Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Mary E. Fuller, Judge. Super.Ct.No. FWV702712
Michael A. Ramos, District Attorney, and Grover D. Merritt, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Doreen B. Boxer, Public Defender, and George W. Taylor, Deputy Public Defender, for Real Party in Interest.
OPINION
HOLLENHORST, Acting P. J.
The court has read and considered the record in this proceeding and has concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in resolving the action. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another groundin Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4.)
“An information will not be set aside or a prosecution thereon prohibited if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.” (Caughlin v. Superior Court (1971) 4 Cal.3d 461, 464-465.) Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information. (People v. Superior Court (Grilli) (1978) 84 Cal.App.3d 506, 511, disapproved on other grounds in People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 758.) The same standard of review applies to charges added to the information by the district attorney under Penal Code section 739. (Mendella, at p. 758; see also People v. Slaughter (1984) 35 Cal.3d 629, 636.)
Applying these principles to the instant case, we must conclude that the superior court erred in dismissing the charge of murder alleged in the information.
Second degree murder is the unlawful killing of a human being with malice aforethought, but without the premeditation, deliberation and willfulness necessary to elevate the offense to first degree murder. Generally, the intent to unlawfully kill constitutes malice. Express malice murder requires an intent to kill. (Pen. Code, § 188.) Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. More specifically, malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his or her conduct endangers the life of another and who acts with conscious disregard for life. In such circumstances, it is not necessary to establish that the defendant intended his or her act would result in the death of a human being. (People v. Bohana (2000) 84 Cal.App.4th 360, 368.)
The People concede that California law is clear that a supplier of street drugs is not liable on a second degree murder charge when a person overdoses on those drugs. However, they argue, and we agree, that evidence admitted at the preliminary hearing of additional facts show that real party in interest (Girvan) acted with implied malice. By his own admission, Girvan supplied drugs to the victim, his girlfriend. In addition, it can be inferred that he knew she overdosed, and that he actively prevented others from seeking aid for her by way of threats, despite knowing she was in mortal danger.
Girvan asserts that it is more reasonable to conclude he did not appreciate the danger as evidenced by the fact he did not take any action nor did anyone else despite opportunity to do so. While contrary inferences can be drawn from the evidence, we must draw all possible legitimate inferences in favor of the information. It can be reasonably concluded that Girvan’s conduct showed an “abandoned and malignant” heart, sufficient to support the charge of murder. (People v. Burden (1977) 72 Cal.App.3d 603, 621.)
DISPOSTITION
Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to set aside its order granting Girvan’s Penal Code section 995 motion and to enter a new order denying that motion.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: GAUT, J., KING, J.