D owned fighting dogs. One was a pit bull named Willy. D shared a lot and driveway with the Soto family. There were lots of children everywhere.
Willy was tethered near D's house but there were no obstacles between the outside world and Willy.
Four-year-old Soto wandered over to the dog and was mauled and killed.
The dog was there guarding a vast marijuana forest.
D was charged with second-degree murder. D moved pre-trial for dismissal.
Trial court dismissed D motion.
How can an implied malice theory be used to justify a second-degree murder charge?
When a D shows an extreme indifference to the value of human life and is aware either of the risks of the conduct or that his conduct is contrary to law, such evidence is sufficient for a second-degree murder conviction.
D was aware of the dog's potential danger to human beings.
This can be proved through the fact that he kept the dog chained and spoke of him as dangerous.
Chaining the dog did not lessen the risk to others though since children were all around.
The fact that the dog was used to guard weed shows conduct containing elements of illegality and antisocial purpose.
Malice may be implied when D does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.
Implied malice is present when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. Ill will toward or hatred of the victim are not prerequisites.
Depraved indifference, depraved heart, utter callousness toward the value of human life