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PEOPLE v. NIETO BENITEZ

Docket No. S022789.

4 Cal.4th 91 (1992)

840 P.2d 969

13 Cal. Rptr.2d 864

THE PEOPLE, Plaintiff and Respondent, v. MARTIN NIETO BENITEZ, Defendant and Appellant.

Supreme Court of California.

December 3, 1992.

Attorney(s) appearing for the Case

COUNSEL

Stephen Gilbert, under appointment by the Supreme Court, for Defendant and Appellant.

Fern M. Laethem, State Public Defender, Philip M. Brooks, Deputy State Public Defender, Ronald Y. Butler, Public Defender (Orange), Carl C. Holmes, Chief Deputy Public Defender, Deborah Ann Kwast, Assistant Public Defender, Thomas Havlena and Denise M. Gragg, Deputy Public Defenders, as Amici Curiae on behalf of Defendant and Appellant.

John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart and George Williamson, Chief Assistant Attorneys General, Harley D. Mayfield and Gary W. Schons, Assistant Attorneys General, Robert M. Foster, Rudolf Corona, Jr., Raquel M. Gonzalez and Nancy L. Palmieri, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GEORGE, J.

This case presents the question whether the act of brandishing a firearm may constitute an act sufficiently dangerous to life to support a conviction of second degree murder on an implied malice theory. (Pen. Code, §§ 187, subd. (a), 189.)1 The Court of Appeal held that although the act of intentionally firing a handgun could support a finding of malice, the act of intentionally...

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