, 499, 649 A.2d 336 (1994)). To sustain a conviction for involuntary manslaughter, the prosecution must prove that the killing was committed in one of three ways: “(1) by doing some unlawful act endangering life but which does not amount to a felony[;] or (2) in negligently doing some act lawful in itself[;] or (3) by the negligent omission to perform a legal duty.” Corbin, 428 Md. at 513 n.14, 52 A.3d at 961 n.14 (citing Albrecht, 336 Md. at 449, 649 A.2d at 347). For the latter two variations of involuntary manslaughter, “the negligence [must] be criminally culpable.” Thomas, 464 Md. at 152, 211 A.3d at 285 (internal citations omitted). Negligence is criminally culpable if it rises to the level of wanton and reckless conduct—i.e., gross negligence. See Mills v. State, 13 Md. App. 196, 200, 282 A.2d 147, 200 (1971) (“[T]he negligence [must] be criminally culpable[.]”); Albrecht, 336 Md. at 499, 649 A.2d at 347–48 (“[W]here the charge of involuntary manslaughter is predicated upon the allegation that the defendant committed a lawful act in a negligent manner, a conviction of manslaughter will not lie on a showing of simple negligence . . . but must rather be predicated upon that degree of aggravated negligence which is termed ‘gross negligence.’ ” (emphasis added)).

Depending on the circumstances presented, there is often a fine line of distinction between simple negligence and gross negligence. This Court has long recognized that “[t]here are degrees of negligence in the sense that some acts evidence a greater degree of carelessness and recklessness than do other acts which may still be classed as negligent.” State, Use of Abell v. W. Maryland R. Co., 63 Md. 433, 444 (1885). In Stracke v. Butler, 465 Md. 407, 214 A.3d 561 (2019)—a civil case addressing gross negligence—we expounded on that principle, noting that “[i]ssues involving gross negligence are often more troublesome than those involving malice because a fine line exists between allegations of [simple] negligence and gross negligence.” Id. at 420, 214 A.3d at 568 (citing Barbre v. Pope, 402 Md. 157, 187, 935 A.2d 699, 717 (2007)). “Ordinary, simple negligence is ‘any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm.’ ” Id. Conversely, conduct which is sufficient for a finding of gross negligence must establish that the accused “had a wanton or reckless disregard for human life.” Thomas, 464 Md. at 153, 211 A.3d at 285. “Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.” State v. Kramer, 318 Md. 576, 590, 569 A.2d 674, 681 (1990).

In Pagotto v. State, 127 Md. App. 271, 279, 732 A.2d 920, 925 (1999), aff’d, 361 Md. 528, 762 A.2d 97 (2000), Judge Charles E. Moylan, Jr. similarly observed the varying degrees of negligence:

In a case charging involuntary manslaughter of the gross negligence variety . . . the State will not be permitted to take its case to the jury simply by proving a prima facie case of ordinary negligence. It must meet an additional and higher burden of production by showing such gross negligence, above and beyond mere civil[,] [simple] negligence, as to evidence “a wanton or reckless disregard for human life. . . . ”

In accordance with the elements of involuntary manslaughter based on gross negligence, the trial court instructed the jury that the State had the burden of proving that Ms. Morrison “acted in a grossly negligent manner and that this grossly negligent conduct caused [I.M.’s] death.” The trial court also instructed the jury that grossly negligent means “the defendant, while aware of the risk, acted in a manner that created a high degree of risk to, and showed a reckless disregard for, human life.” See Maryland Criminal Pattern Jury Instructions 4:17.9.²⁴ The mens rea for gross negligence is established by asking “whether the accused’s conduct, ‘under the circumstances, amounted to a disregard of the consequences which might ensue and indifference to the rights of others[.]’ ” Albrecht, 336 Md. at 500, 649 A.2d at 348 (internal quotations omitted). In Mills, Judge Joseph Murphy, then Chief Judge of the Court of Special Appeals, further explained the requisite mens rea for gross negligence involuntary manslaughter:

It is well settled in this State that where a charge of involuntary manslaughter is predicated on negligently doing some act lawful in itself, the negligence necessary to support a conviction must be gross or criminal, viz., such as manifests a wanton or reckless disregard of human life. A causal connection between such gross negligence and death must exist to support a conviction, although it is not essential that the ultimate harm which resulted was foreseen or intended.

Mills, 13 Md. App. at 199–200, 282 A.2d at 149 (citations omitted) (emphasis added). In such cases, “[t]he act must manifest such a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of indifference to the consequences.” Thomas, 464 Md. at 153, 211 A.3d at 286.

Whether conduct rises to the level of gross negligence is fact-specific. “[T]here is no scientific test or quantifiable probability of death that converts ordinary negligence to criminal gross negligence.” Id. at 159, 211 A.3d at 289. We have never addressed gross negligence within the context of an infant sleeping in the same bed with a parent. Until our most recent decision distinguishing criminal culpability, i.e., gross negligence, from ordinary negligence, State v. Thomas, Maryland case law had only addressed gross negligence involuntary manslaughter and the degree of negligence necessary to find a defendant criminally culpable, within the limited contexts of “automobiles, police officers, failure to perform a duty, and weapons.” 464 Md. at 154, 211 A.3d 274, 211 A.2d at 286; see, e.g., Duren v. State, 203 Md. 584, 102 A.2d 277 (1954) (finding sufficient evidence of gross negligence based on the environment in which the defendant was speeding); Johnson v. State, 213 Md. 527, 132 A.2d 853 (1957) (finding insufficient evidence of gross negligence because the defendant was speeding in the wee hours of the morning, in a non-residential part of the city, when traffic was light); Albrecht, 336 Md. at 491–92, 649 A.2d at 343–44 (applying a “reasonable officer standard,” this Court found sufficient evidence of gross negligence in officer-involved shooting, based on expert testimony that the officer failed to follow departmental protocol and that the victim did not pose a threat when the officer leveled a shot gun at the victim); State v. Pagotto, 361 Md. 528, 533, 762 A.2d 97, 110 (2000) (finding insufficient evidence of gross negligence in officer-involved shooting because the conduct was not likely at any moment to cause death or serious physical injury); Mills, 13 Md. App. at 202, 282 A.2d at 150 (finding that a combination of factors, including use of alcohol and inexperience with weapons, elevated the conduct from mere negligence to gross negligence). The Thomas decision expanded the circumstances in which we discussed this type of involuntary manslaughter to include the distribution of heroin, holding that there was sufficient evidence to convict the defendant of involuntary manslaughter in connection with the sale of heroin and subsequent overdose of a customer. Id. at 172, 211 A.3d at 297.

In the Thomas case,²⁵ the Court concluded that the evidence was sufficient to prove that Thomas exhibited a wanton and reckless disregard of a high degree of risk to human life. Id. at 160–61, 211 A.3d at 289–90. We reached this conclusion by combining “the inherent dangerousness of the act engaged in, as judged by a reasonable person . . . with environmental risk factors, which, together, make the particular activity more or less ‘likely at any moment to bring about harm to another.’ ” Id. at 159, 211 A.3d at 289. We reasoned that (1) the sale of heroin involved inherent safety risks because of its “propensity to harm physically, if not kill, [those] . . . ingesting it[,]” Id. at 167, 211 A.3d at 294, and (2) the record reflected environmental risk factors, such as the high number of heroin and other opioid related deaths in the Worcester County area, the victim’s particular vulnerability, and the dealer’s significant experience as a user and distributor of heroin. Id. at 169, 211 A.3d at 295–96. The analysis of environmental risk factors was supported by an expert opinion that Worcester County was “consumed with heroin overdoses, some resulting in deaths, and that these overdoses [ ] resulted in an acute awareness of the dangers of heroin.” Id. at 168, 211 A.3d at 294. Weighing the inherent dangerousness of the conduct and the environmental risk factors, this particular sale of heroin posed a “high degree of risk to human life” sufficient for a finding of gross negligence. Id. at 161, 211 A.3d at 290 (citing Dishman v. State, 352 Md. 279, 299, 721 A.2d 699, 708 (1998) (internal citations omitted)).

We did not limit the gross negligence inquiry to inherent dangerousness and environmental factors. In addition, “the defendant, or an ordinarily prudent person under similar circumstances, should be conscious of [the] risk [to others].” Id. at 167, 211 A.3d at 294 (citing Albrecht, 336 Md. at 500, 649 A.2d at 336). We concluded that Thomas, who was a seasoned drug dealer, should have appreciated the “increased risk of the transaction.”²⁶ Id. at 169, 211 A.3d at 295. The facts supported the conclusion that a reasonable person under like or similar circumstances would have thought it substantially risky to sell heroin to Colton on that particular occasion, given his vulnerability and desperation for the drug. Id. at 169–70, 211 A. 3d at 295. Accordingly, this Court reversed the Court of Special Appeals and held that there was in fact sufficient evidence of gross negligence. Id. at 180, 211 A.3d at 302.

In applying the formulation of involuntary manslaughter articulated in Thomas, the State argues that Ms. Morrison was grossly negligent, because of a combination of environmental risk factors and the inherent dangerousness of sharing a bed with an infant after imbibing “a lot of alcohol in a short period of time.” We disagree. The conduct at issue did not amount to a “wanton and reckless disregard for human life,” because the conduct did not exhibit a gross departure from that of an ordinary person. The conduct was not a gross departure because it was not a substantial deviation from that of an objectively reasonable person. Additionally, there was no evidence of inherent dangerousness combined with attendant environmental risk factors that would justify the conviction. There are no facts supporting the idea that Ms. Morrison—or a reasonable person under similar circumstances—should have appreciated risks associated with co-sleeping after consuming beer. We explain.

2. The State did not demonstrate that Ms. Morrison acted with wanton and reckless disregard for human life.

As stated above, the State must demonstrate a wanton and reckless disregard for human life, which rests on whether the defendant’s conduct exhibited a “gross departure” from that of an ordinary prudent person, so as to constitute an indifference to the risk to and rights of others. Albrecht, 336 Md. at 500, 649 A.2d at 348; Duren, 203 Md. at 590, 102 A.2d at 280. “[A] wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist.” Barbre, 402 Md. at 187, 935 A.2d at 717.

The wanton and reckless disregard inquiry also includes an “assessment of whether the activity is more or less ‘likely at any moment to bring harm to another.’ ” Thomas, 464 Md. at 159, 211 A.3d at 289 (internal citations omitted). This is determined by “weighing the inherent dangerousness of the act and environmental risk factors,” which “must amount to a high degree of risk to human life.” Id. The defendant, or a reasonably prudent person, must also be aware of the risk and subsequently disregard it.

Ms. Morrison did not engage in conduct that was “inherently dangerous.” Id. at 169, 211 A.3d 274 at 295 (quoting Commonwealth v. Catalina, 407 Mass. 779, 556 N.E.2d 973 (Mass. 1990) (internal citations omitted)). In Thomas, and the cases relied upon in that decision, the underlying conduct involved was “inherently dangerous.” See id. (the sale of heroin is inherently dangerous); Duren, 203 Md. at 592, 102 A.2d at 281 (speeding in a residential and business district was likely at any moment to bring harm to another); Albrecht, 336 Md. at 502–03, 649 A.2d at 349 (conduct during officer-involved shooting was grossly negligent); Mills, 13 Md. App. at 198, 282 A.2d at 148 (pointing a loaded gun at another was gross negligence under the circumstances). An activity is inherently dangerous when it creates a substantial or high degree of risk to human life, such that it is “likely at any moment to bring harm to another.” Thomas, 464 Md. at 167, 211 A.3d 274 (internal citations omitted). To determine whether a risk is substantial, this Court considers “both the likelihood that the harm will occur and the magnitude of potential harm. . . .” Thomas, 464 Md. at 167, 211 A.3d at 294 (citing People v. Hall, 999 P.2d 207, 218 (Colo. 2000)). The defendant in Thomas was an experienced drug dealer engaged in the sale of heroin. Inherent in this practice was the likelihood that the conduct could bring about death or physical harm to another. However, co-sleeping with a four-month old after consuming beer does not necessarily pose such an inherent risk of death or serious physical harm.

Although the State introduced evidence that the safest way for a baby to sleep is alone in a crib or bassinet, the State did not introduce evidence that Ms. Morrison was aware of the risks of co-sleeping, or that a reasonable person under the circumstances would have appreciated those risks. The hospital’s postpartum discharge paperwork signed by Ms. Morrison reflected the following:

Make sure your baby has a safe sleep environment. This means you[r] baby should be in an approved crib or bassinet on his/her back (not the side) without any positioning devices, pillows or stuffed animals. You should also keep the crib or bassinet in your room.

These instructions do not expressly address dangers associated with the practice of co-sleeping. It is not uncommon for parents to sleep in the same bed with their infant, nor is it uncommon for a four-month-old to sleep in his or her own nursery. The “Education Record” included with the discharge paperwork also reflects that “back to sleep and SIDS prevention” and “crib safety” were discussed, but do not explicitly reference associated risks. The fact that Ms. Morrison received this information does not sustain a finding of gross negligence because it does not prove that Ms. Morrison knew of the risks and disregarded them. This deviation from best sleeping practices does not lend itself to a finding that Ms. Morrison was grossly negligent when she shared a bed with her infant, or that Ms. Morrison acted unreasonably under the circumstances.

The State concedes that co-sleeping is a common practice. See Centers for Disease Control and Prevention, About 3,500 babies in the US are lost to sleep-related deaths each year, https://www.cdc.gov/media/releases/2018/p0109-sleep-related-deaths.html (citing a 2015 study of mothers conducted by the CDC, in which more than sixty percent (61.4%) of respondents reported bed-sharing with their infant) (last visited July 17, 2020), archived at https://perma.cc/6P78-3HF7. Nothing about the discharge paperwork suggests that Ms. Morrison, or any other reasonable person under similar circumstances, would have appreciated or been conscious of any risks associated with sleeping in the same bed with an infant. In fact, that co-sleeping is such a common practice among mothers, who likely received the same or similar information regarding safe sleeping practices, when discharged from the hospital, negates the argument that that Ms. Morrison, or a reasonable parent in her situation, should have appreciated the risks of co-sleeping.

The State now argues that the co-sleeping was not the primary issue. Rather, the conduct of sleeping in the same bed with her children while “intoxicated” posed a substantial risk of death or serious physical harm to I.M. The State contends that the consumption of alcohol before sleeping with her daughters was “inherently dangerous conduct” that posed a “substantial risk of injury or death.” The State directs us to Maryland cases that have “recognized that intoxication, combined with other conduct, creates a substantial risk to others” sufficient for a finding of gross negligence. However, none of those cases involve co-sleeping or other child rearing activities while “intoxicated.”

For example, in Blackwell v. State, the Court of Special Appeals held that evidence of extreme intoxication before operating a motor vehicle and subsequent erratic driving were sufficient to sustain a conviction for involuntary manslaughter because the defendant operated a known dangerous instrumentality while intoxicated. 34 Md. App. 547, 369 A.2d 153 (1977). There, the State introduced evidence that the defendant had traveled to several separate locations, between 5 p.m. and 10 p.m., where he consumed five rum and Coke drinks. Id. at 564, 369 A.2d at 164. Before the accident, he was seen in the parking lot stumbling and attempting to enter another vehicle before entering his own and driving off. Id. at 557, 369 A.2d at 160. As he drove off, he was observed swerving “back and forth” across the road. Id. at 558, 369 A.2d at 160–61. The defendant later struck and killed a bicyclist. Id. at 548, 369 A.2d at 155–56. The court reversed the trial court, which found that the evidence was legally insufficient to support a conviction for manslaughter. Id. at 570, 369 A.2d at 167. The court reasoned that the evidence the State presented “gave rise to an inference of insobriety[ ]” and the level of intoxication coupled with driving an automobile—a known “dangerous instrumentality[ ]”—on a public highway made his conduct criminally culpable, i.e., grossly negligent. Id. at 556, 557, 369 A.2d at 160, 164.

Unlike in Blackwell, there was no indicia of extreme or serious impairment. Id. at 557, 369 A.2d at 160. Co-sleeping is not an inherently dangerous activity. Even if the co-sleeping occurred subsequent to the consumption of alcohol, a substantial risk of death or bodily harm does not necessarily follow. The State asserts that “it is common knowledge that consuming enough alcohol to cause a person to pass out is inherently dangerous conduct,” but evidence of any degree of impairment was not reflected at trial. Even in the light most favorable to the State, the evidence does not demonstrate that Ms. Morrison “drank to the point of passing out” and “her subsequent conduct of getting into bed with her infant” would not have led a reasonable juror to find that this conduct amounted to a “wanton or reckless disregard for human life.” Mills, 13 Md. App. at 200, 282 A.2d at 149.

Ms. Morrison testified that she was an infrequent drinker and had consumed four cups of beer over a period of two and a half to four hours. After consuming her last cup of beer, she waited outside for a while. Then, she took the trash out, locked the doors, changed I.M.’s diaper, “pumped,” turned off the movie her four-year-old had fallen asleep watching, changed the channel to PBS, and went to sleep. These activities were consistent with their nightly routine. The social worker and officers who interacted with Ms. Morrison also testified that Ms. Morrison did not appear intoxicated, noting that she was not staggering or slurring her speech, and she did not smell of alcohol. The State maintains that Ms. Morrison admitted to being “drunk,” but this evidence does not “give rise to an inference of insobriety” or impairment. Blackwell, 34 Md. App. at 557, 369 A.2d at 160. Assuming, arguendo, that Ms. Morrison drank enough beer to “pass out,” there were no facts reflecting that Ms. Morrison knew that socially drinking at her own residence would create a substantial risk of harm to her children. None of the cases cited by the State compel us to reach such a conclusion.

Not all activity which is likely to bring about harm is sufficient to support a finding of gross negligence. See Thomas, 464 Md. at 169, 211 A.3d at 295 (“distribution [of heroin] alone[ ] does not always amount to gross negligence”). Thomas instructs that we consider attendant environmental factors—the surrounding circumstances—in a given case to determine whether the conduct amounts to a wanton and reckless disregard for human life. There, the Court relied on the proffered expert testimony of a controlled dangerous substance (“CDS”) investigator to differentiate between the sale of heroin generally and the sale in Thomas. Id. at 168, 211 A.3d at 294. Had the case proceeded to trial,²⁷ the CDS expert would have testified that Worcester County had been “consumed” by heroin overdoses and that, given prevalence of heroin-related deaths, “everyone kn[ew]” “the dangers of heroin.” Id. at 147, 211 A.3d at 282. The Court also examined Maryland-specific data reflecting that the number of heroin overdoses and deaths rose significantly between 2011 and 2015—the year Colton overdosed. See id. at 168, 211 A.3d at 294 (“[The] proffered testimony [of the expert] [was] consistent with data collected by the State of Maryland’s Department of Health and Mental Hygiene regarding fatal overdoes from heroin and other opioids.”). The Court considered those attendant factors to elevate the conduct from ordinary to gross negligence.

In Mills, the Court of Special Appeals similarly assessed the surrounding circumstances or environmental factors. In that case, a sixteen-year-old brought his father’s gun to a school dance, where he jokingly aimed the gun at the friend. Mills, 13 Md. App. at 198, 282 A.2d at 148. The friend slapped the gun from his hand and it discharged, striking and killing another boy. Id. at 198–99, 282 A.2d at 148. The “additional facts that the individual had little experience with weapons, was drinking, and pointed it jokingly at another surmount the gross negligence bar.” Thomas, 464 Md. at 159, 211 A.3d at 289. Unlike Mills and Thomas, the surrounding circumstances do not raise the conduct to gross negligence. The State did not introduce expert testimony regarding the frequency of co-sleeping deaths, or that the risk of rolling over on an infant while co-sleeping is elevated when a caregiver engages in social drinking before co-sleeping. Additionally, the evidence reflects that Ms. Morrison was the mother of seven children—who routinely shared a bed with her small children. Under the standard articulated in Thomas, the evidence did not support a finding of gross negligence.

We now turn to cases from other jurisdictions where gross negligence was addressed within the context of sleep-related child deaths. The State relies on Cornell v. State, a Florida Supreme Court case, which held that the evidence of intoxication was sufficient to support a manslaughter conviction, in support of the argument that a reasonable person would have appreciated that sleeping with an infant after consuming a lot of alcohol in a short period would create a substantial risk of death or serious physical injury to her children. Cornell, 159 Fla. at 691, 32 So.2d at 612.

The State’s reliance on Cornell is misplaced. In Cornell, the evidence demonstrated that Emily Cornell took her two-and-a-half-month-old grandchild to a bar where she became “so intoxicated that she did not remember leaving the bar, arriving [home], or going to bed with the infant child beside her.” Id. at 690, 32 So.2d at 612. Cornell and the child’s mother arrived at the Grand Oregon Bar around eleven or twelve o’clock at night. Before entering the bar, they drank from a whiskey bottle. Id. at 688, 32 So. 2d at 611. “There was testimony that approximately three hours prior to [their arrival at the bar], each of the parties [had] been seen taking at least one drink, but it was not shown that they had become intoxicated as a result.” Id. While at the bar, Cornell consumed two to three more drinks. Her daughter left the infant in Cornell’s care around 2 or 2:30 a.m., while she continued to celebrate with friends. Id. Roughly sixteen hours later, the mother returned to her trailer to find the deceased infant in the bed next to Cornell. Id. at 688–99, 32 So.2d at 611. Several neighbors testified that they heard the child screaming loudly around 6:30 a.m. and that the loud screams continued until 9:30 or 10 a.m. before subsiding. Id. at 689, 32 So.2d at 611. One witness described the cries: “He cried like he was losing his breath, then he would start again; just like they put their hand over his mouth.” Id. The jury convicted Cornell and her daughter of manslaughter. Id. at 689, 32 So.2d at 611.

The Florida Supreme Court upheld Cornell’s manslaughter conviction but reversed her daughter’s conviction. Id. at 691, 32 So.2d at 612. It reasoned that Cornell “recklessly and willfully [ ] [drank] herself into such a drunken stupor that not only did she render herself totally incapable of looking after the infant but actually became wholly oblivious to the fact that she had [the infant] in her possession at all.” Id. at 690, 32 So.2d at 612. The court further reasoned that the evidence reflected that Cornell returned to her mobile home and climbed into bed with the infant in tow. Id. at 690, 32 So.2d at 612. She then “covered the body and face of the child with bed covers,” and as a result the child suffocated to death. Id. at 688, 32 So.2d at 611. The child screamed for at least three consecutive hours, during which time Cornell was sound asleep. Id. at 689, 32 So.2d at 611. Tellingly, the infant shrieked so loud that her screams were heard by neighbors. Id. The court determined that it would have been reasonable for a jury to conclude that her conduct rose to the level of gross negligence. Id. at 690–91, 32 So.2d at 612.

This case is distinguishable from Cornell. There was no indicia of intoxication or impairment that would lead a rational trier of fact to believe that Ms. Morrison drank in excess on the night I.M. died. The four-year old, who was the only witness to Ms. Morrison rolling over on I.M., testified that she “threw stuff” at her mother and yelled for her to wake up. However, this alone does not support a finding of intoxication or impairment. A blood sample taken from Ms. Morrison was never tested. There was no testimony that Ms. Morrison exhibited the signs of impairment, such as slurred speech, watery, dilated pupils, or the odor of alcohol on her breath or person.²⁸ There was also no testimony that Ms. Morrison could not remember when or how she got into bed with her children. She admitted that she shared a bed with her infant and four-year-old, as she had done in the past with her five older children when they were young.

Ms. Morrison also engaged in normal, routine behavior before actively going to bed. The record reflects that Ms. Morrison prepared her children for bed and went to sleep with them. When interviewed by the detective, Ms. Morrison remembered preparing for bed and going to sleep. In contrast, the defendant in Cornell was so intoxicated that she had no memory of leaving the bar and no memory of getting into bed with the infant. Id. at 690, 32 So.2d at 612. In addition, she slept through the infant’s incessant screams, which were heard by neighbors for hours. Id. at 689, 32 So.2d at 611. There was no evidence in the case at bar of the length of time I.M. was crying, or the extent of the four-year-old’s efforts to awaken Ms. Morrison. Accordingly, the State’s comparison to Cornell misses the mark.

In State v. Merrill, a Utah case, Trevor Merrill was charged with homicide, child abuse homicide, and reckless endangerment in connection with the death of his three-and-half-month-old son. 269 P.3d at 199. On August 18, 2006, Merrill shared a bed with his infant and the child’s mother. Id. at 198. Merrill later discovered the infant unconscious in the bed next to him. Id. The medical examiner determined that the most likely cause of death was “ ‘positional asphyxia based upon the age of the child and the fact that [the child] was originally placed on [his] back and now [the child is] found in a face-down position on a bed.’ ” Id. at 199. Merrill argued that there was no evidence of criminal culpability because “co-sleeping with an infant does not create a substantial and unjustifiable risk of injury or death to an infant nor does it constitute a gross deviation from the standard of care that an ordinary person would exercise.” Id. at 203.

The Utah Court of Appeals determined that there was sufficient evidence of actual and perceived risk because Merrill was a heavy sleeper who had previously lost an infant daughter under similar circumstances. Id. at 204. Based on this evidence, the court concluded that a magistrate could infer that a reasonable person in his position would not have shared a bed with an infant in the same manner that caused a previous sleep-related death. Id. at 204–05. Conversely, the State did not introduce evidence that Ms. Morrison lost a child as a result of sleeping in the same bed with her children. In fact, the evidence reflected that Ms. Morrison was an experienced parent who shared a bed with children without incident.

Bohannon v. State is similarly distinguishable from this case. 230 Ga. App. at 829, 498 S.E.2d at 316. Mary Francis Bohannon was convicted of involuntary manslaughter after her two-month-old died from asphyxia during overlay. Id., 498 S.E.2d at 319. The evidence reflected that Bohannon suffered from alcohol addiction and that a DFCS child abuse investigator had investigated the parents of the infant due to concerns about the child’s welfare. Id. Bohannon and the DFCS executed a safety plan, in which, Bohannon agreed to engage a reliable babysitter if she intended to drink, and that she would not have her children in her custody unless she was sober. Id. Less than two weeks after meeting with the DFCS investigator to execute the safety plan, Bohannon and the child’s father retrieved the child from the babysitter after a night of drinking. Id. There was evidence that Bohannon consumed a six-pack of beer and four sixteen-ounce cups of whiskey and Coke. Id. at 832, 498 S.E.2d at 321. The babysitter testified that the couple “smelled of alcohol” and had noticeably been drinking. Id. The child’s father was observed stumbling, but Bohannon’s degree of intoxication was less clear. Id. The next morning, Bohannon discovered that the child’s father had rolled on top of the baby in a drunken sleep. Id. at 833, 498 S.E.2d at 322.

The court also considered expert testimony from a medical examiner regarding child “overlay” cases, before determining there was sufficient evidence for a jury finding that Bohannon consciously disregarded a risk of harm. Id. at 834, 498 S.E.2d at 322. The expert testified that, “in most of these [cases], the primary [factors] are intoxication, whether it’s alcohol or drugs, and morbid obesity[.]” Id. The expert also testified that, “based on his experience, [ ]the sense of awareness, judgment, and physical skills of intoxicated people are less than when they are sober.” Id. at 834, 498 S.E.2d at 322–23. The Georgia Court of Appeals found that the record was replete with evidence of Bohannon’s alcohol addiction and abuse, and that a rational trier of fact could find “ ‘conscious disregard’ from the fact of placing a baby, less than three months old, in a bed so that it would be between two intoxicated and subsequently sleeping adults.” Id. at 834, 498 S.E.2d at 323. In contrast, the State in the case at bar did not introduce expert testimony indicating that the risks of sleeping with an infant are enhanced when alcohol is involved. More importantly, there was insufficient evidence of the impact, if any, that alcohol had on Ms. Morrison at the time. Because there was insufficient evidence of gross negligence—wanton and reckless disregard for human life—the conviction for involuntary manslaughter was properly reversed.

B. The evidence was insufficient to sustain a conviction for reckless endangerment.

Reckless endangerment is a statutory crime,²⁹ which requires prima facie showing that: (1) that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another; (2) that a reasonable person would not have engaged in that conduct; and (3) that the defendant acted recklessly.” Jones v. State, 357 Md. 408, 420, 745 A.2d 396, 403 (2000). Like the gross negligence form of involuntary manslaughter, the applicable standard for reckless endangerment is an objective one. Criminal recklessness is assessed by considering whether the conduct, “viewed objectively, was so reckless as to constitute a gross departure from the standard of conduct that a law-abiding person would observe, and thereby create the substantial risk that the statute was designed to punish.” Minor v. State, 326 Md. 436, 443, 605 A.2d 138, 141 (1992). As such, we begin with whether the State presented sufficient evidence to support the finding that, (1) Ms. Morrison’s decision to share a bed with her two minor daughters after consuming a few beers was a “gross departure from the standard of conduct that a law-abiding person would observe,” (2) her conduct “create[d] a substantial risk of death or serious bodily harm,” and (3) she acted recklessly. Holbrook v. State, 364 Md. 354, 366–67, 371, 772 A.2d 1240, 1247, 1249 (2001) (internal citations omitted). The reckless endangerment conviction turns on much of the same evidence as the involuntary manslaughter conviction, and that evidence was not sufficient to support the conviction because Ms. Morrison did not “create a substantial risk of death or serious physical injury” to I.M., just by virtue of having co-slept with I.M. after consuming alcohol.

Based on the reasoning expressed above, there was insufficient evidence that Ms. Morrison engaged in conduct that was a “gross departure” from what would be expected of an ordinary reasonable person. The State did not present evidence to support its assertion that the decision to co-sleep with her children after drinking alcohol posed a substantial risk of death or serious injury for I.M. As such, we hold that the evidence was insufficient to support the conviction for reckless endangerment.

The dissenting opinion takes the position that “any rational trier of fact could have found the essential elements [of the crimes charged] beyond a reasonable doubt.” According to the State and the dissent, viewing the evidence in the light most favorable to the prevailing party, the evidence demonstrated, at most, that:

On the night of September 1, 2013, sometime between 10:00 p.m. and midnight, [Ms.] Morrison put her daughters to bed in a full-sized bed that she shared with both girls[;] [Ms.] Morrison then took to the porch where she drank beer and had a virtual “mom’s night out” with friends from Virginia to celebrate the first day of school[;] [Ms.] Morrison drank enough beer in a short enough period of time to admit to being drunk[;] [a]fter drinking, [Ms.] Morrison—who had been given a safe place for I.[M.] to sleep . . . and information [regarding] safe sleeping practices for infants—laid in bed with the girls and fell asleep; she could not remember and did not know what happened after that—except for what she had been told[;] [s]ometime after [Ms.] Morrison laid down, [the four-year-old] woke up and saw that Ms. [Morrison] had rolled on top of I.[M.]; [the four-year-old] “threw stuff” at [Ms.] Morrison in an effort to wake her up . . . [;][w]hen the paramedics arrived, I.[M.] was not breathing, she had no heartbeat, and her body was stiff; they could not revive [her]; [and] [w]hen [Sgt.] Wilson arrived, [Ms.] Morrison told him that she “got drunk” and “killed” I.[M.].

Ms. Morrison’s conduct did not reach the level of sufficiency that is warranted for a finding of gross negligence. As mentioned previously, there is a fine, but necessary distinction between simple and gross negligence. In order for the conduct to reach the level necessary for a finding of gross negligence, the conduct must be so reckless that it amounts to a conscious disregard for the rights of others. Gross negligence “sets the evidentiary hurdle at a higher elevation[ ]” than simple negligence. Beall v. Holloway-Johnson, 446 Md. 48, 64, 130 A.3d 406, 415 (2016). The State did not meet that burden.

As reflected in the concurring opinion, the standard of review does not allow us to speculate that the reason the four-year-old could not awaken Ms. Morrison was because she was so impaired by alcohol that she effectively “passed out.” The four-year-old simply testified that her mother was in a “deep sleep.” Ms. Morrison testified that she pretended to sleep, thinking that the four-year-old was trying to disturb her and I.M. while they slept. In the absence of any evidence of intoxication or the extent thereof, the State fell short of proving that Ms. Morrison, or any other reasonable person in her position, would have appreciated the risks associated with sleeping in the same bed as an infant, after drinking alcohol.

The dissent also opines that a large majority of mothers who co-sleep with their children, “would agree that it is inherently dangerous to co-sleep with an infant when a parent goes to bed seriously impaired by alcohol,” because “[i]t is a matter of common knowledge that the excessive use of liquor or drugs impairs the perceptual, judgmental and volitional faculties of the user,” State v. Jenkins, 88 Conn. App. 762, 774, 872 A.2d 469, 476 (Conn. App. 2005), and generally “slows reaction[.]” Warr v. JMGM Grp., LLC, 433 Md. 170, 240 n.28, 70 A.3d 347, 389 n.28 (2013) (Adkins, J., dissenting). However, there is no direct or circumstantial evidence of “excessive” drinking or impairment. We are limited to the evidence in the record and the evidence presented to the jury did not reflect that Ms. Morrison drank in excess on the night that I.M. died.

We also caution, as we have done before, that parental decision-making in child neglect and gross negligence cases should be judged by the conduct itself and not the “resultant harm.” See Hall, 448 Md. at 331, 139 A.3d at 943 (citing Mills, 13 Md. App. at 200, 282 A.2d at 149). The conduct itself is the ultimate determinant. In other words, we employ an objective reasonableness standard to avoid a “20/20 hindsight” assessment of “what may have or could have occurred[.]” Id. at 332, 139 A.3d at 944. Such hindsight bias has the power to “distort the risk of parental inaction so that all risk becomes substantial.” Id. at 331–32, 139 A.3d at 944 (emphasis added) (citing David Pimentel, Criminal Child Neglect and the “Free Range Kid”: Is Overprotective Parenting the New Standard of Care?, 2012 Utah L. Rev. 947, 988.) It is undisputed that Ms. Morrison (1) consumed some amount of alcohol, (2) slept in the same bed as her infant, and (3) I.M. died by asphyxiation as a result of Ms. Morrison laying on top of her. Despite that information, the evidence adduced at trial does not show that her conduct created a “substantial risk” of harm, sufficient for a finding of gross negligence. Holding otherwise would seemingly penalize Ms. Morrison for the unintended consequence of conduct she was not aware posed a substantial risk of death or serious bodily harm to her child.

CONCLUSION

For the reasons we have explained supra, we affirm the judgment of the Court of Special Appeals. The evidence was insufficient to support the convictions for involuntary manslaughter and reckless endangerment, because the conduct neither rose to the level of gross negligence nor constituted a “gross departure from the conduct of a reasonably prudent person,” such that it could be deemed reckless.

JUDGMENT OF THE COURT OF SPECIAL APPEALS IS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

¹Asphyxia, or blockage of the infant’s airway, occurring “[w]hen another person shares the sleep surface with the infant and lays on or rolls on top of or against the infant while sleeping[.]” United States Department of Health and Human Services and National Institutes of Health, Safe to Sleep: Common SIDS and SUID Terms and Definitions, https://safetosleep.nichd.nih.gov/safesleepbasics/SIDS/Common (last visited July 17, 2020), archived at https://perma.cc/A7UH-NYZA.

²The term “co-sleeping” is most commonly used to describe a situation where a caregiver sleeps on the “same sleep surface as an infant[,]” but “it was used originally and more broadly to include both room-sharing and bed-sharing practices.” Jeanine Young, PhD & Rebecca Shipstone, SIDS Sudden Infant and Early Childhood Death: The Past, the Present and the Future, Shared Sleeping Surfaces and Dangerous Sleeping Environments, https://www.ncbi.nlm.nih.gov/books/NBK513372/ (last visited July 17, 2020), archived at https://perma.cc/KU3Z-M3W7.

The Court of Special Appeals and the parties adopted the use of “co-sleeping” to refer to an act that is more precisely described as “bed-sharing” or “the practice of sleeping in the same bed with one’s child[.]” Bed-sharing, Merriam-Webster’s Dictionary, https://www.merriam-webster.com/dictionary/bed-sharing (last visited July 17, 2020), archived at https://perma.cc/Y64Q-JG9Z.

³On appeal, Ms. Morrison also argued that there was insufficient evidence to support her conviction for neglect of a minor, and that any remaining convictions should be merged for sentencing purposes. The Court of Special Appeals declined to address this argument on preservation grounds. Morrison v. State, No. 1859, Sept. Term 2017, 2019 WL 3992051 (Md. App. Aug. 23 2019).

⁴In its brief, the State phrased their question presented as follows:

Was the evidence sufficient to permit a rational trier of fact to find that [Ms.] Morrison’s conduct amounted to gross negligence where it showed that [Ms.] Morrison, after drinking herself into a self-described state of drunkenness and/or to the point of passing out, co-slept with an infant and another child in a full-sized bed and the infant died of ‘asphyxiation from probable overlay’?

⁵To protect the privacy of the minor children involved, we do not identify them by name. See In re J.R., 244 Md. App. 644, 651 n.1, 255 A.3d 108, 112 n.1 (2020).

⁶As explained in more detail below, she consumed the beers during a virtual “moms’ night out” to celebrate the impending first day of school. The other mothers were on Facebook, where they were toasting one another and celebrating virtually because they resided in different states. Ms. Morrison later testified that she consumed about two cans of beer and some portion of a forty-ounce beer—a total of four cups.

⁷The first time Ms. Morrison hung up without providing her address to the dispatcher and had to call back a second time to do so.

⁸The record does not reflect what the four-year-old was doing at this time. The following colloquy occurred to describe the way that Ms. Morrison laid in the bed, next to I.M.:

Q: Now, when mommy was laying in the bed, can you tell the ladies and gentlemen of the jury if mommy ever moved, or if she just stayed still?

A: Oh, by being on top of my baby sister?

Q: Yes?

***

A: She stayed still when she was on top of my baby sister. She just rolled over. She rolled on my baby sister and then almost went back to sleep.

***

Q: Now, when your mommy was in the bed, before she rolled over, can you describe how she was laying in the bed?

A: [S]he was like this. He[r] hair was—her hair was right here. And then she was right here.

Q: [W]as your mommy laying on her back, or was she laying on her side?

A: Her side. . .[t]his side.

***

Q: I can’t see you. Which one are you pointing to?

A: This end.

Q: Okay. On her left side?

A: Yeah.

***

Q: --what part of mommy’s body touched [I.M.]?

A: Only this side of laying on her—no—no, this side laying on her actually. This side was laying on her, and her face was turned this way actually.

Q: So [,] her left breast?

A: That’s what I remember.

⁹During a pre-trial suppression hearing, Ms. Morrison moved to suppress the statements she made to Det. Jones. The trial court denied the motion to suppress and the videotape of her interview was played for the jury.

¹⁰See Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630, 16 L.Ed.2d 694 (1966) (holding that an individual who is subject to a custodial interrogation, must be informed that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires[ ]”).

¹¹A “40” is a colloquial term for a forty-ounce bottle of malt liquor.

¹²Her trial testimony revealed that she had two 12-ounce cans of beer and a little over half of a 40-ounce bottle of Private Stock malt liquor the night before I.M. died.

¹³Hours had elapsed between the time Ms. Morrison advised the officers she drank alcohol and the time of the interview. Det. Jones was informed by the Department that any alcohol that may have been in her system had dissipated.

¹⁴Det. Jones testified that he did not observe any of the typical signs of intoxication, including slurred speech, inability to comprehend instructions, or follow through with menial tasks, and that he did not administer field sobriety tests.

¹⁵Videotaped deposition testimony was taken in lieu of live testimony because Dr. Rubio retired before trial and was subsequently unavailable for the scheduled trial date.

¹⁶I.M. was not found under her mother.

¹⁷According to the Center for Disease Control (“CDC”), “[s]udden unexpected infant death (“SUID”) is a term used to describe the sudden and unexpected death of a baby less than 1 year old[,] in which the cause was not obvious before investigation.” Centers for Disease Control and Prevention, Sudden Unexpected Infant Death & Sudden Infant Death Syndrome, https://www.cdc.gov/sids/about/index.htm (last visited July 17, 2020), archived at https://perma.cc/4SQB-XX7G.

SUIDs include “sudden infant death syndrome (SIDS), accidental suffocation in a sleeping environment, and other deaths from unknown causes.” Id. The Maryland Office of the Chief Medical Examiner defines SUID as “. . .the sudden death of an infant less than one year of age that cannot be explained after a thorough investigation is conducted, including a complete autopsy, examination of the death scene, and a review of the clinical history. All potentially non-natural causes of death cannot reasonably be excluded by the investigation and/or there is an issue of concern; for example[,] an unsafe sleeping environment or other environmental concerns, previous SIDS in the immediate family, healed unexplained injuries, parental substance abuse etc.” Maryland State Child Fatality Review Team, 2018 Legislative Report, Health Gen. Art., § 5-704(b)(12), https://phpa.health.maryland.gov/documents/Health-General-Article-5-704(b)(12)-Maryland-State-Child-Fatality-Review-Team-2018-Annual-Legislative-Report.pdf (last visited July 17, 2020), archived at https://perma.cc/UQA2-8K56. Some cases of SUID fall under the subcategory of SIDs. “SIDS is a diagnosis of exclusion, assigned only when all known and possible causes of death have been ruled out.” Id. at 13.

¹⁸During the oral motion for judgment of acquittal, defense counsel did not mention the neglect of a minor charge.

¹⁹“Pumping” refers to the act of expressing breast milk into a baby bottle. Centers for Disease Control and Prevention, Nutrition: Pumping Breast Milk, https://www.cdc.gov/nutrition/infantandtoddlernutrition/breastfeeding/pumping-breast-milk.html (last visited July 17, 2020), archived at https://perma.cc/43SF-C982.

²⁰At oral argument before this Court, the State regarded the sleeping arrangement as a distraction that was never the heart of the State’s argument regarding the recklessness of Ms. Morrison’s conduct. But, much of the prosecutor’s argument in the proceedings below relied heavily upon whether Ms. Morrison should have been aware of dangers specific to sharing a bed with her infant, after consuming alcohol. The allegations concerning the sleeping arrangement are inextricably linked to the argument that Ms. Morrison was reckless and grossly negligent.

²¹[Ms. Morrison] argues that Hall is instructive on the question of whether her conduct created a substantial risk of death or physical injury to I.M. In Hall, the defendant left her three-year-old-son in the care of his fourteen-year-old sister, where the son had a history of behavioral issues and leaving the house unaccompanied. Hall, 448 Md. at 321, 139 A.3d at 938. After the defendant agreed with social workers that she would not leave her son under the supervision of the fourteen-year-old, she allowed the fourteen-year-old to care for her son overnight. Id. at 323, 139 A.3d at 939. The son subsequently left the home and was discovered in a busy intersection just after 2:00 am. Id. at 325, 139 A.3d at 940. Ms. Hall was convicted of criminal child neglect. Id. at 321, 139 A.3d at 937; see Crim. Law § 3-602.1. This Court reversed the Court of Special Appeals and found that the evidence presented at trial did not support such a finding. Id. at 336–37, 139 A.3d at 947.

Criminal child neglect requires a showing of “substantial risk” of “physical harm” or “mental injury.” See Crim. Law § 3-602.1. Whereas, involuntary manslaughter and reckless endangerment require a showing that the conduct created a substantial risk of death or serious physical injury.

²²The Women’s Law Center of Maryland (“WLC”) submitted an amicus brief in support of Ms. Morrison. In its brief, the WLC characterized the State’s position as creating a “co-sleeping while intoxicated” felony. The WLC suggests that, because criminal liability relies on the presumption that everyone knows the law, creating such a felony would require all mothers to know each and every risk associated with raising children—including co-sleeping. The Center highlights the racial, socioeconomic, and gender-based biases underlying judgments regarding co-sleeping. Finally, the WLC contends that criminal liability for co-sleeping does not advance the goals of the criminal justice system—punishment, deterrence and rehabilitation—because Ms. Morrison is a grieving mother “who needs not be convicted of a felony to punish her,” and such a conviction would neither rehabilitate her nor deter others from engaging in similar behavior.

²³In Maryland, involuntary manslaughter is a common law felony. The punishment for involuntary manslaughter is codified in Md. Code, Criminal Law Article (“Crim. Law”) § 2-207.

²⁴Maryland Criminal Pattern Jury Instruction 4:17.9 provides, in pertinent part:

INVOLUNTARY MANSLAUGHTER--GROSSLY NEGLIGENT ACT

The defendant is charged with the crime of involuntary manslaughter. In order to convict the defendant of involuntary manslaughter, the State must prove:

(1) that the defendant acted in a grossly negligent manner; and

(2) that this grossly negligent conduct caused the death of (name). “Grossly negligent” means that the defendant, while aware of the risk, acted in a manner that created a high degree of risk to, and showed a reckless disregard for, human life.

[If defendant was unaware of the risk due to self-induced intoxication, that unawareness is not a defense.]

²⁵In Thomas, a twenty-three-year-old heroin addict, Colton Matrey (“Colton”), purchased four bags of heroin from his dealer, Patrick J. Thomas (“Thomas”). Thomas, 464 Md. 133, 211 A.3d at 282. He later died from an overdose. Id.

²⁶The night of the overdose, Colton called Thomas twenty-seven or twenty-eight times in just twenty-two minutes in an attempt to purchase the heroin. Id. He also sent several frantic text messages asking Thomas to call him before Thomas returned the call. Id. Thomas also noted that it was “unusual” for him to meet Colton late at night, stating that previous transactions had occurred earlier in the day. Id. Additionally, Thomas was aware that Colton was a “young boy.” Id. at 163–64, 211 A.3d at 291.

²⁷The parties submitted an agreed upon statement of facts. Accordingly, “there was no ‘trial’. . . in the traditional sense. . . . So, like the trial court, [this Court] accept[ed] the parties’ agreed ‘ultimate facts’ and ‘simply appl[ied] the law to the facts agreed upon[.]’ ” Thomas, 464 Md. at 151–52, 211 A.3d at 284–85 (internal citations omitted).

²⁸Although Sgt. Wilson testified that Ms. Morrison responded initially that “she got drunk and killed [her] baby[,]” he also did not recall any behavior or conduct on the part of Ms. Morrison that was consistent with someone who was impaired or under the influence of alcohol. Ms. Morrison’s statement, in and of itself, does not establish proof that she was impaired or under the influence of alcohol.

²⁹Md. Code, Crim. Law Art., § 3-204(a)(1).

Concurring opinion by Watts, J., which Barbera, C.J. and Booth, J., join.

McDonald, Getty and Biran, JJ., dissent.

Concurring Opinion by Watts, J., which Barbera, C.J., and Booth, J., join.

Respectfully, I join the majority opinion and write separately in concurrence to add my view. This case arises out of the tragic death of a baby whose mother co-slept with her. In keeping with the Majority, I would hold that the evidence was insufficient to support Muriel Morrison’s, Respondent’s, convictions for involuntary manslaughter and reckless endangerment. From my perspective, although a parent consuming alcohol and co-sleeping with a baby resulting in the baby’s death could theoretically form the basis for convictions for involuntary manslaughter and reckless endangerment, under the circumstances of this case, no rational trier of fact could have found the elements of either crime beyond a reasonable doubt, and the behavior that underlies the convictions consists of conduct that even the State, Petitioner, acknowledges is not criminal or even inherently dangerous.

In assessing the sufficiency of the evidence, I believe it is important to identify precisely the sequence of events established by the relevant evidence, particularly, Ms. Morrison’s and her daughter’s testimony, and explain that the evidence does not support the convictions. While a survey of other cases involving alleged gross negligence and a comparison of the facts of those cases to this case’s facts is a valuable approach to resolving the question of the sufficiency of evidence, a review of the evidence alone in this case leads to the inescapable conclusion that neither the elements of involuntary manslaughter nor reckless endangerment were established beyond a reasonable doubt. Although a parent co-sleeping with a child after consuming alcohol could potentially pose a risk of serious physical injury to the child, and even a substantial risk of death, to secure convictions for the offenses of involuntary manslaughter and reckless endangerment, the State must prove all of the elements of the offenses beyond a reasonable doubt, which, in this case, taking the evidence in the light most favorable to the State, it did not.

Even under the relevant standard of review,¹ without evidence that an ordinarily prudent parent, i.e., reasonable parent, would have been cognizant of a risk associated with co-sleeping and that Ms. Morrison was so significantly impaired as to disregard the risk, no juror could have found beyond a reasonable doubt that establishing that a parent co-slept with a baby after drinking beer means that the parent should have known of a risk of death or injury to the baby and that the parent recklessly disregarded it. In short, an analysis of the sufficiency of the evidence in this case boils down to whether a rational juror could have concluded beyond a reasonable doubt that Ms. Morrison should have been aware of a risk involved with co-sleeping with her infant and was so seriously impaired as to disregard the risk. Framing the issue to be whether an ordinarily prudent person would know that co-sleeping with a baby after drinking alcohol to the point of becoming impaired involves a risk of death or injury to a baby assumes the circumstance that a parent is impaired, and this is a fact that the State in this case failed to prove beyond a reasonable doubt.

On the night of September 1, 2013 into the morning of September 2, 2013, Ms. Morrison was living with two of her children, one of whom was four months old, and the other of whom was four years old (“Ms. Morrison’s daughter”). As a witness for the State, Ms. Morrison’s daughter, who was seven years old at the time of trial, testified that, on the night at issue, she, Ms. Morrison, and Ms. Morrison’s baby were in the same bed together, with the baby between them. At some point, Ms. Morrison rolled over on top of the baby. According to Ms. Morrison’s daughter, when she saw her baby sister under her mother, she did not say anything “[u]ntil my daddy come[.]” Questioning by the prosecutor revealed that Ms. Morrison’s daughter did not say anything until her father telephoned. During direct examination, the following exchange occurred:

[THE PROSECUTOR:] Okay. And your baby sister was laying on top of your mommy, or under your mommy, or somewhere else?

[MS. MORRISON’S DAUGHTER:] Under.

[THE PROSECUTOR:] When you saw your baby sister under your mommy, did you say anything?

[MS. MORRISON’S DAUGHTER:] No. until my daddy come, don’t do that (Inaudible at 10:07:59 a.m.)

[THE PROSECUTOR:] That’s okay. Did you try to get your sister, move your sister?

[MS. MORRISON’S DAUGHTER:] Yes.

[THE PROSECUTOR:] And how did you try to move your sister?

[MS. MORRISON’S DAUGHTER:] I -- I threw stuff at her when my dad called. And -- and then at first I answered the phone because my dad called. And then I -- I -- then I threw stuff at her.

[THE PROSECUTOR:] It’s her, you mean your mom?

[MS. MORRISON’S DAUGHTER:] Yes.

[THE PROSECUTOR:] Okay. When you threw stuff at you[r] mom, did she wake up?

[MS. MORRISON’S DAUGHTER:] No.

[THE PROSECUTOR:] Did you try to talk to your mom?

[MS. MORRISON’S DAUGHTER:] No -- yes.

[THE PROSECUTOR:] Did you try to wake her up?

[MS. MORRISON’S DAUGHTER:] Yes.

[THE PROSECUTOR:] Okay. And what did you say to your mom to wake her up?

[MS. MORRISON’S DAUGHTER:] I said -- I said, “Mom,” -- I said, “Mom, you’re on my baby sister” at that point.

[THE PROSECUTOR:] Did your mommy wake up when you yelled at her?

 [MS. MORRISON’S DAUGHTER:] No, no.

After Ms. Morrison’s daughter responded no, the State introduced an exhibit into evidence and asked no further questions on direct examination.

On cross-examination, Ms. Morrison’s daughter testified that the telephone rang, and she answered it and spoke to her father. Ms. Morrison’s daughter testified that Ms. Morrison did not speak with her father but woke up out of a “deep, deep sleep[,]” was laying on the baby, and said the baby was okay. The following exchange occurred:

[DEFENSE COUNSEL:] Okay. Did she take the phone and talk to daddy then?

[MS. MORRISON’S DAUGHTER:] No.

[DEFENSE COUNSEL:] So she just woke up?

[MS. MORRISON’S DAUGHTER:] Yes. She woke up out of her deep, deep sleep.

[DEFENSE COUNSEL:] Okay.

[MS. MORRISON’S DAUGHTER:] And --

 [DEFENSE COUNSEL:] And what did she do then when she woke up?

[MS. MORRISON’S DAUGHTER:] Then after she woke up, she kept laying on my baby sister. And when I said, “Get up, Mommy, you laying on my baby sister,” she said she was okay. She wasn’t.

Ms. Morrison’s daughter also testified that, later, closer to the morning, she woke up, went downstairs to get some juice, returned to the bedroom, and saw that Ms. Morrison was lying on the baby. Specifically, on direct examination, the following exchange occurred:

[THE PROSECUTOR:] Let’s talk about how she got to the hospital? Do you remember what happened right before the hospital?

[MS. MORRISON’S DAUGHTER:] Yes.

[THE PROSECUTOR:] Tell me what happened?

[MS. MORRISON’S DAUGHTER:] Before, well -- before my baby sister went to the hospital, (Inaudible at 1:04:03 a.m.) I was going downstairs. I was like trying and find some juice.

[THE PROSECUTOR:] So you went downstairs to find some juice?

[MS. MORRISON’S DAUGHTER:] Uh-huh. And then I came back upstairs to -- and mommy was laying on my baby sister. And then I called for help. And I went down the basement -- to the basement because people lived down there. And my mother woke up.

And then when it was time, it was morning time, mommy got down right away. And then while -- and then my baby sister was died -- died.

Similarly, on cross-examination, the following exchange occurred:

[DEFENSE COUNSEL:] And when you made the drawing about where mommy was and where you[r] baby sister was, do you remember where you were on the bed?

 [MS. MORRISON’S DAUGHTER:] I was on the -- I was on the corner right here. And then when I woke up, I went downstairs, I snuck downstairs -- I’m not allowed to go downstairs -- that was a rule.

And then I went downstairs, tried to find the juice in the cabinet – juice we had. And then I came back upstairs. And when I went up there, then -- then I saw my momma laying on my baby sister. Then we woke up.

Nine -- 9-1-1 was called and my baby sister was gone at the hospital. I did not do that.

As a witness on her own behalf, Ms. Morrison testified that the baby was her seventh child, and that one of her children “never came home from the hospital.”² Ms. Morrison explained that she had co-slept with all of her children, and that her mother and grandmother had co-slept with her. Ms. Morrison testified that she did not “know too many who” did not co-sleep with their children. Ms. Morrison did not recall anyone having discussed with her the dangers of drinking alcohol while caring for a child.

Ms. Morrison testified that on the evening of September 1, 2013, she and her friends were having a ritual moms’ night out before their children went back to school, which she was doing from a distance over the telephone. She testified that she used Facebook to talk to her friends who were in Virginia. Ms. Morrison testified that she had “a couple of beers[.]” Specifically, Ms. Morrison testified that she “had like four cups of beer.” She testified that she told a detective that she had two twelve-ounce beers and “a 40 that [she] didn’t finish.” Ms. Morrison denied that the alcohol affected her in any way.

After Ms. Morrison finished drinking, she changed the baby’s diaper. That night, Ms. Morrison, her daughter, and the baby slept in the same full-size bed. At some point, Ms. Morrison’s daughter woke her up and said that her father had telephoned. Ms. Morrison telephoned her daughter’s father, who did not answer, and Ms. Morrison laid back down. Afterward, Ms. Morrison’s daughter said something to her, and Ms. Morrison closed her eyes to make her daughter think that she was asleep. Ms. Morrison put her arm over the baby to prevent her daughter from waking the baby up. Once Ms. Morrison believed that the baby had fallen asleep, she did the same.

At approximately 7:45 a.m., Ms. Morrison woke up and realized that the baby was not beside her. Ms. Morrison saw that the baby was “listless” and that “her lips were pale.” Ms. Morrison testified that she called 911 and that paramedics arrived. Later, a law enforcement officer came into the bedroom to speak with Ms. Morrison, and she said: “No matter what, it’s my fault. I couldn’t save her.”

The circuit court instructed the jury on involuntary manslaughter and reckless endangerment by quoting Maryland Criminal Pattern Jury Instructions 4:17.9A and 4:26B nearly verbatim as follows:

[T]o convict the defendant of involuntary manslaughter, the State must prove that the defendant acted in a grossly negligent manner[,] and that this grossly negligent conduct caused the death of [the baby]. [“]Gross[ly] negligent[”] means that the defendant, while aware of the risk[ ], acted in manner that created a high degree of risk to[,] and showed reckless disregard for[,] human life.

* * *

[T]o convict the defendant of reckless endangerment, the State must prove that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another, that a reasonable person would not have engaged in that conduct, and that the defendant acted recklessly.

The defendant acted recklessly if she was aware that her conduct created risk of death or serious physical injury to another[,] and that she consci[ ]ously disregarded that risk.

This Court has, as the majority opinion indicates, consistently indicated that there are three varieties of involuntary manslaughter—unlawful act manslaughter, gross negligence manslaughter, and the negligent omission to perform a legal duty. State v. Thomas, 464 Md. 133, 152, 211 A.3d 274, 285 (2019) (citations omitted). Gross negligence involuntary manslaughter involves “negligently doing some act lawful in itself[,]” which is “a gross departure from what would be the conduct of an ordinarily careful and prudent person under the same circumstances so as to furnish evidence of indifference to the consequences.” Id. at 152-53, 211 A.3d at 286 (citation omitted). The elements of reckless endangerment are: “1) that the defendant engaged in conduct that created a substantial risk of death or serious physical injury to another; 2) that a reasonable person would not have engaged in that conduct; and 3) that the defendant acted recklessly.” Hall v. State, 448 Md. 318, 329, 139 A.3d 936, 942 (2016) (citation omitted).

Because gross negligence involuntary manslaughter includes all three of the elements of reckless endangerment, “[r]eckless endangerment is a lesser[-]included offense of the gross negligence variety of involuntary manslaughter.” State v. Bowers, 349 Md. 710, 723, 709 A.2d 1255, 1261 (1998) (citations omitted). If the State fails to establish that an ordinarily careful and prudent person—i.e., a reasonable person—would not have engaged in the conduct in which the defendant engaged, then the State has failed to prove that the defendant is guilty of either gross negligence involuntary manslaughter or reckless endangerment.

Viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the State, the evidence was insufficient to establish that an ordinarily careful and prudent person—i.e., a reasonable person—would have been aware that the conduct that Ms. Morrison engaged in created a risk of death or serious physical injury to her baby, or that she was so seriously impaired as to have a reckless disregard for her baby’s life. Put simply, even under the relevant standard of review, in the absence of evidence that a reasonable parent would have been aware of the risk and that Ms. Morrison was so significantly impaired as to disregard the risk, no rational juror could find beyond a reasonable doubt that establishing that a parent co-sleeping with a baby after drinking beer means that the parent automatically knew of the risk of death to the baby and had a reckless disregard for the baby’s life.

Importantly, in its brief, the State acknowledges that co-sleeping “is not extraordinary or even inherently dangerous,” but contends that co-sleeping is inherently dangerous where an adult consumes enough alcohol to pass out. The point is that co-sleeping with a baby is not inherently dangerous behavior or behavior that in and of itself would satisfy the elements of gross negligence involuntary manslaughter. The State has to prove conduct that demonstrates that an ordinarily careful and prudent person would not take the same actions. Here, there is no evidence that Ms. Morrison had consumed enough beer to be impaired to the point of removing her co-sleeping with her daughter from the not extraordinary type of co-sleeping that the State acknowledges does not rise to the level of gross negligence. The State’s case rested largely on the testimony of Ms. Morrison’s daughter and what the State alleged to be Ms. Morrison’s own admissions. At oral argument, the State alleged that Ms. Morrison’s gross negligence consisted of passing out (becoming impaired) and disregarding the risk of death to her baby while co-sleeping. There is insufficient evidence, however, to conclude that Ms. Morrison passed out due to drinking beer. Nor is there any evidence that Ms. Morrison was impaired as a result of drinking beer. While being interviewed by detectives, Ms. Morrison said that she drank two cups of beer and more than half of “a 40[.]” Ms. Morrison never said that the beer caused her to pass out, and denied that she was impaired in any way. Nor did the testimony of Ms. Morrison’s daughter, the State’s only eyewitness, establish that Ms. Morrison passed out or that she was impaired.³

Ms. Morrison’s daughter was four years old at the time of the baby’s death and seven years old when she testified at trial, and her testimony fell far short of establishing that a rational juror could conclude beyond a reasonable doubt that Ms. Morrison was impaired. Ms. Morrison’s daughter essentially testified that she took a call from her father, tried to wake her mother who had rolled over on the baby, and that she (the daughter) went back to sleep. She testified that later she awoke, went to get juice, and returned and her mother was laying on the baby and her mother woke up. Ms. Morrison’s daughter never testified that her mother was impaired before putting the baby to sleep, i.e., acting differently than normally, that her mother’s speech was different, that her mother appeared confused, or that her mother failed to do things that she would normally do for the baby or herself. To be sure, Ms. Morrison’s daughter testified that when she first saw her mother laying on the baby she “threw stuff at” her mother and said: “Mom, you’re on my baby sister[.]” According to Ms. Morrison’s daughter, she took these actions in response to a telephone call from her father when she noticed that Ms. Morrison was asleep on the baby. Ms. Morrison’s daughter did not testify as to what items she threw, how many items she threw, how hard she threw them, at what part of Ms. Morrison’s body she threw them, how many times she spoke to Ms. Morrison, or how loud her voice was. Although the prosecutor asked Ms. Morrison’s daughter whether Ms. Morrison woke up after she “yelled at her[,]” significantly, Ms. Morrison’s daughter never testified that she yelled or raised her voice.

Overall, it is unclear what efforts Ms. Morrison’s daughter, who was four years old at the time, took to attempt to wake her mother when her father called, and she realized that Ms. Morrison had rolled onto the baby. There is no indication of the intensity or persistence of Ms. Morrison’s daughter’s efforts to wake her or any indication that Ms. Morrison failed to become fully awake because she was passed out. Ms. Morrison’s daughter merely testified that her mother was in a deep sleep. The testimony of both Ms. Morrison and her daughter reveals that, at that point, Ms. Morrison awoke and spoke with her daughter, telling her that the baby was okay. Regardless of whether the jury accepted the State’s version that Ms. Morrison did not wake up or as Ms. Morrison and her daughter testified that she awoke and said that the baby was alright, the testimony, under either scenario, did not establish that Ms. Morrison was passed out or unresponsive with her baby beneath her. Simply put, viewing the evidence in the light most favorable to the State, Ms. Morrison’s daughter’s testimony provided nothing more than that a four-year-old child attempted to wake a parent in some manner in the middle of the night and may have been unsuccessful—a not too uncommon occurrence.

Indeed, Ms. Morrison’s daughter’s testimony about the events of the evening support the determination that, although she saw Ms. Morrison laying on her baby sister, her efforts to wake Ms. Morrison were not substantial enough to lead to the conclusion that Ms. Morrison failed to awake because she was passed out or impaired. Ms. Morrison’s daughter did not testify that she informed her father that her mother was laying on the baby even though her father was on the telephone at the time. After throwing things at her mother, Ms. Morrison’s daughter apparently went back to sleep and awoke closer to the morning. She then went downstairs to get juice before trying to awake her mother. These observations are not meant to imply in any way that Ms. Morrison’s four-year-old daughter was at fault in her handling of the situation, but rather are indicators that Ms. Morrison’s daughter was not persistently trying to wake her mother up, but her mother was passed out. To the extent that the State relies on Ms. Morrison’s daughter’s testimony as evidence that Ms. Morrison was passed out (or seriously impaired) due to alcohol consumption and therefore grossly negligent, this is mere speculation, unsupported by the evidence adduced at trial. Certainly, under the relevant standard of review, the evidence and all inferences therefrom are to be considered in the light most favorable to the State, but this does not allow for conjecture.

Significantly, Ms. Morrison’s decision to co-sleep with the baby was not an isolated incident that resulted from a reckless disregard for human life due to alcohol consumption. To the contrary, as Ms. Morrison explained, she co-slept with all her children, including her baby. And, Ms. Morrison testified that when she was a child, her mother co-slept with her. Ms. Morrison was engaged in what for her was a routine and customary practice of co-sleeping with her children, not an activity brought about by disregarding the risk due to drunkenness.

In its brief, the State acknowledges that co-sleeping or bed-sharing “is not an uncommon practice[,]” and cites a 2015 survey by the Centers for Disease Control and Prevention, which indicated that 61.4% of the American mothers who responded indicated that they co-slept or bed-shared with their infants. The circumstance that co-sleeping is so common undermines the notion that a rational trier of fact would think that a parent who co-slept with a baby even after drinking beer should know that a substantial risk of death was involved and conclude that the parent recklessly disregarded the risk.

It cannot be assumed that it is common knowledge by all parents that co-sleeping with a baby after drinking alcohol may involve a risk of death to the baby. And, more importantly, even if it were common knowledge, this is an element of the offenses of involuntary manslaughter and reckless endangerment that the State is required to prove beyond a reasonable doubt. The “Pediatric Discharge Instructions” that Ms. Morrison signed shortly after the baby was born did not establish that Ms. Morrison knew, or should have known, that her actions involved a substantial risk of death. The document merely indicated that a “baby should be in an approved crib or bassinet”—not that a baby must never sleep in a bed with a parent and the document did not mention drinking alcohol let alone a risk of death. Simply stating that it is common knowledge that co-sleeping with a baby after consuming alcohol to the point of serious impairment creates a risk of death for the baby does not alleviate the State of the burden of proving the existence of the risk and that an ordinarily prudent person would be aware of the risk, or for that matter of proving any of the other elements of the offenses or that Ms. Morrison was impaired.

Ms. Morrison’s statements to Sergeant Wilson—namely, “I got drunk. I killed my baby”—did not establish directly or by inference that she was impaired or guilty of involuntary manslaughter or reckless endangerment. Although Ms. Morrison said that she got drunk, the fact remains that the State was required to prove all of the elements of grossly negligent conduct, and the State did not do so. Ms. Morrison’s statement that she killed her baby was, at worst, an acknowledgement that her baby died while Ms. Morrison co-slept with her. Ms. Morrison’s statement was not, in any way, an admission that her conduct rose to the level of reckless endangerment or gross negligence. It is important to note that Ms. Morrison made the statement to Sergeant Wilson on the very morning that she discovered her baby’s body in her bed. According to Sergeant Wilson, when he spoke to her, Ms. Morrison had a “blank stare” and “looked like she was in shock.” Even viewing the evidence and the reasonable inferences to be drawn therefrom in the light most favorable to the State, Sergeant Wilson’s testimony makes clear that Ms. Morrison’s statement was motivated by shock caused by her four-month-old daughter’s recent and sudden death. It is not possible to infer the elements of involuntary manslaughter and reckless endangerment from Ms. Morrison’s, a grieving mother’s, remarks.⁴

To be sure, Detective Jones testified that Ms. Morrison did not know what happened after she began drinking and when she woke up. A review of the trial transcript reveals that this was Detective Jones’s assessment and the detective did not testify that Ms. Morrison told him that she did not know what happened. The detective testified: “She doesn’t know what happened after that.” A review of Ms. Morrison’s testimony reveals that she testified about events that happened after she began drinking. Ms. Morrison testified in detail that she recalled her daughter waking her to tell her that her father had called, that she telephoned her daughter’s father back, that she pretended to be asleep to help her daughter get back to sleep, and that she put her arm over her baby to prevent the baby from waking. The jury was not required to credit either Ms. Morrison’s or the detective’s testimony and taking the evidence in the light most favorable to the State, it was merely the detective’s assessment that Ms. Morrison did not know what happened after she began drinking. Even if that testimony were believed it would be mere conjecture to conclude that Ms. Morrison’s failure to remember was due to her being seriously impaired by alcohol rather than due to the discovery of her baby’s death.

Were the Court to hold that the evidence was sufficient to support Ms. Morrison’s convictions for involuntary manslaughter and reckless endangerment, we would blur the line between conduct constituting criminal gross negligence and the practice of a parent co-sleeping with a child, which without more everyone would agree would not result in a conviction for manslaughter should the child’s accidental death occur. We would be naïve to think that parents do not drink alcohol—wine, beer, or a cocktail—and on occasion co-sleep with a baby. If all that were required to be proven to establish the elements of involuntary manslaughter and reckless endangerment is that a parent consumed alcohol and co-slept with a baby, resulting in the baby’s death, the Court would be alleviating the State of the burden of proving the elements of the offenses, and creating strict liability. By way of analogy, should a parent use a sleeping aid, e.g., a prescription or over-the-counter sleeping pill, and co-sleep with a baby and sleep soundly, resulting in the baby’s death, under the State’s theory this would be evidence sufficient for the parent to be found guilty of involuntary manslaughter. In its amicus brief, The Women’s Law Center of Maryland, Inc. makes the point that women, i.e., mothers, have traditionally been prosecuted more frequently or consistently for crimes involving child abuse and failing to protect children as opposed to men, and in particular that judgments concerning co-sleeping “are intertwined with questions of gender, race, and class.” From my perspective, affirming the conviction in this case would potentially have a disparate effect on women in general, and indeed women of color and women of limited socioeconomic means. Certainly, anyone who co-slept with a baby under circumstances similar to those in this case would be at risk for conviction on insufficient evidence in any jurisdiction in the State. The evidence here failed to establish that Ms. Morrison or an ordinarily prudent person would have been aware of the risk, and that Ms. Morrison consciously disregarded the risk and was indifferent to her baby’s life. Even the medical examiner concluded after reviewing the investigative report that Ms. Morrison’s baby’s death was an accidental death. In sum, while the evidence was sufficient to establish that Ms. Morrison drank beer and co-slept with her baby, the evidence was woefully insufficient to support Ms. Morrison’s convictions for involuntary manslaughter and reckless endangerment.⁵

For the above reasons, respectfully, I concur.

¹“In determining whether the evidence is legally sufficient, we examine the record solely to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In examining the record, we view the State’s evidence, including all reasonable inferences to be drawn therefrom, in the light most favorable to the State.” Fuentes v. State, 454 Md. 296, 307, 164 A.3d 265, 272 (2017) (cleaned up).

²Prior to Ms. Morrison’s testimony, other witnesses testified for the State. Sergeant Laron Wilson and Detective Jonathan Jones of the Baltimore Police Department and Latonya Townsend, a clinical social worker with Johns Hopkins, testified concerning their interactions with Ms. Morrison. A recording of a deposition of Anna Rubio, M.D., an Assistant Medical Examiner, was played for the jury. The circuit court admitted into evidence a document that was labeled “The Western Pennsylvania Hospital [/ Neonatal Intensive Care Unit] / Pediatric Discharge Instructions[.]” A summary of this testimony and evidence is recounted in the majority opinion.

³It does not appear that, at trial, the State introduced evidence concerning the alcohol by volume (ABV) content of any beverages that Ms. Morrison consumed. As such, to use information concerning the alleged ABV content of drinks consumed by Ms. Morrison to support the proposition that a rational trier of fact could have found that Ms. Morrison was seriously impaired and reverse the judgment of the Court of Special Appeals on that ground would be to base a decision about the sufficiency of the evidence on facts not in the record, i.e., information that was not available to the jury. In other words, in reviewing the sufficiency of the evidence, it would be inappropriate, of course, to make a factual finding concerning the ABV content of beverages Ms. Morrison drank and assume that a rational juror would have been aware of the ABV content of the beverages and therefore able to infer that Ms. Morrison was seriously impaired.

⁴The same could be said of Ms. Morrison’s testimony that she recalled telling Sergeant Wilson, “No matter what, it’s my fault. I couldn’t save her[.]” Plainly, this does not rise to the level of a confession satisfying the elements of involuntary manslaughter and reckless endangerment.

⁵I agree that Ms. Morrison’s conviction for child neglect, which the Court of Special Appeals affirmed, will stand because no issue as to that conviction is before this Court.

Chief Judge Barbera and Judge Booth have authorized me to state that they join in this opinion.

Dissenting Opinion by Biran, J., which McDonald and Getty, JJ., join

Viewing the evidence presented at the trial in this tragic case in the light most favorable to the State, I believe that a rational juror could have found beyond a reasonable doubt that Ms. Morrison was grossly negligent and, therefore, guilty of involuntary manslaughter and reckless endangerment. Accordingly, I respectfully dissent from the Majority’s decision to overturn the jury’s verdict.

I begin with a point of agreement with the Majority: I do not believe that co-sleeping with an infant is inherently dangerous. As the Majority notes, there was evidence at trial that the safest way for a baby to sleep is alone in a crib or bassinet. The American Academy of Pediatrics recommends that “[i]nfants should sleep in the parents’ room, close to the parents’ bed but on a separate surface (room sharing).” Safe Sleep: Recommendations, https://www.aap.org/en-us/advocacy-and-policy/aap-health-initiatives/safe-sleep/Pages/Safe-Sleep-Recommendations.aspx (accessed on July 20, 2020), archived at https://perma.cc/92LY-7L7B. However, while it may be advisable to refrain from co-sleeping with an infant, it does not follow that co-sleeping is so unsafe as to render it inherently dangerous. As the Majority observes, a CDC study showed that 61.4 percent of surveyed mothers reported bed-sharing with their infants. I doubt that such a large percentage of mothers would engage in co-sleeping if it were an inherently dangerous practice.

*I also do not believe, in general, that it is inherently dangerous for the sole caregiver of an infant to put the child to bed and then consume alcohol to the point of serious impairment. To be sure, it is not advisable for a parent to drink to excess at home if there is no other caregiver present to handle a dangerous situation that might arise involving a child who is too young or otherwise unable to avoid the danger on his or her own. However, while it may be negligent for a sole caregiver to drink to the point of serious impairment in his or her home after young children have gone to bed for the night, I am not prepared to say that the caregiver is grossly negligent when he or she does so, in the absence of other circumstances that increase the likelihood of a specific danger arising.

However, a parent’s combination of these non-inherently dangerous actions – drinking to the point of serious impairment in one’s home and then co-sleeping with an infant – creates a substantial risk that the parent will suffocate the infant. See Jeanine Young and Rebecca Shipstone, Shared Sleeping Surfaces and Dangerous Sleeping Environments, in SIDS: SUDDEN INFANT AND EARLY CHILDHOOD DEATH, https://www.ncbi.nlm.nih.gov/books/NBK513372 (2018) (accessed on July 20, 2020), archived at https://perma.cc/2KQQ-88UG (explaining that “[u]nintentional suffocation is becoming increasingly recognized as a significant contributor to” Sudden Unexplained Death in Infancy (“SUDI”) cases, and that “[t]he strongest predictor of SUDI has been identified as the combination of recent maternal alcohol consumption and sleeping together with an infant on a soft shared surface (bed or sofa)”). A finding of gross negligence in a case such as this one will turn on whether the parent “or an ordinarily prudent person under similar circumstances, should be conscious of this risk.” State v. Thomas, 464 Md. 133, 167, 211 A.3d 274 (2019).

The Majority opines that, even if Ms. Morrison “drank enough beer to ‘pass out,’ ” she is entitled to a judgment of acquittal because “there were no facts reflecting that Ms. Morrison knew that socially drinking at her own residence would create a substantial risk of harm to her children.” Maj. Op. at ––––. Notably, the Majority does not refer to the objective component of the standard in this part of its analysis. In my view, an “ordinarily prudent person” would know that parents who have consumed enough alcohol to be seriously impaired may be more difficult to rouse from sleep or, even if momentarily roused, may not recognize that they are a threat to their infants and fall back asleep. Thus, while 61 percent of mothers may conclude that co-sleeping is reasonably safe because they assume they will be able to hear their infants crying next to them if they begin to cause them any distress, I suspect that a large majority of those same mothers would agree that it is inherently dangerous to co-sleep with an infant when a parent goes to bed seriously impaired by alcohol. After all, “we know by common knowledge that alcohol distorts perception, slows reaction, and impairs motor skills.” Warr v. JMGM Grp., LLC, 433 Md. 170, 240 n.28, 70 A.3d 347 (2013) (Adkins, J., dissenting); see also State v. Jenkins, 88 Conn.App. 762, 872 A.2d 469, 476 (2005) (“It is a matter of common knowledge that the excessive use of liquor or drugs impairs the perceptual, judgmental and volitional faculties of the user.”).

It is undisputed that the trial judge properly instructed the jurors on what they needed to find in order to conclude that Ms. Morrison was grossly negligent. It is also undisputed that Ms. Morrison co-slept with I.M. on September 2, 2013, and that Ms. Morrison unintentionally asphyxiated I.M. at some point before 8:30 a.m. that morning. Further, it is undisputed that Ms. Morrison consumed alcohol on the night of September 1-2, prior to co-sleeping with I.M. In my view, if the jury could have found that Ms. Morrison consumed enough alcohol to be seriously impaired when she co-slept with I.M., the jury also necessarily could have found that she was creating a risk of which an ordinarily prudent person would have been aware. Thus, the only point materially in dispute on appeal is the sufficiency of the evidence that Ms. Morrison drank alcohol to the point of serious impairment before getting in bed with I.M. (and I.M.’s four-year-old sister) and falling asleep.

The standard of review is key to the proper resolution of this case. See State v. Mayers, 417 Md. 449, 466, 10 A.3d 782 (2010) (“[A]ny discussion of evidentiary sufficiency must be placed in the context of the standard of review.”). Our mandate is to “examine the record solely to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (cleaned up). When we conduct this inquiry, “[i]t is not our role to retry the case.” Smith v. State, 415 Md. 174, 185, 999 A.2d 986 (2010). To the contrary, “[b]ecause the fact-finder possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony, we do not re-weigh the credibility of witnesses or attempt to resolve any conflicts in the evidence.” Id. “We do not second-guess the jury’s determination where there are competing rational inferences available.” Id. at 183, 999 A.2d 986, 991. Thus, “[w]e defer to any possible reasonable inferences the jury could have drawn from the admitted evidence and need not decide whether the jury could have drawn other inferences from the evidence, refused to draw inferences, or whether we would have drawn different inferences from the evidence.” Mayers, 417 Md. at 466, 10 A.3d 782; see also State v. Albrecht, 336 Md. 475, 478, 649 A.2d 336 (1994) (“[I]t is not the function or duty of the appellate court to undertake a review of the record that would amount to, in essence, a retrial of the case.”).

This standard of review regarding evidentiary sufficiency does not change when we are called upon to review a jury determination of gross negligence. “Whether or not gross negligence exists necessarily depends on the facts and circumstances in each case. It is usually a question for the jury and is a question of law only when reasonable [people] could not differ as to the rational conclusion to be reached.” Rodriguez v. State, 218 Md. App. 573, 598-99, 98 A.3d 376 (2014) (quoting Romanesk v. Rose, 248 Md. 420, 428, 237 A.2d 12 (1968)), aff’d sub nom. Cooper v. Rodriguez, 443 Md. 680, 118 A.3d 829 (2015). “[U]nless the facts are so clear as to permit a conclusion as a matter of law, it is for the trier of fact to determine whether a defendant’s negligent conduct amounts to gross negligence.” Taylor v. Harford Cty. Dep’t of Soc. Servs., 384 Md. 213, 229, 862 A.2d 1026 (2004); see also Stracke v. Estate of Butler, 465 Md. 407, 420, 214 A.3d 561 (2019) (if “reasonable minds might differ” whether evidence makes out gross negligence, then the trier of fact’s finding of gross negligence should not be disturbed).

As applied to this case, the standard of review requires us to ask if any rational juror could have determined beyond a reasonable doubt that Ms. Morrison consumed alcohol to the point of serious impairment before co-sleeping with I.M. on September 2, 2013. If the answer to that question is yes, then the evidence was sufficient for the jury to convict Ms. Morrison of involuntary manslaughter and reckless endangerment and we must affirm the jury’s verdict.

In my view, there was sufficient evidence for a rational juror to conclude beyond a reasonable doubt that Ms. Morrison drank alcohol to the point of serious impairment before getting in bed with I.M. (and her four-year-old daughter). First and foremost was Ms. Morrison’s admission to Sergeant Wilson very shortly after police arrived at Ms. Morrison’s home and found I.M. unresponsive. Sergeant Wilson testified that Ms. Morrison told him she “got drunk and killed [her] baby.” Ms. Morrison suggests that the jury could have viewed this statement as the “hyperbolic exclamation of a mother experiencing the shock, grief, and guilt of her baby dying.” Maybe so. But the jury was not required to interpret Ms. Morrison’s statement that way. Rather, the jury could have reasonably concluded from Ms. Morrison’s statement to Sergeant Wilson that she had felt seriously impaired by alcohol when she got into bed with I.M., and that she believed her inability to avoid the tragedy was due to her self-induced impairment. In my view, this admission, in and of itself, was sufficient to allow a rational juror to conclude that Ms. Morrison was, in fact, seriously impaired by alcohol while she co-slept with I.M.

But there was more. Also significant was Detective Jones’s testimony that Ms. Morrison told him she had “laid her children down between . . . 10 p.m. and 12 a.m., and then she began to drink. She doesn’t know what happened after that.” (Emphasis added.) The jury reasonably could conclude from this testimony that Ms. Morrison told Detective Jones she did not know what happened after she began to drink, and that Ms. Morrison did not know what happened because she drank to the point of serious impairment.

Still, there was more. A rational juror could have determined that the four-year-old’s testimony was additional evidence that Ms. Morrison was seriously impaired because it established that Ms. Morrison: (1) did not respond to the four-year-old’s yelling, “Mom, you’re on my baby sister”; (2) did not hear her cell phone ringing on the bed; (3) failed to wake up when the four-year-old attempted to rouse her when the cell phone rang; (4) did not wake up after the four-year-old “threw stuff” at her; and (5) after waking up briefly out of her “deep, deep sleep,” told the four-year-old that I.M. was okay but continued to lay on I.M. A rational juror could conclude that the logical explanation for the four-year-old’s observations – combined with Ms. Morrison’s admissions that she drank  alcohol that night and, in fact, “got drunk” – is that Ms. Morrison had consumed alcohol to the point of serious impairment.

The Majority and our concurring colleague note that Ms. Morrison testified at trial about many details of the night of September 1-2 from the time she started participating in the virtual “mom[s’] night out.” She claimed that she consumed two 12-ounce beers and approximately half of a 40-ounce bottle of malt liquor on her porch as she socialized on Facebook with her friends in Virginia. She further testified that she waited until 2:30 a.m. for the children’s father to arrive, and that, when he did not appear, she went inside. According to Ms. Morrison, she then pumped breastmilk, changed I.M.’s diaper, took out the trash, locked the doors, turned off the movie that the four-year-old had been watching, turned the television to PBS, got on Facebook again, and went to bed.

The Majority seemingly credits all of Ms. Morrison’s trial testimony, but the jury was not required to do the same. And it is the jury’s assessment of Ms. Morrison’s credibility, not the Majority’s, or our concurring colleague’s, or mine that counts. The trier of fact “possesses the unique opportunity to view the evidence and to observe first-hand the demeanor and to assess the credibility of witnesses during their live testimony.” Grimm v. State, 447 Md. 482, 505, 135 A.3d 844 (2016) (internal quotation marks and citation omitted). For this reason, the jury “decides which evidence to accept and which to reject.” Id. (internal quotation marks and citation omitted). In their assessment of the credibility of witnesses, jurors are “entitled to accept – or reject – all, part, or none of the testimony of any witness, whether that testimony was or was not contradicted or corroborated by any other evidence.” Omayaka v. Omayaka, 417 Md. 643, 659, 12 A.3d 96 (2011); Grimm, 447 Md. at 506, 135 A.3d 844 (same). Thus, a rational juror could have rejected those details in Ms. Morrison’s trial testimony that tended to portray her as not seriously impaired, and instead credited Ms. Morrison’s statements to Sergeant Wilson and Detective Jones that she had gotten drunk and that she did not remember what happened after she began drinking.

In particular, the jurors were not required to credit Ms. Morrison’s testimony that she drank two 12-ounce beers and about half of a 40-ounce bottle of malt liquor. Rather, based on the four-year-old’s observations of her mother, a rational juror could have concluded that Ms. Morrison likely understated the amount of alcohol she had consumed. Alternatively, if the jurors believed Ms. Morrison’s account of the quantity of alcohol she consumed, they nevertheless could have concluded that this amount – which included a substantial amount of malt liquor – was sufficient to seriously impair her.¹ In this regard, the jury could have found pertinent that Ms. Morrison told Ms. Townsend, the clinical social worker at the hospital, that she had not consumed alcohol for some time prior to September 2. In addition, Ms. Morrison herself testified that, except for having had a “couple of beers,” everything else about the night of I.M.’s death “was routine.” Applying their common sense, the jurors reasonably could have inferred from these remarks that Ms. Morrison was not a regular drinker and that she may have had a low tolerance for alcohol on the night of September 1-2.

The Majority also ascribes importance to Sergeant Wilson’s and Detective Jones’s testimony that Ms. Morrison did not seem impaired when they spoke with her on the morning of September 2. However, by the time those officers interacted with Ms. Morrison, even by her own account, it had been more than six hours since she stopped drinking. There was no conclusive evidence submitted to the jury of the time of I.M.’s death. According to Ms. Townsend, Ms. Morrison told her that I.M.’s body was cold when Ms. Morrison woke up. Thus, the jury reasonably could have concluded that the asphyxiation occurred several hours prior to Sergeant Wilson’s arrival at the home at approximately 8:30 a.m. In addition, a rational juror could have concluded that the shocking realization that Ms. Morrison had suffocated her infant caused Ms. Morrison to present more soberly to Sergeant Wilson and Detective Jones than she otherwise would have if she had not awakened to this tragedy. Either of these inferences would have been reasonable. In any event, the jury was not required to disregard Ms. Morrison’s admission that she “got drunk” on the night of September 1-2 because she appeared to be sober by 8:30 a.m. on September 2. It was the jurors’ role to sort through all the evidence, some of it conflicting, and draw the inferences from the evidence that they believed made sense. The jurors did that here.

This was a closer case for a finding of gross negligence than State v. Thomas and the out-of-state cases the Majority cites. See Maj. Op. at –––– – ––––. But it does not follow that, in this case, the State failed to present sufficient evidence to permit a rational juror to find that Ms. Morrison was grossly negligent. Much hinged on the jurors’ sifting of Ms. Morrison’s various statements and on their assessment of the credibility of the one other eyewitness to some of the events in question, who was four years old at the time and seven years old when she testified. Perhaps one or more of the judges of this Court would have voted to acquit if we had been on this jury. But whether we would have acquitted or convicted Ms. Morrison, had we been jurors, is not the question we must ask in resolving this appeal. A properly instructed jury of Ms. Morrison’s peers in Baltimore City found that she was grossly negligent and, accordingly, convicted her of involuntary manslaughter and reckless endangerment. Thus, the question before us as an appellate court is whether we believe, viewing the evidence in the light most favorable to the State, that any rational juror could have voted to convict Ms. Morrison of these charges.

The italicized phrases in the preceding sentence are not empty words. They compel us to refrain from substituting our preferred inferences for the inferences the jurors actually drew in this case. They compel us to refrain from discrediting a seven-year-old witness whom the jurors chose to believe. And they compel us to resolve all conflicts in the evidence in favor of the State. When we follow these dictates of appellate review in this case, I believe we are constrained to conclude that a rational juror could have found that Ms. Morrison went to bed seriously impaired by alcohol and that she therefore was grossly negligent by not sleeping somewhere other than next to I.M. that night. For this reason, I would reverse the Court of Special Appeals and reinstate Ms. Morrison’s convictions for involuntary manslaughter and reckless endangerment.

Judge McDonald and Judge Getty have authorized me to state that they join this opinion.

 ¹A typical malt liquor contains approximately seven percent alcohol by volume (“ABV”). See https://www.alcohol.org/statistics-information/abv (accessed on July 22, 2020), archived at https://perma.cc/ZAZ8-VWMV. The average beer ABV is five percent. Id. According to the Beeradvocate website, Private Stock Malt Liquor contained 6.9 percent ABV. See Haffenreffer Private Stock, https://www.beeradvocate.com/beer/profile/24964/669 (accessed on July 22, 2020), archived at https://perma.cc/K349-NXKQ. A 40-ounce bottle of malt liquor containing seven percent ABV is the equivalent of 4.7 U.S. standard drinks. See https://www.rethinkingdrinking.niaaa.nih.gov/tools/calculators/drink-size-calculator.aspx (accessed on July 22, 2020), archived at https://perma.cc/3W7E-NUXA. Thus, if Ms. Morrison drank a little more than half of a 40-ounce bottle of Private Stock Malt Liquor, as well as two 12-ounce beers, she had the equivalent of more than 4 U.S. standard drinks. However, as stated above, the jurors reasonably could have concluded that Ms. Morrison drank more alcohol than she claimed.

Notes and Questions 

The Court summarizes the rule of law as follows:

•  Involuntary manslaughter is an “unintentional killing of a human being, irrespective of malice.”
• To sustain a conviction for involuntary manslaughter, the prosecution must prove that the killing was committed in one of these ways: negligently doing some act lawful in itself or negligently omitting to perform a legal duty. 
• The negligence [must] be criminally culpable.” Negligence is criminally culpable if it rises to the level of wanton and reckless conduct—i.e., gross negligence. (Maryland v. Morrison at 4).

What are the state’s best facts against Morrison, given this rule? What facts are most helpful to the defense? How, if at all, might the state “neutralize” (counter) the facts that cut against conviction? 

The court cites precedent noting that, “Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.” Does this precedent change your analysis? Would the outcome differ were the state to apply the negligence definitions found in the following two statutes? What additional sources might shed light on what “extraordinary and outrageous character” mean in this context? 

NV Rev Stat § 193.018 (2017). “Neglect,” “negligence,” “negligent,” and “negligently” defined.  “Neglect,” “negligence,” “negligent,” and “negligently” import a want of such attention to the nature or probable consequences of an act or omission as an ordinarily prudent person usually exercises in their own business.

Canadian Criminal Code § 219 (1). Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his legal duty to do, shows wanton or reckless disregard for the lives or safety of other persons.

Felony Murder Rule

        The felony murder rule is designed to impose harsh consequences on individuals who, in the course of committing a felony, contribute to someone else’s death. Simply put:

Felony + Resulting Death = Felony Murder.

American Law Institute, Model Penal Code and Commentaries, Comment to § 210.2. 

(1980), 30–32.

        The classic formulation of the felony-murder doctrine declares that one is guilty of murder if a death results from conduct during the commission or attempted commission of any felony. Some courts have made no effort to qualify the application of this doctrine, and a number of earlier English writers also articulated an unqualified rule. Moreover, at the time the Model Code was drafted, a number of American legislatures perpetuated the original statement of the rule by statute. As thus conceived, the rule operated to impose liability for murder based on the culpability required for the underlying felony without separate proof of any culpability with regard to the death. The homicide, as distinct from the underlying felony, was thus an offense of strict liability. This rule may have made sense under the conception of mens rea as something approaching a general criminal disposition rather than as a specific attitude of the defendant towards each element of a specific offense. Furthermore, it was hard to claim that the doctrine worked injustice in an age that recognized only a few felonies and that punished each as a capital offense.

        In modern times, however, legislatures have created a wide range of statutory felonies. Many of these crimes concern relatively minor misconduct not inherently dangerous to life and carry maximum penalties far less severe than those authorized for murder. Application of the ancient rigor of the felony-murder rule to such crimes will yield startling results. For example, a seller of liquor in violation of a statutory felony becomes a murderer if his purchaser falls asleep on the way home and dies of exposure. And a person who communicates disease during felonious sexual intercourse is guilty of murder if his partner subsequently dies of the infection.

        The prospect of such consequences has led to a demand for limitations on the felony-murder rule.

        Consider Ca. Penal Code § 189, the California felony murder statute. Note that there are only some, enumerated felonies that constitute murder: “arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking . . . .” Ca. Penal Code § 189. Even given this limitation, the results may seem quite disproportionate.

        Connecticut's felony murder statute, General Statutes § 53a-54c also contains a number of limitations:

A person is guilty of murder when, acting either alone or with one or more persons, such person commits or attempts to commit robbery, home invasion, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, such person, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

[Crim. No. 3317. Fifth Dist. Nov. 21, 1978.]

THE PEOPLE, Plaintiff and Appellant, v. ARCHIE FULLER et al., Defendants and Respondents.

Counsel

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Arnold O. Overoye, Assistant Attorney General, Joel E. Carey and Eddie T. Keller, Deputy Attorneys General, for Plaintiff and Appellant.

John B. Smurr, under appointment by the Court of Appeal, Paul Halvonik, and Quin Denvir, State Public Defenders, Gary S. Goodpaster and Ezra Hendron, Chief Assistant State Public Defenders, Mark L. Christiansen and Richard G. Fathy, Deputy State Public Defenders, for Defendants and Respondents.

Opinion

FRANSON, Acting P. J.

Introduction

This appeal challenges the California felony-murder rule as it applies to an unintentionally caused death during a high speed automobile chase following the commission of a nonviolent, daylight burglary of an unattended motor vehicle. Solely by force of precedent we hold that the felony-murder rule applies and respondents can be prosecuted for first degree murder.

Statement of the Case and Facts

Respondents were charged by information with murder (Pen. Code, § 187) and several counts of burglary. In response to a Penal Code section 995 motion to set aside the information, the trial court dismissed the murder charge and amended the information to substitute a vehicular manslaughter charge under Penal Code section 192, subdivision 3, paragraph (a). The People have appealed.

The pertinent facts are as follows: On Sunday, February 20, 1977, at about 8:30 a.m., uniformed Cadet Police Officer Guy Ballesteroz was on routine patrol in his vehicle, proceeding southbound on Blackstone Avenue in the City of Fresno. As the officer approached the Fresno Dodge car lot, he saw an older model Plymouth parked in front of the lot. He also saw respondents rolling two tires apiece toward the Plymouth. His suspicions aroused, the officer radioed the dispatcher and requested that a police unit be sent.

Officer Ballesteroz kept the respondents under observation as he proceeded past the car lot and stopped at the next intersection. As he reached that point he saw the respondents stop rolling the tires and walk to the Plymouth on the street. Ballesteroz made a U-turn and headed northbound on Blackstone. The respondents got into the Plymouth and drove away “really fast.” Thereafter, a high speed chase ensued which eventually resulted in respondents’ car running a red light at the intersection of Blackstone and Barstow Avenues and striking another automobile which had entered the intersection. The driver of the other automobile was killed. Respondents were arrested at the scene. The chase from the car lot covered some 7 miles and lasted approximately 10 to 12 minutes. During the chase the respondents’ car narrowly missed colliding with several other cars including two police vehicles that were positioned to block their escape.

Later investigation revealed that four locked Dodge vans at the car lot had been forcibly entered and the spare tires removed. Fingerprints from both of the respondents were found on the jack stands in some of the vans.

Respondents May Be Prosecuted for First Degree Felony Murder

Penal Code section 189 provides, in pertinent part: “All murder . . . which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or [lewd acts with a minor], is murder of the first degree; . . .” (Italics added.) This statute imposes strict liability for deaths committed in the course of one of the enumérated felonies whether the killing was caused intentionally, negligently, or merely accidentally. (People v. Cantrell (1973) 8 Cal.3d 672, 688 [105 Cal.Rptr. 792, 504 P.2d 1256]; People v. Coefield (1951) 37 Cal.2d 865, 868 [236 P.2d 570].) Malice is imputed and need not be shown. (People v. Burton (1971) 6 Cal.3d 375, 384-385 [99 Cal.Rptr. 1, 491 P.2d 793]; People v. Ireland (1969) 70 Cal.2d 522, 538 [75 Cal.Rptr. 188, 450 P.2d 580, 40 A.L.R. 3d 1323].) The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally. (People v. Washington (1965) 62 Cal.2d 111, 781 [44 Cal.Rptr. 442, 402 P.2d 130]; see Holmes, The Common Law, pp. 56-57.)

Burglary falls expressly within the purview of California’s first degree felony-murder rule. Any burglary within Penal Code section 459 is sufficient to invoke the rule. (People v. Talbot (1966) 64 Cal.2d 691, 705 [51 Cal.Rptr. 417, 414 P.2d 633]; People v. Thomas (1975) 44 Cal.App.3d 573, 575 [117 Cal.Rptr. 855]; People v. Earl (1973) 29 Cal.App.3d 894, 900 [105 Cal.Rptr. 831].) Whether or not the particular burglary was dangerous to human life is of no legal import. (Earl, supra.)

The meaning of murder committed “in the perpetration of’ a felony within Penal Code section 189 also is clear. The Supreme Court has stated that this language does not require a strict causal relation between the felony and the killing; it is sufficient if both are “parts of one continuous transaction.” (People v. Welch (1972) 8 Cal.3d 106, 118 [104 Cal.Rptr. 217, 501 P.2d 225]; People v. Mason (1960) 54 Cal.2d 164, 169 [4 Cal.Rptr. 841, 351 P.2d 1025].) Flight following a felony is considered part of the same transaction as long as the felon has not reached a “place of temporary safety." People v. Salas (1972) 7 Cal.3d 812, 822 [103 Cal.Rptr. 431, 500 P.2d 7, 58 A.L.R.3d 832]; People v. Boss (1930) 210 Cal. 245, 250 [290 P. 881].) Whether the defendant has reached such a place of safety is a question of fact for the jury. Respondents’ reliance on People v. Ford (1966) 65 Cal.2d 41, 56 [52 Cal.Rptr. 228, 416 P.2d 132] for the proposition that this is a legal question is misplaced. In Ford, the court held that it was a question of law in that particular case because many hours had elapsed between the felony and the killing, and there was no evidence that the defendant was attempting to escape at the time of the killing.

Respondents argue that although California has applied the felony-murder rule to escaping robbers no case has applied the rule to escaping burglars. They cite dicta in People v. Boss, supra, 210 Cal. 245, 251, to support the distinction between those escaping from robberies: “Robbery, unlike burglary is not confined to a fixed locus, but is frequently spread over considerable distance and varying periods of time. The escape of the robbers with the loot, by means of arms, necessarily is as important to the execution of the plan as gaining possession of the property.” (Id., at p. 251.)

This distinction does not withstand analysis. A burglary predicated on theft can be committed with equal or greater violence than a robbery, and leaving the scene with the stolen property is equally important. Moreover, the Boss dicta has not been cited to support such a distinction in any other California case. Furthermore, other states do not draw a distinction between burglary and robbery flight. To the contrary, the felony-murder rule has been applied to unintended deaths in the course of burglary flight. (See, e.g., People v. Hickman (1973) 12 Ill.App.3d 412 [297 N.E.2d 582]—flight by armed defendants who had burglarized warehouse in nighttime; Gore v. Leeke (1973) 261 S.C. 308 [199 S.E.2d 755]; Commonwealth v. Carey (1951) 368 Pa. 157 [82 A.2d 240]—armed defendant fled from residence he burglarized at night; State v. Ryan (1937) 192 Wash. 160 [73 P.2d 735]; Lakes v. State (1937) 61 Okla.Crim. 252 [67 P.2d 457];State v. Adams (1936) 339 Mo. 926 [98 S.W.2d 632, 108 A.L.R. 838]—defendants fleeing after burglarizing a filling station in nighttime; Francis v. State (1919) 104 Neb. 5 [175 N.W. 675]—armed defendants fleeing after burglarizing store buildings; Conrad v. State (1906) 75 Ohio St. 52 [78 N.E. 957]—fleeing defendants had burglarized a home; see generally Felony-Murder Rule—“Termination of Felony” (1974) 58 A.L.R.3d 851, 962-975.) Thus, the trial court erred in striking the murder count premised upon the felony-murder rule.

We deem it appropriate, however, to make a few observations concerning the irrationality of applying the felony-murder rule in the present case. In People v. Washington, supra, 62 Cal.2d 777, 783, a case limiting the rule’s application to killings committed by the defendant or his accomplice, our Supreme Court stated: “The felony-murder rule has been criticized on the grounds that in almost all cases in which it is applied it is unnecessary and that it erodes the relation between criminal liability and moral culpability. [Citations.] Although it is the law in this state (Pen. Code, § 189), it should not be extended beyond any rational function that it is designed to serve.” (Italics added.) In People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353], the court elaborated: “We have thus recognized that the felony-murder doctrine expresses a highly artificial concept that deserves no extension beyond its required application. Indeed, the rule itself has been abandoned by the courts of England, where it had its inception. It has been subjected to severe and sweeping criticism.” (Id., at pp. 582-583, fns. omitted.) The Phillips court explained, “The felony-murder doctrine has been censured not only because it artificially imposes malice as to one crime because of defendant’s commission of another but because it anachronistically resurrects from a bygone age a ‘barbaric’ concept that has been discarded in the place of its origin. . . .” (Id., at p. 583, fn. 6.)

The Supreme Court has recently reaffirmed its dislike of the felony-murder rule in People v. Henderson (1977) 19 Cal.3d 86, 92-93 [137 Cal.Rptr. 1, 560 P.2d 1180]. The literature is replete with criticism of the rule. See, for example, Perkins on Criminal Law (2d ed. 1969) page 44; Packer, The Case for Revision of the Penal Code (1961) 13 Stan. L. Rev. 252, 259.

In People v. Satchell (1971) 6 Cal.3d 28 [98 Cal.Rptr. 33, 489 P.2d 1361, 50 A.L.R.3d 383], our Supreme Court reversed a second degree felony-murder conviction arising out of a killing by an ex-felon in possession of a concealed weapon (a sawed-off shotgun) in violation of Penal Code section 12021. The court concluded that the felony must be viewed in the abstract and not on the basis of the particular facts of the case; that the carrying of a concealed weapon by an ex-felon is not a felony inherently dangerous to human life “. . . because we can conceive of such a vast number of situations wherein it would be grossly illogical to impute malice, . . .” (6 Cal.3d at p. 40.) The court accepted the defendant’s argument that of the many activities that are punishable as felonies only some clearly manifest a propensity for dangerous acts by the perpetrator; hence, it cannot be said theoretically that a felon who is armed with a concealable weapon presents a danger significantly greater than a nonfelon similarly armed. The court, however, pointed out that independent of the felony-murder rule the prosecution was still free to prove any degree of murder or manslaughter that the evidence might substantiate. (Id., atp. 33, fn. 11.)

Satchell also considered the propriety of a felony-murder instruction based upon a violation of Penal Code section 12020. This section provides that any person in possession of certain weapons, including a sawed-off shotgun, is guilty of a felony. The court concluded that this offense abstractly viewed also is not inherently dangerous to human life since it makes no distinction between the innocent gun collector and the hardened criminal. Again the court noted that if such possession was of an extremely reckless nature indicating a “conscious disregard for human life,” malice could be imputed via ordinary murder principles. (6 Cal.3d atp. 42.)

In People v. Lopez (1971) 6 Cal.3d 45 [98 Cal.Rptr. 44, 489 P.2d 1372], the Satchell reasoning was used to reverse a second degree murder conviction based on the underlying felony of escape from a county jail. (Pen. Code, § 4532.) “We cannot conclude that those who commit nonviolent escapes such as those here suggested thereby perpetrate an offense which should logically serve as the basis for the imputation of malice aforethought in a murder prosecution. Because section 4532 draws no relevant distinction between such escapes and the more violent variety, it proscribes an offense which, considered in the abstract, is not inherently dangerous to human life and cannot properly support a second degree felony-murder instruction.” (Italics original.) (6 Cal.3d at pp. SI-52, fn. omitted.)

And in People v. Morales (1975) 49 Cal.App.3d 134 [122 Cal.Rptr. 157], it was held that grand theft from the person of another is not an inherently dangerous felony to support a felony-murder charge: “It is apparent that the offense can readily be perpetrated without any significant hazard to human life; . . . Only in the unusual case would a taking from the person involve a substantial danger of death without the thief using force against his victim. If the thief does use force, either to effect the taking or to resist the victim’s efforts to retrieve the property [citation], the crime becomes robbery, and will support application of the felony-murder rule for that reason. Where the thief abstains from the use of force, he thereby removes the chief source of danger to human life; in such case the purpose of the felony-murder rule, ‘to deter felons from killing negligently or accidentally’ [citation], has already been achieved, and thus there would be no rational purpose to be served in extending the doctrine to cover the nonforceful larceny.” (49 Cal.App.3d at p. 143.)

Finally, the grand theft of an automobile in violation of Vehicle Code section 10851 followed by a high speed chase resulting in an unintended death does not constitute the commission of a felony inherently dangerous to human life so as to support the felony-murder doctrine (People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal.Rptr. 7, 406 P.2d 647], disapproving People v. Pulley (1964) 225 Cal.App.2d 366 [37 Cal.Rptr. 376], on the ground that Pulley erroneously looked to the particular facts of the felony in determining its dangerous character).

Therefore, one may cogently ask: If possession of a concealed weapon by an ex-felon, escape from a county jail, and grand theft of an automobile are not felonies per se dangerous to human life so as to provide a basis for the felony-murder rule, how may the theft of personal property from an unattended vehicle without the use of weapons be deemed inherently dangerous? Furthermore, if such a burglary will not support a second degree felony murder, how can it rationally be used to support a first degree felony murder?

If we were writing on a clean slate, we would hold that respondents should not be prosecuted for felony murder since viewed in the abstract, an automobile burglary is not dangerous to human life. The present case demonstrates why this is so. Respondents committed the burglary on vans parked in a dealer’s lot on a Sunday morning. There were no people inside the vans or on the lot at the time. The respondents were not armed and presumably had no expectation of using violence during the burglary.

Furthermore, treating the flight as part of the burglary to bootstrap the entire transaction into one inherently dangerous to human life simply begs the issue; flight from the scene of any crime is inherently dangerous. So, if a merchant in pursuit of a fleeing shoplifter is killed accidentally (by falling and striking his head on the curb or being hit by a passing automobile), the thief would be guilty of first degree felony murder assuming the requisite intent to steal at the time of the entry into the store. (Cf. People v. Earl, supra, 29 Cal.App.3d 894.) Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting from a petty theft with a premeditated murder. In no sense can it be said that such a result furthers the ostensible purpose of the felony-murder rule which is to deter those engaged in felonies from killing negligently or accidentally. (People v. Washington, supra, 62 Cal.2d 111, 781.) On the other hand, if the flight is divorced from the burglary the latter can be objectively evaluated as to its dangerous propensities, and the instant burglary would not be deemed dangerous to human life and would be outside the purview of the felony-murder rule. 

As was pointed out in People v. Earl, supra, 29 Cal.App.3d 894, 898, when the felony-murder statute was enacted in 1872, Penal Code section 459 required that the burglary occur in the nighttime and involve the entry of a “house, room, apartment, or tenement, or any tent, vessel, water craft, or railroad car . . . As defined, burglary was per se a crime dangerous to human life based on the probability of human occupancy of the described enclosures. Such danger to life was a common element in all of the felonies specified in section 189 (i.e., arson, rape, robbery, mayhem, or lewd acts upon a child). Contrary to the holding in People v. Talbot, supra, 64 Cal.2d at page 705, it rationally can be argued that the Legislature did not intend to include an automobile burglary within the felony-murder rule. This conclusion is strongly supported by the legislative classification of burglary into degrees. Penal Code section 460 provides that every burglary of an inhabited dwelling house, trailer coach, or building committed in the nighttime, is burglary of the first degree. All other kinds of burglary are of the second degree. It would be reasonable to include only first degree burglary in the Penal Code section 189 definition of felony murder.

Nonetheless, as previously explained the force of precedent requires the application of the first degree felony-murder rule to the instant case.

Respondents Also May Be Prosecuted for Second Degree Murder

For the guidance of the trial court, we observe that respondents may also be prosecuted for ordinary second degree murder. Second degree murder is an unlawful killing with malice aforethought but not willful, premeditated or deliberate. (People v. Jeter (1964) 60 Cal.2d 671 [36 Cal.Rptr. 323, 388 P.2d 355]; People v. Brust (1957) 47 Cal.2d 776, 783 [306 P.2d 480].) Malice is implied when the circumstances attending the killing demonstrate “an abandoned and malignant heart.” (Pen. Code, § 188.) This simply means that malice may be implied when the defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life. (People v. Washington, supra, 62 Cal .2d 111, 782.)

In People v. Pulley, supra, 225 Cal.App.2d 366, the defendants stole an automobile and got involved in a 75- to 80-mile-per-hour chase with the police. They ran through a red light and caused a multi-car collision, killing one of the drivers. The court stated: “By any reasonable standard, stealing and driving a stolen car and endeavoring to escape pursuing officers with the stolen car, entering an intersection against all rules of the road at 70 to 80 miles per hour and crashing with other cars lawfully proceeding therein, are highly dangerous. Violence in evading the police is within the ambit of risk. Death here was not a freak coincidence, but an expectable incident of the felony, part of the risk that is set in motion by the original crime.” (Id., at p. 373.) The court upheld the application of the second degree felony-murder rule based upon the automobile theft.

The Supreme Court subsequently disapproved Pulley on the ground that the court erroneously looked to the particular facts of the case in determining whether it was “inherently dangerous” so as to support a second degree felony murder conviction. (People v. Williams, supra, 63 Cal.2d 452, 458, fn. 5.) However, the Supreme Court thereafter made clear that the Pulley fact pattern demonstrated sufficiently extreme and wanton recklessness to establish malice aforethought and second degree murder. (People v. Satchell, supra, 6 Cal.3d 28, 33-34, fn. 11; see also People v. Phillips, supra, 64 Cal.2d 574, 581; Note (1967) 55 Cal.L.Rev. 329, 340, fn. 58.)

Respondents contend that their conduct falls within a specific proscription of Penal Code section 192, subdivision 3, paragraph (a), vehicular manslaughter, the unlawful killing by a grossly negligent use of the automobile. They argue that where general and specific statutes both punish the same conduct, the specific must control. This argument is unavailing. The respondents’ conduct was more than grossly negligent. The conduct clearly presents an issue of fact as to whether or not respondents exhibited a wanton and reckless disregard for human life. Respondents drove at high speeds through main thoroughfares of Fresno in an attempt to elude Officer Ballesteroz. At one point in the chase they drove on the wrong side of Herndon Avenue and caused oncoming cars to swerve off of the road to avoid a head-on collision. They then made a U-turn and sped back to Blackstone Avenue, ran a red light and caused other traffic to stop to avoid a collision. Respondents then drove down Blackstone at speeds estimated between 60 and 75 miles per hour and headed straight at two oncoming police vehicles which were attempting to block their flight. Respondents did not reduce their speed as they approached the officers’ vehicles, and only a last minute maneuver by the officers avoided a possible fatal collision. At the next intersection respondents’ vehicle which “hadn’t slowed down very much” ran the red light and struck and killed the driver of the other car. Under these facts the foreseeability of serious injury or death was apparent to respondents. (Cf. People v. Pulley, supra, 225 Cal.App.2d at p. 373; see Witkin, Cal. Crimes (1978 Supp.) § 327, p. 327.) In light of the Supreme Court’s language in People v. Satchell, supra, 6 Cal.3d 28, that a high speed flight from police in an automobile may support a second degree murder conviction, the respondents’ argument must fail.

The judgment is reversed.

Hopper, J., concurred.

Ginsburg, J.,* concurred only in the reversal of the judgment of dismissal.

Respondents’ petitions for a hearing by the Supreme Court were denied February 8, 1979. Bird, C. J., Tobriner, J., and Mosk, J., were of the opinion that the petitions should be granted.

***

Notes and Questions

1.     Analyzing Felony Murder. Which statute(s) must an individual read in order to determine whether or not a killing falls under the felony murder rule?

2.     A Slight Change. In this case, had the stolen car been unlocked, could Fuller still have been convicted of felony murder?

        See Cal. Pen. Code 459: Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, “inhabited” means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.

        Should that difference control whether a defendant may be charged with murder?

3.     Thinking about the Felony Murder Rule. How does the felony murder doctrine fit within thinking about the conventional purposes of criminal punishment? (In other words, does it comport with deterrence, retribution, rehabilitation, and/or incapacitation?).

        How might the felony murder doctrine deter killings by those who aren't deterred by criminal penalties for the underlying crime? What evidence might persuade you that the felony murder doctrine is effective in reducing loss of life? In the absence of such evidence, what grounds are left in support of the doctrine?  

        For background on the origin of the American felony murder doctrine, please see Guyora Binder, The Origins of American Felony Murder Rules, 57 Stan. L. Rev. 59 (2004).

4.    State Variety. Not all states recognize the felony murder rule. For example, Hawaii and Kentucky explicitly do not recognize the felony murder rule via their statutory schemes. Massachusetts, Michigan, and New Mexico on the other hand, do not recognize felony-murder by case law. See Commonwealth v. Brown, 477 Mass. 805, 81 N.E.3d 737 (2017); People v. Aaron, 409 Mich. 672, 299 N.W.2d 304 (1980); and State v. Ortega, 112 N.M. 554, 817 P.2d 1196 (1991).

5.    Changing Law. In 2018, the California legislature redefined felony murder to bar prosecutors from bringing charges against co-felons who did not, themselves, kill the victims. For more information on the bill, see  Article: Landmark California Law Bars Prosecutors From Pursuing Murder Charges Against People Who Didn’t Commit Murder. To view the amended and added statutes, please see California Penal Code §§ 188, 189, and 1170.95.

Nelson E. Roth & Scott E. Sundby—The Felony-Murder Rule: A Doctrine at Constitutional Crossroads

70 Cornell Law Review 446 (1985), 446–55, 457–59.

Few legal doctrines have been as maligned and yet have shown as great a resiliency as the felony-murder rule. Criticism of the rule constitutes a lexicon of everything that scholars and jurists can find wrong with a legal doctrine: it has been described as “astonishing” and “monstrous,” an unsupportable “legal fiction,” “an unsightly wart on the skin of the criminal law,” and as an “anachronistic remnant” that has “ ‘no logical or practical basis for existence in modern law.’ ” Perhaps the most that can be said for the rule is that it provides commentators with an extreme example that makes it easy to illustrate the injustice of various legal propositions.

Despite the widespread criticism, the felony-murder rule persists in the vast majority of states. Most states have attempted to limit the rule’s potential harshness either by limiting the scope of its operation or by providing affirmative defenses. Such patchwork attempts to mitigate the rule’s harshness, however, have been legitimately criticized because “they do not resolve [the rule’s] essential illogic.” * * * The United States thus remains virtually the only western country still recognizing a rule which makes it possible “that the most serious sanctions known to law might be imposed for accidental homicide.” * * *

I

The Conceptual Basis of the Felony-Murder Rule

A.  The Rule’s Historical Development * * *

The purpose of the felony-murder rule at common law is * * * vague. It is frequently argued that the rule’s purpose was not fully articulated because all felonies at common law were punished by death and, therefore, the rule had little practical impact. * * *

Whatever the felony-murder rule’s justification at common law, courts have attempted to provide the rule with a contemporary rationale. These post hoc rationalizations fall into four general categories: deterrence, transferred intent, retribution, and general culpability.

B.  Deterrence

The deterrence rationale consists of two different strains. The first approach views the felony-murder rule as a doctrine intended to deter negligent and accidental killings during commission of felonies. Proponents argue that co-felons will dissuade each other from the use of violence if they may be liable for murder. Justice Holmes attempted to justify the rule on this basis by arguing that the rule would be justified if experience showed that death resulted disproportionately from the commission of felonies. Holmes added the caveat that “I do not * * *, however, mean to argue that the rules under discussion arose on the above reasoning, any more than that they are right, or would be generally applied in this country.”

The second view focuses not on the killing, but on the felony itself, and endorses the felony-murder rule as a deterrent to dangerous felonies. From this perspective, punishing both accidental and deliberate killings that result from the commission of a felony is “the strongest possible deterrent” to “undertaking inherently dangerous felonies.”

Both of the deterrence justifications are logically flawed and neither has proven to have a basis in fact. The illogic of the felony-murder rule as a means of deterring killing is apparent when applied to accidental killings occurring during the commission of a felony. Quite simply, how does one deter an unintended act? * * * Moreover, any potential deterrence effect on unintentional killings is further reduced because few felons either will know that the felony-murder rule imposes strict liability for resulting deaths or will believe that harm will result from commission of the felony. Finally, statistical evidence has not borne out Holmes’s proposed justification that a disproportionate number of killings occur during felonies.

The purpose of deterring the commission of dangerous felonies through the felony-murder rule also lacks a legitimate basis. First, considerable doubt exists that serious crimes are deterred by varying the weight of the punishment. Second, the rule from this perspective uses the sanctions for murder to deter felonies, and “it is usually accepted as wiser to strike at the harm intended by the criminal rather than at the greater harm possibly flowing from his act which was neither intended nor desired by him.” Where the killing is unintended, it would be far more sensible to enhance the sentence for conduct over which the felon had control, such as the carrying of a deadly weapon, rather than automatically to elevate the killing to murder. Finally, as with the other deterrence rationale, the felony-murder rule can have no deterrent effect if the felon either does not know how the rule works or does not believe a killing will actually result. * * *

C.  Transferred Intent and Constructive Malice: The Felony-Murder Rule’s Presumption of Culpability

The felony-murder rule may be conceptualized as a theory of “transferred or constructive intent.” This theory posits that the intent to commit the felony is “transferred” to the act of killing in order to find culpability for the homicide. The rule thus serves “the purpose of * * * reliev[ing] the state of the burden of proving premeditation or malice.”

Judges and commentators have criticized the transferred intent theory of felony murder as “an anachronistic remnant” that operates “fictitiously” to broaden unacceptably the scope of murder. The very concept of transferred intent has been criticized as having “no proper place in criminal law.” * * *

The inapplicability of transferred intent to felony murder becomes evident when the crime’s two different mens rea elements are examined: the intent to commit the felony and the culpability for the killing. The mental patterns are thus distinct and separate; for example, the intent to burglarize cannot be equated with the malice aforethought required for murder. The non-transferability of culpability is even more evident where the felony-murder rule allows elevation of the killing to first degree murder. In such a situation, the rule equates the intent to commit the felony with premeditation and deliberation, specific mental states that require proof of particular acts and thoughts. * * *

D. Retribution and General Culpability: A Strict Liability View of the Felony-Murder Rule

* * * An alternative approach is to view the rule as not requiring a separate mens rea element for the homicide, but as justifying conviction for murder simply on the basis that the defendant committed a felony and a killing occurred.

* * * The justifications advanced for this conceptualization are deterrence of the underlying felony, and the notion that the felon has exhibited an “evil mind” justifying severe punishment.

The “evil mind” theory of felony murder finds its roots in seventeenth and eighteenth century English notions of criminology. Mens rea was a less developed concept and judges focused on the harm resulting from a defendant’s illegal act, rather than the maliciousness of his intent. The felony-murder rule thus partly operated on an unarticulated rationale that one who does bad acts cannot complain about being punished for their consequences, no matter how unexpected. Moreover, the felony-murder rule conceived from an “evil mind” perspective comported with the retribution theory of punishment prevailing at the time of the rule’s development, which focused on the resulting harm, not on the actor’s mental state, in deciding the appropriate punishment. A convict, therefore, bore responsibility for his felony and for any harmful result arising from the crime regardless of his specific intentions.

Continued reliance on a general culpability theory to justify the felony-murder rule has been described as a rather “primitive rationale” and as “a tribute to the tenacity of legal conceptions rooted in simple moral attitudes.” The “evil mind” theory conflicts with the basic premise that “the criminal law is concerned not only with guilt or innocence in the abstract but also with the degree of criminal liability.” Although the general culpability rationale was perhaps sufficient as long as a general intent of wrongdoing established malice aforethought, it conflicts with the progressive trend of categorizing homicide according to the degree of culpability. Indeed, the felony-murder rule viewed from a general culpability perspective effectively eliminates a mens rea element in convicting a felon for a killing occurring during the commission of a felony, and results in the rule operating as a strict liability crime: the occurrence of a killing is punished as murder regardless of the defendant’s culpability.

David Crump & Susan Waite Crump—In Defense of the Felony Murder Doctrine

8 Harvard Journal of Law & Public Policy 359 (1985), 361–63, 367–72, 374–76.

I. The Policies Supporting the Felony Murder Rule

A. Rational Classification and Proportional Grading of Offenses: Actus Reus as an Element of Just Desert

Classical theory divides the elements of crimes into two categories: mens rea and actus reus. Mens rea, or “guilty mind,” is the mental state or states required to complete the offense. Actus reus may be translated literally as “the wrongful act,” but it is better understood as referring to all of the physical elements of the crime, including the defendant’s actions, the surrounding circumstances, and the consequences.

Differences in result must be taken into account as part of actus reus if classification and grading are to be rational. For example, murder and attempted murder may require similar mental states * * * but no common law jurisdiction treats the two offenses as one, and certainly none treats attempted murder more severely. The only difference justifying this classification is that death results in one offense but not in the other. Similarly, it is a misdemeanor for a person to operate a motor vehicle while impaired by drugs or alcohol, but if this conduct causes the death of a human being, the offense in some jurisdictions is elevated to the status of homicide. * * *

These classifications are the result of a concern for grading offenses so as to reflect societal notions of proportionality. * * *

The felony murder doctrine serves this goal, just as do the distinctions inherent in the separate offenses of attempted murder and murder, or impaired driving and vehicular homicide. Felony murder reflects a societal judgment that an intentionally committed robbery that causes the death of a human being is qualitatively more serious than an identical robbery that does not. ...[T]he felony murder doctrine reflects the conclusion that a robbery that causes death is more closely akin to murder than to robbery. If this conclusion accurately reflects societal attitudes, and if classification of crimes is to be influenced by such attitudes in order to avoid depreciation of the seriousness of the offense and to encourage respect for the law, then the felony murder doctrine is an appropriate classificatory device.

There is impressive empirical evidence that this classification does indeed reflect widely shared societal attitudes. * * *

B.  Condemnation: Reaffirming the Sanctity of Human Life

A purpose of sentencing closely related to proportionality is that of condemnation. * * * [T]he purpose of condemnation or of expressing societal outrage deserves separate mention as a policy concern underlying the felony murder rule.

Condemnation itself is a multifaceted idea. It embodies the notion of reinforcement of societal norms and values as a guide to the conduct of upright persons, as opposed to less upright ones who presumably require the separate prod of “deterrence.” The felony murder rule serves this purpose by distinguishing crimes that cause human deaths, thus reinforcing the reverence for human life. * * * Another aspect of condemnation is the expression of solidarity with the victims of crime. If we as a society label a violent offense in a manner that depreciates its significance, we communicate to the victim by implication that we do not understand his suffering. * * * Felony murder is a useful doctrine because it reaffirms to the surviving family of a felony-homicide victim the kinship the society as a whole feels with him by denouncing in the strongest language of the law the intentional crime that produced the death.

 * * *

C.  Deterrence

Deterrence is often cited as one justification for the felony murder doctrine. * * * Deterrence is the policy most often recognized in the cases. 

Scholars, however, tend to dismiss this rationale, using such arguments as the improbability that felons will know the law, the unlikelihood that a criminal who has formed the intent to commit a felony will refrain from acts likely to cause death, or the assertedly small number of felony-homicides.

The trouble with these criticisms is that they underestimate the complexity of deterrence. There may be more than a grain of truth in the proposition that felons, if considered as a class, evaluate risks and benefits differently than members of other classes in society. The conclusion does not follow, however, that felons cannot be deterred, or that criminals are so different from other citizens that they are impervious to inducements or deterrents that would affect people in general. * * * The felony murder rule is just the sort of simple, commonsense, readily enforceable, and widely known principle that is likely to result in deterrence.

At the same time, the argument that felons may be ignorant of the law is unduly categorical. * * * [T]he general population, including felons, is probably more aware of the outlines of the felony murder doctrine than of many other, more common criminal concepts, if only because of the influence of television. * * *

The argument against deterrence often proceeds on the additional assumption that felony murder is addressed only to accidental killings and cannot result in their deterrence. * * * The proposition that accidental killings cannot be deterred is inconsistent with the widespread belief that the penalizing of negligence, and even the imposition of strict liability, may have deterrent consequences.

D. Clear and Unambiguous Definition of Offenses and Sentence Consequences

Clear definition of crimes is advantageous. Imprecision in homicide definition is particularly prevalent and troublesome. * * * If properly defined and applied, the felony murder doctrine sometimes provides the advantage of greater clarity. The mental state of intention to commit robbery, rape, or kidnapping is less ambiguous than the terms generally governing homicidal mental states. * * *

E. Optimal Allocation of Criminal Justice Resources

Another advantage of the felony murder rule * * * is that it may aid in the optimal allocation of criminal justice resources. * * * The efforts of judges, courtroom time, lawyering on both sides, and support services are all scarce resources. Although we resist thinking of criminal justice in these terms, and few would be willing to put a specific dollar price upon its proper function, the quality of our justice is limited by the scarcity of these resources and by the efficiency with which we allocate them. * * *

F.  Minimization of the Utility of Perjury

Many crimes are defined more broadly than their harmful consequences alone might justify. For example, there are prohibitions upon the possession of heroin or the carrying of certain kinds of weapons, even though these actions, without use of the contraband, are not intrinsically harmful. A person might attempt to defend his possession of heroin by stating that he did not intend to use or distribute it (for example, he might explain that he collects controlled substances as others collect coins or stamps). This explanation, even if true, would be regarded as irrelevant under most statutes.

Such a result may be justified by the concern that any other approach would unduly reward perjury. * * * A similar rationale may underlie the felony murder rule; thus * * * the Pennsylvania Supreme Court justified its application of the felony murder rule to the circumstances before it with the observation, “It is rare * * * that a criminal telephones or telegraphs his criminal intent. * * *The law itself is brought into disrepute when it is defined so that perjury is frequent. Jurors might be induced to lose respect for the criminal justice system even as they acquit the defendant on his ambiguous claim of accident, which they disbelieve but cannot reject beyond a reasonable doubt.

[No. S108353. Jan. 27, 2005.]

THE PEOPLE, Plaintiff and Respondent, v. EVERT KEITH HOWARD, Defendant and Appellant.

Counsel

Madeline McDowell, under appointment by the Supreme Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, W. Scott Thorpe, Janet E. Neeley, John G. McLean and Sharon E. Loughner, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

KENNARD, J.

Murder is the unlawful killing of a human being, with malice aforethought. (Pen. Code, § 187, subd. (a).) But under the second degree felony-murder rule, the prosecution can obtain a conviction without showing malice if the killing occurred during the commission of an inherently dangerous felony. Is the crime of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2) an inherently dangerous felony for purposes of the second degree felony-murder rule? We conclude it is not.

I

At 12:40 a.m. on May 23, 2002, California Highway Patrol Officer Gary Stephany saw defendant driving a Chevrolet Tahoe (a sport utility vehicle) without a rear license plate, and signaled him to pull over. Defendant stopped on the side of the road. But when Officer Stephany and his partner, Officer Wayne Bernard, got out of their patrol car, defendant restarted the engine and sped to a nearby freeway. The officers gave chase at speeds of up to 90 miles per hour and radioed for assistance. Defendant left the freeway and drove onto a surface street, turning off his car’s headlights. He ran two stop signs and a red light, and he drove on the wrong side of the road. His speed was 15 to 20 miles over the posted speed limit of 50 miles per hour. At some point, he made a sharp turn onto a small dirt road and escaped.

Minutes later, Officer Anthony Arcelus and his partner, Officer Bret Boss, who had been monitoring the pursuit on their car radio, saw the Tahoe with its headlights on again and took up the chase. Officer Arcelus, who was driving, estimated the Tahoe’s speed at more than 80 miles per hour, and he saw it run a stop sign and a traffic light. By then, the car’s headlights were again turned off. Up to that point, the chase had taken place in rural parts of Fresno County. When the Tahoe started heading toward downtown Fresno, Officer Arcelus gave up the pursuit, fearing that the high-speed chase might cause an accident.

About a minute after Officer Arcelus stopped chasing the Tahoe, he saw it run a red light half a mile ahead of him and collide with a car driven by Jeanette Rodriguez. Rodriguez was killed and her husband, a passenger in the car, was seriously injured. It turned out that the Tahoe that defendant was driving had been stolen earlier that day. Defendant, who was also injured in the crash, was arrested and charged with murder (Pen. Code, § 187), with causing serious bodily injury while evading a police officer (§ 2800.3), and with evading a police officer in willful or wanton disregard for the safety of persons or property (§ 2800.2).

At trial, the prosecution called as a witness Laurie Bennett, defendant’s passenger during the chase. She was evasive about the events leading up to the accident. Ultimately, she admitted that she had told the truth when she explained to a police officer that five or six times during the chase she had begged defendant to let her get out of the car, and that defendant had run a red light at the intersection where the fatal accident occurred. An accident reconstruction expert testified that at the time of the accident the Tahoe was traveling over 80 miles per hour, and Rodriguez’s car was traveling close to the posted speed limit of 35 miles per hour. John Mikkelson, a pipeline inspector working near the intersection where the accident occurred, said he looked at the signal immediately after hearing the crash of the two colliding cars and saw that it was green for cars traveling in Rodriguez’s direction (and thus presumably red for defendant).

Forensic toxicologist Roger Peterson, a witness for the defense, testified that defendant had a “high amount” of methamphetamine in his bloodstream at the time of the accident. A person under the influence of methamphetamine, Peterson said, might drive at excessive speeds, might have trouble staying in a single lane, and might not notice traffic lights and signs. Defendant also had marijuana in his bloodstream, but not enough to be under the influence. Victim Rodriguez’s bloodstream contained morphine (a metabolite of heroin) and benzoyleconine (a metabolite of cocaine). Based on this evidence, toxicologist Peterson expressed his opinion that Rodriguez was under the influence of heroin, and possibly cocaine when the accident occurred.

Defendant testified on his own behalf. He admitted stealing the Tahoe and fleeing from the Highway Patrol officers. He did so because his probation officer had told him he would go to prison if he was again caught in a stolen car. He could only remember bits and pieces of the chase. He described himself as a skilled driver; his cousin, a race car driver, had taught him to drive “sprint cars” at a racetrack. He saw the victims’ car before the accident but could not recall hitting it. He could not remember what color the signal light was when he entered the intersection but admitted it was “most likely” red when the car he was driving crashed into the Rodriguez car.

The trial court instructed the jury: “Every person who unlawfully kills a human being during the commission of violation of California Vehicle Code section 2800.2, a felony inherently dangerous to human life, is guilty of the crime of murder in violation of Section 187 of the Penal Code. [][] In order to prove this crime, each of the following elements must be proved: 1. A human being was killed; 2. The killing was unlawful; and 3. The killing occurred during the commission of violation of California Vehicle Code section 2800.2, a felony inherently dangerous to human life. A violation of Vehicle Code section 2800.2 is a felony inherently dangerous to human life.” The trial court did not instruct the jury that malice is an element of murder or that the jury could convict defendant if it found that he acted with express or implied malice when he killed victim Rodriguez.

In his closing argument, defense counsel contended that defendant did not violate section 2800.2 because he did not drive with willful and wanton disregard for life or property; that even if defendant violated section 2800.2 while fleeing from the officers he was not doing so when the accident occurred, because by then the officers were no longer chasing him; and that defendant might not have caused the accident because there was a reasonable doubt that he ran a red light at the time of the incident.

During its deliberations, the jury sent the trial court this note: “It appears in the instructions if there is a guilty verdict in [section] 2800.2 then there must be a guilty verdict for [Penal Code section] 187, yes or no?” The court replied that it was “not in a position to say yes or no”; it then reread the instructions on felony murder and causation. The jury convicted defendant of all counts.

The Court of Appeal affirmed. As pertinent here, it rejected defendant’s contention that he could not be convicted under the second degree felony-murder rule because section 2800.2 is not an inherently dangerous felony. And it rejected defendant’s contention that he could not be convicted of murder because his conduct fit within section 2800.3 (causing death or serious bodily injury by willful flight from a pursuing peace officer), which he claimed is a “special statute” that bars his conviction for the more general crime of murder.

We granted defendant’s petition for review on these two issues: “1. Whether the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2) is a felony inherently dangerous to human life for purposes of the second degree felony-murder rule, 2. Whether the offense of proximately causing death or serious bodily injury by willful flight from a pursuing police officer (Veh. Code, § 2800.3) is a more specific offense precluding application of the second degree felony-murder rule where death occurs during the offense of driving in willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2).”

Because the second degree felony-murder rule is a court-made rule, it has no statutory definition. This court has described it thusly: “A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the . . . felonies enumerated in Pen. Code, § 189) constitutes at least second degree murder.” (People v. Ford (1964) 60 Cal.2d 772, 795 [36 Cal.Rptr. 620, 388 P.2d 892], italics added.) The rule “eliminates the need for proof of malice in connection with a charge of murder.” (People v. Robertson (2004) 34 Cal.4th 156, 165 [17 Cal.Rptr.3d 604, 95 P.3d 872].)It is not an evidentiary presumption but a substantive rule of law (see People v. Dillon (1983) 34 Cal.3d 441, 472-476 [194 Cal.Rptr. 390, 668 P.2d 697]; see also People v. Patterson (1989) 49 Cal.3d 615, 626 [262 Cal.Rptr. 195, 778 P.2d 549]), which is based on the theory that “when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved." (People v. Patterson, supra, 49 Cal.3d at p. 626.)

Because the second degree felony-murder rule is “a judge-made doctrine without any express basis in the Penal Code” (People v. Dillon, supra, 34 Cal.3d at p. 472, fn. 19), its constitutionality has been questioned (see People v. Patterson, supra, 49 Cal.3d at p. 641 (conc. opn. of Panelli, J.)). And, as we have noted in the past, legal scholars have criticized the rule for incorporating “an artificial concept of strict criminal liability that ‘erodes the relationship between criminal liability and moral culpability.’ ” (Id. at p. 621.)Therefore, we have repeatedly stressed that the rule “ ‘deserves no extension beyond its required application.’ " (Id. at p. 622; see also People v. Burroughs (1984) 35 Cal.3d 824, 829 [201 Cal.Rptr. 319, 678 P.2d 894]; People v. Phillips (1966) 64 Cal.2d 574, 582 [51 Cal.Rptr. 225, 414 P.2d 353].)

“In determining whether a felony is inherently dangerous [under the second degree felony-murder rule], the court looks to the elements of the felony in the abstract, ‘not the “particular” facts of the case,’ i.e., not to the defendant’s specific conduct.” (People v. Hansen (1994) 9 Cal.4th 300, 309 [36 Cal.Rptr.2d 609, 885 P.2d 1022].) That is, we determine whether the felony “by its very nature . . . cannot be committed without creating a substantial risk that someone will be killed . . . ." (People v. Burroughs, supra, 35 Cal.3d at p. 833; see also People v. Robertson, supra, 34 Cal.4th at p. 166.)

Felonies that have been held inherently dangerous to life include shooting at an inhabited dwelling (People v. Hansen, supra, 9 Cal.4th at p. 311), poisoning with intent to injure (People v. Mattison (1971) 4 Cal.3d 177 [93 Cal.Rptr. 185, 481 P.2d 193]), arson of a motor vehicle (People v. Nichols (1970) 3 Cal.3d 150, 163 [89 Cal.Rptr. 721, 474 P.2d 673]; but see People v. Henderson (1977) 19 Cal.3d 86, 96 [137 Cal.Rptr. 1, 560 P.2d 1180]), grossly negligent discharge of a firearm (People v. Clem (2000) 78 Cal.App.4th 346, 353-354 [92 Cal.Rptr.2d 727]; see also People v. Robertson, supra, 34 Cal.4th at pp. 168-169 [quoting Clem with approval]), manufacturing methamphetamine (People v. James (1998) 62 Cal.App.4th 244, 271 [74 Cal.Rptr.2d 7]), kidnapping (People v. Greenberger (1997) 58 Cal.App.4th 298, 377 [68 Cal.Rptr.2d 61]; People v. Pearch (1991) 229 Cal.App.3d 1282, 1299 [280 Cal.Rptr. 584])(end of elided text), and reckless or malicious possession of a destructive device (People v. Morse (1992) 2 Cal.App.4th 620, 646 [3 Cal.Rptr.2d 343]).

Felonies that have been held not inherently dangerous to life include practicing medicine without a license under conditions creating a risk of great bodily harm, serious physical or mental illness, or death (People v. Burroughs, supra, 35 Cal.3d at p. 833); false imprisonment by violence, menace, fraud, or deceit (People v. Henderson, supra, 19 Cal.3d at pp. 92-96); possession of a concealable firearm by a convicted felon (People v. Satchell (1971) 6 Cal.3d 28, 35-41 [98 Cal.Rptr. 33, 489 P.2d 1361]); possession of a sawed-off shotgun (id. at pp. 41-43); escape (People v. Lopez (1971) 6 Cal.3d 45, 51-52 [98 Cal.Rptr. 44, 489 P.2d 1372]); grand theft (People v. Phillips, supra, 64 Cal.2d at pp. 580-583); conspiracy to possess methedrine (People v. Williams (1965) 63 Cal.2d 452, 458 [47 Cal.Rptr. 7, 406 P.2d 647]); extortion (People v. Smith (1998) 62 Cal.App.4th 1233, 1236-1238 [72 Cal.Rptr.2d 918]); furnishing phencyclidine (People v. Taylor (1992) 6 Cal.App.4th 1084, 1099 [8 Cal.Rptr.2d 439]); and child endangerment or abuse (People v. Lee (1991) 234 Cal.App.3d 1214, 1229 [286 Cal.Rptr. 117]).

In determining whether section 2800.2 is an offense inherently dangerous to life, we begin by reviewing the statutory scheme. Three statutes punish those who flee from police officers: sections 2800.1, 2800.2, and 2800.3.

Section 2800.1 states that any motorist who “with the intent to evade, willfully flees or otherwise attempts to elude” a peace officer pursuing on a motor vehicle or bicycle is, under specified circumstances, guilty of a misdemeanor.

Under section 2800.3, when “willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes death or serious bodily injury to any person,” the offense is a wobbler (an offense that can be a felony or a misdemeanor, at the trial court’s discretion), punishable by up to five years in prison.

Section 2800.2, which was the basis for defendant’s conviction under the second degree felony-murder rule, provides:

“(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail .... The court may also impose a fine ... or may impose both that imprisonment or confinement and fine.

“(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.”

In concluding that section 2800.2 is an inherently dangerous felony, the Court of Appeal relied heavily on People v. Johnson (1993) 15 Cal.App.4th 169 [18 Cal.Rptr.2d 650]. There the Court of Appeal, construing an earlier version of section 2800.2 that was essentially the same as what is now subdivision (a) of that section, held that driving with “willful or wanton disregard for the safety of persons or property” was inherently dangerous to life. We need not decide, however, whether Johnson was correct, because in 1996, three years after Johnson was decided, the Legislature amended section 2800.2 to add subdivision (b). (Stats. 1996, ch. 420, § 1.) Subdivision (b) very broadly defines the term “willful or wanton disregard for the safety of persons or property,” as used in subdivision (a), to include any flight from an officer during which the motorist commits three traffic violations that are assigned a “point count” under section 12810, or which results in “damage to property.”