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Further Issues in Mens Rea: Implied Malice

February 2, 2012

2. Law, 7. Post-Trial

Further Issues in Mens Rea:  Implied Malice

An actor’s mental state is central to determining whether or not a crime was committed.  We discussed mens rea here and here.  One person shooting another could have been an accident or in self-defense … or, of course, intentional murder.  It’s all determined by mental state.  But, importantly, many times we need to infer mental state through physical actions.  The phrase “malice aforethought” is common enough, but how about supporting a Murder 2 conviction (California law – it would be Murder 3 in Pennsylvania) with implied malice?  It’s nice work if you can find it.

The background facts to People v Cravens run several paragraphs.  The quick version is this … Surfer Dude gets drunk and dances with drink in hand.  He bumps into Bonehead, spilling some of his drink onto said Bonehead.  Surfer Dude and Bonehead exchange unpleasant words sprinkled liberally with the word “like” in varying grammatical contexts.  Surfer Dude leaves bar at helpful insistence of the bar owner because, like, there’s more of them than, like, you.  Bonehead and Company show up at Surfer Dude’s home.  Surfer Dude gets his ass kicked.  As Surfer Dude stands wobbly, Friend of Bonehead – taller, heavier, and standing on the curb above Surfer Dude – lands a punch to his unprotected face.  Big Time.  Surfer Dude drops straight back.  Head cracks like a cantaloupe that fell off the truck.  Brain swells.  Surfer Dude dies four days later.

The issue for us is this:  In what measure did the Friend of Bonehead (hereinafter Cravens) intend to cause the death of Surfer Dude when he smacked him?

From the Majority Opinion:  Defendant was convicted of second degree murder, which 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.” (People v. Knoller (2007) 41 Cal.4th 139, 151.)

Isolating “malice,” the Court continued:  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 Concurring Opinion adds some more flavor:  [I]mplied malice … is statutorily defined in relevant part as “when the circumstances attending the killing show an abandoned and malignant heart.” (Pen. Code, § 188.)

Three pieces for us: The natural consequences of the act are dangerous to life; the mens rea standard is knowing; and the actor had an abandoned and malignant heart.

Restated:  With an abandoned and malignant heart, the actor committed an act which he knew could naturally threaten the life of the victim.

Do the facts support that restatement?  The Court rather indelicately states that Cravens “sucker punched” the Surfer Dude.  He was two inches taller and 60 pounds heavier.  He stood above the victim, who had been beaten to the point where he was now defenseless.  It was a clean shot delivered with extreme force.  The natural fall zone was pavement.

I think we can easily set aside a negligent mens rea which would typically result in Involuntary Manslaughter.  The next step up is a reckless mens rea – depending on the flavor of recklessness, it normally results in Voluntary Manslaughter but can trip in the lower level of Murder – 2 in California, 3 in Pennsylvania.  And then we get to the knowing standard.

From the Model Penal Code:

(b) Knowingly.  A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

Knowing = Practical Certainty.  Was it practically certain that Surfer Dude would die from the sucker punch?  That does seem a stretch.  Let’s look at the MPC on Recklessness:

(c) Recklessly.

A person acts recklessly with respect to a material element of an offense when he consciously disregards 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, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

Ah, much better.  Cravens consciously disregard the substantial risk.  Voluntary Manslaughter sure feels like a better fit.

From the Dissenting Opinion:

My conclusion that such knowledge was not shown is supported by the following two circumstances: First, defendant, who is right-handed, hit Kauanui with his left fist, and therefore had less reason to suspect that the blow would endanger Kauanui’s life. Second, as the Court of Appeal noted, defendant’s past conduct in four instances of hitting other people with unexpected blows “without inflicting any life-threatening injury tends to negate an inference of subjective knowledge” that his sudden, unexpected blow to Kauanui would endanger Kauanui’s life.

The Justice rejects the knowing standard.  I agree.

But our system works through asking the jury to determine the facts.  And they decided Cravens was toast.

Oh well …

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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