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Court of Appeal:
‘High Probability of Death’ Is Not Required for Manslaughter
Opinion Says Recent High Court Case Finding That Implied Malice Murder Requires Heightened Mens Rea Has No Application to ‘Conscious Disregard for Human Life’ Standard for Lesser Crime
By Kimber Cooley, associate editor
Div. Six of this district’s Court of Appeal held yesterday that the standard announced in the 2023 California Supreme Court case of People v. Reyes for implied malice murder—requiring that the prosecution prove that the defendant’s actions carried with them a high probability of death—has no application to the “conscious disregard for human life” required for voluntary manslaughter charges.
The question arose after Scott Fleming was charged with voluntary manslaughter after he “sucker punched” his friend Eric Romero following a night of drinking at a pub, causing the victim to fall backward, strike his head, and die from a catastrophic brain injury.
A jury found Fleming guilty of the crime based on findings that he acted with conscious disregard for human life, and Santa Barbara Superior Court Judge Thomas R. Adams sentenced him in October 2021 to 27 years in prison, calculated as the upper term of 11 years doubled due to a prior strike conviction, plus five years for other enhancements.
After Div. Six affirmed his conviction, in an unpublished opinion filed on April 18, 2023, the California Supreme Court on July 13, 2023, granted review and directed the panel to reconsider its decision based on Reyes, which was decided that June, and other jurisprudence addressing recent changes to sentencing laws.
In addressing the application of Reyes to the present case, lawyers with the Office of the Attorney General agreed with Fleming that he was convicted on an “implied malice theory,” but asserted that Romero’s death was a “highly probable” result of the defendant’s actions.
Justice Kenneth Yegan authored yesterday’s opinion, saying:
“Both appellant and the Attorney General erroneously assume that the elements of implied malice murder have some relevance as to the elements of voluntary manslaughter based on conscious disregard for life. The concept of malice has nothing to do with voluntary manslaughter. Reyes’s holding requiring a ‘high degree of probability’ of death applies only to implied malice murder.”
Implied Malice Murder
Yegan acknowledged that implied malice murder also involves allegations that the perpetrator acted with reckless disregard for human life, but said that the two crimes are distinguished based on the mens rea of the defendant. He wrote:
“Reyes did not change the law as to voluntary manslaughter based on conscious disregard for life. Reyes did not hold that ‘a high degree of probability’ of death is also a requirement for voluntary manslaughter based on conscious disregard for life. This issue was not before the court….”
The jurist added:
“The Judicial Council of California, which adopted the [California Criminal Jury Instructions], apparently understood that Reyes’s high degree-of-probability-of-death requirement does not apply to voluntary manslaughter based on conscious disregard for human life. After Reyes was decided, in 2024 the Judicial Council amended the instruction on implied malice murder…to incorporate this requirement. It did not similarly amend the instruction on voluntary manslaughter….”
Reasoning that the limited application makes sense, he remarked that “[b]ecause implied malice murder is the greater offense, it must have an element additional to the elements of voluntary manslaughter.”
Yesterday’s opinion, joined in by Presiding Justice Arthur Gilbert and Justice Hernaldo J. Baltodano, affirmed the conviction but reversed the sentence, ordering that the matter be remanded for a full resentencing hearing based on recent legislative changes to sentencing statutes.
Risk to Human Life
On appeal, Fleming argued that the prosecutor wrongly “assured jurors that the level of risk to human life required for [voluntary manslaughter] is something less than the ‘high degree of probability’ that the law…requires,” and that the evidence did not support his conviction under the proper standard.
Rejecting these contentions, Yegan said:
“[Defendant’s] claims are without merit in view of our conclusion that voluntary manslaughter based on conscious disregard for life does not require that the defendant’s act carry a high degree of probability that it will result in death.”
However, the court said that Fleming was entitled to be resentenced based on a retroactive application of Senate Bill 567, which was enacted in 2022 and amended the Penal Code to make the middle term the presumptive sentence.
Saying that the 2024 California Supreme Court case of People v. Lynch held that a defendant’s Sixth Amendment rights are violated if the trial court relies on unproven aggravating facts to impose an upper term sentence, Yegan reasoned:
“Even if an appellate court concludes beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to impose the upper term, remand for resentencing is still required unless the record ‘clearly indicates that [the trial court] would have found aggravating circumstances sufficiently weighty to “justify” an upward departure from the legislative mandate for no more than a middle term sentence.’ ”
Applying those principles, he declared:
“The sentence is reversed, and the matter is remanded for a full resentencing consistent with the views expressed in this opinion. In all other respects, the judgment is affirmed.”
The case is People v. Fleming, 2025 S.O.S. 2229.
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