Monday, November 17, 2025
Page 1
Murder Conviction Not Undermined by Use of Old Instruction on Implied Malice—C.A.
Opinion Rejects Assertion That Recent Case Renders Since-Replaced Description of Mental State Required for Second Degree Murder Insufficient as Matter of Law
By a MetNews Staff Writer
|
Div. Three of the Fourth District Court of Appeal has held that a man was properly convicted of second-degree murder relating to an Orange County freeway shooting that killed a child sitting in the backseat of his mother’s car, rejecting the defendant’s assertion that the judgment was invalidated due to the court’s use of a since-replaced jury instruction on implied malice.
The defendant argued instructional error based on the court’s use of the now-outdated California Criminal Jury Instruction 520, which at the time of his trial provided that implied malice may be found if the accused committed an act knowing—and disregarding—that the “natural and probable consequences” were “dangerous to human life,” saying that the 2023 California Supreme Court decision in People v. Reyes rendered the definition insufficient.
In that case, the court declared that “[t]o suffice for implied malice murder, the defendant’s act must not merely be dangerous to life in some vague or speculative sense” but must involve circumstances such that there is a “high degree of probability” that death would result from the action.
Amendment to Instruction
In March 2024, the Judicial Council of California amended Instruction 520 to include the “high degree of probability that [the act] would result in death” language.
Orange Superior Court Judge Julianne S. Bancroft, sitting by assignment, authored Thursday’s unpublished opinion affirming the defendant’s conviction. She wrote:
“[T]he court appropriately used the jury instructions available at the time of trial, which contained a correct statement of the definition of implied malice….[N]othing in Reyes suggests the Supreme Court intended to overturn precedent which established that the ‘high probability’ and ‘natural consequences’ standards are equivalent.”
Acting Presiding Justice Maurice Sanchez and Justice Martha K. Gooding joined in the decision.
Freeway Shooting
Appealing his conviction was Marcus Eriz, who was accused of shooting into the trunk of a car on the 55 Freeway on May 21, 2021, at approximately 8 a.m., after the driver of the other vehicle, Joanna Cloonan, raised her middle finger purportedly in response to being cut off in the carpool lane by the Volkswagen in which Eriz was riding.
Cloonan was driving her six-year-old son, Aiden Leos, to school when she heard a loud noise, which she described as sounding like a big rock had hit her car, and looked in the rear-view mirror to discover her son’s head hanging down; the boy was dead by the time an off-duty police officer stopped to try to resuscitate him on the side of the freeway.
In January of last year, a jury found Eriz guilty of second-degree murder. Orange Superior Court Judge Richard M. King sentenced him to 40 years to life in prison.
Duty to Instruct
On appeal, Eriz asserted that the trial court had a sua sponte duty to instruct the jury that implied malice murder requires that the defendant’s action involved a high degree of probability of death, relying on the Reyes decision.
Bancroft pointed out that a similar argument was rejected in a high court decision pre-dating Reyes, the 1992 case of People v. Nieto Benitez, in which the defendant argued that an earlier pattern jury instruction on implied malice misstated the law by omitting a requirement that the defendant commit an act with a high probability of death.
The Supreme Court disagreed with the assertion, finding that “the two linguistic formulations—‘an act, the natural consequences of which are dangerous to life’ and ‘an act [committed] with a high probability that it will result in death’ are equivalent and are intended to embody the same standard.”
Reyes Case
Bancroft noted that Reyes involved a defendant accused of murder based on his traveling to rival territory with other members of his gang, one of whom shot the driver of a passing car, and opined:
“In relying upon Reyes to argue that the jury should have been instructed that the act must involve a high degree of probability of death, Eriz seems to argue that Reyes overruled Nieto Benitez….We disagree. In Reyes, the court was reviewing a trial court’s denial of a petition for resentencing under section 1172.6….The court based its decision primarily on the lack of substantial evidence of proximate cause, but it also disagreed with the trial court’s conclusion that the defendant’s conduct was dangerous to human life.”
The jurist continued:
“Reyes did not involve an alleged erroneous jury instruction, and the court did not suggest [that] Nieto Benitez…was wrongly decided. The Reyes court’s reference to the ‘high probability of death’ standard in deciding a sufficiency of the evidence question under section 1172.6 does not mean trial courts must include such language in the jury instructions defining implied malice….Nor did Reyes call into question the Supreme Court’s own prior holdings that the ‘high probability’ and ‘natural consequences’ standards of implied malice are the same, or that instruction solely on the ‘natural consequences’ standard is sufficient.”
Addressing the changes to California Criminal Jury Instruction 520, she said:
“The fact that the Judicial Council Advisory Committee revised CALCRIM No. 520 in March 2024, after Eriz’s trial, to include the ‘high degree of probability’ definition in the objective component element of implied malice does not affect our determination the jury instruction was proper as given. Pattern jury instructions ‘are not themselves the law, and are not authority to establish legal propositions or precedent.’ ”
The case is People v. Eriz, G064049.
Copyright 2025, Metropolitan News Company