THE PEOPLE, Plaintiff and Respondent, v. LELAND DELLINGER, Defendant and Appellant, 49 Cal. 3d 1212

Opinion EAGELSON, J. We granted review in this case to determine whether CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.), the standardized instruction defining implied malice, adequately informs the jury that implied malice requires a finding of the defendant’s subjective awareness or appreciation of the life-threatening risk created by his conduct. For the reasons set forth hereafter, we conclude that it does.

Although we hold that the “wanton disregard for human life” definition of implied malice embodied in the 1983 revision of CALJIC No. 8.11 independently conveys the “subjective awareness” requirement to the jury, we are nevertheless persuaded that, by contemporary standards, it is a superfluous charge.

The better practice in the future is to instruct juries solely in the straightforward language of the second definition in that instruction—that malice is implied when the killing results from an intentional 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 (1966) 64 Cal.2d 574, 587-588 [51 Cal.Rptr. 225, 414 P.2d 353]; see also CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.).) I At his first trial, a jury found defendant guilty of the first degree murder of his two-year-old stepdaughter, Jaclyn Z. The trial court reduced the conviction to second degree murder, and it was ultimately reversed. (People v. Dellinger (1984) 163 Cal.App.3d 284 [209 Cal.Rptr. 503].) On retrial, the jury convicted defendant of second degree murder. The following facts were established at the second trial: On the evening of May 29, 1979, two-year-old Jaclyn Z. died at St.

Joseph’s Hospital in the City of Orange. An autopsy revealed the cause of death to be a fractured skull and swelling of the brain due to blunt-force trauma to the head. The toxicology report further revealed the presence of cocaine in Jaclyn’s blood and liver, and a very large, potentially fatal dose in her stomach. The forensic pathologist who performed the autopsy opined that ingestion of cocaine was a contributing cause of death. A second autopsy revealed a contusion of the child’s cervical spinal cord.

Forensic pathologist Thomas Noguchi testified that the skull fracture could have resulted from a forceful blow delivered by a hand. Pediatrician David Chadwick, an expert on child abuse, testified that Jaclyn’s skull fracture did not result from a fall down the carpeted stairs of defendant’s apartment. Neurosurgeon Eldon Foltz, called by the defense, testified that in his opinion the head injury could have resulted from a fall down the carpeted stairs and was “highly unlikely” to have been caused by a hand-delivered blow.

Jaclyn lived with defendant, who was her stepfather, and her mother Dianne, in a split-level apartment. When Dianne got home from work on the day of Jaclyn’s death, defendant told her to hurry upstairs because the child had been hurt. Defendant was administering mouth-to-mouth resuscitation to Jaclyn in the kitchen and had telephoned for help. He told Dianne he had ^picked up Jaclyn from the landing in the middle of the stairway after hearing a noise.

At one point defendant looked at the unconscious child, banged the kitchen counter with his fists, and stated in an angry tone: “Jackie, why are you doing this to me?” When Dianne asked, “What do you mean what did she do to you? She [is] trying to stay alive. I don’t understand.” Defendant made no reply. Paramedics shortly arrived on the scene. En route to the hospital, defendant told Dianne that he had given Jaclyn some wine in a baby bottle, stating: “It doesn’t matter now, they’re going to find it anyway.” Later that evening, after Jaclyn died, defendant and Dianne returned to their apartment.

Dianne saw a baby bottle three-quarters full of wine on top of the refrigerator. She asked defendant why he would give a two-year-old child wine in a baby bottle. He stated Jaclyn was being “fussy” and he was “trying to calm her down.” Dianne poured the baby bottle of wine down the kitchen sink. A few days later, Dianne discovered that all of Jaclyn’s baby bottles were missing. Defendant admitted to her that he had thrown them away. City of Orange Detective Bruce Praet testified that defendant told him he had been preparing dinner when he heard a “thud” coming from the area of the staircase.

He found Jaclyn at the bottom of the stairs, unconscious and having difficulty breathing. Betty Krauss, Jaclyn’s regular daytime babysitter, testified that one day in April 1979, she observed a black-and-blue handprint—shaped bruise on the child’s lower back-upper buttocks area.

When defendant picked up Jaclyn on that date he told Krauss “that he had a real rough night, that [Jaclyn had] been up off and on all night, and that he had whipped her and that he had realized in the morning that he had done it much harder than he had ¡anticipated.” II The jury was instructed on implied malice in the language of CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.), which in relevant part provides: “Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life or when the killing results from an intentional 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.” (Italics added.) Second degree murder was defined for the jury using virtually identical language. (CALJIC No. 8.31 (1983 rev.) (4th ed. pocket pt.).) Defendant objects to inclusion of the first definition in the instruction, which directs the jury to find implied malice “when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life.” He argues that this language allowed the jury to find implied malice without determining that he subjectively appreciated the life-threatening risk which his conduct posed to his stepdaughter Jaclyn’s life.

The Court of Appeal agreed, finding that the phrase “wanton disregard for human life” is confusing because “wanton” is nowhere defined in the instruction and does not convey a knowing or conscious appreciation of the risk to human life. We conclude that the “wanton disregard for human life” definition of implied malice does adequately convey to the jury that defendant need be shown to have subjectively appreciated the life-threatening risk created by his conduct. In People v.

Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279], this court restated the rule that the element of malice aforethought necessary for a conviction of second degree murder may be implied. We expressly reaffirmed that “a finding of implied malice depends upon a determination that the defendant actually appreciated the risk [to human life] involved, i.e., a subjective standard. (People v.

Phillips, supra, 64 Cal.2d at p. 588.)” (Watson, supra, 30 Cal.3d at pp. 296-297, italics in original.) The statutory definition of implied malice has never proved of much assistance in defining the concept in concrete terms. Penal Code

section 188 simply provides that: “[Malice] is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” Prior, to Watson, two

definitions evolved to describe the mental state required for a finding of implied malice. Each formulation attempted to define (he concept in tangible terms a jury could understand and apply. Thus; in People v. Thomas (1953) 41 Cal.2d 470, 480 [261 P.2d 1] (Traynor, J., conc.), we construed the “abandoned and malignant heart” statutory definition of implied malice as that state of mind where “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.” (See also People v. Poddar (1974) 10 Cal.3d 750, 756-757 [111 Cal.Rptr. 910, 518 P.2d 342]; People v. Washington (1965) 62 Cal.2d 111, 782 [44 Cal.Rptr. 442, 402 P.2d 130]). In People v. Phillips, supra, 64 Cal.2d at page 587, we phrased the definition a different way, holding that malice is presumed when “ ‘the killing proximately resulted from

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.’ ” (See also People v. Sedeno (1974) 10 Cal.3d 703, 719 [112 Cal.Rptr. 1, 518 P.2d 913].) Critically, however, nothing in these seminal decisions suggested that the “wanton disregard for human life” definition did not connote a “conscious disregard for life”—and thus a subjective awareness or appreciation of the risk created. (See, e.g., People v.

Washington, supra, 62 Cal.2d at pp. 780, 782 [referring interchangeably to the “conscious disregard for life” standard and the “wanton disregard for human life” standard as alternative formulations of a definition of implied malice].) It was clear from our holding in Washington that under either test, a finding of implied malice required a showing ,of defendant’s awareness of the risk to life created by his conduct.

In Phillips we criticized utilization of the statutory term “abandoned and malignant heart” in a jury instruction, explaining it might “encourage the jury to apply an objective rather than subjective standard in determining whether the defendant acted with conscious disregard of life. . . .” (Phillips, supra, 64 Cal.2d at p. 588, italics added.) This of the law of implied malice was reiterated in People v. Watson, supra, 30 Cal.3d 290.

We expressly reaffirmed that “a finding of implied malice depends upon a determination that the defendant actually appreciated the risk [to human life] involved, i.e., a subjective standard. [Citation].” (Watson, supra, 30 Cal.3d at pp. 296-297, italics in original.) We went on to define implied malice in Watson as follows: “[S]econd degree murder based on implied malice has been committed when a person does

an act, the natural consequences of which are dangerous to life, which act was deliber- ately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. . . . (People v. Sedeno, supra, 10 Cal.3d at p. 719, quoting from People v. Phillips, supra, 64 Cal.2d 574, 587 [internal quotation marks omitted].) Phrased in a different way, malice may be implied when defendant does

an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. (People v. Washington (1965) 62 Cal.2d 777, 782 [44 Cal.Rptr. 442, 402 P.2d 130].)” (Watson, supra, 30 Cal.3d at p. 300, italics added.) Watson thus made it abundantly clear that the two

definitions of implied malice which evolved in the aforementioned cases articulated one and the same standard. However, the drafters of CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.) substituted the disjunctive “or” for our transition “[p]hrased in a different way” in Watson. Several appellate decisions criticized the revised instruction as confusing and susceptible of the

interpretation that there are different tests for implied malice, the first of which—“wanton disregard for human life”—does not convey the “subjective awareness of the risk” requirement. (See, e.g., People v. Protopappas (1988) 201 Cal.App.3d 152, 162-164 [246 Cal.Rptr. 915]; People v. James (1987) 196 Cal.App.3d 272, 290-291 [241 Cal.Rptr. 691].) Another line of cases concluded that the “wanton disregard for human life” definition of implied malice independently conveys the “subjective awareness” requirement. (See, e.g., People v. Benson (1989) 210 Cal.App.3d 1223, 1228-1231 [259 Cal.Rptr. 9]; People v.

Rosenkrantz (1988) 198 Cal.App.3d 1187, 1203 [244 Cal.Rptr. 403] [upholding instruction where the only definition of implied malice read to the jury was that utilizing the terms “wanton disregard for human life” and “base antisocial purpose”]; People v.

Flores (1986) 178 Cal.App.3d 74, 80 [223 Cal.Rptr. 465] [same].) Viewing the language of the “wanton disregard” definition as a whole, a reasonable juror would understand that one who acts “with a base antisocial motive and with a wanton disregard for human life” necessarily acts with knowledge of the life-threatening harm that might occur if he proceeds with “an act with a high probability that it will result in death.” The noun “disregard” has been defined as describing the circumstance where a lack of attention is “intentional” or “willful.” (Webster’s New Internat.

Dict. (3d ed. 1981) p. 655; The American Heritage Dict. (2d ed. 1982) p. 408.) The court in People v.

Benson, supra, 210 Cal.App.3d 1223, concluded that the “wanton disregard for human life” definition “necessarily encompass[es] an evaluation of the defendant’s subjective state of mind.” (Id. at p. 1230.) As that court aptly observed: “How can an individual wantonly disregard a fact without having regarded it in the first instance?” (Id. at p. 1230, fn. 4, italics in original.) “Moreover, although the term ‘wanton’ may not be common parlance, it is defined ... in the common law as involving an element of ‘consciousness of one’s conduct’ and ‘realization of the probable injury to another. (Albers v.

Shell Company (1930) 104 Cal.App. 733, 750 [286 P. 752], disapproved on other grounds in Meyer v. Blackman (1963) 59 Cal.2d 668, 676 [31 Cal.Rptr. 36, 381 P.2d 916]; accord People v. Schumacher (1961) 194 Cal.App.2d 335, 340 [14 Cal.Rptr. 924]; People v. McNutt (1940) 40 Cal.App.2d Supp. 835, 837 [105 P.2d 657].)” (People v. Benson, supra, 210 Cal.App.3d at p. 1230.) Black’s Law Dictionary defines “wanton” as used in the term “wanton injury” to mean: “Injury produced by conscious and intentional wrongful act, or omission of known duty with reckless indifference to consequences.

It must be predicated upon actual knowledge of another’s peril and a failure to take available preventative action knowing that such failure will probably result in injury. Rainey v. State, 31 Ala.App. 271, 17 So.2d 683, 686.” (Black’s Law Dict. (5th ed. 1979) p. 1419, italics added.) The same source defines “wantonness” as: “Conscious doing of some act or the omission of some duty with knowledge of existing conditions and consciousness that, from the act or omission, injury will likely result to another. Bedwell v. DeBolt, 221 Ind. 600, 50 N.E.2d 875, 877.

Conscious failure by one charged with a duty to exercise due care and diligence to prevent an injury affr the discovery of the peril, or under circumstances where he is charged with a knowledge of such peril, and being conscious of the inevitable or probable results of such failure. Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573.

A reckless or intentional disregard of the property, rights, or safety of others, implying, actively, a willingness to injure and disregard of the consequences to others, and, passively, more than mere negligence, that is, a conscious¡and intentional disregard of duty.” (Black’s Law Dict., supra, at p. 1419, italics added.) We therefore conclude that the “wanton disregard for human life” definition of implied malice would be understood by a reasonable juror to independently require a finding of the defendant’s subjective awareness of the life-threatening risk.

It was not error to instruct the jury below in the language of the 1983 revision of CALJIC Nos. 8.11 or 8.31. We nevertheless believe that, by contemporary standards, the “wanton disregard for human life” standard has become a superfluous charge. We reached a similar conclusion in Phillips respecting the “cryptic statutory requirement of an ‘abandoned and malignant heart.’ ” (Phillips, supra, 64 Cal.2d at p. 586.) We explained in that case that: “The presence of the metaphysical language in the statute does not compel its incorporation in instructions if to do so would create superfluity and possible confusion.

In its origin the language did no more than phrase a companion or alternative description of a conscious disregard of life; since the instruction here specifically sets forth the latter, the former merely duplicates it.” (Id. at p. 588.) We concluded that “[t]he dangers inherent in [use of the ‘abandoned and malignant heart’ language] and the absence of any compensating advantage impel us to suggest its replacement with the more comprehensive and informative charge ... in the form that we have submitted.” (Ibid.) The term “wanton disregard for human life” is not as “cryptic” as the phrase “abandoned and malignant heart.” As we have shown, the term “wanton” has various applications connoting conscious or knowing acts, and is firmly rooted in the common law.

Still, the term is not in common use in contemporary daily speech, and there remains the possibility that many laypersons will be unfamiliar with its meaning. We see no “compensating advantage” to the continuing use of obscure phraseology to instruct jurors on the complexities of homicide law. (Phillips, supra, 64 Cal.2d at p. 588.) 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.

To this end, we note that the most recent revisions of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.) exclusively adopt such a definition, eliminating any reference to the “wanton disregard for human life” test for implied malice. CALJIC No. 8.11 now provides, in pertinent ¡part, that: “Malice is implied when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3.

The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.” (See also CALJIC No. 8.31 (5th ed. 1988 bound vol.).) We approve of this newly revised implied malice instruction, and agree with the CALJIC committee’s conclusion that the “conscious disregard for human life” definition, standing alone, is “more comprehensible to the average juror.” (See comment following CALJIC No. 8.11 (5th ed. 1988 bound vol.).) We note that the evidence introduced below overwhelmingly established the element of implied malice necessary to support defendant’s conviction of second degree murder.

The fact that two-year-old Jaclyn was in defendant’s care when the fatal injuries were sustained, the handprint bruise left by defendant on the child’s body one month before the incident, the skull fracture and other severe head injuries which caused death, defendant’s act of giving her wine in a baby bottle on the afternoon of her death, and the presence of a potentially fatal dose of cocaine in the child’s body, combined with the expert testimony to establish the requisite mental state.

In view of the evidence, the jury reasonably rejected the defense that Jaclyn’s death resulted from an accidental fall down the carpeted stairs. Conclusion The judgment of the Court of Appeal is reversed. Lucas, C. J., Mosk, J., Panelli, J., Kaufman, J., and Kennard, J., concurred.

Although we find no error in the giving of CALJIC No. 8.11 (1983 rev.) (4th ed. pocket pt.), several Court of Appeal opinions have recognized the potential for exploitation of the two-pronged instruction when combined with affirmative arguments to the jury that defendant could be found guilty of second degree murder even without subjective awareness of the risk to human life created by his conduct. (See, e.g., People v. Benson, supra, 210 Cal.App.3d at p. 1230; People v. Protopappas, supra, 201 Cal.App.3d at pp. 163-164.) No such affirmatively misleading argument occurred in this case.

The record shows that the prosecutor used the terms “wanton disregard” and “conscious disregard” interchangeably, thus equating them. In reviewing the facts in his closing argument, he weaved in the “subjective awareness” requirement, utilizing language from both

definitions of implied malice. The dissenting opinion concludes that, “In the circumstances of the instant case, there is a substantial likelihood that the jury under the ‘wanton’ instruction concluded that malice was implied on the basis of reckless behavior of defendant whether or not decedent’s fracture was caused by a fall down the stairs.” (Post, at p. 1228.) We have concluded there was no instructional error in the giving of CALJIC Nos. 8.11 or 8.31 (1983 rev.) (4th ed. pocket pt.).

Assuming arguendo we had found such error, and thus had occasion to assess its prejudicial impact, if any, we would still be in sharp disagreement with the dissent’s conclusions in that regard. Critically, the jury here was further instructed pursuant to CALJIC No. 8.51 [Murder and Manslaughter Distinguished—Nature of Act Involved] (1983 rev.) (4th ed. pocket pt.) as follows: “There are many acts which are lawful but nevertheless endanger human life.

If a person causes another’s death by doing such a dangerous act in an unlawful or criminally negligent manner without realizing the risk involved, he is guilty of manslaughter. If, on the contrary, he had realized the risk and acted in total disregard of the danger to life involved, malice would be implied and he could be guilty of murder.” (Italics added.) Given the instructions as a whole (cf. People v.

Sedeno, supra, 10 Cal. 3d at p. 721), and the jury’s rejection of a manslaughter verdict thereunder, we would not conclude, as does the dissent, that the jurors in this case may have been misled by the implied malice instructions to defendant’s detriment.