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People v. Nieto Benitez

Citation. 4 Cal. 4th 91, 840 P.2d 969, 13 Cal. Rptr. 2d 864, 1992 Cal. 5775.
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Brief Fact Summary.

The Defendant, Martin Nieto Benitez, shot and killed the victim, Guero, after an argument. The Defendant was convicted of second degree murder and challenges the sufficiency of the evidence with regard to the element of malice.

Synopsis of Rule of Law.

Brandishing a loaded firearm in a threatening manner, when viewed in context, may constitute a sufficiently dangerous act to support a finding that the defendant acted with implied malice.


The Defendant was hit in the back of the head with a plate of food thrown during horseplay between Guero and another man, Caballo. The Defendant turned and asked who was going to wash his shirt. Guero replied that no one was, and the Defendant and Guero argued. The Defendant then went home to retrieve a gun and returned to confront Guero. After a brief exchange, Guero lunged at the Defendant, and the Defendant pulled the gun and shot Guero. Guero died of blood loss about an hour later. At trial, the judge instructed the jury that brandishing a loaded handgun in a threatening manner may constitute an intentional act sufficient to establish the element of malice. A jury convicted the Defendant of second degree murder, and he appealed. The Court of Appeal reversed the conviction on the ground that the instruction was erroneous. This appeal ensued.


Did the trial court properly instruct the jury that the brandishing of a loaded gun in a threatening manner may constitute malice?


Yes. Court of Appeal decision reversed and conviction reinstated. First degree murder is the unlawful and willful, premeditated, and deliberate killing of a human being with malice aforethought. Second degree murder is an unlawful killing with malice aforethought but is not willful, premeditated, and deliberate. Manslaughter is the unlawful killing of a human being without malice. Malice may be express or implied. Express malice requires a manifestation of “a deliberate intention unlawfully to take away the life of a fellow creature,” whereas implied malice is present “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” 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. In the present case, the defendant pulled a loaded handgun in a threatening manner. Under the defi
nitions set forth above, this may constitute an act sufficient to imply malice. Therefore, the jury was properly instructed and properly returned a guilty verdict for second degree murder.


Whether a defendant acted with malice is a question for the jury. Under this case, brandishing a loaded weapon is sufficient to prove malice.

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