malice requirement in California

2024DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th 981 , 986 (Reyes); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708 ; People v. Lewis (2021) 11 Cal.5th 952, 957 ).

2024Effective January 1, 2019, Senate Bill 1437 (Stats. 2018, ch. 1015, §§ 2-3) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and narrowed the felony-murder exception to the malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957 ; see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Gentile (2020) 10 Cal.5th 830, 842-843 .) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual’s participation in a crime and requires proo

2024DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th 981 , 986 (Reyes); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708 ; People v. Lewis (2021) 11 Cal.5th 952, 957 ).

2024Effective January 1, 2019, Senate Bill 1437 (Stats. 2018, ch. 1015, §§ 2-3) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and narrowed the felony-murder exception to the malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957 ; see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Gentile (2020) 10 Cal.5th 830, 842-843 .) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual’s participation in a crime and requires proo

2024DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Reyes (2023) 14 Cal.5th 981 , 986 (Reyes); People v. Gentile (2020) 10 Cal.5th 830, 842-843 (Gentile)) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708 ; People v. Lewis (2021) 11 Cal.5th 952, 957 ).

2024Effective January 1, 2019, Senate Bill 1437 (Stats. 2018, ch. 1015, §§ 2-3) eliminated the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder and narrowed the felony-murder exception to the malice requirement for murder. (§§ 188, subd. (a)(3), 189, subd. (e); People v. Lewis (2021) 11 Cal.5th 952, 957 ; see People v. Strong (2022) 13 Cal.5th 698, 707-708 (Strong); People v. Gentile (2020) 10 Cal.5th 830, 842-843 .) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on an individual’s participation in a crime and requires proo

2014Rather, it is alleged they did so negligently, which “ ‘is not enough to demonstrate actual malice. [Citation.]’ ” (Stewart v. Rolling Stone Inc., supra, 181 Cal.App.4th at p. 690 .) The Rating Agencies are also correct as a general matter that, to provide the “breathing space” required by the First Amendment, publishers are not subject to liability for false statements unless such statements were made with “actual malice.” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 327-328 [ 41 L.Ed.2d 789 , 94 S.Ct. 2997 ].) In recognition of the fact certain types of speech are “less central to the i

2014Ten years later, in Gertz v. Robert Welch (1974) 418 U.S. 323, 342 (Gertz), the court extended the actual malice requirement to plaintiffs who, although they are not public officials, “by reason of the notoriety of their achievements or the vigor and 6 Although defendants assert in their respondents’ brief that they “never conceded that the statements in the Article were false,” they do not contend that plaintiff did not establish a prima facie case of falsity. 24 success with which they seek the public’s attention, are properly classified as public figures.” (Italics added.) The court explain

2024DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Curiel (2023) 15 Cal.5th 433, 444 (Curiel); People v. Reyes (2023) 14 Cal.5th 981 , 986) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see Curiel, at p. 448; People v. Wilson (2023) 14 Cal.5th 839 , 868-869 (Wilson).) Section 188, subdivision (a)(3), now pr

2024DISCUSSION A. Section 1172.6 Effective 2019, the Legislature substantially modified the law governing accomplice liability for murder, eliminating the natural and probable consequences doctrine as a basis for finding a defendant guilty of murder (People v. Curiel (2023) 15 Cal.5th 433, 448 ; People v. Reyes (2023) 14 Cal.5th 981 , 986; People v. Gentile (2020) 10 Cal.5th 830, 842-843 ) and significantly narrowing the felony-murder exception to the malice requirement for murder (§§ 188, subd. (a)(3), 189, subd. (e); see People v. Strong (2022) 13 Cal.5th 698, 707-708 ; People v. Lewis (2021) 11

2026(People v. Oyler (2025) 17 Cal.5th 756 , 835 (Oyler); People v. Patton (2025) 17 Cal.5th 549 , 558 (Patton); People v. Arellano (2024) 16 Cal.5th 457 , 467-468; People v. Curiel (2023) 15 Cal.5th 433, 448-449 ; see People v. Strong (2022) 13 Cal.5th 698, 707-708 [felony murder]; People v. Gentile (2020) 10 Cal.5th 830, 842-843 [natural and probable consequences].) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on a person’s participation in a crime and requires proof of malice to and indirectly therefrom.’ ” (People v. Cooke (1993) 16 Cal.App.4th 1361, 1366 ; see P

2025(Patton, supra, 17 Cal.5th at p. 558; People v. Arellano (2024) 16 Cal.5th 457 , 467-468; People v. Curiel (2023) 15 Cal.5th 433, 448-449 ; see People v. Strong (2022) 13 Cal.5th 698, 707-708 [felony murder]; People v. Gentile (2020) 10 Cal.5th 830, 842-843 [natural and probable consequences].) Section 188, subdivision (a)(3), now prohibits imputing malice based solely on a person’s participation in a crime and requires proof of malice to convict a defendant of murder, except under the revised felony- murder rule. (§§ 188, subd. (a)(3), 189, subd. (e); Patton, at p. 558; Arellano, at pp. 467-4

2022(Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253 (Reader’s Digest).) We agree the record as currently developed appears insufficient to establish that Baussan is an all purpose public figure, and as indicated, we do not read defendants’ briefs as arguing otherwise. 9 (See Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256 (Reader’s Digest).) Where it applies, this heightened malice standard must be taken into account in analyzing an anti-SLAPP motion.

2022(Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253 (Reader’s Digest).) We agree the record as currently developed appears insufficient to establish that Baussan is an all purpose public figure, and as indicated, we do not read defendants’ briefs as arguing otherwise. 9 (See Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256 (Reader’s Digest).) Where it applies, this heightened malice standard must be taken into account in analyzing an anti-SLAPP motion.

2022The doctrine made “a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 254 , 262- 263.) Because a nontarget murder “is unintended, the mens rea of the aider and abettor 14 with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have fore

2022The doctrine made “a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 254 , 262- 263.) Because a nontarget murder “is unintended, the mens rea of the aider and abettor 14 with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have fore

2021The physical component is satisfied by the performance of “an act, the natural consequences of which are dangerous to life.” [Citation.] The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.” ’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181 (Chun).) Before Senate Bill No. 1437, the felony-murder rule and the natural and probable consequences doctrine were exceptions to the actual malice requirement.

2021Phrased another way, implied malice exists when the defendant commits “ ‘an act, the natural consequences of which are dangerous to life’ ” and “ ‘knows that his [or her] conduct endangers the life of another and . . . acts with a conscious disregard for life.’ ” (People v. Chun (2009) 45 Cal.4th 1172, 1181 .) “Before Senate Bill 1437, the felony-murder rule and the natural and probable consequences doctrine were exceptions to the actual malice requirement.

2021(See, e.g., People v. Mai (1994) 22 Cal.App.4th 117, 124 [“an element of the provocative act doctrine is implied malice”], disapproved on other grounds by People v. Nguyen (2000) 24 Cal.4th 756, 757 .) Provocative act murder has both a physical and a mental element.

2020(See, e.g., People v. Mai (1994) 22 Cal.App.4th 117, 124 [“an element of the provocative act doctrine is implied malice”], disapproved on other grounds in People v. Nguyen (2000) 24 Cal.4th 756, 757 ; see also Gilbert, supra, 63 Cal.2d at pp. 703-704 [defendant’s murder conviction based on police officer’s killing of accomplice required proof of malice].) The malice requirement stands in marked contrast to the mens rea contemplated by the natural and probable consequences 9 doctrine.

2025Previously, however, our Supreme Court explained the malice requirement in arson ensures that the act is “ ‘done with a design to do an intentional wrongful act … without any legal justification, excuse or claim of right,’ ” and the “willful and malice requirement ensures that” it is “a deliberate and intentional act, as distinguished from an accidental or unintentional … act.” (People v. Atkins (2001) 25 Cal.4th 76 , 88.) It has this meaning regardless of whether malice’s definition includes any mitigating circumstances and is not included in arson’s definition of malice.

2024(V.V., supra, 51 Cal.4th at p. 1034 (dis. opn. of Kennard, J.).) But Justice Kennard’s view did not prevail. 15 supra, 25 Cal.4th at p. 88 , italics added.) In V.V., the court stated, “ ‘[T]here must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property.’ ” (V.V., supra, 51 Cal.4th at p. 1029 , italics added.) But these quoted statements that defendant relies on were made by the court in discussing the malice requirement for arson, not what

2025(Edward v. Ellis (2021) 72 Cal.App.5th 780 , 793.) “The actual malice standard . . . requires a showing that the allegedly false statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ [Citation.] The reckless disregard standard requires a ‘high degree of awareness of . . . probable falsity . . . .’ [Citation.] ‘There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ [Citation.]” (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1167 .) “The

2015The court quoted New York Times Co. v. Sullivan (1964) 376 U.S. 254 , which explained that the actual malice standard is “based on a recognition that ‘erroneous statement is inevitable in free debate’ and ‘must be protected’ to give freedom of expression the ‘breathing space’ it needs to survive. [Citation.]” (Annette F., supra, at p. 1168 .) The court interpreted Sharon’s statement that Annette was a convicted perpetrator of domestic violence to refer to a family court finding that Annette had committed domestic violence against Sharon.

2023(Beilenson v. Superior Court (1996) 44 Cal.App.4th 944 , 949–950 (Beilenson).) 9 It is “a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” (New York Times v. Sullivan, supra, 376 U.S. at p. 269 , quotation marks and citation omitted.) Our “profound national commitment [is] to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (Id. at p. 270.) Courts formulated t

2023(Beilenson v. Superior Court (1996) 44 Cal.App.4th 944 , 949–950 (Beilenson).) 9 It is “a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions.” (New York Times v. Sullivan, supra, 376 U.S. at p. 269 , quotation marks and citation omitted.) Our “profound national commitment [is] to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” (Id. at p. 270.) Courts formulated t

2025(Enmund v. Florida (1982) 458 U.S. 782, 797 .) However, the United States Supreme Court has held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” (Tison v. Arizona (1987) 481 U.S. 137, 158 .) 6 Section 190.2, subdivision (d), generally provides that “every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of [an enumerated] felony . . .

2023(Enmund v. Florida (1982) 458 U.S. 782, 797 (Enmund).) However, the United States Supreme Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” (Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison).) Applying Enmund, Tison, and related cases, the California Supreme Court has provided a nonexclusive list of factors to assist the fact finder in determining whether a defendant was a “major participant” in a felony murder, namely: “What role did the defendant have in planning the c

2025(Enmund v. Florida (1982) 458 U.S. 782, 797 .) However, the United States Supreme Court has held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” (Tison v. Arizona (1987) 481 U.S. 137, 158 .) 6 Section 190.2, subdivision (d), generally provides that “every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of [an enumerated] felony . . .

2023(Enmund v. Florida (1982) 458 U.S. 782, 797 (Enmund).) However, the United States Supreme Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” (Tison v. Arizona (1987) 481 U.S. 137, 158 (Tison).) Applying Enmund, Tison, and related cases, the California Supreme Court has provided a nonexclusive list of factors to assist the fact finder in determining whether a defendant was a “major participant” in a felony murder, namely: “What role did the defendant have in planning the c

1998Amant v. Thompson (1968) 390 U.S. 727, 731 [ 88 S.Ct. 1323, 1325 , 20 L.Ed.2d 262 ].) In Curtis Publishing Co. v. Butts (1967) 388 U.S. *263 130, 134 [ 87 S.Ct. 1975, 1980-1981 , 18 L.Ed.2d 1094 ], the high court held that this “actual malice” requirement for defamation actions brought by public officials applied also to defamation actions brought by “public figures.” In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 [ 94 S.Ct. 2997 , 41 L.Ed.2d 789 ] (Gertz), the court explained that it had imposed the actual malice requirement on defamation actions by both public officials and public figure

1998Amant v. Thompson (1968) 390 U.S. 727, 731 [ 88 S.Ct. 1323, 1325 , 20 L.Ed.2d 262 ].) In Curtis Publishing Co. v. Butts (1967) 388 U.S. *263 130, 134 [ 87 S.Ct. 1975, 1980-1981 , 18 L.Ed.2d 1094 ], the high court held that this “actual malice” requirement for defamation actions brought by public officials applied also to defamation actions brought by “public figures.” In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323 [ 94 S.Ct. 2997 , 41 L.Ed.2d 789 ] (Gertz), the court explained that it had imposed the actual malice requirement on defamation actions by both public officials and public figure

2008Counsel repeatedly refers to the six following issues as particularly complex, but we note the first two are settled as hornbook law in the anti-SLAPP context (see Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 80 [ 55 Cal.Rptr.3d 600 ] (Christian Research)) and the final three are duplicative, merely reiterating application of the actual malice standard in this case.

2008Counsel repeatedly refers to the six following issues as particularly complex, but we note the first two are settled as hornbook law in the anti-SLAPP context (see Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 80 [ 55 Cal.Rptr.3d 600 ] (Christian Research)) and the final three are duplicative, merely reiterating application of the actual malice standard in this case.

2024(V.V., supra, 51 Cal.4th at p. 1034 (dis. opn. of Kennard, J.).) But Justice Kennard’s view did not prevail. 15 supra, 25 Cal.4th at p. 88 , italics added.) In V.V., the court stated, “ ‘[T]here must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property.’ ” (V.V., supra, 51 Cal.4th at p. 1029 , italics added.) But these quoted statements that defendant relies on were made by the court in discussing the malice requirement for arson, not what

2024(V.V., supra, 51 Cal.4th at p. 1034 (dis. opn. of Kennard, J.).) But Justice Kennard’s view did not prevail. 15 supra, 25 Cal.4th at p. 88 , italics added.) In V.V., the court stated, “ ‘[T]here must be a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property.’ ” (V.V., supra, 51 Cal.4th at p. 1029 , italics added.) But these quoted statements that defendant relies on were made by the court in discussing the malice requirement for arson, not what

2021(See People v. Chism (2014) 58 Cal.4th 1266, 1307, fn. 13 [any error in basis for omitting evidence is “of no consequence” where evidence was properly admitted on other grounds].) intent to kill can satisfy the malice requirement, malice may be implied even in the absence of manifested and deliberate intent.

2021(See generally People v. Brooks (2017) 3 Cal.5th 1, 39 [appellate court will generally affirm a trial court’s ruling if correct on any ground, even if the court’s reasoning was incorrect]; People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12 [same].) 15 mental state of malice.” (People v. Gonzalez, supra, 54 Cal.4th at p. 655 ; see People v. Swanson, supra, 57 Cal.App.5th at p. 613, review granted [the malice requirement for provocative act murder “stands in marked contrast to the mens rea contemplated by the natural and probable consequences doctrine”]; People v. Lee, supra, 49 Cal.App.5th at

2022The doctrine made “a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 254 , 262- 263.) Because a nontarget murder “is unintended, the mens rea of the aider and abettor 14 with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have fore

2022The doctrine made “a person who aids and abets a confederate in the commission of a criminal act . . . liable not only for that crime (the target crime), but also for any other offense (nontarget crime) [including murder] committed by the confederate as a ‘natural and probable consequence’ of the crime originally aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th 248, 254 , 262- 263.) Because a nontarget murder “is unintended, the mens rea of the aider and abettor 14 with respect to that offense is irrelevant and culpability is imposed simply because a reasonable person could have fore

2023(Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1168 (Annette F.).) Plaintiffs like candidate Collins who are public figures must prove actual malice by clear and convincing evidence and may rely on circumstantial evidence to do so. ( Harte-Hanks, supra, 491 U.S. at pp. 659, 668.) “The clear and convincing standard requires that the evidence be such as to command the unhesitating assent of every reasonable mind.” (Beilenson, supra, 44 Cal.App.4th at p. 950 .) These federal constitutional rules govern.

2022We discuss this argument as to Houston below. 34 The actual malice standard “focuses solely on the defendant’s subjective state of mind at the time of publication.” (Sutter Health v. UNITE HERE (2010) 186 Cal.App.4th 1193, 1210 ; accord, Bose Corp. v. Consumers Union of United States, Inc. (1984) 466 U.S. 485, 512 [post-publication, incredible explanation for inaccuracy by author of report did “not establish that he realized the inaccuracy at the time of publication”]; Khawar v. Globe Int’l., Inc. (1998) 19 Cal.4th 254, 262 [“[T]he publisher of a defamatory statement acts with reckless disrega

2016Because the jury found that the defendants either knew the statement was false or had serious doubts as to its [Citation.] Constitutional malice [required under the public figure jury instruction], although also often called actual malice, means only that, ‘[t]he defendant in fact entertained serious doubts as to the truth of his publication.’ [Citation.] The high court has distinguished traditional malice (ill will) from constitutional malice. [Citation.] Actual hatred or ill will is arguably a much greater degree of fault than mere doubt as to accuracy.” ( Brown, supra, at p. 745 .) More rec

1990Carney argues that a malice instruction nearly identical to the one here was used with approval in Manguso v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 580-582 [ 200 Cal.Rptr. 535 ].) Manguso , however, involved a qualified privilege under section 47(3) and the instruction was based upon that fact. 3 In this case, both Carney and SCWAR now agree, based upon the holding in Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at page 719 , that the SCWAR newsletter is not subject to a privilege under section 47, subdivision 3.

2005Balancing one individual’s limited First Amendment interest against another’s reputation interest (Herbert v. Lando (1979) 441 U.S. 153, 169 [ 60 L.Ed.2d 115 , 99 S.Ct. 1635 ]), we conclude that a person in the business world advertising his wares does not necessarily become part of an existing public controversy.

2005Balancing one individual’s limited First Amendment interest against another’s reputation interest (Herbert v. Lando (1979) 441 U.S. 153, 169 [ 60 L.Ed.2d 115 , 99 S.Ct. 1635 ]), we conclude that a person in the business world advertising his wares does not necessarily become part of an existing public controversy.