Thomas test in California

2026(Knoller, supra, 41 Cal.4th at p. 152 [“the[] two definitions of implied malice in essence articulate[] the same standard”]; see also People v. Watson (1981) 30 Cal.3d 290, 300 (Watson) [the two standards articulate the same concept “[p]hrased in a different way”]; People v. Pierce (2025) 114 Cal.App.5th 508 , 525 [“the requirement that an act carry a ‘high probability’ of death is not new, and Reyes itself noted the equivalence of the Thomas and Phillips formulations”].) The Thomas test or formulation (originating in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 47

2026(Knoller, supra, 41 Cal.4th at p. 152 [“the[] two definitions of implied malice in essence articulate[] the same standard”]; see also People v. Watson (1981) 30 Cal.3d 290, 300 (Watson) [the two standards articulate the same concept “[p]hrased in a different way”]; People v. Pierce (2025) 114 Cal.App.5th 508 , 525 [“the requirement that an act carry a ‘high probability’ of death is not new, and Reyes itself noted the equivalence of the Thomas and Phillips formulations”].) The Thomas test or formulation (originating in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 47

2026(Phillips), . . . and is sometimes referred to as the Phillips test or Phillips formulation.”2 (People v. Pierce (2025) 114 Cal.App.5th 508 , 525.) “The Thomas test provides 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.’ [Citation.] The Phillips test provides that 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 k

2026(Phillips), . . . and is sometimes referred to as the Phillips test or Phillips formulation.”2 (People v. Pierce (2025) 114 Cal.App.5th 508 , 525.) “The Thomas test provides 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.’ [Citation.] The Phillips test provides that 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 k

2026(Knoller, supra, 41 Cal.4th at p. 152 [“the[] two definitions of implied malice in essence articulate[] the same standard”]; see also People v. Watson (1981) 30 Cal.3d 290, 300 (Watson) [the two standards articulate the same concept “[p]hrased in a different way”]; People v. Pierce (2025) 114 Cal.App.5th 508 , 525 [“the requirement that an act carry a ‘high probability’ of death is not new, and Reyes itself noted the equivalence of the Thomas and Phillips formulations”].) The Thomas test or formulation (originating in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 47

2026(Knoller, supra, 41 Cal.4th at p. 152 [“the[] two definitions of implied malice in essence articulate[] the same standard”]; see also People v. Watson (1981) 30 Cal.3d 290, 300 (Watson) [the two standards articulate the same concept “[p]hrased in a different way”]; People v. Pierce (2025) 114 Cal.App.5th 508 , 525 [“the requirement that an act carry a ‘high probability’ of death is not new, and Reyes itself noted the equivalence of the Thomas and Phillips formulations”].) The Thomas test or formulation (originating in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 47

2026The concurrence described the Thomas test: “Under Thomas, the objective component of implied malice requires ‘an act that involves a high degree of probability that it will result in death.’ (Thomas, supra, 41 Cal.2d at p. 480 (conc. opn. of Traynor, J.).) This test recognizes that the ultimate inquiry involves a determination of probability: Although an act that will certainly lead to death is not required, the probability of death from the act must be more than remote or merely possible.

2026(Knoller, supra, 41 Cal.4th at p. 152 [“the[] two definitions of implied malice in essence articulate[] the same standard”]; see also People v. Watson (1981) 30 Cal.3d 290, 300 (Watson) [the two standards articulate the same concept “[p]hrased in a different way”]; People v. Pierce (2025) 114 Cal.App.5th 508 , 525 [“the requirement that an act carry a ‘high probability’ of death is not new, and Reyes itself noted the equivalence of the Thomas and Phillips formulations”].) The Thomas test or formulation (originating in Justice Traynor’s concurring opinion in People v. Thomas (1953) 41 Cal.2d 47

2026The Thomas test strikes that balance by requiring a ‘high degree of probability’ of death.” (Cravens, at p. 513 (conc. opn. of Liu, J.).) 18 Justice Liu’s concurrence did not suggest that “ ‘a high degree of probability that [the act] will result in death’ ” is the equivalent of a probability of death that is simply “more than remote or merely possible.” (Cravens, supra, 53 Cal.4th at p. 513 (conc. opn. of Liu, J.).) Thus, while stating that implied malice requires an act that creates a probability of death that is “more than remote or merely possible” is accurate, it is also potentially misle

2026The Thomas test strikes that balance by requiring a ‘high degree of probability’ of death.” (Cravens, at p. 513 (conc. opn. of Liu, J.).) 18 Justice Liu’s concurrence did not suggest that “ ‘a high degree of probability that [the act] will result in death’ ” is the equivalent of a probability of death that is simply “more than remote or merely possible.” (Cravens, supra, 53 Cal.4th at p. 513 (conc. opn. of Liu, J.).) Thus, while stating that implied malice requires an act that creates a probability of death that is “more than remote or merely possible” is accurate, it is also potentially misle

2026(Phillips), . . . and is sometimes referred to as the Phillips test or Phillips formulation.”2 (People v. Pierce (2025) 114 Cal.App.5th 508 , 525.) “The Thomas test provides 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.’ [Citation.] The Phillips test provides that 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 k

2026(Phillips), . . . and is sometimes referred to as the Phillips test or Phillips formulation.”2 (People v. Pierce (2025) 114 Cal.App.5th 508 , 525.) “The Thomas test provides 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.’ [Citation.] The Phillips test provides that 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 k

2026(Knoller, supra, 41 Cal.4th at p. 152 ; People v. Dellinger (1989) 49 Cal.3d 1212 , 1219–1222 (Dellinger).) In Dellinger, the Supreme Court approved CALCRIM No. 520 as a “straightforward” description of the conscious- disregard requirement. ( Dellinger, supra, at p. 1215 , citing Phillips, at pp. 587–588.) Three years after Dellinger, the high court in Nieto Benitez, reiterated that both tests articulated the same standard, and specifically rejected the argument that the trial court had a sua sponte duty to modify the form jury instruction on implied malice to include the “high probability” la

2026(Knoller, supra, 41 Cal.4th at p. 152 ; People v. Dellinger (1989) 49 Cal.3d 1212 , 1219–1222 (Dellinger).) In Dellinger, the Supreme Court approved CALCRIM No. 520 as a “straightforward” description of the conscious- disregard requirement. ( Dellinger, supra, at p. 1215 , citing Phillips, at pp. 587–588.) Three years after Dellinger, the high court in Nieto Benitez, reiterated that both tests articulated the same standard, and specifically rejected the argument that the trial court had a sua sponte duty to modify the form jury instruction on implied malice to include the “high probability” la

2017(See Amaral, supra, 163 Cal.App.4th at p. 1200 , 78 Cal.Rptr.3d 572 [an amendment seeking new damages based on new legal theory relates back to original complaint]; Lamont v. Wolfe (1983) 142 Cal.App.3d 375 , 378, 190 Cal.Rptr. 874 [wrongful *187 death claim, which did not exist at time of filing of complaint because decedent was alive, related back; "it is the sameness of the facts rather than the rights or obligations arising from those facts that is determinative"].) I would also conclude the original complaint and the SAC also involve the same instrumentality: Thomas's violation of the sto

2017(See Amaral, supra, 163 Cal.App.4th at p. 1200 , 78 Cal.Rptr.3d 572 [an amendment seeking new damages based on new legal theory relates back to original complaint]; Lamont v. Wolfe (1983) 142 Cal.App.3d 375 , 378, 190 Cal.Rptr. 874 [wrongful *187 death claim, which did not exist at time of filing of complaint because decedent was alive, related back; "it is the sameness of the facts rather than the rights or obligations arising from those facts that is determinative"].) I would also conclude the original complaint and the SAC also involve the same instrumentality: Thomas's violation of the sto

2017(See Amaral, supra, 163 Cal.App.4th at p. 1200 , 78 Cal.Rptr.3d 572 [an amendment seeking new damages based on new legal theory relates back to original complaint]; Lamont v. Wolfe (1983) 142 Cal.App.3d 375 , 378, 190 Cal.Rptr. 874 [wrongful *187 death claim, which did not exist at time of filing of complaint because decedent was alive, related back; "it is the sameness of the facts rather than the rights or obligations arising from those facts that is determinative"].) I would also conclude the original complaint and the SAC also involve the same instrumentality: Thomas's violation of the sto

2017(See Amaral, supra, 163 Cal.App.4th at p. 1200 , 78 Cal.Rptr.3d 572 [an amendment seeking new damages based on new legal theory relates back to original complaint]; Lamont v. Wolfe (1983) 142 Cal.App.3d 375 , 378, 190 Cal.Rptr. 874 [wrongful *187 death claim, which did not exist at time of filing of complaint because decedent was alive, related back; "it is the sameness of the facts rather than the rights or obligations arising from those facts that is determinative"].) I would also conclude the original complaint and the SAC also involve the same instrumentality: Thomas's violation of the sto

2023(Zamudio, supra, 43 Cal.4th at p. 357 .) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s verdict.” (Ibid.) Thomas’s challenge to the sufficiency of the evidence to support his convictions rests on the asserted inoperability of the firearm—as it relates to both its ability to inflict injury and the intent of the perpetrator necessary to assault—and the vagaries of the eyewitness testimony as to identity and attempts to fire at H.A.

2021In response to Thomas’s challenge to the sufficiency of the evidence supporting his conviction, we must determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055 .) We must “determine whether [the record] discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Cit

2009Arguing against Elizabeth’s contention of error in her appeal, Thomas’s brief states that the judge “didn’t get it all wrong.” (Original italics and underscoring.) “Because of the complex and sensitive nature of marriage dissolution proceedings, it is in the best interests of both parties to resolve all issues expediently and congenially . . . .” (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 58 [ 253 Cal.Rptr. 354 ].) Family Code section 4057.5, subdivision (a)(1) provides: “The income of the obligor parent’s subsequent spouse or nonmarital partner shall not be considered when determinin

2009Arguing against Elizabeth’s contention of error in her appeal, Thomas’s brief states that the judge “didn’t get it all wrong.” (Original italics and underscoring.) “Because of the complex and sensitive nature of marriage dissolution proceedings, it is in the best interests of both parties to resolve all issues expediently and congenially . . . .” (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 58 [ 253 Cal.Rptr. 354 ].) Family Code section 4057.5, subdivision (a)(1) provides: “The income of the obligor parent’s subsequent spouse or nonmarital partner shall not be considered when determinin

2026(Phillips), . . . and is sometimes referred to as the Phillips test or Phillips formulation.”2 (People v. Pierce (2025) 114 Cal.App.5th 508 , 525.) “The Thomas test provides 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.’ [Citation.] The Phillips test provides that 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 k

2026(Phillips), . . . and is sometimes referred to as the Phillips test or Phillips formulation.”2 (People v. Pierce (2025) 114 Cal.App.5th 508 , 525.) “The Thomas test provides 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.’ [Citation.] The Phillips test provides that 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 k

2022(See People v. Beltran, supra, 56 Cal.4th at p. 956 .) 9 III The Constitutional Right to Present a Defense Defendant asserts the trial court’s evidentiary rulings violated his constitutional right to present a defense.

2013(People v. Beltran, supra, 56 Cal.4th at p. 942.) Neither Thomas’s claim that he unintentionally pulled the trigger nor the fact that most of his testimony was self-serving obviated the need for the CALCRIM 570 instruction.

2022(Watson, supra, 46 Cal.2d at p. 836 .) The evidence supporting the existing judgment, including Carolyn’s and Thomas’s testimony and Thomas’s injury, is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, there is no reasonable probability any error in excluding the body camera video and Thomas’s defense testimony affected the result.

2016(See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); Chapman v. California (1967) 386 U.S. 18, 24 .) As noted by the court and by Thomas's defense counsel at the conclusion of the inquiry of this juror, it was not clear whether the 18 juror's disabling bias favored the People or one or more of defendants.

2025Jury Instruction Requirements and Standard of Review “ ‘The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.’ ” (People v. Howard (2024) 104 Cal.App.5th 625 , 660 (Howard).) “Nevertheless, ‘[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a 29 request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal.’ ” (Ibid.; see also People v. Hudson (2006) 38 Cal.4th 1002 , 1012–1013 (Hudson).) “ ‘ ‘A

2025Jury Instruction Requirements and Standard of Review “ ‘The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense.’ ” (People v. Howard (2024) 104 Cal.App.5th 625 , 660 (Howard).) “Nevertheless, ‘[a] trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a 29 request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal.’ ” (Ibid.; see also People v. Hudson (2006) 38 Cal.4th 1002 , 1012–1013 (Hudson).) “ ‘ ‘A

2025(Knoller, supra, 41 Cal.4th at p. 152 ; People v. 9 Fay (2024) 101 Cal.App.5th 767 , 774 [CALCRIM No. 520 correctly defines implied malice]; People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092 [same].) Nevertheless, defendant argues the jury should have been instructed in the language of the Thomas test, i.e., that the act committed must involve a high degree of probability that death will result.

2025(Knoller, supra, 41 Cal.4th at p. 152 ; People v. 9 Fay (2024) 101 Cal.App.5th 767 , 774 [CALCRIM No. 520 correctly defines implied malice]; People v. Johnigan (2011) 196 Cal.App.4th 1084, 1092 [same].) Nevertheless, defendant argues the jury should have been instructed in the language of the Thomas test, i.e., that the act committed must involve a high degree of probability that death will result.

2023John’s argument, however, pertains to the merits of Thomas’s claim, an issue we do not consider at the first stage of the anti-SLAPP analysis.13 (Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the merits of the claims are irrelevant to the first step of the anti-SLAPP analysis.”]; Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 156 [arguments regarding absence of attorney-client relationship improperly conflated first and second prongs of anti-SLAPP test; “ ‘sole inquiry’ under the first prong of the test is whether the plaintiff’s claims arise from prote