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Court of Appeal:
Prosecutor Argued Faulty Definition of Implied Malice
Rothschild Says Reversal of Murder Conviction Is Required
By a MetNews Staff Writer
Div. One of this district’s Court of Appeal held yesterday that implied malice requires an awareness of engaging in conduct which endangers life and that a prosecutor’s statement to the jury that not caring “if someone is hurt” is sufficient to support a murder conviction misstates the law and constituted prejudicial error where the previously-deadlocked jury convicted only after the prosecutor made the statement in supplemental argument.
Presiding Justice Frances Rothschild authored the opinion reversing the judgment of conviction entered by Los Angeles Superior Court Judge Nicole C. Bershon. Justices Victoria Gerrard Chaney and Gregory J. Weingart joined in the opinion.
Appealing his conviction was John Fay, who was convicted of the second-degree murder of Anthony Davis.
On Feb. 3, 2020, Fay—who was homeless—was organizing his possessions in front of the Katy Geissert Civic Center Library in Torrance when Davis approached on his bicycle. Angry that Davis was near his belongings, Fay pushed Davis off his bicycle and punched him 12 times with a closed fist on both sides of the head.
Davis was later found dead at the scene and a medical examiner found that he died from “concussive/posttraumatic apnea due to blunt head trauma and acute alcohol intoxication.”
The jury voted five times, splitting seven-to-five during the first three votes. The foreperson suggested that the jury was struggling with the jury instruction on implied malice, specifically what would count as “dangerous to human life.”
Over Fay’s objection, the court allowed counsel to present further argument and the prosecutor said:
“What you may be trying to do is say, ‘I don’t care if someone is killed.’ That’s not the standard. The standard for this charge is, ‘I don’t care if someone is hurt or killed.’….[Fay] didn’t care that Anthony Davis was hurt. He didn’t care.”
Knoller Case
Rothschild pointed to the 2007 California Supreme Court decision in People v. Knoller for the definition of implied malice as required to support a murder conviction.
Justice Joyce L. Kennard (now retired) wrote that “implied malice requires a defendant’s awareness of engaging in conduct that endangers the life of another—no more, and no less” and clarified that knowing that conduct risked serious bodily injury was insufficient to meet the standard. She said the Court of Appeal’s standard—awareness by the defendant “of the risk of causing serious bodily injury to another”—would “set the bar too low.”
Rothschild said in yesterday’s opinion:
“Here, the prosecutor set the bar even lower; it was apparently enough for the defendant merely to be aware that he could ‘hurt’ someone, even without causing serious bodily injury.”
The jurist rejected the prosecution’s reliance on case law purportedly finding implied malice based on a disregard of someone being only hurt, and wrote:
“In each of these cases, the suggestion, if made at all, that implied malice could be supported by evidence that the defendant acted merely with conscious disregard that someone could be ‘hurt’ was dictum. Because the dictum is contrary to our Supreme Court’s holding in Knoller, we reject it.”
Prejudicial Error
The justice commented that Bershon adopted the prosecution’s theory, saying:
“The court here compounded the prosecutor’s error when, in response to the jury’s question as to the source of the statement, it informed the jury that it is based on ‘case law decisions.’ The court’s response effectively endorsed the prosecutor’s misstatement and gave it the force of law on a par with the formal instructions the jury had received. The combination of the prosecutor’s misstatement and the court’s endorsement of that misstatement allowed the jury to apply an incorrect legal principle to the evidence and convict defendant on an invalid theory of law.”
She continued:
“With this new instruction and the evidence of defendant’s admissions that he intended ‘to hurt’ Davis and cause him ‘physical pain,’ jurors who had theretofore refused to find defendant acted with malice now found themselves without legal ground to maintain their position. Thus, a deadlocked seven-five split turned into a unanimous guilty verdict within one hour of the court’s response to the jury’s last question.”
Under these circumstances, Rothschild said “the prejudice is unmistakable” and “[t]he errors are not harmless under any standard.”
The case is People v. Fay, 2024 S.O.S. 1452.
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