People v. McNally - 236 Cal. App. 4th 1419, 187 Cal. Rptr. 3d 391 (2015)

Rule:

A person acts with implied malice when he or she is under the influence of alcohol and/or drugs, engages in joking or horseplay with a firearm, and causes the discharge of the firearm killing another person.

Facts:

After partying, appellant and the victim went to the victim’s hotel room. Appellant felt sick, sat on the edge of the bathtub, and said he was about to throw up. Appellant waved his pistol, which had a live round in the chamber, at the victim. Appellant ordered the victim to “hurry up and puke.” The victim told appellant to “*** off” just before appellant shot him. The bullet struck the victim in the neck, severing his jugular vein. The jury found that appellant acted with implied malice and convicted him of second-degree murder with special findings that he personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b). The trial court sentenced appellant to prison for 15 years to life plus 10 years on the firearm enhancement. On appeal, appellant contended that the conviction was not supported by the evidence. Moreover, the appellant argued that the trial court abused its discretion in denying his request to release juror identifying information after the verdict was entered. 

Issue:

Was the appellant’s conviction proper under the circumstances? 

Answer:

Yes.

Conclusion:

The judgment was affirmed. The court held that there was sufficient evidence to find that appellant acted with implied malice, Pen. Code, § 188, when, while partying, he waved his loaded gun at the victim, a friend and fellow officer, overrode the safeties, ordered the victim to hurry up and puke, and discharged the gun, hitting the victim in the neck and severing his jugular vein. The court further held that the appellant was not entitled to the release of personal juror identifying information because there were too many inconsistencies in a letter from a discharged juror to make prima facie showing of juror misconduct. Moreover, the appellant was not entitled to an instruction that voluntary intoxication negated malice because the instruction should only be given when the appellant was charged with premeditated murder or harbored express malice.