Defendant with extensive firearms training acted with implied malice when he jokingly waived a loaded firearm at his friend and accidentally shot and killed him. McNally got drunk and high on bath salts with a friend, Bent. When Bent went to the bathroom to vomit, McNally called Bent a “sissy,” retrieved his 9 millimeter handgun, waived it at Bent, and jokingly ordered him to “Hurry up and puke.” According to McNally, the gun accidentally discharged, killing Bent. A jury found that McNally acted with implied malice and convicted him of second degree murder (Pen. Code, §§ 187, subd. (a), 189). Firearm enhancements (Pen. Code, §§ 12022.5, subd. (a), 12022.53, subd. (b)) were also found true. On appeal, McNally argued, among other things, that there was insufficient evidence that he acted with implied malice. Held: Affirmed. Implied malice has both a physical and mental component. The physical component requires the performance of an act the natural consequences of which are dangerous to life. Brandishing a loaded gun at a person, like McNally did at Bent, is such an act. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 109-110.) The mental component requires proof the defendant knew that his conduct endangers another’s life and acts with conscious disregard for life. The jury could reasonably infer that McNally possessed that mental state based on the fact that he ignored handgun safety rules that he learned during his extensive firearms trainings as a correctional officer. McNally’s claim that the pistol fired accidently does not negate implied malice. “A person acts with implied malice when he is under the influence of alcohol and/or drugs, engages in joking or horseplay with a firearm, and causes the discharge of the firearm killing another person.”

Evidence Code section 352 does not require exclusion of evidence that defendant snorted bath salts before accidentally shooting his friend. McNally also argued that the trial court erred under Evidence Code section 352 by admitting evidence that he snorted bath salts. The Court of Appeal disagreed, concluding that the probative value of the bath salts evidence outweighed the potential for prejudice. McNally’s ingestion of bath salts was relevant to explain why he acted in conscious disregard for human life and pointed a loaded pistol at Bent. (People v. Harris (2013) 57 Cal.4th 899, 947.)

Court need not instruct jury on voluntary intoxication when defendant is tried for implied malice murder. McNally also argued that the trial court erred by not instructing the jury with CALCRIM No. 625 that voluntary intoxication negates malice. The Court of Appeal disagreed because the instruction should only be given when the defendant is charged with premeditated murder or express malice murder and McNally was charged with implied malice murder. Voluntary intoxication does not negate implied malice. (People v. Lam (2010) 184 Cal.App.4th 580, 585; People v. Timms (2007) 151 Cal.App.4th 1292, 1300-1301.)