Under California law, the crime of murder is defined as: “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (Pen. Code, § 187.) In order to be convicted of murder, a necessary element the prosecution must prove is that the defendant acted with malicious intent.

Malice may either be expressly shown by the evidence – for example, if there is evidence of premeditation, such as planning out a murder – or, it may be implied, such as in circumstances where the defendant’s conduct creates a grave risk of harm, although the defendant did not intent to kill anyone.

“Malice is express when a person manifested a deliberate intention to unlawfully take away the life of another human being; it is implied when there was no considerable provocation or when the circumstances attending the killing show an abandoned and malignant heart.” (People v. Murphy (2022) 80 Cal.App.5th 713, 725; Citing, People v. Soto (2018) 4 Cal.5th 968, 974.)

“Implied malice has ‘both a physical and a mental component. The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’ The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and … acts with conscious disregard for life.’ That is, ‘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 a wanton disregard for human life.’”
(Id. at p. 726.)

In some situations, implied malice can be established in the case of an erratic driver that takes the life of another person.

“Watson is the leading case on vehicular murder involving implied malice. There, the defendant drove to a bar and consumed a large quantity of beer. After leaving the bar, he drove through a red light and narrowly avoided a collision with another car. He then drove away at high speed, accelerating to 84 miles per hour before suddenly braking and skidding into an intersection where he collided with another car, killing two people. Watson’s blood-alcohol level half an hour after the collision was 0.23 percent.”
(Murphy, supra, 80 Cal.App.5th at p. 726; Citing, People v. Watson (1981) 30 Cal.3d 290, 293-294.)

Closely related to a charge of murder under a theory of implied malice is involuntary manslaughter under a theory of gross negligence. (See Pen. Code, § 192.) Whenever an individual is facing a murder charge and the evidence concerning malice is thin, the Court must instruct the jury as to involuntary manslaughter as an alternative or lesser included offense. (People v. Glenn (1991) 229 Cal.App.3d 1461, 1465-1467.)

“When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk.”
(CALCRIM 580.)

“[A] person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.” (CALCRIM 580.)

As an example, in the case of a defendant that is charged with murder after his involvement in a drive by shooting is quite different from someone pointing a firearm, he believed to be unloaded which actually happened to be loaded with ammunition.

The individual involved in the drive by shooting knew there was a deadly risk posed by his conduct and proceeded despite the risk. The second individual failed to appreciate the fact his conduct actually posed a risk to someone.