*1 S186661. Jan. [No. 2012.] PEOPLE,
THE Plaintiff and Respondent, CRAVENS,
SETH Defendant and Appellant.
Counsel Bookout, Randall under Court, appointment by for Defendant Supreme and Appellant. Brown, Jr., Harris, General,
Edmund G. and Kamala D. Dane Attorneys R. Gillette, General, Schons, Chief Assistant Attorney W. Gary Assistant Attorney *3 General, Garcia, Koch, Lilia E. Pamela Ratner-Sobeck and Jeffrey J. Deputy General, for Attorneys Plaintiff and Respondent.
Opinion BAXTER, The issue in case this is whether there is presented sufficient J. evidence to Seth Cravens’s support conviction of second degree murder under a theory malice. The Court of held there was record, not. After reviewing entire we conclude the evidence is sufficient and therefore reverse Court of Appeal.
Background Defendant was convicted a jury of various crimes a by against number of Code, victims: one count of (Pen. a criminal threat making 422); one count § (id., 242); of battery four counts of assault means of force to likely § great bodily one of produce injury, which was enhanced because defendant (id., 12022.7, inflicted personally great bodily subd. injury (a)(1), §§ (a)); subd. and count (id., (a)). one of second murder subd. He § was sentenced to 20 life. years to Because the issues this proceeding conviction, concern only the murder we limit our factual recitation to the circumstances of that crime. characters, defendant, old, then 21 and principal including years
decedent, Kauanui, 24, were Emery all at the La Jolla Brew House on the Kauanui, surfer, 2007. night May a was the bar professional sitting with some friends while waited drinking he for his Jennifer girlfriend, Grosso, to arrive. Grosso left late got work to the bar between 11:00 and to her 11:30 find mood. p.m. boyfriend “[v]ery cheerful” About half an later, friends, hour defendant arrived all former football teammates House, Yanke, Osuna, from La Jolla School: Eric Matthew High Orlando Henri “Hank” Hendricks. went Grosso “hi” defendant and say gave up him biga Defendant and his hug. friends the bar where Kauanui approached seated became “like ... where big group” were people standing other, close to each “kind of elbow to elbow.” the tables. later, next to dancing and Grosso started
Sometime Kauanui on accidentally A little bit of it spilled a full drink in his hand. Kauanui had out, House, watch “You better who House by. complained, Eric was close Kauanui replied, out with one you punch.” “[W]hat? I can knock know. you said, You know Like, in and “Yeah. did Defendant you stepped what say?” more mood became ass. don’t say anything.” could beat Like your Eric have like guys Kauanui asking, you less but joking, kept aggressive, “[D]o situation, manager, the bar to defuse the worsening effort problem?” that Kauanui leave. eventually suggested Ron intervened Troyano, that it was kicked out but being that Kauanui was Troyano explained defendant, many was there with than to evict easier remove Kauanui Kauanui, calm, of being fear who appeared expressed friends. When outside, Kauanui car. Defend- said he would escort “jumped” Troyano bar, but him twice as left the told Troyano ant follow them they attempted vehicle, (who had still at the Grosso and wait. While stop Troyano would drive Kauanui home. tab) came out and said she settling been drink; had consumed three Grosso had consumed less than one Kauanui *4 Defendant, House, Yanke, Osuna, came eventually Hendricks four. and drove in to the but Grosso Kauanui off argument, outside continue Kauanui’s car. as to Kauanui’s house
Kauanui was on the Grosso phone pulled up one, “If want to me one on fight minutes later. She heard him couple say, you so, and they at him off the He did I’ll She to fight you.” yelled get phone. He She in an immature manner. together. acting went scolded him inside “dumb,” went back the and “completely admitted situation was apologized, contrite, felt calm that he was Grosso just really into behavior.” Satisfied car, was parked able to walk towards the bar to retrieve her own which back to back and said he lot. He made her come illegally nearby promise needed her. out alone being but then realized the risk by walking
Grosso started out bad Unable to shake a way. at that time of the rest night jogged and, as she was feeling might about what she happen, picked up pace bar, fuck him go near the heard defendant “Let’s running alley say, down go call I where he lives. Let’s fuck [Djon’t . . . call him. Don’t him. know up. name, but he and his friends sped She screamed out defendant’s up.” him tried call She ignoring immediately in a black Ford her. Explorer, past Kauanui, he ducked head into Brew House but did not answer. She her ran to car Then she her going get jumped. tell her friends that Kauanui was one to two behind back She she was minutes figured and raced house. Meanwhile, defendant Explorer, friends. inside Ford Kauanui. The fight began on and House encouraging fight was egging and the others exited the Explorer. after defendant promptly There was as conflicting testimony to whether was fight truly one-on-one battle between Kauanui and or House whether Kauanui was instead the victim aof beating. group Erica Wortham was
Neighbor awakened loud voices in the out street. She saw four Kauanui people approaching with intention of apparent blows, As she left fighting. her to call balcony she heard “a lot of a lot of [Ljike Like a . . . hitting. maul. several on of each people other top . . . awful. hitting. Like a soundtrack of a [Rjeally out movie.” The 911 call husband, Baltazar, awakened her what Philip who saw looked like a rugby scrum: “What I saw were four on guys guy, one and four were top guys said, know, either kicking or or or And I punching elbowing kneeing. as you it was . moving. . . was like a scrum line. And were they just [I]t know, were whaling—four on guys just whaling, you someone who turned out to be Emery.” Eckardt, who was
Dylan friends Kauanui and driving towards Kauanui’s house after a frantic receiving call from his friend that phone there Kauanui, to be a going saw a men fight, few circled around or kicking Loftus, him while hitting he was on the ground. Eckardt’s Karen girlfriend, saw four or five Kauanui while he was people punching kicking on the ground. hand,
On the other friends and former teammates Matthew Yanke and Hank Hendricks claimed that the was between House fight Kauanui alone. Yanke testified that Kauanui came out but swinging, ducked, House tackled Kauanui around his him down legs, brought *5 ground. Hendricks confirmed that House tackled Kauanui and brought him to match, the Yanke ground. wrestling described a in which and House Kauanui took turns being on Hendricks said that House had the top. initially upper hand but that Kauanui later had the advantage. case, House had the any advantage when Grosso drove House up. was Kauanui and
straddling him with both fists. had punching Kauanui one arm shoulder, headlock, around House’s as wrapped though but it attempting was not Grosso honked her horn working. to wake the the up but neighbors, continued. Kauanui not he was was beating yelling, not throwing any “[tjhere and was no exerted from punches, strength being his Grosso body.” ran and kicked in an to the House effort break but House did up fight, up react her other to to than tell his friends to her the off of fuck me.” “get Hendricks Grosso but she continued to their pulled away, scream out names and to When they go jail. vow would this still failed to the she fight, stop kick started to at the headlights pound and on the of the Ford body Explorer. themselves, then started group talking amongst her calling “crazy” it was time to leave. suggesting loose,
Meanwhile, unsteady he was but managed get had Kauanui at all. up he was able get Loftus was straight. surprised could not walk me at defendant, my going “How the fuck are you jump Kauanui asked He “what asking happened?” his as palms upward, though house?” and raised “came defendant nonetheless in an manner. But was not behaving aggressive blow, time the defendant Kauanui. At the and “coldcocked” out” flying Eckardt, Grosso, at street level. and Kauanui was was on the curb he hit from the blow before that Kauanui was unconscious Hendricks opined hard” and as “extremely described witnesses ground. the was punch Eckardt added the I’ve ever seen thrown.” “[i]t “one of hardest punches boom, like, his head from . . . heard was like you knockout. [A]ll side Mr.— else hit first. It was like a punch the concrete. hitting Nothing skull hear the sound of his neighbors didn’t see.” Even the could Emery to stream from back A blood started hitting ground. pool and there.” “he was dead then thought right of Kauanui’s head. Grosso he still alive. Hendricks checked Kauanui’s to determine whether pulse this, reaction. he did defendant had no When Grosso asked defendant why friends, on. Let’s Yanke drove go.” Instead he said to his “Come drove away in the Ford Grosso testified that away Explorer. Explorer leave; left he was on Hendricks and Osuna on foot. House refused quickly. took (At all on the for his tooth. the time him looking police fours ground had and a right eye into House suffered a laceration above custody, tooth, knuckles.) An as well as abrasions to knees swollen missing ambulance took Kauanui to the Kauanui had a blood-alcohol level hospital. admitted, his blood contained traces of 0.17 when he was percent marijuana. (an
At doctors hospital, craniotomy operation open performed skull) (removal and a of the skull release craniectomy part pressure). However, maximal on Kauanui’s brain remained pressure high, despite worsen, and medications. The brain continued to surgeries, injury therapy, brain dead on 2007. May and Kauanui was pronounced performed Christina forensic Stanley, pathologist autopsy, *6 skull, into the base of the described skull fracture radiated down bones, centimeters and ended far forward quite across spanned multiple up head, on sockets. The entire left side of his Kauanui’s behind the just eye off one of the cutting brain was swollen and had shifted over prior surgery, her According blood vessels half of the brain. testi- right supplying is, is, flow leads to the more there the less blood there which mony, swelling death. Kauanui’s injuries more over a to brain swelling—and, period days, aoff coming greater height were consistent with someone being punched by and him a concrete surface. In Stanley’s experience, onto propelling severe injuries Kauanui suffered—a fracture through structures bony canal, the ear are containing which one of the thickest areas of the skull—can be seen victims of motor vehicle crashes or in struck those in the head with hammer, bat, baseball or tire iron. Kauanui’s (abrasions other injuries and arms, knees, on back) bruises shoulder and were not life and threatening were consistent with an assault. cause of death was blunt-force head injuries.
Yanke, defense, for the testifying claimed that Kauanui House “uppercut” several times while House was “I’m done.” On the other repeatedly saying hand, Hendricks, witness, said, another defense recalled that House “You got over,” me. You got me. It’s over. It’s he while and Kauanui were holding Yanke, each other like boxers in the 15th round. According defendant had said, Kauanui and push away “Get off him. He’s done. He’s done. Get off him.” Both Yanke and Hendricks claimed after Kauanui he stood up, charged towards defendant and started in an manner. speaking aggressive defendant, handed, Yanke recalled that who is right Kauanui with punched hand, his left and said that defendant looked very shocked and worried after However, house, Kauanui fell. once they got to Yanke’s defendant bragged later, about out knocking Kauanui with his left hand. A few after hours Nur Kitmitto called (“he defendant to describe Kauanui’s condition didn’t look deal,” good”) to warn him that the were there “it’s a police big defendant he insisted “was back at willing Emery The next go again.” when morning, Kristen Link called to ask whether defendant been had in a Kauanui, fight with defendant “I would bragged, hardly call it a I fight. him out.” punched conversation that same During telephone morning between Hendricks and Nicole about Sparks fight, laughed said, “We him to put sleep.” fell,
Yanke claimed he and defendant drove after Kauanui away slowly but he admitted into a on crashing wall the drive home. Explorer retaining taller,
Hendricks admitted that bigger, defendant was weighed quite murder, bit more than Kauanui. At time of Kauanui was five feet 10 tall inches six weighed Defendant stood feet and pounds. weighed of defendant’s left top hand swollen at the time of pounds. appeared his arrest.
Defendant convicted In of second murder. degree prior proceedings, House, Yanke, Eric Matthew and Orlando Osuna to involun- guilty pleaded Hank Hendricks tary manslaughter. guilty being accessory to pleaded murder. Court affirmed the unpublished opinion, judgment conviction, for the it murder which ordered reduced to
except
507 malice. evidence of because of insufficient voluntary implied manslaughter malice and of court on the solely subjective component implied focused a high the does not involve blow to head single reasoned that fist “[a] awareness it death because occurs on simply pavement, of probability the or head on a fall and hit his her might that the of such blow recipient con- not bodily is of a risk of serious injury, awareness merely pavement for life.” scious disregard review.
We General’s for granted Attorney petition
Discussion “with of a fetus being Murder a human killing is unlawful 187, Code, (Pen. (a).) Defendant was convicted malice subd. aforethought.” § murder, killing being is “the unlawful a human of second which degree elements, as willful with malice but without the additional such aforethought ness, deliberation, a of first that would conviction premeditation, support v. 139, Knoller (People (2007) 41 Cal.4th 151 Cal.Rptr.3d murder.” degree [59 157, (as a defendant 731].) 158 P.3d Malice be either when may express creature) or take life of a away manifests deliberate intention to fellow 451, Blakeley 82, v. implied. (People Cal.4th [96 P.2d is is caused 675].) “Malice when killing proximately implied ‘ life, act, act “an the natural of which are which endan who knows that conduct was deliberately performed by person ’ life.” the life another and acts with conscious disregard gers short, a defendant’s awareness of malice requires [Citation.] (Knoller, . . . .” conduct that the life of another engaging endangers 41 Cal.4th at that the evidence of agreed
The Court of with defendant murder. malice insufficient reversed his conviction for task is review the record in the most light Our clear. “On we whole appeal determine it discloses substantial favorable to whether judgment credible, is, reasonable, value— evidence—that evidence that is of solid could the defendant beyond from which a reasonable trier of fact find guilty 557, v. Johnson (People (1980) 26 Cal.3d reasonable doubt. Virginia Jackson 738]; also 443 U.S. 606 P.2d see Cal.Rptr. is the 2781].) S.Ct. The standard of review 317-320 L.Ed.2d evidence. which the on circumstantial rely mainly same cases in v. Bean (People 46 Cal.3d Cal.Rptr. a defendant if it finds that it is ‘Although duty acquit of which is one interpretations,
circumstantial evidence two susceptible [citations], it is the and the other innocence guilt jury, suggests guilt beyond which must be convinced of the defendant’s court appellate *8 508 “
reasonable doubt. ‘If the circumstances reasonably justify trier of fact’s findings, of the opinion court that the reviewing circumstances also might be reconciled reasonably with a contrary finding does not warrant a reversal ” (Id. of the judgment.’ (People Stanley 932-933.)” pp. [Citations.]’ (1995) 764, 10 Cal.4th 543, 792-793 481]; P.2d Cal.Rptr.2d see [42 also v. Smith (2011) Cavazos U.S._,_[181 311, 2, L.Ed.2d 132 S.Ct. 3] curiam).) (per The conviction shall stand “unless it ‘that appears no upon hypothesis whatever is there sufficient substantial evidence to support [the ” v. Bolin (People (1998) conviction].’ 18 Cal.4th Cal.Rptr.2d 374].) Thus, we must determine whether there is sufficient evidence to satisfy both the and the physical malice, mental components physical “ act, component ‘the being of “an performance the natural consequences ’ ” “ life,” which are dangerous and the mental ‘the component being that the requirement defendant “knows that his conduct endangers life of ’ ” another and . . . acts with a conscious v. Chun (People for life.” disregard 45 Cal.4th 425].) 203 P.3d We conclude that both are satisfied components here.
This state has “that long recognized an assault with the fist . . . may be made in such a manner and under such circumstances as to make the v. Munn (People murder.” killing 65 Cal. P. However, “if the blows fist, death are causing inflicted with the and there are circumstances, no aggravating the law will not raise implication of malice (Id. aforethought, which must exist to make the crime murder.” at p. record,
Based on our review of the we find sufficient evidence that manner of the assault and the circumstances under which it was made rendered the natural defendant’s conduct to life.
First, the record shows that defendant a smaller targeted and shorter victim intoxicated, exhausted, who was and vulnerable. Defendant out that points Kauanui was a athlete, male and a healthy young professional but a reason- able could conclude him that those attributes were of little assistance to at the time of the murder. Kauanui’s blood-alcohol level was 0.17 percent. Moreover, Kauanui altercation, worn out from the visibly prior regard- less of whether he had been repeatedly kicked Eric House punched alone or by House with several along of House’s friends. There was testimony him, before defendant just attacked Kauanui was and unable to unsteady walk straight. Before Kauanui managed to stand Jennifer Grosso observed up, was no exerted” from strength being “[t]here her boyfriend’s body, and Karen Loftus was he was even able to surprised get unmen- up. Although tioned in the Court of Appeal’s analysis sufficiency of evidence those were the supporting judgment, relevant facts available to the when rested sober—at Kauanui’s condition general jury—not physical victim intoxicated swung against fatigued the time defendant hard v. Mears (See and 60 lighter. was two inches shorter pounds *9 198, 40].) P.2d 200-202 Cal.App.2d [298 hard” it as “extremely was hard Witnesses described punch. And it a very hard I’ve thrown.” The was punch and “one the hardest ever seen punches unconscious, fitness, even his youth to knock Kauanui enough despite from the blow itself before he hit the The absence facial ground. markings the other concerning did not from evidence preclude jury considering Indeed, was to force enough of the blow. hard severity defendant’s punch with audible sound that even cracking Kauanui’s head to hit an pavement hear, and caused skull fractures the forensic neighbors pathologist could from struck likened to the force in a motor vehicle crash or experienced being hammer, bat, head tire Under these circum- in the with a baseball or iron. inflicted even more stances, belief that he could have apparent had he Kauanui his hand is damage right hardly exculpatory. hit with Moreover, could have found that defendant secured reasonably jury himself ensure that he could inflict the every advantage greatest possible taller, but he gained on his victim. Not was defendant injury only bigger extra inches on the curb while Kauanui height by standing his punch at street conduct that Kauanui would level. Defendant’s thus guaranteed surface, “The fall on a as the or the concrete curb. very hard such pavement have which would follow fall a concrete walk must upon known to (People been v. Cal.App.2d [defendant].” Efstathiou murder]; P.2d also a verdict of second see [upholding 22] v. Alexander [same].) P. People 308-309 Cal.App. 968] all, decked with a sucker punch. worst of defendant Kauanui Perhaps attacked, could have found that at the time defendant jury reasonably not in manner. behaving Kauanui no threat and was posed aggressive Nonetheless, out” and “coldcocked” warning defendant “came without flying here—and, thus, That Kauanui. defendant used a sucker defendant punch most corroborated intended catch Kauanui at his vulnerable—was incidents, sucker each of which the was allowed use of prior punches Balcom (See to consider as of a common or scheme. plan evidence 7 Cal.4th 423-424 that the fatal blow here was only Court of failed to acknowledge that it inflicted force to knock Kauanui (or enough sucker with punch well unconscious he even hit the but failed as to grapple before pavement), tending the evidence to show defendant’s sucker pattern using to his punches advantage.
In October and one defendant or two other Eric people approached curb; Pardee outside a were on the Pardee was at party. They street level. Pardee did not remember any arguing talking even before defendant Pardee, off the curb and delivered a sucker jumped that knocked punch feet tall was six unconscious and broke weighed pounds, cheekbone multiple places. 31, 2005,
At another on December party into bumped Ryan asked, “Dude, Granger drink on When spilled Granger. what’s Granger defendant threatened up?,” instigate and demanded fight Granger tried to defendant and face apologize. Granger ignore turned his but away, defendant sucker from him the side and knocked him punched down. Matthew Yanke then told Granger, who was five feet 10 inches tall and *10 around 170 “You better weighed the hell out of here.” pounds, get August Shannon O’Neill a to between sought stop fistfight Jarrett, and defendant her at boyfriend, Windansea Beach. Christopher hit her Defendant in the face a closed fist and her with knocked into the sand. 8, 2007, murder, on And May about two weeks before the defendant sucker Johnson, whatsoever, Michael punched without outside The any warning coworker, and Shack Bar Grill. Homing, Johnson’s testified that Christopher defendant him to Johnson and knocked in the face stepped right up right force “as much as can a you give Homing wanted to possibly person.” stop violence, said, the but one of defendant’s don’t want to companions “[Y]ou hurt. out of it.” stood there get Stay Johnson in a daze said nothing. taunted Defendant the disoriented Johnson and then him punched again, full out hit him as to you as hard can.” Johnson fell the His ground. “tflust nose broken at an angle. circumstances, the of the
Considering those facts totality including record, omitted from the Court of the could analysis jury Appeal’s find that act of reasonably violence was to predictably human life. We reject defendant’s blithe assertion that the categorically “natural jaw.” his conduct was “a sore consequence” merely jury not to credit the defense version that compelled fistfight this was between Rather, matched evenly two adversaries. the record supported jury’s exhausted, that Kauanui was un finding Emery impaired, completely aware that he needed to himself let against defend a forceful alone punch, forceful head. Defendant was not and taller than punch merely bigger victim, but his his sucker from punch emerged greater height hapless start, after the curb landed with force running unprecedented according scene, at the and launched Kauanui head with a those first to pavement crack that sickening was loud to be heard in homes. enough neighbors’ result,” as Kauanui’s death “a freak was not deem jury compelled insists, verdict under these nor affirmance of murder would on the head that occurs mean fist or “every circumstances that fight punch surface, disre- would a conscious other hard involve similarly pavement, life,” The record belies the Court contended. for human as gard Instead, as the this was at ordinary. their shared all assumption punch found, catch an to the head calculated to it was blow extremely powerful for the victim any victim off without guard, opportunity impaired head, at his the victim directly deliver thereby rapidly protect Alexander, v. (See to a surface. People most vulnerable most unforgiving 308-309 verdict of second at Cal.App. pp. [upholding an blow to the victim’s murder defendant landed single where unprovoked and, hand, have known that “fatal holding injuries head the victim’s would would from the of his head the hard striking pavement”].) result upon
Defendant, on Spring like Court of relies Appeal, defendant, like Cal.Rptr. Spring, punched Cal.App.3d 849]. once, but end. victim there the similarities The force only Spring’s punch feet or him “was too weak” to knock the victim off his render elderly (id. 1205) (id. “slight unconscious caused outward p. only damage” Munn, thus 1206). The court deemed the circumstances “similar” Spring where had would caused ordinarily testified the blow have expert “ *11 death but that it fall that the skull by chance to of upon portion ‘happened ” which is the and most fractured.’ 153 easily (Spring, thinnest in 1204.) Although death was neither nor foreseeable p. likely Cal.App.3d same said Spring, the cannot be here.
The of of record also the mental finding supports jury’s component course, malice. Of was entitled to infer defendant’s implied subjec- tive conduct Kauanui’s life the cir- endangered awareness from alone, of the natural which were cumstances attack consequences (2005) human Cal.4th dangerous (People Gray life. v. [33 496].) and after 118 P.3d But defendant’s behavior before Cal.Rptr.3d not, fight further demonstrated this was as suggests, house, friends. he at Kauanui’s between Before arrived simple fistfight Kauanui, him to defendant was on Eric House and egging encouraging fight Then, Kauanui. having while others from these with dissuading sharing plans his head on the ground, knocked Kauanui unconscious split open no to ascertain Kauanui’s condition or to secure defendant took steps Instead, he about his own prowess, laughed assistance. emergency bragged ex- (which “didn’t look joked good”), about Kauanui’s condition facts, too, he to.” “to come back at him if had These willingness pressed (1958) v. bolstered the malice. finding implied (People Ogg Cal.App.2d P.2d [323 reasons, For these we conclude that the evidence of defendant’s conduct and his mental state satisfied the elements of malice. The implied Court of erred in Appeal finding otherwise.
Disposition judgment Court of is reversed to the extent it ordered conviction, modification of the second murder and the matter is remanded to that court for further proceedings consistent with this opinion. J., J., Chin, J., J., C.
Cantil-Sakauye, Werdegar, Corrigan, concurred. LIU, J., Concurring. I write to comment on the relevant separately standard malice, for which implied is defined in relevant statutorily as “when the part circumstances attending killing show abandoned and malignant heart.” Code, (Pen. 188.) §
We have previously
two lines of
acknowledged
decisions that
attempt
delineate the
objective
subjective
malice.
components
The first
implied
derives from Justice
v.
People Thomas
Traynor’s concurring
opinion
(Thomas),
41 Cal.2d
which said
malice is
1]
shown
base,
when “the defendant for a
antisocial motive and with wanton disregard
life,
for human
does an act that involves a high degree of
that it
probability
(Id.
will result in death.”
(conc.
J.).)
opn.
Traynor,
line
People
derives from
Phillips
513 malice, we have never disavowed the Thomas formulation of particu Knoller, supra, Cal.4th (See to the larly objective component. with respect Thomas].) under at test [discussing objective p. Thomas, “an act malice requires the of objective component Under (Thomas, it will result in death.”
that involves of that high degree probability J.).) This test (conc. recognizes of opn. Traynor, Cal.2d at p. of Although that the ultimate involves a determination probability: inquiry death of act will lead to death is not the certainly required, probability that Thomas test remote merely possible. from the act must be more than or death. of of “high probability” strikes that balance by requiring degree Thomas’ s formulation of the objective compo- The Court of citing Appeal, here, nent, did that the defendant’s single found under circumstances punch victim would die the rather that degree involve of “high probability” of the In the context bodily battery, than suffer serious simply injury. has to mean “a serious Legislature bodily impairment defined “serious injury” condition, to, loss of of but not limited the including, following: physical consciousness; concussion; fracture; or of bone loss protracted impairment or a wound extensive any function of member bodily organ; requiring Code, In this (Pen. (f)(4).) subd. suturing; disfigurement.” serious § case, other the the saw no performed bruising pathologist autopsy face, of face on Kauanui’s and she could not tell “which side injury [he fracture, described on.” Other than the skull pathologist punched was] is trivial.” There insignificant” “medically victim’s as injuries “medically force, it is no lethal but victim’s skull hit pavement question defend- whether there was a that questionable “high degree probability” that ant’s would unfortunate result. single punch produce Thomas’s does not mention formulation Today’s objective opinion Phillips in “find[ing] The court cites formulation only component. and the circumstances under sufficient evidence that manner the assault which it was made rendered the natural of defendant’s conduct ante, 508; id. see life.” dangerous (Maj. p. opn., [“the act of violence was could find reasonably predictably the Thomas formulation life”].) to human The court’s omission continues the erosion of that test the context of the began v. Patterson rule. 49 Cal.3d felony-murder the Thomas formulation as 549], we adopted Cal.Rptr. “ ‘inherently an offense constituted an deciding relevant whether inquiry ” could which second degree felony-murder liability dangerous felony’ upon *13 (Id. v. Hansen People (1994) test in 627.) be at We that applied predicated. p. 609, 300 in that determining 9 Cal.4th 885 Cal.Rptr.2d 1022] [36 death will at an that shooting dwelling high probability inhabited “involves 514
result and therefore is an inherently ... dangerous felony the purposes (Id. second However, degree felony-murder 309.) doctrine.” our later p. cases have omitted the Thomas test, degree felony-murder even as Patterson favorably. People v. Chun they continued to cite (See 1172, Cal.4th 203 P.3d Cal.Rptr.3d dangerous [inherently 425] “ ‘ act, felony is “an the natural of which are to life” consequences dangerous Patterson, ”], 626; v. Howard citing Cal.3d at see p. [citation]’ 34 Cal.4th 104 P.3d [inherently 107] “ is one dangerous felony that its nature that by involves ‘substantial risk People Burroughs ”], someone killed’ will be 35 Cal.3d quoting 678 P.2d Cal.Rptr. the Thomas Phillips Because have we said that formulations are Knoller, supra, (see equivalent 152), Cal.4th at the is court p. Thomas. However, to mention
compelled by the precedent by omitting Thomas test the when defendant and Court of have relied on clearly it, today’s Phillips (but hold) does not the opinion suggests formulation Thomas's matters in a close case such as this. If “high probability” doctrine, test is to disfavored become in our I we consider and resolve prefer case, the issue not in this then explicitly—if in a future case—instead it to mere leaving Since issue is not implication. considered specifically here, I no view on Thomas's continued express validity. Phillips formulation still requires some assessment of probabilistic Knoller,
when an act becomes “dangerous” to life. we said that sufficiently Phillips test, subjective of the component which “conscious requires life,” of the disregard danger human is not satisfied “conscious by (Knoller, supra, risk of serious disregard bodily 41 Cal.4th at injury.” Phillips 156.) same p. Because uses the to life” “dangerous nomenclature malice, stating an act to life” objective component “dangerous must be one that more than a risk For presents of serious bodily injury. the reasons substantially stated court’s I the circum- agree opinion, stances here just fall within the outer bounds of danger- conduct sufficiently “ Phillips test of act, ous to ‘an satisfy natural of which consequences ” (Phillips, are to life.’ dangerous Cal.2d KENNARD, J., Someone who kills a with- Dissenting. unlawfully person out is intending to do so of second the act deliberately guilty degree murder if malice, is done resulting death with which means the deliberate life, of an act whose natural performance are the act life of knowledge endangers another.
Here, without defendant used his left hand to warning, right-handed head, a man in the to hit on the punch causing once man his head *14 charge. led to a murder him. That incident fatally injuring pavement, murder, it was second degree trial theory Although prosecution’s the natural to either satisfy no evidence requirement presented death, that defendant of included requirement the punch defendant to life. A nonetheless convicted jury knew the act was dangerous concluded there A Court of panel second murder. unanimous degree the second degree malice to was insufficient evidence of support I would conclusion. uphold today’s majority, murder conviction. Unlike I bar, 23, 2007, had an while at a Kauanui Emery On the night May a manager with defendant Cravens. To bar argument prevent fight, Seth nearby to Kauanui then left for his home. asked Kauanui leave. later, said, and “Let’s fuck him and he go up,”
About an hour defendant house, one or four drove Kauanui’s house. On the street outside friends to Kauanui’s fight girl- more of friends Kauanui. When began friend, arrived, and defendant’s she Kauanui on his back lying friend saw House, free. As Eric him. Kauanui managed get straddling punching (He level 0.17 unsteady. he stood he looked had blood-alcohol up, blood.) marijuana traces of his percent asked, you Kauanui to defendant and “How the fuck are going walked over Defendant, curb, me on the my standing house?” who was jump Kauanui who is forward and used his left hand hit right-handed, stepped (Defendant six feet tall and weighed head with sudden blow. was Kauanui, pounds.) Kauanui was five feet inches tall pounds; street, in the fell backwards. fall fractured below standing that, later, led in his brain four triggered swelling days skull death. murder, as well as six
A convicted defendant degree prior appeal, assaultive crimes different On defendant’s involving persons. there insufficient evidence of malice unanimous concluded panel conviction, reduced to the second murder which the court support Attorney This court General’s voluntary manslaughter. granted petition review.
II Code, (Pen. aforethought. an unlawful with malice killing § Murder is (Id., 188.) If malice is (a).) subd. Malice can be or implied. implied, express § (Id., degree. the murder is of the second § *15 malice has both an a Implied objective and The objective test. subjective “ ‘ act,
test “an requires natural which consequences of are dangerous ’ ” 139, life.” v. 41 (People Knoller Cal.4th 158 P.3d (Knoller), People 64 Cal.2d quoting Phillips 731] “ This means ‘a Cal.Rptr. an act involving high ” of it (Knoller, that will result in death.’ probability supra, 152.) at p. “ ' The subjective test that the act be a requires performed “by person ’ ” that (Id. knows his conduct the life of endangers 143.) another.” at p. Below, I discuss this why case does not meet either the or the objective for test malice. subjective implied
A. Objective Test “ notes, theAs ‘if majority correctly the blows death are causing inflicted fist, with the circumstances, and there are no aggravating law will not ante, raise malice ....’” implication (Maj. at opn., p. quoting 650].) Here, v. Munn Cal. P. to the according majority, aggravating circumstances surrounded defendant’s with single blow ante, 511), fist Kauanui’s head at a I (maj. discuss below. opn., p. topic
The that majority points out defendant delivered while he was punch ante, on standing the curb and Kauanui was in standing the street. (Maj. opn., so, 509.) states, at Defendant did “to p. ensure that he could majority inflict the greatest for possible by gaining “extra inches of his injury” height intended, is, {Ibid.) But if punch.” even defendant so that intent determin murder, malice ing implied for irrelevant to the objective whether question “ ” defendant’s single blow involved ‘a high degree of of death. probability’ (Knoller, 152.) 41 Cal.4th at At trial the supra, no p. prosecution presented evidence that defendant’s on the curb position increased the probability kill would Kauanui. punch also views as an circumstance majority aggravating defendant’s prior sudden, conduct of four other hitting people (Maj. blows. unexpected ante, assaults, 509-511.) at But these none of which to a opn., pp. led past fatal injury, do tend establish that in this case the involved a blow high of death. probability sudden, further observes defendant’s use of unex- majority past which, here,” he “corroborated” that “used sucker
pected punches punch asserts, at majority shows that “intended to catch Kauanui his most ante, 509.) vulnerable.” (Maj. at That fact has no opn., bearing, p. undisputed however, on whether involved a single blow high probability earlier, Kauanui. As test objective noted malice killing “ ‘ act, which “an the natural are requires ’ ” Here, the prosecution (Knoller, Cal.4th life.” hitting death falling that Kauanui’s no evidence trial presented of the single unexpected consequence natural head on the pavement death, resulting blow, probability that the blow had meaning high malice. test for objective requirement Test B. Subjective *16 murder contains not earlier, degree malice for second
As noted implied test asks test. The subjective an test but also objective subjective only “ ‘ life of endangered] his conduct the defendant that whether “kn[ew] ’ ” 143.) to majority, at (Knoller, According anothér.” Cal.4th p. from evidence knowledge this subjective could infer reasonable jury case, its majority, on which the in this the circumstances namely, presented malice, relies in concluding test for objective discussion ante, blow. (Maj. of defendant’s single opn., death was a natural consequence discussed, with the that those 511.) I I do not agree majority at As have p. II.A., (See death a natural the blow. consequence pt. circumstances made conclusion that those ante.) I not with the majority’s do Consequently, agree that his con- subjective knowledge establish defendant’s same circumstances life. duct Kauanui’s endangered its
The also relies on three additional circumstances support majority Kauanui’s single endangered conclusion that defendant knew that his blow ante, life, malice. (Maj. opn., thus test for satisfying subjective however, None, the time light knowledge sheds on defendant’s any urged out that defendant had earlier the blow. majority points however, friend, House, fact, irrelevant whether Kauanui. That is fight knew, Kauanui, endangered blow single he later hit when by Kauanui’s life. other two circumstances cited the majority pertain blow, after the immediately medical for Kauanui seeking help (Ibid.) But defendant’s day. and defendant’s the incident next trivializing at the time tend establish his knowledge behavior the blow does not after Kauanui’s life. endangered of the blow that his act is was not shown knowledge supported conclusion that such My First, defendant, is hit right-handed, two circumstances: following fist, that the had less reason suspect his left and therefore Kauanui with noted, Second, as the Court of Appeal Kauanui’s life. blow would endanger other hitting people conduct in four instances of defendant’s past tends to any injury inflicting life-threatening blows “without unexpected sudden, that his knowledge” unexpected of subjective inference negate Kauanui’s life. endanger blow to Kauanui would above, For the that, reasons I with the expressed agree Court of Appeal malice, because of insufficient evidence of implied defendant’s conviction of murder cannot stand. 14, 2012, for a Appellant’s petition was denied March rehearing and the Kennard, J., opinion modified read as above. printed that the should opinion petition granted. be