41 Cal. 4th 139
PROCEDURAL POSTURE: The California Court of Appeal, First District, Division Two, reversed an order granting defendant a new trial on a second degree murder charge and remanded the case to the trial court for reconsideration of the new trial motion in light of the intermediate appellate court's holding that implied malice can be based simply on a defendant's conscious disregard of the risk of serious bodily injury to another. Defendant petitioned for review.
-Two dogs owned by defendant and her husband attacked and killed a female victim in the hallway of an apartment building.
-The instant court concluded that the trial court abused its discretion in granting defendant a new trial.
-The trial court erroneously concluded both that defendant 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 People did not charge her husband with murder.
-Even assuming a new trial could be granted based on differential treatment of defendants, it was not justified here.
-Defendant and her husband were not similarly situated with regard to the fatal mauling.
-The immediate cause of the victim's death was defendant's own conscious decision to take one of the dogs unmuzzled through the apartment building, where they were likely to encounter other people, knowing that the dog was aggressive and highly dangerous and that she could not control him.
-The intermediate appellate court also erred in concluding that implied malice required only a showing that defendant appreciated the risk of serious bodily injury.
OUTCOME: The intermediate appellate court's judgment was reversed, and the matter was remanded to that court with directions to return the case to the trial court for reconsideration of defendant's new trial motion in accord with the views expressed in the instant court's opinion.
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