A Watson murder, which permits implied malice to be inferred from a defendant’s drunk driving and the surrounding circumstances, is not a theory of imputed malice, and the trial court therefore properly denied defendant’s Penal Code section 1172.6 petition. In 2004, defendant was convicted of second degree murder when one of the children in his car was killed after he drove drunk and hit a pickup truck while running a red light. Defendant was convicted of murder under the theory that he caused death unintentionally but with implied malice while driving drunk. (People v. Watson (1981) 30 Cal.3d 290.) In 2021, defendant filed a petition to vacate his murder conviction under section 1172.6. The trial court denied the petition at the prima facie stage. He appealed, arguing that a Watson murder qualifies as “any other theory under which malice is imputed to a person based solely on that person’s participation in a crime.” (§ 1172.6, subd. (a).) Held: Affirmed. Implied malice is not imputed malice. It requires that the perpetrator actually and personally harbor malice. Watson stands for the proposition that implied malice may be inferred from a defendant’s conduct before, during, and after driving drunk—not imputed from the bare fact of driving drunk. The jury instructions in defendant’s case did not allow implied malice to be imputed solely from the act of driving intoxicated.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/E079368.PDF