People v. Fay ( 2024 )

Filed 4/29/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B328209
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA101587)
v.
JOHN FAY,
Defendant and Appellant.
APPEAL from the judgment of the Superior Court of
Los Angeles County, Nicole C. Bershon, Judge. Reversed.
Adrian Dresel-Velasquez, under appointment by the Court
of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Stefanie Yee, Deputy
Attorneys General for Plaintiff and Respondent.
__________________________________________
Defendant John Fay hit Anthony Davis in the head
numerous times. Davis died as a result of the combination of
defendant’s blows and Davis’s intoxication. Defendant admitted
that he intended to hurt Davis and inflict pain, but denied
that he intended to kill Davis. A jury convicted defendant
of second degree murder. (Pen. Code, § 187, subd. (a).) 1
During deliberations, the jury informed the court that it was
“deadlocked,” the jurors apparently divided as to how to apply
the instructions on implied malice.
The court permitted counsel to make supplemental
arguments. The prosecutor asserted that a defendant has the
mental state for implied malice if he is aware that his conduct
is dangerous to others, but does not “care if someone is hurt or
killed.” When the jurors later asked the court for the “source” of
this statement, the court informed them it is based on “case law
decisions.” Shortly afterward, the jury found defendant guilty
of second degree murder. The court sentenced him to prison for
15 years to life.
Defendant contends that the prosecutor’s statement
regarding the mental state for implied malice is a misstatement
of the law, which the court erroneously accepted in its response
to the jury’s question. We agree. Because the errors are not
harmless, we reverse.
FACTUAL AND PROCEDURAL SUMMARY
A. The Killing of Anthony Davis
Between November 2019 and February 2020, defendant
was unhoused and living outside a public library. On February 2,
1 Subsequent statutory references are to the Penal Code.
2
2020, at around noon, he was organizing his possessions in front
of the library when Anthony Davis approached him on a bicycle.
Davis mumbled something and appeared to be intoxicated.
Defendant told him to leave. Davis, however, got off his bicycle
and sat on a short cinderblock wall near defendant’s possessions.
The two exchanged “vulgarities” for several minutes. Davis then
attempted to hit defendant with his open hand. After defendant
deflected the punches, Davis asked for a “truce,” and offered to
shake hands. Defendant responded, “Get the fuck outta here.”
Davis got on his bicycle and tried to ride away. Defendant,
however, “was pissed that [Davis] was about to get away with
nothing happening,” and pushed Davis off his bicycle. Defendant
then punched Davis twice in the head to “send a message” to
Davis not to return. Davis then climbed over the cinderblock
wall. Although defendant did not fear for his safety at this point,
he punched Davis 12 times with his closed fist on both sides of his
head. He aimed for Davis’s head, he explained, because hits to
the head “have the biggest impact in a fight”; he hit Davis on
both sides of his head because that made “the pain . . . pervasive,”
and Davis would “feel it more.” Davis covered his face and did
not try to fight back. When Davis appeared to be unconscious,
defendant left the area.
Davis died at the scene. According to a medical examiner,
the cause of death was “concussive/posttraumatic apnea due
to blunt head trauma and acute alcohol intoxication.” 2
Defendant told investigating officers that he hit Davis
as hard as he could, and that he intended “to hurt” Davis and
2 Except for the statement of the medical examiner, all
quoted statements in this part I.A are statements the defendant
made to police investigators or while testifying at trial.
3
“do some damage,” not to kill him. He explained that he
“was in a very belligerent mood” and this was “one of the few
opportunities [he had] to unleash the venom that’s in [him].”
During trial, defendant testified that he intended to inflict
“[j]ust enough physical pain so that [Davis] would remember the
incident and think twice about coming back to disturb [him], but
not enough to kill him.”
B. Jury Instructions and Deliberations
The District Attorney charged defendant with murder.
(§ 187, subd. (a).)
The court instructed the jury with CALCRIM No. 520,
which states that the defendant can harbor malice aforethought
with express or implied malice. As to implied malice, the
instruction states: “The defendant had implied malice if: [¶]
1. He intentionally committed the act; [¶] 2. The natural and
probable consequences of the act were dangerous to human life;
[¶] 3. At the time he acted, he knew his act was dangerous to
human life; [¶] AND [¶] 4. He deliberately acted with conscious
disregard for human life.”
The jury was further instructed on the lesser offenses of
voluntary manslaughter, involuntary manslaughter, and assault
with force likely to produce great bodily injury. (See CALCRIM
Nos. 570, 571, 580, 875.) Under CALCRIM No. 580, the court
instructed the jury that “[i]n order to prove murder or voluntary
manslaughter, the People have the burden of proving beyond a
reasonable doubt that the defendant acted with intent to kill or
with conscious disregard for human life. If the People have not
met either of these burdens, you must find the defendant not
guilty of murder and not guilty of voluntary manslaughter.”
4
After deliberating less than two hours, the jury submitted
the following question regarding the implied malice instruction:
“[I]s there any other written definition or guidance pertaining to
the definition of ‘dangerous to human life’? Does that mean the
act was likely to result in death?”
With the agreement of counsel, the court provided the
following response in writing to the jury: “All the definitions
that you will be provided are already contained in the jury
instructions you received.” Later that day, the jury requested
12 copies of the jury instructions, which the court provided.
After further deliberations, the jury informed the court
that after three votes they were “deadlocked” and “unable to
reach a verdict.” The jury foreperson informed the court that on
each vote the jurors had split seven to five. The jury foreperson
suggested that it might help to have the court reread the jury
instructions. The court did so.
Outside the presence of the jurors, the prosecutor requested
that counsel give further arguments to the jury on the implied
malice instruction. Defense counsel responded, “I don’t think so.
I will submit.”
After rereading the jury instructions and further
deliberations, the jury foreperson submitted the following
question regarding the implied malice instruction: “Under
[CALCRIM No.] 520. [The definition of] implied malice . . .
states[,] ‘The natural and probable consequences of the act were
dangerous to human life[.]’ [¶] Can it be clarified that the
statement is saying what it says, ‘DANGEROUS to human life[,]’
not death or leading to death.” The foreperson told the court
further: “For me I am reading it as it’s stated that it’s dangerous
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to human life. But there’s other interpretations of it that it is
leading to death or causing death.”
The court responded by informing the jurors that they
“can’t insert additional language [into an instruction] that isn’t
there.” They “have to apply the instructions as they’re worded
to the facts as [they] heard them.” The court stated further:
“The language is what the language is. So the language is the
natural and probable consequences of the act were dangerous to
human life. . . . Then there’s a definition later on, what is natural
and probable consequences? An act causes death if the death is
the direct, natural, and probable consequence of the act and the
death would not have happened without the act. The natural
and probable consequence is one that a reasonable person would
know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider
all the circumstances established by the evidence. And [part two
of the definition of implied malice] says the natural and probable
consequences of the act were dangerous to human life. That’s the
language that you have to follow.”
After the readback of certain witness testimony, the jury
deliberated further. After a fourth vote, a juror informed the
court that they remained split at seven to five, and “[n]obody is
changing their mind.” The court informed the jurors that they
should return the next morning and, if they are still deadlocked,
the court will permit counsel to address them.
The next morning, the jury deliberated further and
took a fifth vote, then informed the court that they remained
“deadlocked” and “unable to reach a verdict.” In the afternoon,
the jury again informed the court that it was “unable to reach a
conclusion.”
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Over defendant’s objection, the court allowed counsel to
present supplemental argument. The prosecutor argued that
proving that an act is “dangerous to human life” does not require
the prosecution to prove “that the act is likely to cause death.”
Regarding the mens rea element of implied malice, the prosecutor
argued that, “in everyday language,” acting “with conscious
disregard for human life” means: “I know my conduct is
dangerous to others, but I don’t care if someone is hurt or killed.
[¶] What you [the jurors] 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.” The
prosecutor then applied this standard to the evidence: Defendant
“didn’t care that Anthony Davis was hurt. He didn’t care.”
Defense counsel did not interpose an objection during the
prosecutor’s argument.
In defense counsel’s supplemental argument, counsel
did not disagree with the prosecutor’s assertions concerning
the meaning of “dangerous to human life” or “conscious disregard
for human life.” Instead, he argued that the prosecution had
failed to meet its burden of proof to establish murder, and that
defendant “is responsible . . . for an involuntary manslaughter.”
After deliberating further for about one hour, the jury
asked the following question: “During today’s [supplemental
argument,] the People used a quote in the support of clarifying
the criteria under implied malice, specifically, . . . ‘I don’t care
if someone is hurt or killed.’ The point was to highlight the or
and that being hurt, not just killed, is enough. What was the
source of that quote?” (Italics added.)
Out of the jury’s presence, the prosecutor told the court
that the questioned language is derived from People v. Olivas
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(1985) 172 Cal.App.3d 984 (Olivas). In Olivas, the Court of
Appeal addressed the difference between second degree implied
malice murder, which requires that the defendant act with
“ ‘conscious disregard for life,’ ” and vehicular manslaughter,
which requires “ ‘conscious indifference to the consequences.’
[Citation.]” (Id. at p. 987, quoting People v. Watson (1981) 30
Cal.3d 290, 296 (Watson).) The Olivas court stated: “Phrased
in everyday language, the state of mind of a person who acts with
conscious disregard for life is, ‘I know my conduct is dangerous
to others, but I don’t care if someone is hurt or killed.’ The state
of mind of the person who acts with conscious indifferences to
the consequences is simply, ‘I don’t care what happens.’ ” (Id.
at pp. 987–988.)
The court in this case noted that this “hurt or killed”
language in Olivas had been recently restated in People v.
Murphy (2022) 80 Cal.App.5th 713, 726 (Murphy). The court
stated that the prosecutor did not misstate the law, but expressed
concern that the prosecutor had not given the court and defense
counsel notice that it would be relying on the Olivas language.
Defense counsel explained that he did not object during
argument to the prosecutor’s statements because he “was
hoping that [the jurors] would just pass over it,” and “was going
to let everything slide.” After some colloquy among the court and
counsel, however, defense counsel moved for a mistrial based on
“improper argument” and “prosecutorial misconduct.” Although
defense counsel did not assert that the prosecutor inaccurately
stated the law, he argued that “it was misleading.”
After conferring with counsel, the court responded to the
jury as follows: “The statement of the attorney came from case
8
law decisions and you are reminded that arguments of counsel
are not evidence.”
Less than one hour later, the jury announced they had
reached their verdict: Guilty of murder in the second degree.
DISCUSSION
Defendant contends that the prosecutor misstated the
law when he argued that defendant acted with the requisite
“conscious disregard” if he did not “care if someone is hurt or
killed,” and that the court erroneously “supported this argument”
when it informed the jury that the prosecutor’s statements
came “from case law decisions.” These errors, defendant argues,
improperly allowed the jury to convict defendant on the invalid
theory of implied malice. We agree. 3
Murder is the unlawful killing of a human being with
malice aforethought. (§ 187, subd. (a).) Malice may be express
or implied. (§ 188.) It “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.
Knoller (2007) 41 Cal.4th 139, 152 (Knoller).)
In Knoller, our Suprme Court reviewed a Court of
Appeal’s decision stating that a conviction of implied malice
3 The Attorney General argues that defendant forfeited
the claims defendant asserts on appeal because he failed to
timely object on the same grounds asserted on appeal. We
elect to address the issues, however, because they involve
instructional errors and implicate substantial rights of the
defendant, including rights to a fair trial and due process.
(§ 1259; People v. Johnson (2015) 60 Cal.4th 966, 993.)
9
murder could be upheld “if the defendant knew his or her conduct
risked causing death or serious bodily injury.” (Knoller, supra,41 Cal.4th at p. 143.) Our Supreme Court reversed. It is “well
settled,” the court explained, that “a killer acts with implied
malice only when acting with an awareness of endangering
human life.” (Id. at p. 153.) Thus, “implied malice requires a
defendant’s awareness of engaging in conduct that endangers
the life of another—no more, and no less.” (Id. at p. 143; accord,
People v. Cravens (2012) 53 Cal.4th 500, 507.)
The written instructions given to the jury in the instant
case—including CALCRIM Nos. 520 and 580—correctly express
this rule, requiring the prosecution to prove that the defendant
acted with “conscious disregard for human life.” (CALCRIM
Nos. 520, 580; see Knoller, supra, 41 Cal.4th at p. 152 [CALCRIM
No. 520 includes “ ‘the straightforward language of the “conscious
disregard for human life” definition of implied malice’ ”]; People v.
Johnigan (2011) 196 Cal.App.4th 1084, 1092 (Johnigan)
[CALCRIM No. 520 is an accurate statement of the law].)
The prosecutor’s statement that the “standard for [the
murder] charge is[,] I don’t care if someone is hurt or killed,”
cannot be reconciled with the “conscious disregard for human
life” standard established in Knoller. The prosecutor’s statement
implies that the mens rea for implied malice would be satisfied
if the defendant acted with conscious disregard for harming
another. In Knoller, the Supreme Court held that the Court of
Appeal’s standard, which could be satisfied when the defendant
is aware “of the risk of causing serious bodily injury to another”
(Knoller, supra, 41 Cal.4th at p. 153) “set the bar too low” (id.
at p. 143). Here, the prosecutor set the bar even lower; it was
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apparently enough for the defendant merely to be aware that he
could “hurt” someone, even without causing serious bodily injury.
In support of his statement, the prosecutor relied on Olivas,
supra, 172 Cal.App.3d 984. In that case, the defendant was
driving a car under the influence of phencyclidine and being
chased at high speeds by police officers when he ran a stop sign
and collided with a car, killing an infant in the other car. (Id.
at p. 986.) A jury convicted him of murder, and he appealed,
challenging the sufficiency of the evidence. In discussing the
distinction between vehicular homicide and murder, the Olivas
court discussed Watson, supra, 30 Cal.3d 290, stating: “The
Supreme Court [in Watson] explained that a vehicular homicide
committed while intoxicated involves implied malice, and is thus
second degree murder, if ‘a person, knowing that his conduct
endangers the life of another, nonetheless acts deliberately
with conscious disregard for life.’ [Citation.] The homicide
is vehicular manslaughter if committed with gross negligence,
which is ‘the exercise of so slight a degree of care as to raise
a presumption of conscious indifference to the consequences.’
[Citation.] [¶] The distinction between ‘conscious disregard
for life’ and ‘conscious indifference to the consequences’ is subtle
but nevertheless logical. Phrased in everyday language, the
state of mind of a person who acts with conscious disregard for
life is, ‘I know my conduct is dangerous to others, but I don’t care
if someone is hurt or killed.’ The state of mind of the person who
acts with conscious indifferences to the consequences is simply,
‘I don’t care what happens.’ It makes sense to hold the former
more culpable than the latter, since only the former is actually
aware of the risk created.” (Olivas, supra, 172 Cal.App.3d
at pp. 987–988.) The court concluded that the evidence
11
was sufficient to support the murder conviction because the
defendant’s actions leading up to the fatal collision demonstrated
that he “was acting deliberately with conscious disregard for a
known, life-threatening risk.” (Id. at p. 989.)
The Olivas court did not cite any authority for the
statement: “ ‘I know my conduct is dangerous to others, but
I don’t care if someone is hurt or killed.’ ” (Olivas, supra, 172
Cal.App.3d at p. 988.) Moreover, the statement was dictum
in that case because the court based its conclusion on its
determination that defendant acted “with conscious disregard
for a known, life-threatening risk” (id. at p. 989), not because the
defendant acted with conscious disregard for whether someone
could be hurt.
The “hurt or killed” language in Olivas has been repeated
or referred to by numerous Courts of Appeal, both before and
after Knoller. (See, e.g., People v. Suazo (2023) 95 Cal.App.5th
681, 692; Murphy, supra, 80 Cal.App.5th at p. 726; People v.
Tseng (2018) 30 Cal.App.5th 117, 129; People v. Jimenez (2015)
242 Cal.App.4th 1337, 1358; People v. McNally (2015) 236
Cal.App.4th 1419, 1426; Johnigan, supra, 196 Cal.App.4th
at pp. 1091–1092; People v. David (1991) 230 Cal.App.3d 1109,
1114; People v. Murray (1990) 225 Cal.App.3d 734, 746; People v.
Brogna (1988) 202 Cal.App.3d 700, 708.) 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.
The court here compounded the prosecutor’s error when, in
response to the jury’s question as to the source of the statement,
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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.
The errors are not harmless under any standard. After
several votes among the jurors, they were nearly evenly split
and “deadlocked,” with no one “changing their mind.” Based
upon the questions jurors posed to the court and the statements
made by the jury foreperson, it appears that the jurors were
divided on the nature of implied malice. In particular, they
appeared to disagree as to the degree to which the defendant’s
actions must endanger the victim’s life. Notwithstanding the
written instructions that correctly required the defendant’s acts
be “dangerous to human life,” and that the defendant act “with
conscious disregard for human life,” the jurors were eventually
told by the prosecutor that it is enough that the defendant act
without caring that someone is “hurt,” a standard that the court
informed them was grounded in “case law decisions.” 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. The prejudice is unmistakable.
Accordingly, the judgment is reversed.
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DISPOSITION
The judgment is reversed.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.
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