Opinion
D068459
12-23-2016
THE PEOPLE, Plaintiff and Respondent, v. MAHAD AHMED, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Lynn G. McGinnis, Eric A. Swenson and Michael Mongan, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD257159) APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler and Julie L. Garland, Assistant Attorneys General, Lynn G. McGinnis, Eric A. Swenson and Michael Mongan, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Mahad Ahmed of murder in the second degree (Pen. Code, § 187, subd. (a)) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)). As to the assault, it found true allegations that Ahmed personally inflicted great bodily injury, and inflicted great bodily injury causing a coma due to brain injury under section 12022.7, subdivisions (a) and (b). The trial court sentenced Ahmed to 15 years to life for the murder. It stayed execution of a four-year upper term for the assault, and also stayed five- and three-year enhancements for the section 12022.7, subdivision (a) and (b) allegations.
Statutory references are to the Penal Code unless otherwise stated.
Ahmed contends the trial court prejudicially erred by instructing the jury with CALCRIM No. 520 on implied malice without stating that implied malice requires that the act causing death be one that has a high degree of probability it would result in death. He argues the deficiency in the implied malice jury instruction makes the standard void for vagueness as applied to him in violation of his Fifth and Fourteenth Amendment rights to due process. Ahmed further contends the court erred by admitting uncharged acts to show his conduct in the present case was dangerous to human life. Finally, Ahmed contends the evidence is insufficient to prove his acts were sufficiently dangerous to constitute implied malice. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Evidence
On June 14, 2014, brothers Michael and Phillip Beaver, along with their friend Dan Devito, planned to go to the Gaslamp area of downtown San Diego to have drinks, hang out and play pool, then take a cab home. That evening, the men each had a beer and a couple shots of whisky at Devito's house, and eventually were dropped off downtown at about 9:00 or 9:30 p.m. They first went to a bar where Michael had previously worked; they drank beer and received several shots of alcohol on the house from the bartender. The men then went to the Double Deuce bar, had another beer and received more complimentary drinks there from workers who knew Michael. Phillip and Dan followed Michael to other places where Michael had friends and consumed more drinks. Later in the evening, the men returned to the Double Deuce bar where the manager told them they were too drunk and turned them away. Up to that point the evening was without problems; everyone was happy to see Michael and greeted him with hugs.
We refer to Michael and Phillip by their first names to avoid confusion, and intend no disrespect.
The men walked across the street toward the Encore bar entrance, where Phillip vomited. Both Devito and Michael acknowledged they needed to get a cab and leave; that Phillip had drunk too much. Devito was able to flag two taxis down but the cars left when they saw Phillip was sick. After the Encore bouncer asked them to leave, the men started to move down the sidewalk while Devito continued to try to hail a taxi. Michael, who was smoking a cigarette, was holding Phillip against some metal railing on the sidewalk and talking to him while Devito tried to clean him up.
While this was going on, a group of four or five people approached, including Edward Manier, who had long dreadlocks, and Ahmed. A woman in the group saw Phillip vomiting and exclaimed it was "disgusting" and "nasty," to which Michael responded that this was his brother and he was sick. Devito spoke directly to Ahmed and told him Phillip was sick; that "we drank a little too much" and they were trying to leave.
While Michael engaged with the woman, she became agitated and "backhanded" him in the face, causing Michael to raise his hands. Manier then punched Michael "right in the face." Michael turned toward Manier and put his arms up as if he were going to defend himself, when Ahmed suddenly came from the side and punched Michael in the head. The punch connected, and Michael "flew," hitting his head on the metal railing.
That morning, Meghan Carter was with Megan Gabrio and other friends in the Gaslamp area near Encore, and came upon the scene right after Michael had been first hit by Manier. She saw Michael in a fight position, but not fighting back, in a "stunned state" and he looked like he was being "victimized." When Ahmed hit Michael, Carter heard Michael's head hit the railing, and a loud "ping" sound. As Carter described it, Michael "got hit really hard" and the blow "was pretty intense." According to Carter, Michael "didn't see it coming. It kind of came out of nowhere." It appeared to Carter that there had been a fight between two individuals and "then [Ahmed] got involved by punching him and it just—it appeared to blindside him." Carter was concerned about the amount of force because it "wasn't a standing punch" but "[t]here was an approach that went into it . . . and it looked really hard." Carter did not hear Ahmed call out or say anything before he threw the punch. She saw that Michael was not fighting back; he was not a threat to anybody, and the punch was "uncalled for." Afterwards, Michael was on the ground for a "little bit" and it took some time for him to get up, requiring assistance.
At trial, Carter got upset describing it as she watched the video, explaining: "It's just hard to see. You know, it was—he got hit really hard and you could tell it was pretty intense." --------
Gabrio, who is a nurse, saw Michael fall over backwards and hit his head on the rail "very hard," with "some force." When she saw his head hit, she felt Michael was going to need some help. As her group got closer, she saw Michael stumbling and having a hard time maintaining consciousness; it seemed to her he was declining and unable to keep himself upright. Gabrio called 911. She saw his respirations were erratic and he was bleeding profusely from his nose and mouth. Gabrio administered a "sternal rub" to see if Michael would respond to painful stimuli, but he did not. According to Gabrio, the sound of Michael's head hitting the railing was a "crack" that was "shocking" and "just sickening."
The security guard at Encore that evening observed that Michael was drunk that night; he "definitely had some drinks in him." The Encore guard saw Ahmed "pretty much just run up and sucker punch [Michael]." According to the security guard, the punch connected because Michael "obviously flew." Ahmed and his group then left quickly up the street.
Paramedics dispatched to the scene began CPR on Michael, who was unconscious, not breathing on his own, and "clinically dead." While in the ambulance Michael's heart stopped beating and on arrival at the emergency room, he had no vital signs and showed signs of severe neurologic damage. He was pronounced dead after doctors were unable to resuscitate him or start his heart. Michael's blood alcohol level was later determined to be .16 percent, twice the legal alcohol limit for driving, and tests from his vitreous fluid showed a level of .20 percent, possibly reflecting Michael's alcohol level an hour or two before his death.
Officers patrolling the North Park area of San Diego arrested Ahmed in the early morning of June 15, 2014, after coming upon him and others involved in an unrelated disturbance. The area is less than five miles away from the Gaslamp. Detectives eventually connected Ahmed to Michael's murder through a "crime stoppers" tip.
At trial, the People proceeded on the second degree murder theory that Ahmed acted with implied malice. They presented evidence that Michael's death was caused by blunt force injury to the head. They also presented evidence of three uncharged acts involving Ahmed, arguing they showed Ahmed's prior awareness of the power of his fists, intent to take advantage of an unsuspecting victim, and knowledge that a punch to the head could be dangerous to human life.
At trial, the medical examiner explained the type of subarachnoid hemorrhage Michael suffered was most frequently seen in people who have had an impact to the head or face with lateral rotation of the head, or a head blow resulting in hyperextension in relation to the neck; it was "very frequently associated with punches." The examiner opined Michael's brain injury was caused by Ahmed's punch, as she observed after that punch a "very dramatic shift in [Michael's] mental status and function." And it was much more likely that his hemorrhage was caused by that punch, not from Michael's head hitting the metal railing, as hitting a railing would not cause that type of injury.
The People's neurosurgeon expert, Dr. Alexander Khalessi, viewed Michael's autopsy photographs as well as the surveillance video. Looking at Michael's hands, he found it significant that they showed Michael made no effort to brace or break his fall, which is uncommon for someone who falls to the ground. This implied to the expert that Michael had sustained substantial neurological injury even before he hit the ground. Dr. Khalessi observed that Michael had a "massive" subarachnoid hemorrhage filling up all of the fluid spaces in his brain, which would lead to catastrophic high pressure in the head. He testified that a sucker punch was an unprotected blow to the head that made a person "much more vulnerable" because he or she would not have the benefit of the protective mechanisms people exhibit when they are aware of a blow coming toward them. As for Ahmed's punch, he testified that because Michael was unguarded, it "lead to an immediate very violent torquing of his neck from left to right"; that Michael started to fall backwards and was "nearly unconscious before he even hits the ground because he has a complete buckling" and then had a "very dramatic neurological decline" in the ensuing 15 seconds after hitting the railing. Dr. Khalessi felt that the quick succession of Ahmed's punch and Michael's fall against the railing were responsible for Michael's arterial brain injury, but Ahmed's punch itself could have caused it based on the violent torquing of Michael's head in the surveillance video. He later testified that the hit on the railing was the "most likely" cause, but that he could not distinguish between Ahmed's blow and the blow on the railing, and in his view "it could be either of those . . . ."
Defense Evidence
Ahmed testified in his defense. According to Ahmed, he was not aware of the altercation between Michael and the female in his group or of Manier hitting Michael, but turned and saw Michael lunging toward the group with his hands up. He then reacted and hit Michael without thinking, "just being protective of my group." Ahmed testified that he was drunk at the time and felt Michael was a threat; at the time he threw his punch he did not think Michael was going to die, be seriously injured, or even fall back from the punch. He testified that afterwards, he was trying to get away and his group was trying to move along. Ahmed testified that when he looked back, he was "surprised" to see Michael up on his feet, holding onto the railing, and so he "didn't think nothing of it" and kept walking off, assuming Michael was okay. Ahmed denied ever being in a fight in which he had seriously injured anyone, he was not trained in the martial arts to administer fatal blows, and he had never heard of anyone dying from one punch. He testified he did not intend to seriously injure or kill Michael. Ahmed acknowledged that one of the men in his group was patting him on the back after the incident.
Rebuttal
In rebuttal, the People introduced a forensic pathologist who opined that Ahmed's punch "directly and solely caused the arterial injury leading to the subarachnoid hemorrhage . . . ." He testified that in the "ten or so" cases he had seen with this type of injury, they had all resulted from a "very severe" blow to the head or a high velocity impact such as that seen in a motor vehicle accident.
DISCUSSION
I. Sufficiency of the Evidence
We begin with Ahmed's argument that insufficient evidence supports the jury's verdict of second degree murder on a theory of implied malice. He argues his act of inflicting a single punch to Michael's head, even if can be characterized as a "sucker punch," is not enough for the jury to conclude he knew that act carried a high probability of death. A. Legal Principles and Standard of Review
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.' [Citation.] Malice may be either express (as when a defendant manifests a deliberate intention to take away the life of a fellow creature) or implied. [Citation.] '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.' " [Citation.] In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another . . . .' " (People v. Cravens (2012) 53 Cal.4th 500, 507 (Cravens), citing in part People v. Knoller (2007) 41 Cal.4th 139, 143, 151.)
In considering a challenge to the sufficiency of the evidence to support a conviction, " 'we review the whole record in the light most favorable to the judgment to determine whether it 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.' " (Cravens, supra, at p. 507.) We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.) We do not reevaluate witness credibility on appeal, but instead defer to the trier of fact because " ' "it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. White (2014) 230 Cal.App.4th 305, 315, fn. 13.)
" 'The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. ' "If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" [Citation.]' [Citations.] The conviction shall stand 'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]." ' " (Cravens, supra, 53 Cal.4th at pp. 507-508; see also People v. Guillen (2014) 227 Cal.App.4th 934, 983.)
Here, as the California Supreme Court did in Cravens, supra, 53 Cal.4th 500, "we must determine whether there is sufficient evidence to satisfy both the physical and the mental components of implied malice, the physical component being ' " 'the performance of 'an act, the natural consequences of which are dangerous to life,' " ' and the mental component being ' "the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' " ' " (Cravens, supra, 53 Cal.4th at p. 508; see also People v. Bryant (2013) 56 Cal.4th 959, 965 [stating same physical and mental components of implied malice]; People v. Chun (2009) 45 Cal.4th 1172, 1181.) B. Cravens and Ensuing California Supreme Court Authorities
In Cravens, supra, 53 Cal.4th 500, the California Supreme Court found the evidence sufficient to satisfy both the physical and mental components of implied malice in circumstances where the defendant threw a single punch to the head of the victim. There, the then 21-year-old defendant and his four friends, all former football teammates, confronted the 24-year-old victim, a professional surfer, outside his home after they had an altercation at a bar. (Cravens, at pp. 502-504.) The defendant was two inches taller and about 60 pounds heavier than the victim. (Id. at p. 506.) Witnesses testified four of the men attacked the victim, kicking and hitting him while he was on the ground and one eventually began punching the victim with both fists. (Id. at p. 504.) The victim managed to get loose; he was unsteady and could not walk straight when the defendant " 'came flying out' " and " 'coldcocked' " him with an " 'extremely hard' " " 'knockout' " punch with his left hand as the defendant stood on a curb above the victim, who was standing at street level. (Id. at p. 505.) One man described it as " 'like a side punch [the victim] didn't see.' " (Ibid.) Another witness described the punch as " 'one of the hardest punches I've ever seen thrown.' " (Id. at p. 509.) The victim's head hit the concrete with a " 'boom' " that even neighbors heard, and witnesses opined he was unconscious from the blow before he hit the ground. (Id. at p. 505.) The defendant left the scene. (Ibid.) The victim sustained a skull fracture similar to that seen in victims of motor vehicle crashes or those struck in the head with a hammer, baseball bat or tire iron, and he died from blunt-force head injuries. (Id. at pp. 505-506.) The defendant later laughed about the incident and bragged about "punch[ing the victim] out" with his left hand. (Id. at p. 506.)
Cravens pointed out it had been long held " 'that an assault with the fist . . . may be made in such a manner and under such circumstances as to make the killing murder.' " (Cravens, supra, 53 Cal.4th at p. 508, quoting People v. Munn (1884) 65 Cal. 211, 212.) It observed however that a blow with the fist absent " 'aggravating circumstances' " would not raise an implication of malice aforethought. (Cravens, at p. 508.) The court held the evidence satisfied both the physical and mental components of implied malice for several reasons: The defendant targeted a smaller and shorter victim who was "intoxicated, exhausted and vulnerable"; visibly worn out from the previous altercation. (Ibid.) The defendant's punch was " 'extremely hard,' " hard enough to cause an audible cracking sound when the victim's head hit the pavement, and "hard enough to knock [the victim] unconscious . . . even before he hit the ground . . . ." (Id. at p. 509.) The defendant "secured himself every advantage to ensure that he could inflict the greatest possible injury" on the victim by standing on the curb, and "guaranteed that [the victim] would fall on a very hard surface, such as the pavement or the concrete curb." (Ibid.) The court observed that the consequences that would follow a fall upon a concrete walk " 'must have been known to [defendant.]' " (Ibid.) Finally, "worst of all, defendant decked [the victim] with a sucker punch. The jury could reasonably have found that at the time defendant attacked, [the victim] posed no threat and was not behaving in an aggressive manner" and the defendant "intended to catch [the victim] at his most vulnerable." (Ibid.)
Under the totality of the circumstances, the Cravens court concluded a jury could reasonably conclude the defendant's act was "predictably dangerous to human life." (Cravens, supra, 53 Cal.4th. at p. 510.) The court summed up the defendant's single punch as not ordinary: "[I]t was an extremely powerful blow to the head calculated to catch the impaired victim off guard, without any opportunity for the victim to protect his head, and thereby deliver the victim directly and rapidly at his most vulnerable to a most unforgiving surface." (Id. at p. 511.)
Cravens held the evidence was additionally sufficient to support the jury's finding of the mental component of implied malice: the circumstances of the attack alone, the natural consequences of which were dangerous to human life, permitted the jury to infer the defendant's subjective awareness that his conduct endangered the victim's life. (Cravens, supra, 53 Cal.4th at p. 511.) The jury's finding was bolstered by the fact the defendant had "egg[ed] on" the other men in fighting the victim; after knocking him unconscious, took no steps to ascertain his condition or obtain emergency assistance; and bragged and laughed about the situation afterwards. (Ibid.)
Justice Liu filed a concurring opinion in Cravens. He pointed out that the high court had previously acknowledged two formulations of the objective and subjective components of implied malice, the first from a concurring opinion in People v. Thomas (1953) 41 Cal.2 470, in which Justice Traynor stated implied malice was shown 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.' " (Cravens, supra, 53 Cal.4th at p. 512 (conc. opn. of Liu, J.), quoting Thomas, at p. 480.) The second was from People v. Phillips (1966) 64 Cal.2d 574 (overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12), which described implied malice as a " ' "killing [which] proximately resulted from 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." ' " (Cravens, at p. 512, quoting Phillips, supra, 64 Cal.2d at p. 587.)
Justice Liu observed that the Cravens majority had not mentioned Thomas's formulation of the objective component of implied malice, which he stated involved 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." (Cravens, supra, 53 Cal.4th at p. 513 (conc. opn. of Liu, J.).) He conceded that in People v. Knoller, supra, 41 Cal.4th 139 and other cases the court had held that the Thomas and Phillips formulations " 'actually articulate[] one and the same standard' " (Cravens, at p. 512) and thus the court was "not compelled by precedent to mention Thomas." (Id. at p. 514.) However, Justice Liu stated it was "questionable" whether there was a high degree of probability that the defendant's single punch would result in the victim's death rather than simply serious bodily injury. (Id. at p. 513.) In particular, he noted that the pathologist who performed the victim's autopsy "saw no bruising or other injury" and could not tell " 'which side of his face [he was] punched on.' " (Ibid.) Other than the skull fracture resulting from the victim's head hitting the pavement, the pathologist described the victim's injuries as medically "insignificant" and "trivial." (Ibid.) In Justice Liu's view, because the high court had not disavowed Thomas's formulation of the objective component, the majority's omission "continue[d] [the test's] erosion" and suggested, without holding, that the Phillips standard mattered in a close case. (Id. at p. 514.) Justice Liu stated he preferred the court resolve the issue explicitly rather than leave it to implication, but expressed no view himself on Thomas's continued validity. (Ibid.) In the end, Justice Liu agreed for substantially the reasons stated by the majority that the defendant's actions "f [ell] just within the outer bounds of conduct sufficiently dangerous to satisfy the Phillips test . . . ." (Ibid.)
Since Cravens, the California Supreme Court in an opinion authored by Justice Liu relied only on the Phillips test in stating the physical and mental components of implied malice. (People v. Bryant (2013) 56 Cal.4th 959, 965, 968.) In part, agreeing with the Attorney General's argument that either intent to kill or a conscious disregard for life is an essential element of voluntary manslaughter, the Bryant court observed that it understood "the term 'conscious disregard for life' to refer to the mental component of implied malice—i.e., that the act which resulted in death be ' "performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life" [citation].' " (Id. at p. 968, quoting People v. Lasko (2000) 23 Cal.4th 101, 107.) The high court used that formulation again several years later in People v. Rangel (2016) 62 Cal.4th 1192, 1220. C. Ahmed's Punch and the Surrounding Circumstances Support the Jury's Finding of Implied Malice
Here, the circumstances are more similar to Cravens than different. Cravens compels us to uphold the jury's verdict of second degree murder in this case as the jury's findings are reasonably justified by all the circumstances; that the facts may also be reconciled with a contrary finding does not warrant reversal of the judgment. (Cravens, supra, 53 Cal.4th at pp. 507-508.) Though the size difference between the men is unclear, it is undisputed that Michael was highly intoxicated, and had just been both backhanded by the woman and punched in the face by Manier. Michael was "stunned" and facing Manier trying to defend against him, when Ahmed came from the side and sucker punched him "really hard," in a "pretty intense" blow that caused Michael to fly back and hit the metal railing with enough force to cause a loud and "sickening" crack sound that was audible to bystanders. And Michael posed no threat to Ahmed, but Ahmed's punch came from out of nowhere and was intended to blindside Michael while he was most vulnerable. Thus, as in Cravens, Michael was "impaired . . . and completely unaware that he needed to defend himself against a forceful punch, let alone a forceful punch to the head." (Id. at p. 510.) The defendant in Cravens obtained a height advantage by standing on the curb, and here, Ahmed gained an advantage by getting a running start from the side while Michael was distracted with Manier. The metal railing was just behind Michael within Ahmed's line of sight, and Ahmed's actions guaranteed Michael's head would hit a hard surface, either the metal railing or the concrete sidewalk underneath. Though Michael did not immediately lose consciousness from the blow, Dr. Khalessi testified that he likely suffered his neurological injury before he even hit the ground, and Michael's mental status and function was visibly different after Ahmed's blow, with Michael bleeding and quickly declining after getting up off the ground. The Cravens court's ultimate characterization of the act precisely sums up the circumstances here: Ahmed's punch "was an extremely powerful blow to the head calculated to catch the impaired victim off guard, without any opportunity for the victim to protect his head, and thereby deliver the victim directly and rapidly at his most vulnerable to a most unforgiving surface." (Id. at p. 511.) The jury could readily conclude on this record that Ahmed's assault on Michael and the circumstances under which it was made rendered the natural consequences of his act dangerous to life. (Cravens, at p. 508; People v. Bryant, supra, 56 Cal.4th at p. 965.)
We reach the same conclusion as to the mental component of implied malice, which is satisfied when the defendant commits an act resulting in death knowing his conduct endangers the life of another and who acts with a conscious disregard for life. (Cravens, supra, 53 Cal.4th at p. 508.) "This component is ordinarily proven by illustrating the circumstances leading to the ultimate deadly result." (People v. Guillen (2014) 227 Cal.App.4th 934, 988, citing People v. Nieto Benitez (1992) 4 Cal.4th 91, 107.) We may also look to the defendant's behavior after the incident. (Cravens, at p. 511.) Here, as in Cravens, the jurors were entitled to infer Ahmed's subjective awareness that his conduct endangered Michael's life from the circumstances of his attack alone, the natural consequences of which were dangerous to human life. (Cravens, at p. 511.) And like Cravens, Ahmed and his cohorts fled the scene after causing Michael to slam his head against a metal railing, taking no steps to ascertain Michael's condition or secure emergency assistance. (Ibid.) This evidence demonstrates Ahmed knew his conduct endangered Michael's life and he acted with a conscious disregard of Michael's life, establishing the mental component of implied malice.
II. Admission of Prior Act Evidence
A. Background
Before trial, the court considered the People's in limine request to introduce evidence of three prior acts involving Ahmed: a June 2011 incident in which Ahmed used his fist to damage windows and a door, a 2012 robbery and assault committed by Ahmed's companion, and a 2011 assault by Ahmed. In part, the court ruled the incidents put Ahmed on notice that striking an individual in the head with a fist, particularly when the victim did not see it coming, was dangerous to human life. It ruled they were highly probative, and outweighed any prejudice so as to be admissible under Evidence Code section 352.
At trial, Lashone Walker, who in 2011 was dating Ahmed, testified that early in the morning in June 2011, they had an altercation. According to Walker, things escalated to the point that Ahmed punched out her bedroom window with his fist, breaking it; then punched a door, putting two holes in it; then punched and broke out her living room window.
Steven Renteria testified that since the age of five, he has had a condition that required him to have a shunt in the back of his head to drain fluid from his brain to his stomach. In June of 2012 he had just gotten off work at a supermarket when he saw two males hiding bottles of alcohol in their clothing. The men were in a group of four. Renteria tried to stop one of the men from leaving by standing in front of him and asking him to give it back. Another man came toward Renteria from the side, got in his face and told him the man didn't do it and to leave his brother alone, while the man with the bottle tried to walk away. When Renteria stepped back in front of the man with the bottle, another man snuck up behind him and hit him in the back of the head at the location of his shunt. Renteria's supervisor grabbed him and the suspects ran away. The back of Renteria's head swelled up and he had to go to the hospital for scans and x-rays. Renteria later appeared at a preliminary hearing where the suspects were present and he talked about the incident. He was still seeing a doctor at that time. Ahmed admitted he was convicted of a felony burglary as a result of that incident, and that he heard at the preliminary hearing that Renteria had to go to the hospital and missed work because Ahmed's cohort punched him in the head. He testified he knew from Renteria's testimony that punching someone in the head could cause serious injury.
Moray Black testified that on an evening in September 2011, he was walking to the store when Ahmed and another man tried to jump him. Ahmed stepped in front of him and said in an unfriendly tone, "What's up cuz? Where are you from?" Black responded that he was from nowhere, and was not in a gang. The second man came from his left side, and when Black looked over at him, Ahmed punched Black in the face. Black and the men eventually fought, and the other man suggested he and Ahmed leave. Before the men left, Ahmed said to Black, "I'm going to kill you. I know where the fuck you live." Black had scraped knees and cuts on his knuckles, and he declined medical attention. Ahmed testified he was convicted of felony assault as a result of that incident. B. Legal Principles
Character evidence, also known as evidence of propensity or disposition to engage in a specific conduct, is generally inadmissible to prove a person's conduct on a specified occasion. (Evid. Code, § 1101, subd. (a); People v. Leon (2015) 61 Cal.4th 569, 597.) However, evidence that a person committed a crime, civil wrong, or other act may be admitted not to prove a person's predisposition to commit such act, but to prove some other material fact such as intent, knowledge, plan, or absence of mistake or accident. (Leon, at p. 597, citing Evid. Code, § 1101, subd. (b).) The evidence may be admitted to "overcome any material matter sought to be proved by the defendant." (People v. Moten (1991) 229 Cal.App.3d 1318, 1325; see also People v. Peete (1946) 28 Cal.2d 306, 315.) Admission of the act, however, must not be unduly prejudicial, confusing or time consuming under Evidence Code section 352. (Leon, at p. 597; People v. Davis (2009) 46 Cal.4th 539, 602.)
"The relevance depends, in part, on whether the act is sufficiently similar to the current charges to support a rational inference of intent, common design, identity, or other material fact. [Citation.] 'The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] . . . In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant " 'probably harbor[ed] the same intent in each instance.' " ' [Citation.] Greater similarity is required to prove the existence of a common design or plan. In such a case, evidence of uncharged misconduct must demonstrate ' "not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." [Citation.]' [Citation.] To show a common design, 'evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.' " (People v. Leon, supra, 61 Cal.4th at p. 598.)
On appeal, the trial court's decision to admit prior act evidence, being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Carter (2004) 36 Cal.4th 1114, 1147; People v. Leon, supra, 61 Cal.4th at p. 598.) An abuse of discretion occurs when the court's ruling falls outside the bounds of reason. (Carter, at p. 1149.) C. Analysis
Ahmed contends the trial court prejudicially erred by admitting evidence of the aforementioned prior acts in which he was involved and some person or object was hit. He argues none of the acts provided a basis to infer he knew his punches were dangerous to human life because none of the blows inflicted any moderate or serious injury, and thus the incidents had no probative value but merely depicted him as a violent, angry and aggressive person. But as we explain, these acts were not only relevant to the elements of implied malice for purposes of second degree murder, but also to refute other matters in issue such as Ahmed's claim he simply unthinkingly reacted in defense of his group, to counter his testimony that he did not know that Michael could fall backwards as a result of his punch, and to counter Ahmed's testimony that he did not intend for Michael to be seriously injured.
1. June 2011 Incident re Walker
Ahmed argues this incident, which assertedly demonstrated his knowledge of the power of his fist to break a window or put a hole in a door, lacks even any tendency in reason to prove he should have known his punch could kill a person. He maintains it cannot be reasonably inferred from it that he should know he could kill somebody with his fists. The People respond that this incident was admissible to establish the force with which Ahmed was capable of delivering a single blow.
The question is whether the court reasonably concluded that this incident tended to demonstrate a key element of implied malice second degree murder: that Ahmed appreciated on the morning in question he was " 'engaging in conduct that endangers the life of another . . . .' " (Cravens, supra, 53 Cal.4th at p. 507; People v. Knoller, supra, 41 Cal.4th at pp. 143, 152, 153 [implied malice requires a defendant's awareness of the risk of death to another; he or she must act "with an awareness of endangering human life"].) The incident—which is similar in that Ahmed purposefully used his fist to cause damage—reasonably tends to show Ahmed's knowledge of the power in his punches; Ahmed had the strength to deliver a series of blows in succession that each inflicted substantial damage. The court reasonably inferred that following the Walker incident, he subjectively knew that such power applied to an unsuspecting person's head with his fist could inflict significant injury and endanger that person's life. Though it is a close call, we cannot say the court exceeded the bounds of reason by ruling the Walker incident had a "sufficient nexus" to the present offense. It did not abuse its discretion in admitting it into evidence.
2. June 2012 Incident re Renteria
Nor did the court abuse its discretion by admitting evidence of the Renteria incident, and particularly the fact Ahmed learned during the preliminary hearing about what had happened to Renteria after his cohort struck him the head. Again, the court reasonably concluded that this incident demonstrated Ahmed's knowledge of the severe risks associated with striking someone in the head and his actual appreciation that his conduct in hitting someone in the head could endanger that person's life. (Accord, People v. Ortiz (2003) 109 Cal.App.4th 104, 112-115 [reviewing drunk driving cases in which prosecution introduced evidence of prior reckless or drunk driving incidents, and participation in driver's educational programs, for the purpose of showing implied malice: defendant's knowledge of the associated risks and hazards of such life threatening conduct].) We cannot say the court's ruling as to this incident was beyond the bounds of reason.
3. September 2011 Incident with Black
Here, Ahmed struck Black when his attention was turned away from him, which, as the People argued below, is precisely what happened in this case. That is, Ahmed blindsided Michael with his punch while Michael's attention was diverted toward Manier. The court reasonably concluded that Ahmed's act of sucker punching Black had a strong tendency to show that his conduct in this case was calculated and part of a plan to secure every advantage against Michael so as to inflict the most amount of damage. "[I]n establishing a common design or plan, evidence of uncharged misconduct must demonstrate 'not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' " (People v. Ewoldt (1994) 7 Cal.4th 380, 402; People v. Balcom (1994) 7 Cal.4th 414, 413-424.) "[T]he common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . [T]he plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense." (Ewoldt, at p. 403.) Such an inference was properly drawn here: the fact Ahmed sucker punched a victim in the past to obtain an advantage tended to show in this case he engaged in a similar plan for the same reason.
The People argue the incident also tended to refute Ahmed's claim that he acted only out of instinct and in defense of his group; that he had no intent to harm Michael. As we have stated, the least degree of similarity is required in order to prove intent. (People v. Leon, supra, 61 Cal.4th at p. 598.) We agree that Ahmed's prior act against Black—a sucker punch like the one inflicted on Michael—tended to show that Ahmed's act on Michael was not a mistake or accident, but rather intended by Ahmed to assault Michael by blindsiding him with a punch and thereby inflict significant damage to the unsuspecting man. (People v. Ewoldt, supra, 7 Cal.4th at p. 401 [prior acts are sufficient to prove intent by negating "accident or inadvertence or self-defense or good faith or other innocent mental state"].) That the incidents were otherwise dissimilar in that Black did not die or sustain severe injuries does not render the court's order an abuse of discretion; such dissimilarities do not render a prior similar act irrelevant to the issue of intent when there is a "crucial point of similarity" (People v. Jones (2011) 51 Cal.4th 346, 371) on that issue, as there is here.
4. Evidence Code Section 352 and Prejudice
The court was within its discretion in ruling the probative value of the prior act evidence on material and contested issues was not substantially outweighed by the danger of undue prejudice to defendant, of confusing the issues, or of misleading the jury. " 'Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant.' " (People v. Lenart (2004) 32 Cal.4th 1107, 1125.) " 'The factors affecting the prejudicial effect of uncharged acts include whether the uncharged acts resulted in criminal convictions and whether the evidence of uncharged acts is stronger or more inflammatory than the evidence of the charged offenses.' [Citation.] 'The weighing process under [Evidence Code] section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules.' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1274.) We will find an abuse of discretion only " 'when the prejudicial effect of the evidence clearly outweighed its probative value' " and the court's ruling falls outside the bounds of reason. (Ibid., italics added.)
Here, even accounting for Ahmed's statement to Black that he was "going to kill [him]," none of the three past incidents was unduly violent or inflammatory as compared to the acts against Michael in this case. The Walker incident did not involve harm to any person, and in the other incidents neither Black nor Renteria ultimately suffered significant injuries. (Accord, People v. Lindberg (2008) 45 Cal.4th 1, 25 [the fact prior uncharged incidents were not particularly inflammatory compared to the present murder offense demonstrated trial court acted within its discretion under Evidence Code section 352].) Additionally, Ahmed was convicted of assault and burglary in connection with the Black and Renteria incidents, thus " 'the jury was not tempted to convict [him] of the charged offenses, regardless of his guilt, in order to assure that he would be punished for" those other incidents. (People v. Edwards (2013) 57 Cal.4th 658, 713.)
Moreover, the court instructed the jury with CALCRIM No. 375 that it could, but was not required to, consider the other offenses only on the issue of Ahmed's credibility, or the "limited purpose" of deciding whether or not Ahmed knew his conduct was dangerous to human life when he allegedly acted in the case, or Ahmed's actions were the result of mistake or accident, or Ahmed had a plan or scheme to commit the offense against Michael. The court further instructed the jury that Ahmed's commission of the other offenses was not sufficient by itself to prove that he was guilty of murder, and that the People were still required to prove the charges and allegations beyond a reasonable doubt. These instructions told the jury that evidence relating to those events could not be considered to prove Ahmed's bad character or criminal disposition, which "further reduced the potential for any untoward effects of the evidence." (People v. Ortiz, supra, 109 Cal.App.4th at p. 118; People v. Frazier (2001) 89 Cal.App.4th 30, 42 [risk of jury punishing a defendant for an uncharged crime counterbalanced by appropriate instructions].) We presume the jury followed these instructions. (People v. Jones, supra, 51 Cal.4th at p. 371; People v. Carter, supra, 36 Cal.4th at pp. 1150-1151.) Under the circumstances, admission of the other crimes evidence did not create a substantial danger of undue prejudice.
III. Claim of Instructional Error
The trial court instructed the jury with CALCRIM No. 520, which informed the jury in part that "[t]he defendant acted with implied malice if: one, he intentionally committed an act; two, the natural and probable consequences of the act were dangerous to human life; three, at the time he acted, he knew his act was dangerous to human life; and, four, he deliberately acted with conscious disregard for human life." Ahmed's counsel did not take issue with this instruction other than to ask whether it was necessary to instruct the jury that "[t]he defendant acted with express malice when he unlawfully [intended] to kill."
Ahmed contends that the trial court erred by failing to instruct the jury with what he characterizes as the "correct" formulation of implied malice stated in People v. Thomas, supra, 41 Cal.2d at p. 480: that the defendant commit "an act that involves a high degree of probability that it will result in death." He maintains "[a]ny lesser standard fails to justify the grading of an unlawful killing as murder, because it is not appropriate to impose a murder punishment on an act that does not carry the same homicidal risk as does an express intent to kill." According to Ahmed, the omission of the Thomas standard of implied malice in the jury instruction lowered the People's burden of proof and resulted in an instruction that did not correctly state the law, and also violated his right to due process because it instructed the jury with a standard that is void for vagueness as applied to him. He argues we should review the issues de novo.
The People respond first that Ahmed forfeited these claims. On the merits, in part citing Cravens, supra, 53 Cal.4th 500 and People v. Bryant, supra, 56 Cal.4th 959, they maintain CALCRIM No. 520 correctly states the law. They argue Ahmed misplaces reliance on People v. Knoller, supra, 41 Cal.4th 157, which did not, as he suggests, affirm that Thomas's high probability of death is the appropriate standard.
We assume Ahmed's first contention pertains to the trial court's sua sponte duty to instruct correctly on the basic principles of the law, avoiding forfeiture of this argument for counsel's failure to object to the instructions or request a clarifying instruction. (People v. Guiuan (1998) 18 Cal.4th 558, 570.) However, we reject them on the merits in any event. Ahmed's arguments urge us to ignore opinions by the California Supreme Court considering the Phillips formulation to be a correct articulation of the implied malice standard, including the physical component. (Cravens, supra, 53 Cal.4th at p. 507; see People v. Bryant, supra, 56 Cal.4th at p. 968.) The majority opinion in Cravens represents the law we must apply in this matter. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Further, as this court has already pointed out (People v. Cleaves (1991) 229 Cal.App.3d 367, 378), the high court has several times stated that both Thomas and Phillips formulations are essentially correct articulations of the applicable standards. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 111 (Nieto Benitez); People v. Dellinger (1989) 49 Cal.3d 1212, 1217-1221; People v. Watson (1981) 30 Cal.3d 290, 300.) And though the court has deemed the two tests correct, it has stated its preference for the more direct and straightforward language of the Phillips test. (People v Knoller, supra, 41 Cal.4th at p. 152.)
In particular, Ahmed's claim of instructional error was rejected by the high court in Nieto Benitez, supra, 4 Cal.4th 91. There, the defendant argued the trial court "misstate[d] the law because [its] instruction[s] omit[ted] a requirement that defendant commit the act with a high probability that death will result." (Id. at p. 111.) The Supreme Court disagreed, holding the instruction given "correctly distills the applicable case law." (Ibid.) It pointed out that "the two linguistic formulations—'an act, the natural consequences of which are dangerous to life' and 'an act [committed] with a high probability that it will result in death' are equivalent . . . ." (Id. at p. 111.) This court reached the same conclusion in People v. Cleaves, rejecting the defendant's challenge that the instructions for implied malice required the jury be told that his act must "involv[e] a high probability of death, and it is not enough that the act be merely dangerous to human life." (People v. Cleaves, supra, 229 Cal.App.3d at pp. 377-378.) Other courts are in accord. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1353-1354.) Here, the "linguistic formulation" used by the trial court in this case is virtually identical to the instructions upheld in Nieto Benitez and Cleaves. The court instructed the jury that the defendant's act must be such that its "natural and probable consequences" are "dangerous to human life." The instructions in Nieto Benitez and Cleaves both required an act, " 'the natural consequences of which are dangerous to life . . . .' " (Nieto Benitez, at p. 111; Cleaves, at p. 377, fn. 9.) Nieto Benitez compels us to reject Ahmed's arguments. Because the California Supreme Court has not rejected the Phillips test, the trial court's instruction on implied malice was not erroneous. Correspondingly, counsel's failure to object to the instruction on the grounds advanced by Ahmed on appeal did not amount to constitutionally ineffective assistance as there was no sound legal basis for objection. (People v. Weaver (2001) 26 Cal.4th 876, 931; accord, People v. Cudjo (1993) 6 Cal.4th 585, 616 ["Because there was no sound legal basis for objection, counsel's failure to object to the admission of the evidence cannot establish ineffective assistance"]; People v. Noriega (2015) 237 Cal.App.4th 991, 1003.)
As for Ahmed's contention that the law and the instruction as applied to him is unconstitutionally vague, we agree with the People that those contentions were forfeited. Since the instruction was correct in law and Ahmed did not request to amplify, clarify, or modify the instruction, or claim that due process required some refinement of the standard, he has forfeited his challenge that the instruction was so vague as to violate his Fifth and Fourteenth Amendment rights. (See People v. Covarrubias (2016) 1 Cal.5th 838, 876-877 [failure to request clarifying instructions bars appellate review of the issue]; People v. Russell (2010) 50 Cal.4th 1228, 1273 [defendant's failure to request clarifying instruction forfeits claim that a jury instruction "created a vague and directionless standard in violation of the Eighth and Fourteenth Amendments"].)
We observe in any event that jury instructions are not analyzed under the "void for vagueness" standard because they "do[] not establish the elements of a crime, but merely attempt[] to explain a statutory definition." (People v. Raley (1992) 2 Cal.4th 870, 901.) When a party argues an instruction "is so vague and confusing as to violate fundamental ideas of fairness, 'we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way" that violates the Constitution.' " (Ibid., quoting Estelle v. McGuire (1991) 502 U.S. 62, 72; see also People v. Ayala (2000) 24 Cal.4th 243, 289.) Any claim that CALCRIM No. 520 is confusing or uncertain has been rejected by the California Supreme Court in the cases approving the instruction (or its predecessor) and characterizing such instructional language as "straightforward." (Nieto Benitez, supra, 4 Cal.4th at pp. 104, 111; People v. Knoller, supra, 41 Cal.4th at p. 152; People v. Dellinger, supra, 49 Cal.3d at p. 1222 [approving of former CALJIC No. 8.31, which instructed the jury that malice is implied when the natural consequences of the act are dangerous to human life and the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life].) Ahmed has not demonstrated, and we do not perceive, a reasonable likelihood that the jury applied CALCRIM No. 520 in a manner that violates the Constitution.
As for his claim that the implied malice standard as interpreted by Phillips, supra, 64 Cal.2d 574 and its progeny is itself unconstitutionally vague, we reject it. Ahmed argues the standard " 'leaves grave uncertainty about how to estimate the risk' posed by [his] punch" similar to the law invalidated in Johnson v. United States (2015) 576 U.S. ___ (Johnson). He maintains that "[d]efining implied malice in terms of an act, the natural and probable consequences of which are dangerous to human life, is just as constitutionally deficient as is the [law] under consideration in Johnson." According to Ahmed, "In terms of the twin purposes served by the vagueness doctrine, this definition fails to provide a person of ordinary intelligence with notice as to when a particular act crosses the line from merely being dangerous to life to constituting implied malice."
Ahmed's vagueness claim might have some merit if he were convicted based on the statutory "abandoned and malignant heart" language of implied malice. (See People v. Bryant, supra, 56 Cal.4th at pp. 964-965 [observing "the statutory definition of implied malice is 'quite vague' and 'permits, even requires, judicial interpretation' "]; Nieto Benitez, supra, 4 Cal.4th at p. 103 [summarizing history of high court's efforts to translate "cryptic" and "amorphous" statutory language "into a tangible standard a jury can apply"]; People v. Chun, supra, 45 Cal.4th at p. 1181 [statutory definition of implied malice " 'has never proved of much assistance in defining the concept in concrete terms' "]; People v. Lasko, supra, 23 Cal.4th at p. 107; People v. Dellinger, supra, 49 Cal.3d at p. 1217 [same]; People v. Phillips, supra, 64 Cal.2d at p. 587 [abandoned and malignant heart language "adds nothing to the jury's understanding of implied malice; its obscure metaphor invites confusion and unguided speculation"].) But as the high court has observed in the above cases, the unclear statutory language has been judicially interpreted into terms more understandable and workable for a jury. Even assuming we can apply the void-for-vagueness doctrine to something other than a penal statute (People v. Pulliam (1998) 62 Cal.App.4th 1430, 1433 [summarizing vagueness principles involving penal statutes]), we cannot say that the "natural and probable consequences dangerous to human life" standard fails to give an ordinary person fair notice of the conduct it punishes or is so standardless that it leads to arbitrary enforcement. (Johnson, supra, 576 U.S. at p. ___ ; Kolender v. Larson (1983) 461 U.S. 352, 357-358.)
More to Ahmed's point, the challenged language does not suffer from the defects found in Johnson, supra, 576 U.S. ___ . In Johnson, the court invalidated as unconstitutionally vague a federal statute's clause defining "violent felony" as "any felony that 'involves conduct that presents a serious potential risk of physical injury to another.' " (Id. at p. 2555.) Based on the framework adopted by the court with regard to that law, Johnson explained that in deciding whether the clause covered a crime, the court was required "to picture the kind of conduct that the crime involves in 'the ordinary case,' and to judge whether that abstraction presents a serious potential risk of physical injury." (Id. at p. 2557, italics added.) It further observed that based on the statute's inclusion of certain enumerated offenses, the "court's task also goes beyond evaluating the chances that the physical acts that make up the crime will injure someone. The act of making an extortionate demand or breaking and entering into someone's home does not, in and of itself, normally cause physical injury. Rather, the risk of injury arises because the extortionist might engage in violence after making his demand or because the burglar might confront a resident in the home after breaking and entering." (Ibid.) The court identified two features rendering the provision vague. First, the clause "ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real- world facts or statutory elements." (Id. at p. 2557.) Second, "the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise 'serious potential risk' standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction." (Id. at p. 2558.) The court found "the indeterminancy of the wide-ranging inquiry" denied fair notice and invited arbitrary enforcement (id. at p. 2557): "By combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." (Id. at p. 2558.)
The U.S. Supreme Court made clear that its holding did not invalidate laws using the terms "substantial risk," "grave risk," or "unreasonable risk." (Johnson, supra, 576 U.S. at p. ___ .) It pointed out that such laws "require gauging the riskiness of conduct in which an individual defendant engages on a particular occasion. As a general matter, we do not doubt the constitutionality of laws that call for the application of a qualitative standard such as 'substantial risk' to real-world conduct; 'the law is full of instances where a man's fate depends on his estimating rightly . . . some manner of degree.' " (Ibid.)
The standard of implied malice challenged by Ahmed contains no such categorical approach or application to an abstract "idealized ordinary case," (Johnson, supra, 576 U.S. at p. ___ [135 S.Ct. at pp. 2557-2558]) but rather it is a qualitative standard applied to Ahmed's real-world conduct. " 'A statute is not void simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language.' " (People v. Morgan (2007) 42 Cal.4th 593, 606; In re Ana C. (2016) 2 Cal.App.5th 333, 341, review granted Oct. 19, 2016.) The "natural consequences dangerous to life" standard for implied malice as given to the jury in this case does not implicate the vagueness concerns raised in Johnson.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: McCONNELL, P. J. BENKE, J.