People v. Knoller
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) 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.
I. FACTS AND PROCEEDINGS
Defendant Knoller (…) 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.
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.
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 from him.
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.
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.
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. 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 happening?”
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.
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 another.
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.)
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 another.
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 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.
* Conley no sugirió en absoluto que tuviera la intención de apartarse de la opinión expresada en Washington.
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