People V. Benitez

This case presents the question whether the act of brandishing a firearm may constitute an act sufficiently dangerous to life to support a conviction of second degree murder on an implied malice theory. (Pen. Code, § 187, subd. (a), 189.)*fn1 The Court of Appeal held that although the act of intentionally firing a handgun could support a finding of malice, the act of intentionally brandishing a handgun, as a matter of law, could not support such a finding. Because the trial court's instructions permitted the jury to base a finding of malice on defendant's intentional brandishing of a firearm, the Court of Appeal concluded that defendant's conviction of second degree murder must be reversed.