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Name: People v. Fay (2024) 101 Cal.App.5th 767
Case #: B328209
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/29/2024

Judgment reversed where prosecutor’s misstatement of the mental state for implied malice murder was not harmless error. The prosecutor misstated the law regarding the mental state required for implied malice when it told the jury that the mental state element was met if the defendant did not “care if someone is hurt or killed.” This is inconsistent with the requirement that a defendant act with conscious disregard for human life. The trial court compounded this error by telling the jury that the prosecutor’s statement was based on “case law decisions.” Prior to the comment, the jurors had been divided on the issue of implied malice and thus, the prejudice is unmistakable.

The full opinion is available on the court’s website here: