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The notorious dog owner Marjorie Knoller has served her time for involuntary manslaughter, but the California Supreme Court sounded ready Tuesday to send her back to prison, this time for second-degree murder. To do that, the justices need only find implied malice in Knoller’s ownership of two dogs that mauled a neighbor to death in their Pacific Heights apartment building. Knoller’s attorney, Dennis Riordan, has argued that the court cannot find implied malice unless it can somehow conclude the defendant was aware of a “high probability of death.” But Justice Joyce Kennard said the court wasn’t sold on that standard. “You said it is an easy question. It is not,” said Kennard. Some cases, she said, talk about probability, others mention “wanton disregard for human life,” and still others cite a “conscious disregard for human life.” Knoller is the first and only person in California to be convicted of second-degree murder for owning dogs involved in a mauling death. Her two Presa Canarios killed neighbor Diane Whipple in 2001. But San Francisco Superior Court Judge James Warren tossed out the second-degree conviction, saying Knoller didn’t know her owning the dogs created a “high probability” of Whipple’s death. The First District Court of Appeal reversed Warren and reinstated the conviction, saying the standard for implied malice is lower: simply being aware of the possibility that the dogs could seriously injure someone if they weren’t controlled. But the justices suggested that Deputy Attorney General Amy Haddix could win the case and return Knoller to prison without adopting the lower standard proposed by the court of appeal. Riordan steered clear of what he called the “strange and deeply disturbing facts” of Knoller’s case. But Haddix argued that, based on the facts, it didn’t matter what standard the court used, because Knoller’s conduct exhibited “conscious disregard” for human life. “You don’t have to win this battle [over the standard] in order to win this case,” Justice Carol Corrigan told Haddix. The justices seemed unlikely to accept the “serious bodily injury” standard used by the First District because the term was open to wide interpretation. “Serious bodily injury can be a broken finger,” Kennard said. Despite Kennard stressing the importance of having both subjective and objective analyses in determining implied malice � and Justice Marvin Baxter attempting to define the meaning of “high probability of death” � Corrigan said a mathematical formulation can’t be the solution. “Isn’t part of the problem that we’re talking about human behavior?” she asked rhetorically. That human behavior, Haddix reminded the court, was that Knoller had uncontrollable dogs and risked endangering other people’s lives when she took them out of the apartment. And it’s the jury that applies how the behavior fits the definitions, Haddix added. Though some justices said little, most of them appeared to lean toward using the phrase “risk of death” over “serious bodily injury” in clarifying the meaning of implied malice. Riordan attempted to shoot that down with a hypothetical: The leading cause of death among teens is driving, he said. Does a parent commit murder when handing over the car keys to the teenager? But Corrigan wouldn’t go there: “When that case comes, we’ll deal with it.”

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