IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Appellant,
Ct.App. 1/2 A099250,
Defendant and Appellant.
On January 26, 2001, two dogs owned by defendant Marjorie Knoller and
her husband, codefendant Robert Noel, attacked and killed Diane Whipple in the
hallway of an apartment building in San Francisco. Defendant Knoller was
charged with second degree murder (Pen. Code, § 189)1 and involuntary
manslaughter (§ 192, subd. (b)); codefendant Noel, who was not present at the
time of the attack on Whipple, was charged with involuntary manslaughter but not
murder. Both were also charged with owning a mischievous animal that caused
the death of a human being, in violation of section 399.
After a change of venue to Los Angeles County, a jury convicted
defendants on all counts. Both moved for a new trial. (See § 1181, subd. 6 [a trial
court may grant a new trial when “the verdict or finding is contrary to law or
evidence”].) The trial court denied Noel’s motion. It granted Knoller’s motion in
All further statutory citations are to the Penal Code.
part, giving her a new trial on the second degree murder charge, but denying her
motion for a new trial on the other two crimes of which she was convicted
(involuntary manslaughter and possession of a mischievous animal that causes
With respect to Knoller, whose conviction of second degree murder was
based on a theory of implied malice, the trial court took the position that, to be
guilty of that crime, Knoller must have known that her conduct involved a high
probability of resulting in the death of another. Finding such awareness lacking,
the trial court granted Knoller’s motion for a new trial on the second degree
The trial court sentenced both defendants to four years’ imprisonment, the
maximum term for involuntary manslaughter (§ 193, subd. (b)), staying the
sentences for the section 399 violations. Defendants appealed from their
convictions, and the People appealed from the order granting Knoller a new trial
on the murder count. The Court of Appeal consolidated the appeals.
The Court of Appeal reversed the trial court’s order granting Knoller a new
trial on the second degree murder charge. It remanded the case to the trial court
for reconsideration of the new trial motion in light of the Court of Appeal’s
holding that implied malice can be based simply on a defendant’s conscious
disregard of the risk of serious bodily injury to another. In all other respects, the
Court of Appeal affirmed the convictions of both defendants.
Both defendants petitioned this court for review. We granted only
Knoller’s petition, limiting review to two questions: “(1) Whether the mental state
required for implied malice includes only conscious disregard for human life or
can it be satisfied by an awareness that the act is likely to result in great bodily
injury,”2 and “(2) Whether the trial court abused its discretion in granting
Knoller’s motion for new trial under Penal Code section 1181[, subdivision 6].”
With respect to the first issue, we reaffirm the test of implied malice we set
out in People v. Phillips (1966) 64 Cal.2d 574 and, as mentioned on page 16, post,
reiterated in many later cases: 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.’ ”
(People v. Phillips, supra, at p. 587.) In short, implied malice requires a
defendant’s awareness of engaging in conduct that endangers the life of another—
no more, and no less.
Measured against that test, it becomes apparent that the Court of Appeal set
the bar too low, permitting a conviction of second degree murder, based on a
theory of implied malice, if the defendant knew his or her conduct risked causing
death or serious bodily injury. But the trial court set the bar too high, ruling that
implied malice requires a defendant’s awareness that his or her conduct had a high
probability of resulting in death, and that granting defendant Knoller a new trial
was justified because the prosecution did not charge codefendant Noel with
murder. Because the trial court used an incorrect test of implied malice, and based
its decision in part on an impermissible consideration, we conclude that it abused
its discretion in granting Knoller a new trial on the second degree murder count. It
is uncertain whether the court would have granted the new trial had it used correct
Our order limiting the issues referred to “great bodily injury,” but the Court
of Appeal decision referred to “serious bodily injury.” The two terms are
“ ‘essentially equivalent’ ” (People v. Burroughs (1984) 35 Cal.3d 824, 831), and
although there are some differences in the statutory definitions (compare § 243,
subd. (f)(4) [defining “serious bodily injury”] with § 12022.7, subd. (f) [defining
“great bodily injury”]), those differences are immaterial here.
legal standards. We therefore remand the matter to the Court of Appeal, and direct
it to return the case to the trial court with directions to reconsider defendant
Knoller’s new trial motion in light of the views set out in this opinion.
I. FACTS AND PROCEEDINGS
In 1998, Pelican Bay State Prison inmates Paul Schneider and Dale
Bretches, both members of the Aryan Brotherhood prison gang, sought to engage
in a business of buying, raising, and breeding Presa Canario dogs. This breed of
dog tends to be very large, weighing over 100 pounds, and reaching over five feet
tall when standing on its hind legs. A document found in defendants’ apartment
describes the Presa Canario as “a gripping dog . . . [¶] . . . always used and bred
for combat and guard . . . [and] used extensively for fighting . . . .”
Prisoners Schneider and Bretches relied on outside contacts, including
Brenda Storey and Janet Coumbs, to carry out their Presa Canario business.
Schneider told Coumbs that she should raise the dogs.
As of May 1990, Coumbs possessed four such dogs, named Bane, Isis, Hera,
and Fury. Hera and Fury broke out of their fenced yard and attacked Coumbs’s
sheep. Hera killed at least one of the sheep and also a cat belonging to Coumbs’s
daughter. Coumbs acknowledged that Bane ate his doghouse and may have joined
Fury in killing a sheep.
Defendants Knoller and Noel, who were attorneys representing a prison
guard at Pelican Bay State Prison, met inmate Schneider at the prison sometime in
1999. In October 1999, defendants filed a lawsuit on behalf of Brenda Storey
against Coumbs over the ownership and custody of the four dogs. Coumbs
decided not to contest the lawsuit and to turn the dogs over to defendants.
Coumbs warned Knoller that the dogs had killed Coumbs’s sheep, but Knoller did
not seem to care.
Defendant Knoller thereafter contacted Dr. Donald Martin, a veterinarian
for 49 years, and on March 26, 2000, he examined and vaccinated the dogs. With
his bill to Knoller, Dr. Martin included a letter, which said in part: “I would be
professionally amiss [sic] if I did not mention the following, so that you can be
prepared. These dogs are huge, approximately weighing in the neighborhood of
100 pounds each. They have had no training or discipline of any sort. They were
a problem to even get to, let alone to vaccinate. You mentioned having a
professional hauler gather them up and taking them. . . . Usually this would be
done in crates, but I doubt one could get them into anything short of a livestock
trailer, and if let loose they would have a battle. [¶] To add to this, these animals
would be a liability in any household, reminding me of the recent attack in
Tehama County to a boy by large dogs. He lost his arm and disfigured his face.
The historic romance of the warrior dog, the personal guard dog, the gaming dog,
etc. may sound good but hardly fits into life today.” Knoller thanked Dr. Martin
for the information and said she would pass it on to her client.
On April 1, 2000, both defendants and a professional dog handler took
custody of the dogs from Coumbs. Bane then weighed 150 pounds and Hera 130
pounds. Coumbs told both defendants that she was worried about the dogs, that
Hera and Fury should be shot, and that she was also concerned about Bane and
Hera remained for a short time at a kennel in San Mateo County while Bane
was sent to a facility in Los Angeles County. Both defendants soon became
concerned for the health of the two dogs. On April 30, 2000, defendants brought
Hera to their sixth-floor apartment at 2398 Pacific Avenue in San Francisco. Bane
arrived in September 2000. Codefendant Noel purchased dog licenses, registering
himself and Knoller as the dogs’ owners.
A later search of defendants’ apartment showed that they frequently
exchanged letters with Pelican Bay inmates Schneider and Bretches. Over 100
letters were sent and received between March and December 2000, apparently
under the guise of attorney-client correspondence.3 In the letters, defendants
discussed a commercial breeding operation, considering various names such as
GuerraHund Kennels, Wardog, and finally settling on Dog-O-War. Prisoners
Schneider and Bretches’ notes on a Web site for the business described Bane as
“Wardog,” and “Bringer of Death: Ruin: Destruction.”
Between the time defendants Noel and Knoller brought the dogs to their
sixth-floor apartment in San Francisco and the date of the fatal mauling of Diane
Whipple on January 26, 2001, there were about 30 incidents of the two dogs being
out of control or threatening humans and other dogs. Neighbors mentioned seeing
the two dogs unattended on the sixth floor and running down the hall.
Codefendant Noel’s letters to prisoner Schneider confirmed this, mentioning one
incident when defendant Knoller had to let go of the two dogs as they broke from
her grasp and ran to the end of the hall. Noel described how the dogs even pushed
past him and “took off side by side down the hall toward the elevator in a
celebratory stampede!! 240 lbs. of Presa wall to wall moving at top speed!!!” In a
letter to inmate Schneider, defendant Knoller admitted not having the upper body
strength to handle Bane and having trouble controlling Hera.
When neighbors complained to defendants Noel and Knoller about the two
dogs, defendants responded callously, if at all. In one incident, neighbors Stephen
The trial court ruled that letters written by or addressed to codefendant Noel
were admissible against defendant Knoller, and vice versa, on a theory that raising
the Presa Canario dogs was a joint enterprise. The Court of Appeal rejected
defendants’ challenge to this ruling. Both defendants raised the issue in their
respective petitions for review. We denied Noel’s petition, and in granting
Knoller’s petition we limited review to other issues.
and Aimee West were walking their dog in a nearby park when Hera attacked their
dog and “latched on” to the dog’s snout. Noel was unable to separate the dogs, but
Aimee threw her keys at Hera, startling Hera and causing Hera to release her grip
on the Wests’ dog. On another day, Stephen West was walking his dog when he
encountered Noel with Bane. Bane lunged toward West’s dog, but Noel managed
to pull Bane back. When Stephen West next saw Noel, West suggested that Noel
muzzle the dogs and talk to dog trainer Mario Montepeque about training them;
Noel replied there was no need to do so. Defendants Knoller and Noel later
encountered Montepeque, who advised defendants to have their dogs trained and
to use a choke collar. Defendants disregarded this advice. On still another
occasion, when dog walker Lynn Gaines was walking a dog, Gaines told Noel that
he should put a muzzle on Bane; Noel called her a “bitch” and said the dog Gaines
was walking was the problem.
There were also instances when defendants’ two dogs attacked or threatened
people. David Moser, a fellow resident in the apartment building, slipped by
defendants Knoller and Noel in the hallway only to have their dog Hera bite him
on the “rear end.” When he exclaimed, “Your dog just bit me,” Noel replied,
“Um, interesting.” Neither defendant apologized to Moser or reprimanded the
dog. Another resident, Jill Cowen Davis, was eight months pregnant when one of
the dogs, in the presence of both Knoller and Noel, suddenly growled and lunged
toward her stomach with its mouth open and teeth bared. Noel jerked the dog by
the leash, but he did not apologize to Davis. Postal carrier John Watanabe testified
that both dogs, unleashed, had charged him. He said the dogs were in a “snarling
frenzy” and he was “terrified for [his] life.” When he stepped behind his mail cart,
the dogs went back to Knoller and Noel. On still another occasion, the two dogs
lunged at a six-year-old boy walking to school; they were stopped less than a foot
One time, codefendant Noel himself suffered a severe injury to his finger
when Bane bit him during a fight with another dog. The wound required surgery,
and Noel had to wear a splint on his arm and have two steel pins placed in his
hand for eight to 10 weeks.
Mauling victim Diane Whipple and her partner Sharon Smith lived in a sixth-
floor apartment across a lobby from defendants. Smith encountered defendants’
two dogs as often as once a week. In early December 2000, Whipple called Smith
at work to say, with some panic in her voice, that one of the dogs had bitten her.
Whipple had come upon codefendant Noel in the lobby with one of the dogs,
which lunged at her and bit her in the hand. Whipple did not seek medical
treatment for three deep, red indentations on one hand. Whipple made every effort
to avoid defendants’ dogs, checking the hallway before she went out and
becoming anxious while waiting for the elevator for fear the dogs would be inside.
She and Smith did not complain to apartment management because they wanted
nothing to do with defendants Knoller and Noel.
On January 26, 2001, Whipple telephoned Smith to say she was going home
early. At 4:00 p.m., Esther Birkmaier, a neighbor who lived across the hall from
Whipple, heard dogs barking and a woman’s “panic-stricken” voice calling, “Help
me, help me.” Looking through the peephole in her front door, Birkmaier saw
Whipple lying facedown on the floor just over the threshold of her apartment with
what appeared to be a dog on top of her. Birkmaier saw no one else in the
hallway. Afraid to open the door, Birkmaier called 911, the emergency telephone
number, and at the same time heard a voice yelling, “No, no, no” and “Get off.”
When Birkmaier again approached her door, she could hear barking and growling
directly outside and a banging against a door. She heard a voice yell, “Get off, get
off, no, no, stop, stop.” She chained her door and again looked through the
peephole. Whipple’s body was gone and groceries were strewn about the hallway.
Birkmaier called 911 a second time.
At 4:12 p.m., San Francisco Police Officers Sidney Laws and Leslie Forrestal
arrived in response to Birkmaier’s telephone calls. They saw Whipple’s body in
the hallway; her clothing had been completely ripped off, her entire body was
covered with wounds, and she was bleeding profusely. Defendant Knoller and the
two dogs were not in sight.
The officers called for an ambulance. Shortly thereafter, defendant Knoller
emerged from her apartment. She did not ask about Whipple’s condition but
merely told the officers she was looking for her keys, which she found just inside
the door to Whipple’s apartment.
An emergency medical technician administered first aid to Whipple, who had
a large, profusely bleeding wound to her neck. The wound was too large to halt
the bleeding, and Whipple’s pulse and breathing stopped as paramedics arrived.
She was revived but died shortly after reaching the hospital.
An autopsy revealed over 77 discrete injuries covering Whipple’s body
“from head to toe.” The most significant were lacerations damaging her jugular
vein and her carotid artery and crushing her larynx, injuries typically inflicted by
predatory animals to kill their prey. The medical examiner stated that although
earlier medical attention would have increased Whipple’s chances of survival, she
might ultimately have died anyway because she had lost one-third or more of her
blood at the scene. Plaster molds of the two dogs’ teeth showed that the bite
injuries to Whipple’s neck were consistent with Bane’s teeth.
Animal control officer Andrea Runge asked defendant Knoller to sign over
custody of the dogs for euthanasia. Knoller, whom Runge described as “oddly
calm,” agreed to sign over Bane, but she refused to sign over Hera for euthanasia
and she refused to help the animal control officers with the animals, saying she
was “unable to handle the dogs.” When tranquilizer darts malfunctioned and
failed to quiet Bane, “come-along” poles were used by animal control officers
backed up by officers with guns drawn. Hera too was controlled by officers with
On February 8, 2001, both defendants appeared on the television show Good
Morning America and basically blamed mauling victim Whipple for her own
death. Defendant Knoller claimed that Whipple had already opened her apartment
door when something about her interested Bane. He broke away, pulled Knoller
across the lobby, and jumped up on Whipple, putting his paws on either side of
her. Knoller said she pushed Whipple into Whipple’s apartment, fell on top of
Whipple, and then tried to shield Whipple with her own body. But Whipple’s
struggles must have been misinterpreted by the dog, and when Whipple struck
Knoller with her fist, the dog began to bite Whipple. Knoller claimed that
Whipple had ample opportunity to just slam the door of her apartment or stay still
on the floor.
Codefendant Noel did not testify, but he presented evidence of positive
encounters between the two dogs and veterinarians, friends, and neighbors.
Defendant Knoller did testify in her own defense. She referred to herself, her
husband, and Pelican Bay prisoner Schneider as the “triad,” and she spoke of
Schneider as her “son.” The two dogs had become a focal point in the
relationship. She denied reading literature in the apartment referring to the vicious
nature of the dogs. She thought the dogs had no personality problems requiring a
professional trainer. She denied receiving or otherwise discounted any warnings
about the two dogs’ behavior and she maintained that virtually all the witnesses
testifying to incidents with the dogs were lying. She said she never walked both
dogs together. Ordinarily, she would walk Hera and codefendant Noel would
walk Bane, because she had insufficient body strength to control Bane. But after
Noel was injured while breaking up a fight between Bane and another dog,
Knoller would sometimes walk Bane, always on a leash. She said she had just
returned from walking Bane on the roof of the apartment building, and had opened
the door to her apartment while holding Bane’s leash, when Bane dragged her
back across the lobby toward Whipple, who had just opened the door to her own
apartment. The other dog, Hera, left defendants’ apartment and joined Bane, who
attacked Whipple. Knoller said she threw herself on Whipple to save her. She
denied that Hera participated in the attack. She acknowledged not calling 911 to
get help for Whipple.
Asked whether she denied responsibility for the attack on Whipple, Knoller
gave this reply: “I said in an interview that I wasn’t responsible but it wasn’t for
the—it wasn’t in regard to what Bane had done, it was in regard to knowing
whether he would do that or not. And I had no idea that he would ever do
anything like that to anybody. How can you anticipate something like that? It’s a
totally bizarre event. I mean how could you anticipate that a dog that you know
that is gentle and loving and affectionate would do something so horrible and
brutal and disgusting and gruesome to anybody? How could you imagine that
In rebuttal, the prosecution presented evidence that the minor character of
defendant Knoller’s injuries—principally bruising to the hands—indicated that she
had not been as involved in trying to protect mauling victim Whipple as she had
claimed. Dr. Randall Lockwood, the prosecution’s expert on dog behavior,
testified that good behavior by a dog on some occasions does not preclude
aggressive and violent behavior on other occasions, and he mentioned the
importance of training dogs such as Bane and Hera not to fight.
The jury found Knoller guilty of second degree murder; it also found both
Knoller and Noel guilty of involuntary manslaughter and owning a mischievous
animal that caused the death of a human being. Both defendants moved for a new
trial. The trial court denied Noel’s motion. We quote below the pertinent
statements by the trial court in granting Knoller’s motion for a new trial on the
second degree murder count.
The trial court observed: “The law requires that there be a subjective
understanding on the part of the person that on the day in question—and I do not
read that as being January 26th, 2001 because by this time, with all of the
information that had come out dealing with the dogs, the defendants were fully on
notice that they had a couple of wild, uncontrollable and dangerous dogs that were
likely going to do something bad. [¶] Is the ‘something bad’ death? That is the
ultimate question in the case. There is no question but that the something bad was
going to be that somebody was going to be badly hurt. I defy either defendant to
stand up and tell me they had no idea that those dogs were going to hurt somebody
one day. But can they stand up and say that they knew subjectively—not
objectively and that’s an important distinction—that these dogs were going to
stand up and kill somebody?” (Italics added.)
The trial court continued: “I am guided by a variety of principles. One of
them is that public emotion, public outcry, feeling, passion, sympathy do not play
a role in the application of the law. The other is that I am required to review all of
the evidence and determine independently rather than as a jury what the evidence
showed. I have laid out most of the evidence as it harms the defendants in this
case. Their conduct from the time that they got the dogs to the time—to the weeks
after Diane Whipple’s death was despicable.”
“There was one time on the stand, Ms. Knoller, when I truly believed what
you said. You broke down in the middle of a totally scripted answer and you
actually, instead of crying, you actually got mad and you said you had no idea that
this dog could do what he did and pounded the table. I believed you. That was the
only time, but I did believe you.” The court then described the definition of
second degree murder as requiring that one “subjectively knows, based on
everything, that the conduct that he or she is about to engage in has a high
probability of death to another human being.” (Italics added.)
The trial court went on: “What we have in this case as it relates to
Ms. Knoller is the decision to take the dog outside, into the hallway, up to the roof,
go to the bathroom, bring it back down and put it in the apartment. There was no
question but that taking the dog out into the hallway by that very act exposed other
people in the apartment, whether they are residents there or guests, invitees to
what might happen with the dog. When you take everything as a totality, the
question is whether or not as a subjective matter and as a matter of law Ms.
Knoller knew that there was a high probability that day, or on the day before on
the day after,—I reject totally the argument of the defendants that she had to know
when she walked out the door—she was going to kill somebody that morning. The
Court finds that the evidence does not support it.” (Italics added.)
The trial court concluded it had “no choice, . . . taking the Legislature’s
scheme, the evidence that was received, as despicable as it is, but to determine not
that [defendant Knoller] is acquitted of second degree murder but to find that on
the state of the evidence, I cannot say as a matter of law that she subjectively knew
on January 26th that her conduct was such that a human being was likely to die.”
The trial court mentioned another consideration: “The Court also notes a
great troubling feature of this case that Mr. Noel was never charged [with murder]
as Ms. Knoller was. In the Court’s view, given the evidence, Mr. Noel is more
culpable than she. Mr. Noel personally knew that she could not control those
dogs. He could not control those dogs. Mr. Noel was substantially haughtier than
she was. In brushing off all of the incidents that happened out in the street,
Mr. Noel knew as a theological certainty that that dog, which had recently been
operated on, was taking medication that had given it diarrhea, was going to go out
into the hallway or out into the street possibly, at the hands of Ms. Knoller. He . . .
left her there to do that. [¶] . . . And yet Mr. Noel was not charged [with murder].
Equality of sentencing and the equal administration of justice is an important
feature in any criminal court. That played a role as well.” The trial court then
granted defendant Knoller’s motion for a new trial on the second degree murder
As noted earlier, both defendants as well as the prosecution appealed. The
Court of Appeal reversed the trial court’s order granting Knoller’s motion for a
new trial on the second degree murder count. It disagreed with the trial court that
a second degree murder conviction, based on a theory of implied malice, required
that Knoller recognized “her conduct was such that a human being was likely to
die.” The Court of Appeal held that a second degree murder conviction can be
based simply on a defendant’s “subjective appreciation and conscious disregard of
a likely risk of . . . serious bodily injury.” In all other respects, the Court of
Appeal affirmed both defendants’ convictions.
II. THE ELEMENTS OF IMPLIED MALICE
Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought. (§ 187, subd. (a).) Malice may be express or implied. (§ 188.) At
issue here is the definition of “implied malice.”
Defendant Knoller was convicted of second degree murder as a result of the
killing of Diane Whipple by defendant’s dog, Bane. Second degree murder 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. (See §§ 187, subd. (a), 189.)
Section 188 provides: “[M]alice may be either express or implied. It is express
when there is manifested a deliberate intention to take away the life of a fellow
creature. It is implied, when no considerable provocation appears, or when the
circumstances attending the killing show an abandoned and malignant heart.”
The statutory definition of implied malice, a killing by one with an
“abandoned and malignant heart” (§ 188), is far from clear in its meaning. Indeed,
an instruction in the statutory language could be misleading, for it “could lead the
jury to equate the malignant heart with an evil disposition or a despicable
character” (People v. Phillips, supra, 64 Cal.2d at p. 587) instead of focusing on a
defendant’s awareness of the risk created by his or her behavior. “Two lines of
decisions developed, reflecting judicial attempts ‘to translate this amorphous
anatomical characterization of implied malice into a tangible standard a jury can
apply.’ ” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 103, quoting People v.
Protopappas (1988) 201 Cal.App.3d 152, 162-163.) Under both lines of
decisions, implied malice requires a defendant’s awareness of the risk of death to
The earlier of these two lines of decisions, as this court observed in People
v. Nieto Benitez, supra, 4 Cal.4th at page 103-104, originated in Justice Traynor’s
concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480, which stated
that malice is implied when “the defendant for a base, antisocial motive and with
wanton disregard for human life, does an act that involves a high degree of
probability that it will result in death.” (We here refer to this as the Thomas test.)
The later line dates from this court’s 1966 decision in People v. Phillips, supra, 64
Cal.2d at page 587: 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 Phillips test.)
In People v. Watson (1981) 30 Cal.3d 290, 300, we held that these two
definitions of implied malice in essence articulated the same standard. Concerned,
however, that juries might have difficulty understanding the Thomas test’s concept
of “wanton disregard for human life,” we later emphasized that the “better practice
in the future is to charge juries solely in the straightforward language of the
‘conscious disregard for human life’ definition of implied malice,” the definition
articulated in the Phillips test. (People v. Dellinger (1989) 49 Cal.3d 1212, 1221.)
The standard jury instructions thereafter did so. (See CALJIC No. 8.11;
CALCRIM No. 520.) Since 1989, our decisions have articulated the standard we
set out in Dellinger and in CALJIC No. 8.11. (See, e.g., People v. Randle (2005)
35 Cal.4th 987, 994; People v. Taylor (2004) 32 Cal.4th 863, 867-868; People v.
Lasko (2000) 23 Cal.4th 101, 107; People v. Hansen (1994) 9 Cal.4th 300, 308;
People v. Whitfield (1994) 7 Cal.4th 437, 450; People v. Nieto Benitez, supra, 4
Cal.4th at pp. 104, 111.) The trial court here instructed the jury in the language of
CALJIC No. 8.11.
III. THE COURT OF APPEAL’S TEST FOR IMPLIED MALICE
As discussed in the preceding part, the great majority of this court’s
decisions establish that a killer acts with implied malice only when acting with an
awareness of endangering human life. This principle has been well settled for
many years, and it is embodied in the standard jury instruction given in murder
cases, including this one. The Court of Appeal here, however, held that a second
degree murder conviction, based on a theory of implied malice, can be based
simply on a defendant’s awareness of the risk of causing serious bodily injury to
In support of that view, the Court of Appeal pointed to three decisions of
this court: People v. Conley (1966) 64 Cal.2d 310 (Conley), People v. Poddar
(1974) 10 Cal.3d 750 (Poddar), and People v. Coddington (2000) 23 Cal.4th 529
(Coddington). We discuss each case below.
In Conley, supra, 64 Cal.2d 310, the defendant, after consuming copious
quantities of alcohol, went to the home of his former lover and her husband, where
he shot and killed both of them. He was convicted of two counts of first degree
murder. The issue on appeal was whether the trial court should have instructed the
jury on diminished mental capacity caused by intoxication. This court held that it
should have so instructed because “[a]n awareness of the obligation to act within
the general body of laws regulating society . . . is included in the statutory
definition of malice in terms of the abandoned and malignant heart.” (Id. at
p. 322.) In explaining that holding, Conley stated that a person who carefully
weighs the course of action he is about to take and chooses to kill his victim, after
considering the reasons for and against it, “is normally capable also of
comprehending the duty society places on all persons to act within the law.”
(Ibid.) Conley continued: “If, despite such awareness, he does an act that is likely
to cause serious injury or death to another, he exhibits that wanton disregard for
human life or antisocial motivation that constitutes malice aforethought.” (Ibid.,
italics added.)4 It is this sentence from Conley on which the Court of Appeal
relied. But that language from Conley described the defendant’s act (the objective
component of implied malice), not the defendant’s mental state (the subjective
component of implied malice); it is therefore irrelevant to the issue here, which
In People v. Flannel (1979) 25 Cal.3d 668, 679, we quoted that passage
from Conley, supra, 64 Cal.2d 310 at page 322, in summarizing the doctrine of
diminished capacity; we then explained how imperfect self-defense—the issue in
Flannel—differed from diminished capacity. Not at issue in Flannel was the
distinction between a defendant’s awareness of the risk of serious bodily injury
and awareness of the risk of death.
concerns the subjective component—whether the defendant must be aware of the
risk of death or only a risk of serious bodily injury.
Conley, supra, 64 Cal.2d 310, did not discuss whether implied malice could
be based merely on a defendant’s awareness of the risk of serious bodily injury to
another but not the risk of death resulting from the defendant’s actions. That
issue, presented here, did not arise in Conley, because there the defendant, who
said he was going to kill the victims and did so, could not claim he was aware only
of the risk of causing serious bodily injury.
In cases decided shortly before and after Conley, we reiterated the
established definition of implied malice as requiring an awareness of the risk that
the defendant’s conduct will result in the death of another. One year before
Conley was filed, we stated in People v. Washington (1965) 62 Cal.2d 780, 782,
that implied malice required a “conscious disregard for life.” Conley did not at all
suggest that it intended to depart from the view expressed in Washington. And
two months after Conley, this court in People v. Phillips, supra, 64 Cal.2d at page
582, endorsed its earlier statement in Washington that implied malice requires a
“conscious disregard for life.” (Italics added.)
We now turn to Poddar, supra, 10 Cal.3d 750, the second of the three
decisions that the Court of Appeal cited. In that case, the defendant went to the
home of a woman he had dated casually, shot her with a pellet gun, and then killed
her with a knife. He was convicted of second degree murder. This court held that
the trial court’s jury instruction on second degree murder was defective because it
did not explain the concept of diminished capacity as set out in Conley, supra, 64
Cal.2d 310. (Poddar, supra, 10 Cal.3d at pp. 757-759.) In its discussion of
diminished capacity, Poddar stated that to prove implied malice, “it must be
shown that the accused was both aware of his duty to act within the law and acted
in a manner likely to cause death or serious bodily injury despite such awareness.”
(Id. at p. 758, italics added.) As in Conley, Poddar referred to serious bodily
injury in describing the defendant’s act, the objective component of implied
malice. Poddar did not say that the defendant’s mental state, the subjective
component of implied malice, at issue here, could be satisfied by proof that the
defendant acted with an awareness that his conduct could cause serious bodily
injury. Indeed, the defendant in Poddar never claimed that he was unaware that
his acts could cause death.
Even if the above discussed language from Conley, supra, 64 Cal.2d at
page 322, and from Poddar, supra, 10 Cal.3d at page 758, could be viewed as
implying that a second degree murder conviction, on a theory of implied malice,
could be based simply on a defendant’s awareness of the risk of causing serious
bodily injury, rather than death, that language would lack authoritative force. “ ‘It
is axiomatic that language in a judicial opinion is to be understood in accordance
with the facts and issues before the court. An opinion is not authority for
propositions not considered.’ ” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659,
680, quoting Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19
Cal.4th 1182, 1195.) “An appellate decision is not authority for everything said in
the court’s opinion but only ‘for the points actually involved and actually
decided.’ ” (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.) Because the facts
and issues in Conley, supra, 64 Cal.2d 310, and in Poddar, supra, 10 Cal.3d 750,
did not encompass the question whether implied malice could be based on a
defendant’s awareness of the risk of serious bodily injury alone, the language the
Court of Appeal cited from Conley and Poddar lacks authoritative force.
This brings us to Coddington, supra, 23 Cal.4th 529, the last in the trio of
decisions relied on by the Court of Appeal. In that case, the defendant lured
teenage girls to his mobilehome by telling them they would star in an antidrug
video, and then raped them and committed other sexual offenses. He killed two
older women who had accompanied the girls as chaperones. The defendant was
convicted of two counts of first degree murder with special circumstances, as well
as various other offenses, and he was sentenced to death.
Among the many issues the defendant in Coddington raised on appeal was
a claim that the trial court had erred in not instructing the jury on second degree
murder based on implied malice. Responding to that claim, the Attorney General
argued in Coddington that such an instruction was not needed because there was
no evidence that the defendant’s offense was less than first degree murder, and
that the defendant’s conduct proved that he “acted with actual or presumptive
knowledge that serious bodily injury was likely to occur.” (Coddington, supra, 23
Cal.4th at p. 592, italics added.) This court rejected the Attorney General’s
argument, explaining that such a mental state (actual or presumptive knowledge
that serious bodily injury is likely to occur) “permits an inference of implied
malice . . . and does not support a conclusion that no instruction on second degree
murder on a theory of implied malice was necessary.” (Ibid.)
Notwithstanding Coddington’s offhand comment that knowledge of the risk
of serious bodily injury permits an inference of implied malice, Coddington
reiterated the established rule that a trial court must instruct on second degree
murder based on implied malice whenever there is evidence “from which the jury
could have inferred that appellant acted without intent to kill even though his
conduct posed a high risk of death.” (Coddington, supra, 23 Cal.4th at p. 593,
italics added.) Thus, Coddington’s offhand comment cannot be viewed as
implicitly overruling the decisions of this court discussed earlier (see ante, at
p. 16) declaring that implied malice requires an awareness of the risk of death.
In sum, the three decisions on which the Court of Appeal relied lack
persuasive force. Neither Conley, supra, 64 Cal.2d 310, nor Poddar, supra, 10
Cal.3d 750, addressed the issue presented here: whether implied malice can be
based on a defendant’s awareness of the risk of great bodily injury but not death
resulting from the defendant’s actions. With respect to the comment in
Coddington, supra, 23 Cal.4th at page 592, suggesting that knowledge of the
likelihood of serious bodily injury permits an inference of implied malice, it is
inconsistent not only with the holding in that case but also with the views
expressed in other decisions of this court. (See ante, at p. 16.) We conclude that a
conviction for second degree murder, based on a theory of implied malice,
requires proof that a defendant acted with conscious disregard of the danger to
human life. In holding that a defendant’s conscious disregard of the risk of serious
bodily injury suffices to sustain such a conviction, the Court of Appeal erred.
IV. THE TRIAL COURT’S GRANT OF A NEW TRIAL ON THE SECOND DEGREE
We now turn to the second issue raised by the petition for review –whether
the trial court abused its discretion in granting defendant Knoller a new trial on the
second degree murder charge. Such an abuse of discretion arises if the trial court
based its decision on impermissible factors (see People v. Carmody (2004) 33
Cal.4th 367, 378) or on an incorrect legal standard (see Linder v. Thrifty Oil Co.
(2001) 23 Cal.4th 429, 435-436; In re Carmaleta B. (1978) 21 Cal.3d 482, 496).
In granting Knoller a new trial, the trial court properly viewed implied
malice as requiring a defendant’s awareness of the danger that his or her conduct
will result in another’s death and not merely in serious bodily injury. (See ante, at
pp. 12-13.) But the court’s ruling was legally flawed in other respects. As we
explain below, the trial court based its ruling on an inaccurate definition of implied
malice, and it inappropriately relied on the prosecutor’s failure to charge
codefendant Noel with murder.
As discussed earlier in part II, this court before its decision in People
v. Dellinger, supra, 49 Cal.3d 1212, had defined implied malice in two similar but
somewhat different ways. Under the Thomas test, malice is implied when “the
defendant for a base, antisocial motive and with wanton disregard for human life,
does an act that involves a high degree of probability that it will result in death.”
(People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.); see also
People v. Poddar, supra, 10 Cal.3d at pp. 756-757.) Under the Phillips test
(People v. Phillips, supra, 64 Cal.2d at p. 587), 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.” In People v. Dellinger, supra, 49 Cal.3d 1212, we observed that although
these two tests “articulated one and the same standard” (id. at p. 1219), the
Thomas test contained “obscure phraseology” and had “become a superfluous
charge,” so that the “better practice in the future” would be for trial courts to
instruct juries in the “straightforward language” of the Phillips test (id. at
Here, the trial court properly instructed the jury in accordance with the
Phillips test. But when the court evaluated defendant Knoller’s new trial motion,
it relied on language from the Thomas test, and as explained below, its description
of that test was inaccurate. The court stated that a killer acts with implied malice
when the killer “subjectively knows, based on everything, that the conduct that he
or she is about to engage in has a high probability of death to another human
being” and thus the issue in this case was “whether or not as a subjective matter
For trial courts too, the better practice in the future would be to use the
Phillips test, rather than the Thomas test, in ruling on motions for a new trial as
well as other matters in which the definition of implied malice is in issue.
and as a matter of law Ms. Knoller knew that there was a high probability” that her
conduct would result in someone’s death. (Italics added.) But “high probability
of death” is the objective, not the subjective, component of the Thomas test, which
asks whether the defendant’s act or conduct “involves a high probability that it
will result in death.” (People v. Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of
Traynor, J.).) The subjective component of the Thomas test is whether the
defendant acted with “a base, antisocial motive and with wanton disregard for
human life.” (Ibid.) Nor does the Phillips test require a defendant’s awareness
that his or her conduct has a high probability of causing death. Rather, it requires
only that a defendant acted with a “conscious disregard for human life” (People v.
Dellinger, supra, 49 Cal.3d at p. 1221; People v. Phillips, supra, 64 Cal.2d at
As just shown, in treating the objective component of the Thomas test as
the subjective component of that test, the trial court applied an erroneous
definition of implied malice in granting defendant Knoller a new trial on the
second degree murder charge.
In ruling on Knoller’s motion for a new trial, the trial court also commented
that, in its view, codefendant Noel was more culpable than defendant Knoller, and
that the district attorney’s failure to charge Noel with murder was a “troubling
feature of this case” that “played a role as well” in the court’s decision to grant
Knoller a new trial on the second degree murder charge. Dissimilar charging of
codefendants, however, is not among the grounds for a new trial in section 1181.
Although section 1181 states that a defendant’s new trial motion may be granted
only on the grounds stated in that section, several courts have held that new trials
may nonetheless be granted on grounds not enumerated in the statute when
necessary to protect a defendant’s constitutional right to a fair trial. (See, e.g.,
People v. Oliver (1975) 46 Cal.App.3d 747, 751 [judicial misconduct]; People
v. Davis (1973) 31 Cal.App.3d 106, 109 [unexpected absence of witness].) No
published decision, however, has ever approved granting a new trial based on
differential treatment of defendants. (See generally People v. Belmontes (1988) 45
Cal.3d 744, 810-813 [disposition of codefendant’s case is irrelevant to jury’s
determination at penalty phase of capital case].)
We specifically do not address whether a new trial could be granted on such
a ground, an issue that would involve significant separation of powers
considerations. Even assuming a new trial could be granted on such a ground, it is
not justified here. Defendant Knoller and codefendant Noel were not similarly
situated with regard to their dog Bane’s fatal mauling of Whipple in the hallway of
the apartment building where they all lived. The immediate cause of Whipple’s
death was Knoller’s own conscious decision to take the dog Bane unmuzzled
through the apartment building, where they were likely to encounter other people,
knowing that Bane was aggressive and highly dangerous and that she could not
control him. Bringing a more serious charge against the person immediately
responsible for the victim’s death was a permissible exercise of prosecutorial
discretion, not grounds for a new trial.
V. CONCLUSION AND DISPOSITION
In sum, the trial court abused its discretion in granting defendant Knoller a
new trial on the second degree murder charge. That court erroneously concluded
both that Knoller could not be guilty of murder, based on a theory of implied
malice, unless she appreciated that her conduct created a high probability of
someone’s death, and that a new trial was justified because the prosecution did not
charge codefendant Noel with murder. It is uncertain whether the trial court
would have reached the same result using correct legal standards. Moreover, the
Court of Appeal, in reversing the trial court’s order, also erred, mistakenly
reasoning that implied malice required only a showing that the defendant
appreciated the risk of serious bodily injury. Under these circumstances, we
conclude that the matter should be returned to the trial court to reconsider its new
trial order in light of the views set out in this opinion.
The Court of Appeal’s judgment is reversed and the matter is remanded to
that court, with directions to return the case to the trial court for reconsideration of
defendant Knoller’s new trial motion in accord with the views expressed in this
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Knoller
Review Granted XXX 128 Cal.App.4th 1391
Date Filed: May 31, 2007
County: San Francisco
Judge: James L. Warren
Attorneys for Appellant:Dennis Patrick Riordan, under appointment by the Supreme Court, Riordan & Horgan, Donald M. Horgan
and Dylan Schaffer for Defendant and Appellant.
Attorneys for Respondent:Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gerald A. Engler, Assistant Attorney General, Eric D. Share and Amy Haddix, Deputy Attorneys
General for for Plaintiff and Appellant.
Counsel who argued in Supreme Court (not intended for publication with opinion):Dennis Patrick Riordan
Riordan & Horgan
523 Octavia Street
San Francisco, CA 94102
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
|1||The People (Plaintiff and Respondent)|
Represented by Amy Haddix
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA
|2||Knoller, Marjorie F. (Defendant and Respondent)|
Represented by Dennis P. Riordan
Riordan & Horgan
523 Octavia Street
San Francisco, CA
|3||Noel, Robert (Defendant and Appellant)|
Represented by Cliff Gardner
Law Office of Cliff Gardner
19 Embarcadero Cove
|May 31 2007||Opinion: Reversed|
|Jun 7 2005||Record requested|
|Jun 7 2005||Petition for review filed|
by counsel for aplt. (Robert Noel)
|Jun 13 2005||Received Court of Appeal record|
A099250 - file jacket/briefs/sealed envelope/transcripts/two boxes
|Jun 13 2005||2nd petition for review filed|
by counsel for respondent (Marjorie F. Knoller). (A099366 & A099499)
|Jun 13 2005||Record requested|
A099366, A099499, A109260
|Jun 14 2005||Received Court of Appeal record|
A109260-accordian file - also - A099366-file jacket/briefs
|Jun 14 2005||Received Court of Appeal record|
|Jun 15 2005||Received Court of Appeal record|
Received as part of Court Appeal record 1 box of exhibits.
|Jun 22 2005||Received Court of Appeal record|
1 box of briefs.
|Jun 27 2005||Received additional record|
One box (Reporters' Transcripts)
|Jul 27 2005||Petition for review granted; issues limited (criminal case)|
Appellant Marjorie Knoller's petition for review GRANTED. The issues to be briefed and argued are limited to the following: (1) Whether the mental state required for implied malice includes only conscious disregard for human life or is satisfied by an awareness that the act is likely to result in great bodily injury? (2) Whether the trial judge abused his discretion in granting the motion for new trial under Penal Code section 1181 (6). Appellant Robert Noel's petition for review denied without prejudice to any relief to which defendant might be entitled upon finality of People v. Black (2005) 35 Cal.4th 1238 regarding the effect of Blakely v. Washington (2004) 542 U.S. __, 124 S.Ct. 2531, and United States v. Booker (2005) 543 U.S. __, 125 S.Ct. 738, on California law. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
|Aug 2 2005||Counsel appointment order filed|
Upon request of appellant Marjorie Knoller for appointment of counsel, Dennis Riordan is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
|Aug 25 2005||Request for extension of time filed|
to file opening brief on the merits from Respondent (Knoller) to October 3, 2005.
|Aug 30 2005||Extension of time granted|
to serve and file the opening brief on the merits to and including October 3, 2005.
|Sep 29 2005||Request for extension of time filed|
By counsel for respondent requesting a 1 day extension to and including October 4, 2005 to file Respondent's Opening Brief on the Merits.
|Sep 30 2005||Extension of time granted|
To October 4, 2005 to file respondent's Marjorie F. Knoller Opening Brief on the Merits.
|Oct 4 2005||Opening brief on the merits filed|
Respondent ( Knoller).
|Oct 31 2005||Request for extension of time filed|
to December 5, 2005, to file respondent's (People) answer brief on the merits
|Nov 2 2005||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including December 5, 2005.
|Nov 30 2005||Request for extension of time filed|
to January 4, 2006 to file the answer brief on the merits
|Dec 2 2005||Extension of time granted|
On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 4, 2006.
|Dec 14 2005||Compensation awarded counsel|
|Dec 30 2005||Request for extension of time filed|
to February 3, 2006 to file respondent's answer brief on the merits.
|Jan 13 2006||Extension of time granted|
to 2-03-06 for respondent to file the answer brief on the merits.
|Feb 3 2006||Application filed to:|
File oversized (19,248 words) Respondent's Answer Brief on the Merits in excess of the 14,000 word limit prescribed by CRC rule 29.1(c), by 5,248 words.
|Feb 7 2006||Order filed|
The aplication of respondent for permission to file Respondent's Answer Brief on the Merits containing 19,248 words that exceeds the 14,000 word limit prescribed by California Rules of Court rule 29.1(c)(1) by 5,248 words is hereby granted.
|Feb 7 2006||Answer brief on the merits filed|
Respondent People Amy Haddix, Deputy Attorney General - SF
|Feb 22 2006||Request for extension of time filed|
to March 27, 2006 to file Appellant Knoller's Reply Brief on the Merits.
|Feb 28 2006||Extension of time granted|
On application of Appellant Marjorie K. Knoller and good cause appearing, it is ordered that the time to serve and file her reply brief on the merits is extended to and including March 27, 2006.
|Mar 27 2006||Request for extension of time filed|
to and including April 10, 2006, to file Appellant Marjorie Knoller's Reply Brief on the Merits.
|Mar 28 2006||Extension of time granted|
On application of Appellant Marjorie Knoller, and good cause appeairng, it is ordered that the time to serve and file her Reply Brfief on the Merits is extended to and including April 10, 2006.
|Apr 10 2006||Application filed to:|
File Appellant Marjorie F. Knoller's oversized reply brief on the merits containing 8,789 words, in excess of the 4,200 word limit prescribed by CRC 29.1(c)(1).
|Apr 13 2006||Reply brief filed (case fully briefed)|
Appellant Marjorie F. Knoller
|Apr 13 2006||Order filed|
The application of Marjorie F. Knoller for permission to file her Reply Brief on the Merits containing 8,789 words that exceeds the 4200 word limit prescribed by California Rules of Court rule 29.1(c)(1) by 4,589 words is hereby granted.
|Feb 8 2007||Case ordered on calendar|
to be argued Tuesday, March 6, 2007, at 9:00 a.m. in San Francisco
|Mar 5 2007||Request for Extended Media coverage Granted|
The request for extended media coverage, filed March 5, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
|Mar 5 2007||Request for Extended Media coverage Filed|
By Glenn N. Adams, Assignments Editor of KGO-TV, Channel 7.
|Mar 6 2007||Cause argued and submitted|
|Mar 14 2007||Order filed|
The court having denied the petition for review filed by defendant Robert E. Noel and having granted the petition for review filed by defendant Marjorie F. Knoller, the title of the case, which was People v. Noel in the Court of Appeal, is hereby changed to People v. Knoller.
|May 30 2007||Notice of forthcoming opinion posted|
|May 31 2007||Opinion filed: Judgment reversed|
and the matter is remanded to that court, with directions to return the case to the trial court for reconsideration of defendant Knoller's new trial motion in accord with the view expressed in this opinion. Opinion by Kennard, J. -- Joined by George, C. J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
|Jun 11 2007||Rehearing petition filed|
The People, plaintiff and appellant by Amy Haddix, Deputy Attorney General
|Jun 19 2007||Time extended to consider modification or rehearing|
to and including August 29, 2007
|Jul 18 2007||Rehearing denied|
The request for modification of the opinion is denied. The petition for rehearing is denied.
|Jul 18 2007||Remittitur issued (criminal case)|
|Nov 20 2007||Returned record|
15 doghousese, 1 small box.
|Nov 20 2007||Returned record|
to First Appellate District
|Jan 23 2008||Compensation awarded counsel|
|Oct 4 2005||Opening brief on the merits filed|
|Feb 7 2006||Answer brief on the merits filed|
|Apr 13 2006||Reply brief filed (case fully briefed)|