The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
HEATHER ROSE BROWN,
Defendant and Appellant.
S257631
Third Appellate District
C085998
Shasta County Superior Court
15F2440
March 2, 2023
Justice Groban authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Kruger,
Jenkins, and Cantil-Sakauye* concurred.
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
PEOPLE v. BROWN
S257631
Opinion of the Court by Groban, J.
Defendant Heather Rose Brown gave birth to a baby girl in a
hotel room. In the fifth day of her life, while lying face down
between her sleeping parents who were both under the influence of
heroin, Brown’s newborn daughter stopped breathing. When
Brown woke and noticed, she directed her daughter’s father to call
911. Brown administered CPR, following the dispatcher’s
instructions, until the ambulance arrived. Further efforts to
resuscitate Brown’s daughter were unsuccessful. An autopsy
revealed traces of heroin-derived morphine and methamphetamine
in the baby’s body fluids and the contents of her stomach.
The District Attorney charged Brown with first degree
murder and prosecuted the charge on the theory that Brown had
poisoned her newborn daughter by feeding her breast milk after
smoking heroin and methamphetamine. The trial court instructed
the jurors that to convict Brown of first degree murder they had to
find she committed “an act” with the mental state of malice
aforethought that was a substantial factor in causing her baby’s
death and that she “murdered by using poison.” The instructions
did not require the jury to find that Brown acted with any
particular, heightened mental state when she fed her baby her
breast milk. They thus allowed the jury to convict Brown of first
degree murder if it found that she acted with malice — a mental
state that normally would only support a conviction of second
degree murder — and that poison was a substantial factor in
causing her baby’s death. Based on these instructions, the jury
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Opinion of the Court by Groban, J.
convicted Brown of the first degree murder of her newborn
daughter, for which the court imposed a sentence of 25 years to life
in prison.
Brown argues that the jury instructions were incomplete
because they did not require the jury to find she fed her daughter
her breast milk with a mental state equivalent in turpitude to the
willfulness, deliberation, and premeditation that generally
distinguishes first degree murder from second degree murder. The
Attorney General argues that the instructions were complete,
because, in his view, proof that a defendant used poison is sufficient
to elevate a murder to the first degree, without any proof of mental
state beyond the showing of malice required for all murder
convictions. We conclude Brown has the better argument.
When dividing the common law offense of murder into two
degrees, the Legislature reserved for the first degree types of
murders that are “cruel and aggravated” and thus “deserving of
greater punishment” than other malicious or intentional killings,
which are punishable only as second degree murder. (People v.
Sanchez (1864) 24 Cal. 17, 29 (Sanchez).) From the beginning,
those murders have included all murder “perpetrated by means of
poison, or lying in wait, torture, or by any other kind of wilful,
deliberate and premeditated killing.” (1 Hittell’s Cal. Gen. Laws
from 1850 to 1864, par. 1425, § 21 (1872) (Hittell’s); id. at par. 1423,
§ 19.)
We previously have interpreted this language to require proof
of a mental state more culpable than the malice required for second
degree murder, in keeping with the Legislature’s determination
that murders perpetrated by these means warrant the greater
punishment reserved for first degree murder. For torture murder,
the prosecution must show “wilful, deliberate and premeditated
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
intent to inflict extreme and prolonged pain.” (People v. Steger
(1976) 16 Cal.3d 539, 546 (Steger).) For lying in wait murder, the
prosecution must show the defendant performed the acts of
watching, waiting, and concealment with the intent to take the
victim by surprise to facilitate the infliction of injury likely to cause
death. (People v. Webster (1991) 54 Cal.3d 411, 448 (Webster);
People v. Gutierrez (2002) 28 Cal.4th 1083, 1149, fn. 10 (Gutierrez).)
However, since in a typical first degree murder by poison case there
is no question that the defendant acted with willfulness,
deliberation, and premeditation, we have never addressed whether
there is a mental state component of first degree poison murder.
We now clarify that to prove first degree murder by means of
poison, the prosecution must show the defendant deliberately gave
the victim poison with the intent to kill the victim or inflict injury
likely to cause death.
The trial court’s instructions did not include this element of
first degree poison murder. This was error. And because a rational
jury could have concluded the prosecution did not prove beyond a
reasonable doubt that Brown deliberately gave her newborn
daughter the poisonous substances in her breast milk with the
intent to kill her or inflict injury likely to cause her death, the error
was prejudicial. Accordingly, we reverse Brown’s first degree
murder conviction.
I. BACKGROUND
A. Trial Court Proceedings
1. Evidence of Events Leading to Baby’s Death
In a recorded interview played for the jury, Brown told a
police investigator she met her husband, Daylon Reed, when she
was twenty years old. Reed dealt and used drugs, including
marijuana, methamphetamine, and heroin, and soon after meeting
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Opinion of the Court by Groban, J.
him, Brown began to use heroin. A few months into their
relationship, Brown learned she was pregnant. Brown continued
to use heroin during her pregnancy and occasionally also used
methamphetamine.
Brown had almost no prenatal care and she and Reed made
no arrangements for their baby’s birth. When Brown went into
labor, the couple got a hotel room and Brown called a friend and
asked her to find a midwife. Brown’s friend called a friend of hers,
a doula who had assisted a midwife with some deliveries, who
agreed to attend the birth. Brown smoked heroin while in labor,
believing it would help with the pain, hiding that she was doing so
from the doula and her mother, who also was present for the birth,
by smoking in the bathroom.
At trial, several witnesses testified that Brown said she did
not want to give birth in a hospital because she was afraid that if
she tested positive for drugs the baby would be taken away. Reed’s
sister Michelle testified that she had given birth to a baby boy at a
local hospital not long after meeting Brown. The baby experienced
withdrawal, Child and Family Services became involved, and
Michelle voluntarily relinquished custody.
Brown’s daughter, Dae-Lynn Rose, appeared healthy at
birth, but a couple days later began to appear ill. The doula,
Brown’s mother, and Brown’s father and stepmother all advised
Brown and Reed to take the baby to a doctor, but they did not do
so. Brown admitted to the police investigator that she believed that
if she gave birth at the hospital or took her baby to a doctor, her
baby would be taken from her. Nevertheless, Brown said she had
been planning to take Dae-Lynn to a doctor on the day she died.
Brown also admitted that after Dae-Lynn’s birth, she and
Reed smoked heroin almost every day. She said they smoked in
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Opinion of the Court by Groban, J.
the bathroom so the baby would not inhale it. When confronted,
she admitted that she also smoked methamphetamine once during
her daughter’s life.
Brown fed Dae-Lynn both breast milk and infant formula.
When Dae-Lynn was two days old, Brown searched for information
on the internet about how to help newborns suffering from
withdrawal. She told the police investigator she continued to feed
Dae-Lynn breast milk because she had read on the internet that
when “babies were withdrawing” breast milk is “supposed to help
ease ’em.” When the investigator asked Brown whether she
supplemented her breast milk with formula because she was afraid
that the heroin she was using would pass into her breast milk,
Brown responded, “Yes, and it wasn’t just that. It was also the lack
of milk that I was producing.” When the investigator suggested to
Brown that perhaps she had intentionally passed drugs to Dae-
Lynn in her breast milk to try to alleviate her withdrawal
symptoms, Brown responded, “I never had that thought even come
across my mind.”
2. Evidence Related to Baby’s Death
Dae-Lynn died in the fifth day of her life. In the early
morning hours, Brown and Reed smoked heroin. Later, Brown fed
Dae-Lynn a couple of times, giving her breast milk and infant
formula. Mid-morning, Brown fell asleep, putting the baby face
down between her and Reed on the hotel room bed. Dae-Lynn woke
up again once, crying, and Brown repositioned her so she was lying
next to Brown, under Brown’s arm. Around noon, a housekeeper
woke Brown and Reed and told them they needed to go to the office
and pay if they were planning to stay another night, but they fell
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Opinion of the Court by Groban, J.
back asleep without paying. Before falling asleep, Brown looked at
Dae-Lynn, who was breathing normally.
Around 1:00 p.m., hotel management woke Brown and Reed,
telling them they had to leave unless they paid for another night.
Brown went to the door to pay, then checked on Dae-Lynn. Though
the baby’s body was warm, she was not breathing. Brown told Reed
to call 911. The dispatcher sent an ambulance and instructed
Brown over the phone on how to administer CPR, which she did
until paramedics arrived. Shortly after arriving at the hospital,
Dae-Lynn was pronounced dead.
When the police investigator asked Brown later that day
what she thought caused Dae-Lynn’s death, she said she thought
maybe she had accidentally suffocated her daughter in her sleep.
When he asked her whether she suffocated Dae-Lynn on purpose,
she denied any intent to harm her daughter and expressed her love
for Dae-Lynn and excitement about being a mom. When the police
investigator told Brown six months later, at the time of her arrest,
that the autopsy report said her baby had died from exposure to
methamphetamine and heroin, Brown responded: “[T]hat . . . kills
me because I was only trying to help her. I didn’t wanna try to
harm my daughter at all. I never would intentionally.”1
3. Jury Instructions
The trial court instructed the jury that to find Brown guilty
of murder, it must find she intentionally committed a prohibited
act or intentionally failed to perform a required act “with a specific
1
The prosecutor put on several witnesses to testify about
potential causes of Dae-Lynn’s death. Brown raised a challenge to
the sufficiency of the evidence that Dae-Lynn’s death was caused
by poison, which the Court of Appeal rejected. This issue is not
before us, and we express no view on it.
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Opinion of the Court by Groban, J.
intent and/or mental state” that would be explained in the murder
instruction. In the murder instruction, the court explained that to
convict Brown of murder in the first or second degree, the jury had
to find that she committed “an act” that was a substantial factor in
causing the victim’s death with the mental state of malice
aforethought. As to the act requirement, the court further
instructed that a parent’s “failure to act” in accordance with the
duty to “provide care, obtain medical attention and protect a child
. . . is the same as doing any . . . injurious act.” As to the mental
state requirement, the court explained that malice can be either
express, meaning the defendant “unlawfully intended to kill,” or
implied, meaning that: (1) “she intentionally committed an act,” (2)
“the natural and probable consequences of the act were dangerous
to human life,” (3) “[a]t the time she acted, she knew her act was
dangerous to human life,” and (4) “she deliberately acted with
conscious disregard for human life.” The court elaborated:
“[M]alice aforethought does not require hatred or ill will toward the
victim. . . . It does not require deliberation or the passage of any
period of time.”
On the degree of murder, the trial court explained: “If you
decide the defendant committed murder, it is murder of the second
degree, unless the People have proved beyond a reasonable doubt
that it is murder of the first degree . . . .” The trial court then
instructed the jury on the additional finding it would have to make
to convict Brown of first degree murder: “The defendant is guilty
of first degree murder if the People have proved that the defendant
murdered by using poison. Poison is a substance applied externally
to the body or introduced into the body that can kill by its own
inherent qualities.” The court did not instruct the jury that it
needed to find that Brown had any particular, heightened mental
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
state in giving the poison to the victim to find her guilty of murder
in the first degree rather than in the second degree.
4. Verdict and Sentencing
The jury convicted Brown of the first degree murder by poison
of Dae-Lynn, among other offenses not at issue. The trial court
imposed a sentence of 25 years to life for that count.
B. Court of Appeal Proceedings
On appeal, Brown contended that the jury instruction on first
degree poison murder was incomplete because it did not inform the
jury that the defendant must administer the poison willfully,
deliberately, and with premeditation. In an unpublished opinion,
the Court of Appeal rejected this argument, concluding: “[I]t
appears the People need only prove that the killing was caused by
administration of poison, and that the killing was done with malice.
Such a killing is first degree murder as a matter of law.” 2
II. DISCUSSION
We granted review to determine whether, to prove first
degree murder by poison, it is enough for the prosecution to show
the defendant’s use of poison was a substantial factor in causing
the victim’s death, or whether instead the prosecution must show
the defendant acted with a particular mental state when using the
poison, separate from the showing of malice that would support a
conviction of second degree murder. We also agreed to decide
2
We are not aware of any other case, and the Attorney General
has cited none, in which an appellate court in this country has
upheld a first degree murder conviction of a drug-addicted mother
whose baby died after drinking breast milk containing controlled
substances the mother had consumed.
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Opinion of the Court by Groban, J.
whether reversal of Brown’s first degree murder conviction would
be required if we concluded the trial court erred in failing to
instruct on the mental state required for first degree poison
murder. For the reasons discussed below, we hold that to elevate
a murder to the first degree, it is not enough for the prosecution to
prove the use of poison was a substantial cause of the victim’s
death; instead, the prosecution must prove the defendant
deliberately gave the victim poison with the intent to kill the victim
or inflict injury likely to cause the victim’s death. Because we
cannot conclude beyond a reasonable doubt that the jury would
have found Brown guilty of first degree murder had it been so
instructed, we reverse the judgment of the Court of Appeal.
A. Instructional Error
A trial court must instruct on each element of a charged
offense, even when the defendant does not propose a complete
instruction or object to the court’s failure to provide one. (People v.
Merritt (2017) 2 Cal.5th 819, 824.) In this case, the trial court did
not instruct the jurors that they were required to find Brown had
used the poison with any particular, heightened mental state to
convict her of murder in the first degree. Rather, its instruction on
the degree of murder permitted the jurors to find Brown guilty of
first degree murder if they found that she committed murder and
the use of poison was a substantial factor in causing her daughter’s
death. Under these instructions, second degree implied malice
murder became first degree murder based on the act of using poison
alone; the jury was not required to find that Brown acted with a
more culpable mental state when feeding her daughter her breast
milk.
To determine whether the trial court erred in failing to instruct
on the mental state element of first degree murder by poison, we
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Opinion of the Court by Groban, J.
must first determine whether there is such an element. Brown
argues a poison murder is only in the first degree if the killer
poisoned the victim on purpose, with the calculated deliberation
and cold-blooded intent that renders first degree murder more
deplorable than second degree murder, and that the trial court’s
failure to instruct on this mental state was error. The Attorney
General disagrees, arguing that no instruction on the mental state
specific to the act of poisoning was required because all murders by
means of poison are categorically murders in the first degree. In
the Attorney General’s view, the act of using poison suffices to
elevate an implied malice murder to the first degree.
1. Language, Context, and History of Penal Code
Section 189
To resolve this dispute, we begin with an examination of the
statutory language in its historical context. Penal Code section 187
defines “murder” as “the unlawful killing of a human being . . . with
malice aforethought.” (Id., subd. (a).)3 Section 189 describes the
two degrees of murder, defining first degree murder to include, in
relevant part, “[a]ll murder that is perpetrated by means of a
destructive device or explosive, a weapon of mass destruction,
knowing use of ammunition designed primarily to penetrate metal
or armor, poison, lying in wait, torture, or by any other kind of
willful, deliberate, and premeditated killing . . . .” (§ 189, subd.
(a).) Second degree murder is defined by exclusion: All murder
that is not first degree murder is “of the second degree.” (Id. subd.
(b).)
3
All further undesignated statutory references are to the
Penal Code.
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Opinion of the Court by Groban, J.
This division of murder into two degrees — and the
designation of murders by means of poison, lying in wait, and
torture as kinds of first degree premeditated murder — has been
part of California law since before the adoption of the Penal Code.
California’s first murder statute, enacted in 1850, defined murder
as “the unlawful killing of a human being, with malice
aforethought, either express or implied” and provided only one
penalty for murder: death. (Garfielde & Snyder Compiled Cal.
Laws, § 19 (1853); id., § 21.) In 1856, the Legislature amended the
statute to designate two degrees of murder. (Stats. 1856, ch. 139,
§ 1, p. 219; People v. Wiley (1976) 18 Cal.3d 162, 168 (Wiley).)
Death remained the only punishment for first degree murder;
second degree murder was punishable by a term of imprisonment
“not less than ten years and which may extend to life.” (Hittell’s,
supra, par. 1425, § 21; Wiley, at p. 168.) As part of the 1856
amendment, the Legislature designated as first degree murders
those “perpetrated by means of poison, or lying in wait, torture, or
by any other kind of wilful, deliberate and premeditated killing.”
(Hittell’s, supra, par. 1425, § 21.) When the Legislature adopted
the Penal Code in 1872, it carried over this division between first
degree murder and second degree murder into section 189.
Although other kinds of “willful, deliberate, and premeditated”
killing have been added to section 189 since its enactment, the
relevant language — “[a]ll murder which is perpetrated by means
of poison, or lying in wait, torture, or by any other kind of willful,
deliberate, and premeditated killing . . . is murder of the first
degree. . . ” — remains substantially unchanged to this day. (1872
Pen. Code, § 189.)
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Opinion of the Court by Groban, J.
Explaining the Legislature’s intent in enacting section 189,
the California Code Commission 4 noted that the division of murder
into two degrees was based on the “manifest injustice” of inflicting
the death penalty in cases involving killings that “differed greatly
from each other in the degree of atrociousness.” (Code commrs.,
note foll., Ann. Pen. Code, § 189 (1st ed. 1872, Haymond & Burch,
commrs.-annotators) p. 82.) The Commission’s notes quote with
approval our 1864 opinion in Sanchez, supra, 24 Cal. 17, in which
we described the Legislature’s basis for distinguishing the two
degrees of murder as follows: “In order to constitute murder of the
first degree there must be something more than a malicious or
intentional killing. . . . [¶] In dividing murder into two degrees, the
Legislature intended to assign to the first, as deserving of greater
punishment, all murders of a cruel and aggravated character; and
to the second all other kinds of murder which are murder at
common law; and to establish a test by which the degree of every
case of murder may be readily ascertained. That test may be thus
stated: Is the killing wilful, (that is to say, intentional,) deliberate,
and premeditated? If it is, the case falls within the first, and if not,
within the second degree.” (Id. at pp. 28–29; see code commrs., note
foll., Ann. Pen. Code, § 189, supra, at pp. 82–83.) As to murders by
poison, lying in wait, and torture, we observed that the Legislature
considered the means used to “carry with them conclusive evidence
of premeditation”5 because these means of killing, by their nature,
4
In construing the Penal Code of 1872, the Code
Commissioners’ notes are entitled to substantial weight because
the commissioners drafted the code. (Keeler v. Superior Court
(1970) 2 Cal.3d 619, 630.)
5
In later cases, we moved away from the concept of
“conclusive” proof, referring instead to proof of murder by means of
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
involve “the deliberate and preconceived intent to kill.” (Sanchez,
at pp. 29–30.)
This history shows the Legislature specified that “[a]ll murder
that is perpetrated by means of . . . poison, lying in wait, [or]
torture . . . is murder of the first degree” because it considered such
murders to be kinds of “willful, deliberate, and premeditated
killing,” and as such deserving of the greater punishment reserved
for first degree murders, which at the time of section 189’s
enactment was death. (§ 189, subd. (a); see People v. Milton (1904)
145 Cal. 169, 170 (Milton) [the means of poison, lying in wait, and
torture “furnish evidence of willfulness, deliberation, and
premeditation” because the statute designates these means as
kinds of “willful, deliberate, and premeditated killing”].) In
designating murders carried out by these means as first degree
murder, the Legislature intended to require “something more” than
the showing of a malicious or intentional killing required for second
degree murder — something equivalent in turpitude to willfulness,
deliberation, and premeditation. (Sanchez, supra, 24 Cal. at p. 28;
id. at p. 29.)6
poison, lying in wait, or torture as “the functional equivalent of
proof of premeditation, deliberation and intent to kill” (People v.
Ruiz (1988) 44 Cal.3d 589, 614 (Ruiz)), and observing that a
showing of murder by one of these means “obviates the necessity of
separately proving premeditation and deliberation . . . .” (People v.
Hardy (1992) 2 Cal.4th 86, 162.)
6
As noted, murder by means of poison, lying in wait, and
torture all appeared in the statute at its inception. (Pt. II.A.1, ante,
at pp. 11–12.) We express no opinion on other categories of first
degree murder that the Legislature subsequently added to section
189.
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Opinion of the Court by Groban, J.
2. First Degree Murder by Torture, Lying in Wait, and
Other Means
While an examination of the language of section 189 in its
historical context reveals the Legislature’s intent to require proof
of “something more” than malice to elevate a murder by means of
torture, lying in wait, or poison to the first degree, it reveals little
about what that “something more” might be. (Sanchez, supra,
24 Cal. at p. 28.) For that, we turn to our case law. We have never
been asked to directly address what mental state in the
administration of poison is required to elevate a poison murder to
the first degree. We have, however, addressed this question in the
contexts of murder by torture and by lying in wait — the two other
kinds of “willful, deliberate, and premeditated killing” that section
189 has listed as categorically “murder of the first degree” since its
enactment. In both contexts, we have concluded that more than
malice is required; the defendant must have committed the
designated act with a specific mental state that is equivalent to
willfulness, deliberation, and premeditation.
We discussed the mental state component of murder by
means of torture in People v. Heslen (1945) 163 P.2d 21 (Heslen),
concluding that “the requirement of an intent to cause pain and
suffering” is implicit in the word “torture.” (Id. at p. 27.) Later, in
People v. Tubby (1949) 34 Cal.2d 72, we emphasized that “[t]he
dictionary definition [of torture] was appropriately enlarged upon
by this court” in Heslen to include “intent . . . to cause cruel
suffering.” (Tubby, at pp. 76–77.) We further elaborated on this
definition in Steger, supra, 16 Cal.3d at page 546, explaining that
first degree “murder by means of torture” is “murder committed
with a wilful, deliberate, and premeditated intent to inflict extreme
and prolonged pain.” We reasoned: “In labeling torture as a ‘kind’
of premeditated killing, the Legislature requires the same proof of
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Opinion of the Court by Groban, J.
deliberation and premeditation for first degree torture murder that
it does for other types of first degree murder.” (Ibid.) We went on
to explain: “It is not the amount of pain inflicted which
distinguishes a torturer from another murderer, as most killings
involve significant pain. [Citation.] Rather, it is the state of mind
of the torturer — the cold-blooded intent to inflict pain for personal
gain or satisfaction — which society condemns. Such a crime is
more susceptible to the deterrence of first degree murder sanctions
and comparatively more deplorable than lesser categories of
murder.” (Ibid.) Our holding in Steger thus rested on the premise
that the requirement that the defendant have a mental state of
“wilful, deliberate, and premeditated intent to inflict extreme and
prolonged pain” was necessary to preserve the distinction between
calculated, deliberate murder, which is murder in the first degree,
and other types of intentional or malicious killing, which are second
degree murder. (Id. at p. 546; id. at pp. 544–546 & fn. 2; see Wiley,
supra, 18 Cal.3rd at p. 168 [torture designated as first degree
murder in part because “the calculated nature of the acts causing
death” make torture particularly reprehensible]; People v. Cole
(2004) 33 Cal.4th 1158, 1227 [same].)
In People v. Tuthill (1947) 31 Cal.2d 92, we addressed the
mental state question in the context of first degree murder by lying
in wait. We began by noting the need for interpretation of the
statutory language before declaring that a “literal[]” understanding
of the term lying in wait includes “[t]he elements of waiting,
watching, and secrecy.” (Id. at p. 101; id. at p. 100.) Elaborating
on this understanding, we since have established that “it is not
sufficient to merely show the elements of waiting, watching and
concealment. It must also be shown that the defendant did those
physical acts with the intent to take [the] victim unawares and for
the purpose of facilitating [the] attack.” (People v. Mattison (1971)
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Opinion of the Court by Groban, J.
4 Cal.3d 177, 183 (Mattison); see Webster, supra, 54 Cal.3d at
p. 448 [“The concealment required for lying in wait ‘is that which
puts the defendant in a position of advantage, from which the
factfinder can infer that lying-in-wait was part of the defendant’s
plan to take the victim by surprise’ ”]; People v. Laws (1993)
12 Cal.App.4th 786, 795 (Laws) [lying in wait involves the “intent
to watch and wait for the purpose of gaining advantage and taking
the victim unawares in order to facilitate the act which constitutes
murder”].) We have also established that the defendant must act
with a “ ‘wanton and reckless intent to inflict injury likely to cause
death,’ ” (Gutierrez, supra, 28 Cal.4th at p. 1148), and the period of
lying in wait must be sufficient to show that the defendant had
“ ‘ “a state of mind equivalent to premeditation or deliberation” ’ ”
(People v. Stevens (2007) 41 Cal.4th 182, 202). Only upon these
specific showings of the defendant’s mental state in lying in wait
do we consider the defendant to have acted with “the functional
equivalent of” a premeditated, deliberate intent to kill (People v.
Stanley (1995) 10 Cal. 4th 764, 794 (Stanley)), such that “no further
evidence of premeditation and deliberation is required in order to
convict the defendant of first degree murder” (People v. Sandoval
(2015) 62 Cal.4th 394, 416).
Thus, in both the torture-murder context and the lying-in-wait
context, we have given content to the bare statutory requirement
that a first degree murder be “perpetrated by means of . . . poison,
lying in wait, torture, or by any other kind of willful, deliberate,
and premeditated killing.” (§ 189, subd. (a).) At the same time, we
have emphasized that separate proof of premeditated intent to kill
is not required in either context. (See Gutierrez, supra, 28 Cal.4th
at p. 1149 [lying in wait special circumstance requires “ ‘an
intentional murder,’ ” whereas first degree murder requires “ ‘only
a wanton and reckless intent to inflict injury likely to cause
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death’ ”]; People v. Davenport (1985) 41 Cal.3d 247, 271
(Davenport) [special circumstance can be “distinguished from
murder by torture under section 189” because for the torture-
murder special circumstance “the defendant must have acted with
the intent to kill”].) Our narrow constructions of “torture” and
“lying in wait” effectuate the Legislature’s understanding that a
murder by these means involves, by its nature, a mental state more
“cruel and aggravated” than malice — a mental state equivalent in
turpitude to willfulness, deliberation, and premeditation — but
that it need not involve the premeditated intent to kill. (Sanchez,
supra, 24 Cal. at p. 29; Steger, supra, 16 Cal.3d at p. 546, fn. 2;
Laws, supra, 12 Cal.App.4th at p. 795.)
3. First Degree Murder by Means of Poison
This case brings to light the need for us to elaborate on the
meaning of the phrase “murder . . . perpetrated by means of . . .
poison,” just as prior cases have required us to elaborate on the
meanings of “torture” and “lying in wait.” (§ 189, subd. (a).) Since
first degree murder by poison shares a legislative history and
purpose with first degree murder by lying in wait and by torture,
it would be incongruous not to read a similar state of mind
requirement — one equivalent in turpitude to willful, deliberate,
premeditated intent to kill — into first degree poison murder.
Latent ambiguity in the term “poison,” as in the terms “torture”
and “lying in wait,” further suggests the need to clarify the mental
state requirement. The standard instruction the trial court gave
in this case defines poison as “a substance, applied externally to
the body or introduced into the body, that can kill by its own
inherent qualities.” (CALCRIM No. 521.) But the use of a
substance that is inherently capable of killing does not in and of
itself render a murder particularly reprehensible. (Cf. People v.
Watson (1981) 30 Cal.3d 290, 296–297 [vehicular homicide with
17
PEOPLE v. BROWN
Opinion of the Court by Groban, J.
implied malice is second degree murder].) And many poisonous
substances can be used to help people in the correct quantities,
circumstances, and applications. (See, e.g., People v. Archerd
(1970) 3 Cal.3d 615 (Archerd) [insulin]; People v. Jennings (2010)
50 Cal.4th 616 (Jennings) [sedatives].) Indeed, as one court has
observed, “[a] fundamental tenet of toxicology is that the ‘dose
makes the poison’ and that all chemical agents, including water,
are harmful if consumed in large quantities, while even the most
toxic substances are harmless in minute quantities.” (Mancuso v.
Consolidated Edison Co. of New York (S.D.N.Y. 1999) 56 F.Supp.2d
391, 403.) The knowing administration of a substance capable of
causing death — even under conditions demonstrating a conscious
disregard of that risk — does not show a state of mind equivalent
to “willful, deliberate, and premeditated killing.” (§ 189, subd. (a).)
The Attorney General attempts to distinguish poison murder
from murder by torture and lying in wait by arguing that poison is
more closely analogous to the additional means of murder the
Legislature designated as first degree murder after the Penal
Code’s enactment: murders by means of “destructive device or
explosive, a weapon of mass destruction, [or] knowing use of
ammunition designed primarily to penetrate metal or armor.” He
argues that torture and lying in wait are “methods” of murder,
while poison (like a weapon of mass destruction) is a “mechanism”
by which a murder may be committed. This argument ignores the
plain language of section 189, which does not distinguish between
“methods” and “mechanisms,” but instead lists torture and lying in
wait alongside poison as “means” of first degree murder. It also
ignores the legislative history of section 189, which originally listed
poison, lying in wait, and torture as the three “means” of murder
that are prototypical kinds of “wilful, deliberate, and premeditated”
killing. (Sanchez, supra, 24 Cal. at p. 28; id. at pp. 29–30.)
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
Regardless of whether proof of the defendant’s mental state is
required to elevate to the first degree a murder by means of
destructive device, explosive, weapon of mass destruction, or
armor-piercing ammunition — a question we do not reach in this
case — their subsequent addition to section 189 does not provide a
basis for distinguishing poison from lying in wait and torture with
respect to the required mental state.
That the Legislature would consider poison murder — like
murder by lying in wait or torture — to be a kind of “wilful,
deliberate, and premeditated” killing (Hittell’s, supra, par. 1425, §
21) makes sense when we think of the typical poison murder, in
which the defendant intentionally and surreptitiously administers
a deadly dose of poison to an unsuspecting victim. The poison
murder cases we have decided to date generally follow this pattern.
In People v. Albertson (1944) 23 Cal.2d 550 (Albertson), the
defendant was accused of putting cyanide in vitamin capsules and
mailing them to the victim with a letter advertising them as
“ ‘ “vitalizing vitamin vigor.” ’ ” (Id. at p. 559; id. at p. 563.) In
Archerd, supra, 3 Cal.3d 615, the defendant injected two of his
wives and his nephew with massive doses of insulin, causing
diabetic shock. (Id. at pp. 625–626, 631–635.) In People v. Diaz
(1992) 3 Cal.4th 495 (Diaz), a nurse murdered 12 intensive care
unit patients by injecting them with overdoses of lidocaine. (Id. at
pp. 517–518, 538.) In People v. Catlin (2001) 26 Cal.4th 81 (Catlin),
the defendant murdered his wife and mother by giving them the
highly toxic weed-killer paraquat. (Id. at pp. 99–103.) And in
People v. Blair (2005) 36 Cal.4th 686 (Blair), the defendant
murdered his drinking companion by putting cyanide in a bottle of
gin, carefully replacing the cap so the bottle appeared unopened,
and having the bottle delivered to the victim by a mutual friend.
(Id. at pp. 745–746.)
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Opinion of the Court by Groban, J.
Court of Appeal cases likewise follow this pattern. In People v.
Botkin (1908) 9 Cal.App. 244, the defendant murdered her lover’s
wife by sending her a box of candy containing arsenic “with intent
that [she] should eat thereof and be killed thereby.” (Id. at p. 249.)
In People v. Potigian (1924) 69 Cal.App. 257, the defendant gave
arsenic to her stepdaughter “with intent to bring about her death.”
(Id. at p. 264.) And in People v. Cobler (1934) 2 Cal.App.2d 375
(Cobler), the defendant murdered her husband by slipping
strychnine into a glass of milk and giving it to him to drink with
his breakfast. (Id. at pp. 377–379.)
In each of these cases, the way the defendant carried out the
poisoning left no question that the defendant deliberately gave the
victim poison, if not with the intent to kill, at least with the intent
to inflict injury likely to cause the victim’s death. Perhaps for this
reason, none of these cases directly addresses whether the
prosecution must prove the defendant had a specific, heightened
mental state in giving the victim the poison to elevate a poison
murder to the first degree, and if so, what mental state the
prosecution must prove. Our case law does, however, provide some
guidance on these questions.
In Mattison, supra, 4 Cal.3d at pages 184–186, we addressed
the distinction between second degree felony murder based on
felony poisoning in violation of section 3477 and first degree poison
murder, of which the jury had acquitted the defendant. The
7
Mattison predated Senate Bill No. 1437 (2017–2018 Reg.
Sess.), which amended section 188 to provide that except in the
case of first degree felony murder, “in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3); Senate Bill No. 1437
(2017–2018 Reg. Sess.) § 2; Stats. 2018, c. 1015.)
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Opinion of the Court by Groban, J.
defendant argued that second degree poison murder is “legally
impossible” because all murders in which poison caused the death
are in the first degree. (Mattison, at p. 180; id. at pp. 181–182.) We
rejected this argument, concluding that a jury could have properly
found the defendant guilty of second degree felony murder by
means of poison. (Id. at p. 182.) We reasoned that the difference
between first degree murder by poison and second degree felony
murder in violation of section 347 — which prohibits poisoning
food, drinks, and medicine — is the state of mind with which the
defendant gave the victim the poison. (Mattison, supra, 4 Cal.3d
at p. 186.) At the time, section 347 required the prosecution to
prove that the defendant “ ‘willfully mingle[d] any poison with any
food, drink or medicine, with intent that the same shall be taken
by any human being to his injury . . . .’ ” (Mattison, at p. 184,
quoting Pen. Code, former § 347.) We observed that “[b]y making
it a felony to administer poison with the intent to cause any injury,
the Legislature has evidenced its concern for the dangers involved
in such conduct, and the invocation of the second degree felony-
murder rule in such cases when unforeseen death results serves
further to deter such dangerous conduct.” (Mattison, at p. 186.) We
emphasized, however, that “[t]o go further” and hold the
commission of felony poisoning could both substitute for the
required element of malice and elevate the murder to first degree
“would make the use of poison serve double duty and result in
criminal liability out of all proportion to the ‘turpitude of the
offender.’ ” (Ibid.; see Blair, supra, 36 Cal.4th at p. 745 [observing
that death resulting from a poisoning carried out with “intent to
injure or intoxicate the victim” is second degree felony murder].)
Drawing parallels to the lying in wait and torture contexts, we
observed that “[w]hen it is contended that a killing was committed
by poison it likewise must be established that the killing was
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
murder. ‘[I]t is not enough to show that a poison was administered
and that a death resulted. If the poison was innocently given under
the belief that it was a harmless drug and that no serious results
would follow, there would be no malice, express or implied, and any
resulting death would not be murder. [Citation.] If, however, the
defendant administered poison to his victim for an evil purpose, so
that malice aforethought is shown, it is no defense that he did not
intend or expect the death of his victim.’ ” (Mattison, supra,
4 Cal.3d at p. 183.)
The parties debate the significance of these observations.
The Attorney General cites Mattison in support of his argument
that a showing of implied malice in giving the victim poison is
sufficient to elevate it to the first degree. He would have us read
Mattison as holding that if the prosecution proves the defendant
administered the deadly poison with malice, the murder is
categorically first degree murder. Brown contends that Mattison’s
observation that the poisoning must be done with an “ ‘evil
purpose’ ” supports her construction of the statutory language as
requiring something more than malice in the administration of the
poison. (Mattison, supra, 4 Cal.3d at p. 183.) Mattison does not
clearly support either position.
In Mattison, we were not called upon to decide whether the
prosecution must prove a state of mind in the administration of
poison that is more culpable than malice for the murder to be in
the first degree. Instead, the question before us was whether the
defendant had been validly convicted of second degree murder by
means of poison. (Mattison, supra, 4 Cal.3d at pp. 180–182.) We
did not identify the specific mental state necessary to elevate a
murder by means of poison to the first degree. However, our
holding rested on the premise that to be a first degree murder, the
act of using poison must be carried out with a state of mind more
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
culpable than that associated with second degree murder on a
felony murder theory, i.e., more culpable than “ ‘willfully
mingl[ing] any poison with any food, drink or medicine, with intent
that the same shall be taken by any human being to his injury
. . . .’ ” (Id. at p. 184.)
While Mattison, supra, 4 Cal.3d at page 186 made clear that to
prove first degree murder by poison, the prosecution must show a
mental state more culpable than willful administration of poison
with intent to injure, our cases have also made clear it is not
necessary to prove the defendant administered the poison with
intent to kill.8 This rule emerged out of automatic appeals in death
penalty cases, in which we distinguished first degree poison
murder from the poison-murder special circumstance, which
requires that “[t]he defendant intentionally killed the victim by the
administration of poison.” (§ 190.2, subd. (a)(19).) In Catlin, supra,
26 Cal.4th at page 158, we relied in part on the special
circumstance’s intent to kill requirement to reject the defendant’s
challenge to the special circumstance as inadequately narrowing
the class of death-eligible defendants. We observed that first
degree poison murder encompasses a broader class of defendants
than the poison murder special circumstance because “[t]he special
circumstance allegation, unlike the definition of first degree
murder by poison, requires proof that the defendant intentionally
killed the victim.” (Ibid.) In Jennings, supra, 50 Cal.4th 616, we
relied on the special circumstance’s intent to kill requirement to
reject the defendant’s claim that the jury’s “not true” finding on the
poison murder special circumstance meant that “he could not have
8
As noted above, we have reached similar conclusions in the
torture and lying in wait contexts. (Gutierrez, supra, 28 Cal.4th at
p. 1148; Davenport, supra, 41 Cal.3d at p. 271.)
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
been convicted of first degree murder by poison.” (Id. at p. 639.) In
Jennings, parents intentionally gave three powerful sedatives to
their five-year-old son, whom they had been starving and brutally
beating. (Id. at pp. 630–634, 640–641.) The defendant — the
child’s father — argued that because the jury had found the poison
murder special circumstance “not true,” it could not have based its
first degree murder verdict on a poison murder theory. (Id. at
p. 639.) In rejecting this argument, we reasoned that the jury’s not
true finding did not necessarily mean it had acquitted the
defendant of first degree murder because a showing of intent to kill
is not necessary to prove first degree murder when a murder is by
means of poison. (Id. at pp. 639–640.)9
9
The Attorney General relies on Jennings to argue that all
that is required for a first degree poison murder conviction is a
showing of malice. He points out that, in distinguishing the special
circumstance, we observed “the jury still could have reasonably
found defendant guilty of first degree murder by poison” even if it
did not find he acted with premeditated intent to kill “if it found
that either codefendant acted with implied malice.” (Jennings,
supra, 50 Cal.4th at p. 640.) It is true that Jennings addressed the
sufficiency of the evidence to support a conviction of first degree
poison murder. (Id. at pp. 639–641.) But we were not presented
with the question we now consider: whether a showing of a mental
state more culpable than malice in connection with administering
the poison is required to elevate a murder by means of poison from
the second degree to the first degree. Read in this context, the
portion of Jennings on which the Attorney General relies simply
reiterates that separate proof of premeditated intent to kill is not
required to establish that a murder by means of poison is in the
first degree. (See also Diaz, supra, 3 Cal.4th at p. 538 [rejecting
defendant’s argument for reversal based on insufficient evidence of
“premeditation and deliberation” on the ground that the evidence
showed the murders “could not have been spontaneous acts” and
observing that where “a murder is accomplished by means of
24
PEOPLE v. BROWN
Opinion of the Court by Groban, J.
In summary, the act of killing by poison may support a finding
of a second degree murder, a first degree murder, or a special
circumstance. The distinguishing factor is the defendant’s mental
state. Like a murder by means of torture or lying in wait, a murder
by means of poison is first degree murder when evidence of how the
defendant carried out the poisoning demonstrates a mental state
that is “the functional equivalent of proof of premeditation,
deliberation and intent to kill.” (Ruiz, supra, 44 Cal.3d at p. 614;
see Sanchez, supra, 24 Cal. at p. 29 [in context of poison, lying in
wait, and torture, the means used provide “conclusive evidence of
premeditation”]; Steger, supra, 16 Cal.3d at p. 546 [“same proof of
deliberation and premeditation” required for torture murder as “for
other types of first degree murder”].) The use of poison, standing
alone, does not fulfill this requirement unless it is carried out with
a state of mind more culpable than the malice required for a second
degree murder conviction, i.e., more culpable than either (a)
intending to kill the victim without premeditation and deliberation
(i.e., express malice), or (b) intentionally giving the victim poison
knowing that doing so was dangerous to human life and with
conscious disregard for human life (i.e., implied malice). While no
separate showing of premeditated intent to kill is required for first
degree murder by poison (Jennings, supra, 50 Cal.4th at pp. 639–
640), the poisoning nevertheless must be carried out with a mental
state more culpable than malice.
We now clarify that to prove a murder by poison is in the first
degree, the prosecution must show that the defendant
poison,” proof of premeditated and deliberate intent to kill is not
required].)
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
deliberately10 gave the victim poison with the intent to kill the
victim or inflict injury likely to cause the victim’s death.11 Reading
this requirement into “murder . . . by means of poison” (§ 189, subd.
(a)) ensures that a first degree poison murder is equivalent in
turpitude to a willful, deliberate, and premeditated killing, without
calling into question our prior cases holding that the prosecution
need not separately prove premeditated intent to kill. 12 As
discussed, the fact that the defendant killed the victim with poison
is not alone dispositive. Instead, it is the defendant’s mental state
in giving the victim the poison that determines whether the act is
murder and if so, whether the murder is in the first or second
degree. A murder carried out by deliberately giving the victim
poison with the intent to kill the victim or inflict injury likely to
10
In this context, “deliberately” means carefully weighing the
considerations for and against a choice and, knowing the
consequences, deciding to act. (See CALCRIM No. 521.)
11
Brown proposes we hold that first degree poison murder
“requires proof that defendant willfully, deliberately, and with
premeditation administered the poison” to the victim. This does
not quite capture the Legislature’s intent in designating poison
murder as murder in the first degree. A poison may be given
willfully, deliberately, and with premeditation with an intent to
sicken, injure, or intoxicate the victim, or even with benign intent.
(Blair, supra, 36 Cal.4th at p. 745; Mattison, supra, 4 Cal.3d at
p. 183.) It is the defendant’s deliberately giving the victim the
substance with the intent to kill the victim or inflict injury likely
to cause the victim’s death that makes a poison murder equivalent
in its “degree of atrociousness” to a premeditated murder. (Code
commrs., note foll., Ann. Pen. Code, § 189, supra, at p. 82; Milton,
supra, 145 Cal. at pp. 170–171; Sanchez, supra, 24 Cal. at p. 29.)
12
Proof that the defendant deliberately gave the victim poison
with intent to kill is sufficient, though not necessary (deliberately
giving the victim the poison with the intent to inflict injury likely
to cause the victim’s death would also be sufficient), to elevate a
murder to the first degree.
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
cause the victim’s death is more “cruel and aggravated” than other
“malicious or intentional killing[s]” both because such a killing
involves preparation and planning and because the killer
intentionally deprives the victim of any chance of escape or self-
defense. (Sanchez, supra, 24 Cal. at pp. 29, 28; id. at p. 30; see
Catlin, supra, 26 Cal.4th at p. 159 [“The poisoner acts
surreptitiously, thus avoiding detection and defeating any chance
at self-defense, and often betrays the most intimate trust”]; cf. 4
Blackstone Commentaries 196 [“Of all species of deaths the most
detestable is that of poison; because it can of all others be the least
prevented either by manhood or forethought”].) Such calculated,
deliberate murders are both “more deplorable than others” and
more easily “prevented than others by the deterrent effect of severe
penalties.” (Steger, supra, 16 Cal.3d at p. 545.) It is these
characteristics that the Legislature had in mind when it
designated murder by means of poison as a kind of first degree
murder, for which the only punishment at the time was death. (See
Code commrs., note foll., Ann. Pen. Code, § 189, supra, at p. 82
[division of murder into degrees based on “manifest injustice” of
imposing death penalty in cases that “differed greatly from each
other in the degree of atrociousness”].) A first degree murder
conviction based on the mere “use of poison,” without proof of a
mental state more culpable than malice, would “result in criminal
liability out of all proportion to the ‘turpitude of the offender.’ ”
(Mattison, supra, 4 Cal.3d at p. 186, italics omitted.)
While the trial court’s instructions required the jury to find
Brown acted with implied malice, they did not require the jury to
find that Brown acted with any specific, heightened mental state
in feeding Dae-Lynn her breast milk. The instructions thus
allowed the jury to convict Brown of first degree murder without
finding she deliberately gave her newborn daughter poison with
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
the intent to kill her or inflict injury likely to cause her death.
Indeed, they permitted the jury to convict Brown of first degree
murder even if it believed Brown fed her baby the breast milk with
the intent to bond with her, nourish her, treat her illness, or soothe
her. Such a conviction would not reflect a jury finding that, in
giving the victim the poison, the defendant acted with the
“calculated deliberation” or “cold-blooded intent” we require to
elevate a murder to the first degree. (Steger, supra, 16 Cal.3d at
p. 546.)
Accordingly, we conclude that the trial court was required to
instruct the jury that to find Brown guilty of first degree murder,
it had to find that she deliberately gave her newborn daughter
poison with the intent to kill her or inflict injury likely to cause her
death. Its failure to so instruct was error.
B. Prejudice
The omission of an element of an offense from a jury
instruction violates “the right to a jury trial under the Sixth
Amendment to the United States Constitution” by depriving the
defendant of “a jury properly instructed in the relevant law.” (In
re Martinez (2017) 3 Cal.5th 1216, 1224; see Neder v. United States
(1999) 527 U.S. 1, 12 (Neder).) Having found such an error, we
must “examin[e] the entire cause, including the evidence, and
consider[] all relevant circumstances.” (People v. Aledamat (2019)
8 Cal.5th 1, 13 (Aledamat).) Unless, based on this examination, we
conclude “beyond a reasonable doubt that the error complained of
did not contribute to the verdict obtained,” we reverse the
conviction. (Chapman v. California (1967) 386 U.S. 18, 24; see
Neder, at p. 15.)
In a more typical murder by poison case, in which a defendant
is alleged to have surreptitiously put arsenic in candy, cyanide in
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
vitamin capsules, or strychnine in a glass of milk, the record is
likely to supply overwhelming evidence that the defendant
deliberately gave the victim poison and did so, if not with the intent
to kill the victim, then at least with the intent to inflict injury likely
to cause the victim’s death. (See, e.g., Albertson, supra, 23 Cal.2d
550; Blair, supra, 36 Cal.4th at pp. 745–746; Cobler, supra,
2 Cal.App.2d at pp. 377–379.) In this more typical fact pattern,
this mental state element also is likely to be uncontested, such that
if a trial court has omitted it from the first degree murder
instruction, we may conclude “beyond a reasonable doubt . . . that
the jury verdict would have been the same absent the error.”
(Neder, supra, 527 U.S. at p. 17; see People v. Mil (2012) 53 Cal.4th
400, 417 [missing element error “is harmless when ‘the omitted
element was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been the same
absent the error . . .’ ”].)
This case, however, is different. Based on the record here, a
rational jury — if properly instructed — could have concluded the
prosecution had not met its burden to prove that Brown
deliberately gave her newborn daughter poison. (See Neder, supra,
527 U.S. at p. 19.) A rational jury could have given credence to
Brown’s statement that the thought of feeding her daughter drugs
via her breast milk had never “even come across [her] mind.”
Moreover, evidence in the record would allow a rational jury to
conclude the prosecution had not met its burden to prove that
Brown fed her daughter her breast milk with the intent to kill her
or to inflict injury on her that was likely to cause her death. In
response to questions from the police investigator about the cause
of Dae-Lynn’s death, Brown expressed her love for her daughter
and her excitement about being a mom. And when the investigator
told Brown the autopsy report showed that drugs caused her
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
daughter’s death, she responded: “[T]hat . . . kills me because I was
only trying to help her. I didn’t wanna try to harm my daughter at
all. I never would intentionally.” Evidence that Brown was afraid
authorities would take her newborn daughter from her and that
she tried to save her daughter’s life by summoning help and
administering CPR could also support a reasonable doubt as to
whether Brown intended to kill her daughter or to injure her in a
way likely to cause her death.
Indeed, the prosecutor did not argue Brown intended to kill
or even harm her daughter. Instead, her closing argument focused
the jury’s attention on Brown’s failure to perform her parental
duties by taking illegal drugs while pregnant, failing to get
prenatal care, giving birth in a hotel room without proper medical
assistance, failing to take her baby to the doctor immediately after
birth, failing to take her baby to the doctor when she began to
suspect her baby was showing symptoms of withdrawal, and
feeding her baby her breast milk after smoking methamphetamine
and heroin. Addressing Brown’s mental state in administering the
poison, the prosecutor argued that “the only difference between
first degree and second degree is that first degree requires . . . the
People prove the murder was done by using poison.” At the
conclusion of her argument, the prosecutor emphasized that “you
can still love someone but act intentionally and prove that you are
acting intentionally because you repeat the behavior, knowing the
consequences are dangerous to human life, knowing them because
you are a drug user. You are an addict yourself. Performing them
with knowledge that this is going to be dangerous and repeating
them over and over again. You can still do all of that and love the
person that you are doing them to. It’s one of the horrible parts
about being a human being. And that’s exactly what she did in this
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PEOPLE v. BROWN
Opinion of the Court by Groban, J.
case. And she did it by introducing poison into her daughter’s
system.”
The Attorney General contends any instructional error was
harmless because, in his view, the evidence at trial established that
Brown knew the drugs she was taking would pass into her breast
milk, but she still intentionally fed her baby the breast milk. The
Attorney General’s argument is based on a misconception of our
task. In assessing prejudice in this context, the question is not
whether there is evidence in the record that would support a jury
finding of the missing element. Instead, we ask whether we can
conclude beyond a reasonable doubt that “the jury verdict would
have been the same” had the jury been instructed on the missing
element. (Neder, supra, 527 U.S. at p. 17.) If “the record contains
evidence that could rationally lead to a contrary finding with
respect to the omitted element,” the error is prejudicial. (Id. at
p. 19.) The Attorney General’s argument also is based on an
incorrect understanding of the omitted element. As we have
clarified, administering poison with malice only supports a
conviction of second degree murder; for first degree murder, the
prosecution must show the defendant deliberately gave the victim
the poison with the intent to kill the victim or inflict injury likely
to cause death. The Attorney General’s contention that Brown
knew the drugs she was taking would pass into her breast milk and
intentionally fed her baby the breast milk despite this knowledge
fails to address the central question: whether Brown deliberately
gave the drugs to her baby with the intent to kill her or inflict
injury on her likely to cause her death.
On this record, we cannot conclude beyond a reasonable doubt
that the jury would have found Brown guilty of first degree murder
had it been instructed that to do so, it had to find that she
deliberately gave her newborn daughter poison with the intent to
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Opinion of the Court by Groban, J.
kill her or inflict injury likely to cause her death. The omission of
this element from the jury instructions was prejudicial.
III. CONCLUSION
Because the trial court failed to instruct the jury on the
mental state element of first degree murder by poison and because
this error was prejudicial, we reverse the judgment. We remand to
the Court of Appeal with directions to return the case to the
superior court for further proceedings consistent with our
opinion.13
13
On remand, the superior court shall consider the potential
applicability of recent sentencing reforms, including Assembly Bill
No. 518 (2021–2022 Reg. Sess.) and Senate Bill No. 567 (2021–2022
Reg. Sess.). (§§ 654, subd. (a), 1170, subd. (b)(6).) Our disposition
leaves intact Brown’s conviction of child abuse (§ 237A) with an
enhancement for willful harm or injury resulting in the death of a
child (§ 12022.95), along with her convictions of possession of a
controlled substance for sale (Health & Safety Code, § 11351) and
possession of marijuana for sale (id. § 11359, subd. (b)). The parties
debate whether there is a legal basis for the trial court to accept a
reduction of the first degree murder conviction to second degree
murder if the prosecution decides not to retry the first degree
murder charge. (See Steger, supra, 16 Cal.3d at p. 553; Chiu,
supra, 59 Cal.4th at p. 168.) We express no view on this question.
32
PEOPLE v. BROWN
Opinion of the Court by Groban, J.
GROBAN, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
CANTIL-SAKAUYE, J.*
*
Retired Chief Justice of California, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
33
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Brown
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 7/16/19 – 3d Dist.
Rehearing Granted
__________________________________________________________
Opinion No. S257631
Date Filed: March 2, 2023
__________________________________________________________
Court: Superior
County: Shasta
Judge: Stephen H. Baker
__________________________________________________________
Counsel:
David L. Polsky, under appointment by the Supreme Court, for
Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, R. Todd Marshall, Catherine Chatman, Christopher
J. Rench, Rachelle A. Newcomb, A. Kay Lauterbach and Cameron M.
Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
Keiter Appellate Law and Mitchell Keiter for Amicus Populi as Amicus
Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
David L. Polsky
Attorney at Law
P.O. Box 118
Ashford, CT 06278
(860) 429-5556
Cameron M. Goodman
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-6330