Difference Between Gross Negligence and Implied Malice
In People v. Contreras (1994) 26 Cal.App.4th 944, 954, the court discussed the distinction between gross negligence and implied malice:
"Gross negligence was defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. Implied malice requires proof the accused acted deliberately with conscious disregard for life. 'Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence. . . .
A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.' It is the '"'conscious disregard for human life'"' that sets implied malice apart from gross negligence."
In other words, if a juror found appellant guilty of second degree murder based on felony murder, he or she did not necessarily find appellant harbored implied malice. Any juror who relied on felony murder only had to find appellant shot with gross negligence. (Compare People v. Hach (2009) 176 Cal.App.4th 1450, 1456-1458 the court concluded the error in instructing on felony murder was harmless because any juror who relied on felony murder necessarily found the defendant willfully shot at an occupied vehicle, meaning he did so knowing of the danger and with conscious disregard for life. Penal Code section 246, the underlying felony, requires in part that the person "maliciously and willfully discharged a firearm.".)