by Douglas Ankney

In a case of first impression, the Supreme Court of California clarified that proof of first-degree murder by means of poison requires the prosecution to show that the defendant deliberately gave the victim poison with the intent to kill the victim or to inflict injury likely to cause death.

Heather Rose Brown placed her sleeping five-day-old daughter, Dae-Lynn Rose, face down on the bed between her and Dae-Lynn’s father, Daylon Reed. While the three of them slept, Dae-Lynn stopped breathing. When Brown awoke and discovered her baby was warm but not breathing, she directed Reed to call 911. The 911 dispatcher instructed Brown in administering CPR until paramedics arrived. Unfortunately, Dae-Lynn was pronounced dead upon arrival at the hospital.

An autopsy report revealed that Dae-Lynn died from exposure to methamphetamine and heroin. Brown admitted that she and Reed smoked both heroin and methamphetamine but not in the same room as Dae-Lynn. However, she fed Dae-Lynn breast milk and baby formula shortly before she died.

Brown was prosecuted for first degree murder on the theory that Brown poisoned her newborn daughter by feeding her breast milk after smoking methamphetamine and heroin. The superior court instructed the jury that the “defendant is guilty of first degree murder if the People have proved that the defendant murdered by using poison. Poison is a substance applied externally or introduced into the body that can kill by its own inherent qualities.”

The jury convicted Brown of first degree poison murder of Dae-Lynn, and she was sentenced to 25 years to life for that count. Brown argued on appeal that the jury instruction on the first degree poison murder was incomplete because it did not inform the jury that Brown must administer the poison willfully, deliberately, and with premeditation.

The Court of Appeal rejected Brown’s argument, ruling “it appears the People need only prove that the killing was caused by administration of poison, and that the killing was done with malice. Such a killing is first degree murder as a matter of law.” The California Supreme Court granted further review.

At the outset of its analysis, the Court noted that it has never addressed the issue of whether there is a mental state component of first degree poison murder. The Court stated in order to “resolve this dispute, we begin with an examination of the statutory language in its historical context. Penal Code § 187 defines ‘murder’ as ‘the unlawful killing of a human being ... with malice aforethought.’” (Note: all statutory references are to the California Penal Code)

First degree murder includes all “murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing....” § 189(a). All murder that is not of the first degree is “of the second degree.” § 189(b).

“California’s first murder statute, enacted in 1850, defined murder as ‘the unlawful killing of a human being, with malice aforethought, either express or implied’ and provided only one penalty for murder: death.” Garfielde & Snyder, Compiled Laws of California (1853). “In 1856, the Legislature amended the statute to designate two degrees of murder.” People v. Wiley, 554 P.2d 881 (Cal. 1976). “Death remained the only punishment for first degree murder; second degree murder was punishable by a term of imprisonment ‘not less than ten years and which may extend to life.’” Wiley. “When dividing the common law offense of murder into two degrees, the Legislature reserved for the first-degree types of murders that are ‘cruel and aggravated’ and thus ‘deserving of greater punishment’ than other malicious or intentional killings, which are punishable only as second-degree murder.” People v. Sanchez, 24 Cal. 17 (1864). The 1856 amendment designated as first-degree murders those “perpetrated by means of poison, or lying in wait, torture, or by any other willful, deliberate and premeditated killing.” 1 Hittell, General Laws of California from 1850 to 1864 (1870). This language remained substantially unchanged by the Legislature in § 189, according to the Court.

In doing so, “the Legislature intended to require ‘something more’ than the showing of a malicious or intentional killing required for second degree murder – something equivalent in turpitude to willfulness, deliberation, and premeditation.” Sanchez. For example, in People v. Heslen, 163 P.2d 21 (Cal. 1945), the Supreme Court concluded that “the requirement of an intent to cause pain and suffering” is implicit in the word “torture.” And in People v. Steger, 546 P.2d 665 (Cal. 1976), the Supreme Court further elaborated that first degree “murder by means of torture” is “murder committed with a willful, deliberate, and premeditated intent to inflict extreme and prolonged pain.” And as to the mental state required in first degree murder by lying in wait, “the period of lying in wait must be sufficient to show the defendant had ‘a state of mind equivalent to premeditation or deliberation.’” People v. Stevens, 363 P.3d 41 (Cal. 2007).

In the present case, the standard instruction given by the trial court defined poison as “a substance, applied externally to the body or introduced into the body, that can kill by its own inherent qualities.” However, the Court noted, “the use of a substance that is inherently capable of killing does not in and of itself render a murder particularly reprehensible.” People v. Watson, 637 P.2d 279 (Cal. 1981). In fact, one court observed, a “fundamental tenet of toxicology is that the ‘dose makes the poison’ and that all chemical agents, including water, are harmful if consumed in large quantities, while even the most toxic substances are harmless in minute quantities.” Mancuso v. Consolidated Edison Co. of New York, 56 F. Supp. 2d 391 (S.D.N.Y. 1999). 

The Court concluded: “The knowing administration of a substance capable of causing death – even under conditions demonstrating a conscious disregard of that risk – does not show a state of mind equivalent to ‘willful, deliberate, and premeditated killing.’” § 189(a). “Like a murder by means of torture or lying in wait, a murder by means of poison is first degree murder when evidence of how the defendant carried out the poisoning demonstrates a mental state that is ‘the functional equivalent of proof of premeditation, deliberation, and intent to kill.’” Sanchez. And it announced: “We now clarify that to prove a murder by poison is in the first degree, the prosecution must show that the defendant deliberately gave the victim poison with the intent to kill the victim or inflict injury likely to cause the victim’s death.”

Applying the newly announced rule to the present case, the Court stated that the instructions allowed the jury to convict Brown of first degree murder without finding she deliberately gave Dae-Lynn poison with the intent to kill her or inflict injury likely to cause her death. In fact, the instructions “permitted the jury to convict Brown of first-degree murder even if they believed Brown fed her baby the breast milk with the intent to bond with her, nourish her, treat her illness, or soothe her. Such a conviction would not reflect a jury finding that, in giving the victim poison, the defendant acted with the ‘calculated deliberation’ or ‘coldblooded intent’ ... required to elevate a murder to the first degree.” Steger. Thus, the Court ruled the error to be prejudicial.

Accordingly, the Court reversed the judgment and remanded to the Court of Appeal with instructions to return the case to the superior court for further proceedings consistent with its opinion. See: People v. Brown, 524 P.3d 1088 (Cal. 2023).