Homicide

Homicide is the killing of an human being by another human being, but can be lawful or unlawful. (People v. Antick (1975) 15 Cal.3d 79, 87 (superseded by Constitutional amendment on other grounds); Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1011-1012).)

Accidental homicide may not have criminal liability. (People v. Hooper (1986) 181 Cal.App.3d 1174, 1182 (disapproved of by People v. Barton (1995) 12 Cal.4th 186 (accidental killing of human being will not be the basis for criminal liability unless it is the result of such inexcusable negligence that it constitutes involuntary manslaughter); Somers v. Superior Court (1973) 32 Cal.App.3d 961) (person is not criminally liable for a killing committed by accident or through misfortune when there is no evil intention or culpable negligence.)

Criminal liability for death can be found where person had legal duty to act and did not. (Barber v. Superior Court (1983) 147 Cal.App.3d 1006, 1017 (physician had no duty to continue life-sustaining treatment once it had become futile in the opinion of qualified medical personnel); People v. Burden (1977) 72 Cal.App.3d 603, 616-619 (failure of father to feed starving infant is punishable); People v. Latham (2012) 203 Cal.App.4th 319, 331-332 (parents' failure to administer aid to diabetic children).)

Discontinuing life support. (Conservatorship of Drabick (1988) 200 Cal.App.3d 185, 194; Bartling v. Superior Court (1984) 163 Cal.App.3d 186; Barber v. Superior Court (1983) 147 Cal.App.3d 1006.)

If evidence shows a killing by force or violence and no more, the killing is by definition unlawful, and the defendant must raise a reasonable doubt by presenting some evidence of excuse or justification. If the defendant does so, then the prosecution must disprove the defense beyond a reasonable doubt. If the defendant does not present evidence of excuse or justification, then these concepts are irrelevant, and the court need instruct the jury on them. (People v. Thompson (2000) 79 Cal.App.4th 40, 50.)

Murder

Murder is an unlawful killing of a human being that is committed with malice aforethought. (Pen. Code, § 187, subd. (a).) Malice aforethought is conscious or wanton disregard for human life.

Malice aforethought can be express or implied. (Pen. Code, § 188, subd. (a).)

Malice aforethought is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. (Pen. Code, § 188, subd. (a)(1).) "Deliberate intention" is different than "deliberate" which would make something first degree murder. (In re Thomas C. (1986) 183 Cal.App.3d 786, 796.) When defendant knows a woman is pregnant, express malice is towards both the woman and the fetus. (People v. Dennis (1998) 17 Cal.4th 468.)

Deliberate intention can be towards a individual or members of a specific group. (In re Sergio R. (1991) 228 Cal.App.3d 588, 595 (gang members who engaged in drive-by shooting at crowd that was thought to include rival gang members is express malice); People v. Woods (1991) 226 Cal.App.3d 1037, 1047-1048 (retaliatory drive-by shooting by gang member was express and implied malice); People v. Vang (2001) 87 Cal.App.4th 554, 563-565; gang members spraying occupied building with rifle during drive-by, even if could not see victims, even if shot wrong house, was express malice.)

Malice aforethought is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart. (Pen. Code, § 188, subd. (a)(2).) Implied malice is physical and mental. Physically, “an act, the natural consequences of which are dangerous to life.” Mentally, the defendant “knows that his conduct endangers the life of another and acts with a conscious disregard for life.” People v. Hansen (1994) 9 Cal.4th 300, 307-308

Implied malice is when defendant performs an act with a high probability that it will result in death and does it with a base antisocial motive and with "wanton disregard for human life." (People v. Dellinger (1989) 49 Cal.3d 1212, 1221; People v. Watson (1981) 30 Cal.3d 290, 300; People v. Woods (1991) 226 Cal.App.3d 1037, 1047-1048; People v. Douglas (1990) 50 Cal.3d 468, 515-516, abrogated on other grounds in People v. Marshall (1990) 50 Cal.3d 907.)

People v. Patterson (1989) 49 Cal.3d 615, 626-627)

People v. Cravens (2012) 53 Cal.4th 500 (implied malice based upon a single sucker punch)

People v. Palomar (2020) 44 Cal.App.5th 969, 976-977, sucker punch against an intoxicated person that would cause a fall against a hard surface was implied malice).

People v. Dellinger (1989) 49 Cal.3d 1212, 1217

People v. Stress (1988) 205 Cal.App.3d 1259, 1267

People v. Watson (1981) 30 Cal.3d 290, 300, rejected by People v. Goecke (1998) 457 Mich. 442

People v. Gilbert (1965) 63 Cal.3d 2d 690, vacated by 377 U.S. 263 (initiating gun battle

In re Russel H. (1987) 196 Cal.App.3d 916, 920-922 (assault with gun)

People v. Blakely (2000) 23 Cal.4th 82, 87

People v. Jones (2000) 82 Cal.App.4th 663, 667 (felony-murder rule dispenses with malice and replaces it with specific intent to commit underlying felony)

People v. Swain (1996) 12 Cal.4th 593, 602-603 (malice aforethought in implied malice murder cases is derived from proof of the specific intent to do an act dangerous to human life and the circumstances that killing resulted from that act.)

Voluntary intoxication will not negate malice aforethought. (People v. Saille (1991) 54 Cal.3d 1103; People v. Whitfield (1994) 7 Cal.4th 437.) “To the extent that a defendant who is voluntarily intoxicated unlawfully kills with implied malice, the defendant would be guilty of second degree murder.” (People v. Turk (2008) 164 Cal.App.4th 1361.)

If the charge is felony-murder, malice aforethought is not an element. (People v. Patterson (1989) 49 Cal.3d 615, 626; People v. Dillon (1983) 34 Cal.3d 441.) Imperfect self-defense is not available for felony-murder because malice aforethought is not an element. (People v. Tabios (1998); People v. Loustaunau (1986) 181 Cal.App.3d 163; People v. Anderson (1991) 233 Cal.App.3d 1646)

Malice forethought is not the same as “malice”. (Penal Code §7; People v. Gorshen (1959) 51 Cal.2d 716, 731, rejected on other grounds by People v. Wetmore (1978) 22 Cal.3d 318 and people v. Lasko (2000) 23 Cal.4th 101; People v. Chavez (1951) 37 Cal.3d 656, 666, overruled on other grounds in )

Definition of malice. People v. James (1987) 196 Cal.App.3d 272; In re Thomas C. (1986) 183 Cal.App.3d 786, 795.)

People . Satchell (1971) 6 Cal.3d 28, 43, overruled on other grounds by People v. Flood (1998) 18 Cal.4th 470, (under doctrine of felony murder, evidence of malice aforethought is not necessary).

Degrees of murder

The following circumstances are first degree murder:

• Murder where the killing is deliberate and premeditated.
• Murder by the following means:
  • Through use of destructive device, explosive, or weapons of mass destruction
  • Through use of poison
  • Lying in wait
  • Through torture
  • Through use of armor-piercing ammunition
• During commission of following crimes:
  • Arson
  • Rape
  • Robbery
  • Burglary
  • Mayhem
  • PC288a
  • Kidnapping
  • Train wrecking
  • Sodomy
  • PC288
  • Penetration

All other is murder in second degree. For example, when murder is committed without premeditation, by shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle, it is second degree murder.

People v. Van Ronk (1985) 171 Cal.App.3d 818, 823)

People v. Horn (1974) 12 Cal.3d 290, disapproved of by People v. Cortez (1998) 18 Cal.4th 1223.

“[A]n information charging murder in violation of section 187 is sufficient to support a first degree murder conviction." (People v. Harris (2008) 43 Cal.4th 1269, 1295.)

Proving intent

The means used

The manner in which it is done

The circumstances surrounding the killing

Statements made before, during, and after

Implied malice

People v. Fay (Apr. 29, 2024, B328209) https://www.courts.ca.gov/opinions/documents/B328209.PDF

Capital murder

People v Ward (2005) 36 C4th 186, 197–198 (court lacks authority to keep second counsel in trial of severed noncapital charge)

Felony-murder

People v. Superior Court (Smart) (1986) 179 Cal.App.3d 860, 865.)

Inherently-dangerous felonies

• PC246 (People v. Hansen, overruled by People v. Chun (2009) 45 Cal.4th 1172)

Manslaughter

Voluntary Manslaughter

Voluntary manslaughter is intentional killing without malice

Malice is absent when the killing is response to sufficient provocation or an honest but unreasonable belief in self-defense, or killing did not involve conscious disregard for life.

People v. Lasko, 23 Cal. 4th 101, 107–111, 96 Cal. Rptr. 2d 441, 999 P.2d 666 (2000); People v. Crowe, 87 Cal. App. 4th 86, 104 Cal. Rptr. 2d 319 (2d Dist. 2001). The Lasko holding regarding intent to kill not being an element of voluntary manslaughter was not a new rule of law, thus juries can be instructed in accord with Lasko even if the killing predated June 2, 2000, the date Lasko was issued. People v. Johnson, 98 Cal. App. 4th 566, 119 Cal. Rptr. 2d 802 (2d Dist. 2002); People v. Parras, 152 Cal. App. 4th 219, 60 Cal. Rptr. 3d 850 (5th Dist. 2007).

People v. Rios, 23 Cal. 4th 450, 469–470, 97 Cal. Rptr. 2d 512, 2 P.3d 1066 (2000).

People v. Coad, 181 Cal. App. 3d 1094, 1106, 226 Cal. Rptr. 386 (1st Dist. 1986).

People v. Blakeley, 23 Cal. 4th 82, 87–89, 96 Cal. Rptr. 2d 451, 999 P.2d 675 (2000); People v. Lasko, 23 Cal. 4th 101, 108, 96 Cal. Rptr. 2d 441, 999 P.2d 666 (2000).

Involuntary Manslaughter

Involuntary manslaughter is homicide with gross negligence.

Vehicular Manslaughter

Vehicular manslaughter is gross or simple negligence.

Misdemeanor manslaughter. People v. Carmen, 36 Cal. 2d 768, 774, 228 P.2d 281 (1951) (disapproved of by, People v. Flannel, 25 Cal. 3d 668, 160 Cal. Rptr. 84, 603 P.2d 1 (1979)); People v. Southack, 39 Cal. 2d 578, 584, 248 P.2d 12 (1952); People v. Wright, 60 Cal. App. 3d 6, 11, 131 Cal. Rptr. 311 (3d Dist. 1976); People v. Morales, 49 Cal. App. 3d 134, 144, 122 Cal. Rptr. 157 (4th Dist. 1975); CALJIC No. 8.45 (7th ed. 2003 bound vol.).

Misdemeanor manslaughter based on battery. People v. Cox, 23 Cal. 4th 665, 674–676, 97 Cal. Rptr. 2d 647, 2 P.3d 1189 (2000), as modified, (Aug. 9, 2000).

Without due caution. Penal Code § 192(b); People v. Burroughs, 35 Cal. 3d 824, 833, 201 Cal. Rptr. 319, 678 P.2d 894 (1984) (medical procedure that results in death of patient when performed without due caution and circumspection constitutes involuntary manslaughter); People v. Morgan, 177 Cal. App. 3d 466, 471, 225 Cal. Rptr. 673 (2d Dist. 1985); People v. Piorkowski, 41 Cal. App. 3d 324, 331, 115 Cal. Rptr. 830 (2d Dist. 1974); People v. Villalobos, 208 Cal. App. 2d 321, 326, 25 Cal. Rptr. 111 (3d Dist. 1962) (defendant was properly convicted of involuntary manslaughter where she placed her 3-year old daughter in wash basin and turned on hot water, and child died from burns that occurred 5–6 hours before child was taken to hospital).

People v. Penny, 44 Cal. 2d 861, 877–880, 285 P.2d 926 (1955) (negligence must be aggravated, culpable, gross, or reckless); In re Michael B., 149 Cal. App. 3d 1073, 1088, 197 Cal. Rptr. 379 (5th Dist. 1983); People v. Wong, 35 Cal. App. 3d 812, 829, 111 Cal. Rptr. 314 (1st Dist. 1973); People v. Rodriguez, 186 Cal. App. 2d 433, 435–441, 8 Cal. Rptr. 863 (2d Dist. 1960).

Walker v. Superior Court, 47 Cal. 3d 112, 134, 253 Cal. Rptr. 1, 763 P.2d 852 (1988); In re M., 70 Cal. 2d 444, 460, 75 Cal. Rptr. 1, 450 P.2d 296 (1969) (defendant, a 15-year-old, found guilty when he intentionally pointed gun at girlfriend and shot twice when he believed that gun was unloaded but admitted he wasn't sure); People v. Penny, 44 Cal. 2d 861, 877–880, 285 P.2d 926 (1955); In re Michael B., 149 Cal. App. 3d 1073, 1088, 197 Cal. Rptr. 379 (5th Dist. 1983); People v. Clark, 130 Cal. App. 3d 371, 382, 181 Cal. Rptr. 682 (3d Dist. 1982) (abrogated on other grounds by, People v. Blakeley, 23 Cal. 4th 82, 96 Cal. Rptr. 2d 451, 999 P.2d 675 (2000)); Somers v. Superior Court, 32 Cal. App. 3d 961, 969, 108 Cal. Rptr. 630 (3d Dist. 1973).

Lack of medical attention. Walker v. Superior Court, 47 Cal. 3d 112, 123–124, 253 Cal. Rptr. 1, 763 P.2d 852 (1988); People v. Oliver, 210 Cal. App. 3d 138, 146–149, 258 Cal. Rptr. 138 (1st Dist. 1989) (defendant could be convicted of involuntary manslaughter when defendant drove victim home from a bar after having observed that victim was extremely drunk, allowed victim to use bathroom in defendant's apartment to shoot heroin, and then left victim outside apartment where victim died, and when prompt medical attention might have saved victim's life); People v. Montecino, 66 Cal. App. 2d 85, 152 P.2d 5 (2d Dist. 1944).

Attempted murder

There is attempted murder (664/187), which is punishable by 5-7-9. Some, including Californian courts, have called this second-degree attempted murder.

There is also attempted murder, which is willful, deliberate, and premediated (664/187/189), which is 7-to-life. Some, including Californian courts, have called this first-degree attempted murder.

The California Supreme Court in People v. Bright (1996) 12 Cal.4th 652, has explicitly said there are no degrees of attempted murder, just an enhanced punishment for willful, deliberate, and premeditated attempted murder. This supposedly made a difference because the Court in Bright said a jury finds whether there has been attempted murder or not, and not the "degree" of attempted murder. But, the Court later said in People v. Seel (2004) 34 Cal.4th 535, Apprendi applies to this, so a jury does need to find a fact that increases the sentence, and thus a jury does need to determine if it's been willful, deliberate, and premeditated.

In People v. Rodriguez, 75 Cal. App. 5th 816, 291 Cal. Rptr. 3d 70 (5th Dist. 2022), the appellate court affirmed the defendant's conviction for premeditated and deliberated attempted murder. The court explained: “‘There are three basic categories’ of evidence … generally found sufficient to sustain a finding of premeditation and deliberation: (1) planning activity, or ‘facts about how and what defendant did prior to the actual [attempt to kill] which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, [a] killing’; (2) motive, or ‘facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a “motive” to kill the victim’; and (3) manner of [attempt], or ‘facts about the nature of the [attempt] from which the jury could infer that the manner of [attempted] killing was so particular and exacting that the defendant must have [intended to kill] according to a “preconceived design” to take his victim's life in a particular way for a “reason” …’” (Ibid. (internal quotes and citations omitted; emphasis and brackets in original) (quoted portion not certified for publication).). Here, the fact that at least one of the defendants was armed with a weapon and they exited the vehicle together to confront the victim was evidence of planning activity. The fact that one of the defendants preceded the attack with gang-related language was evidence of a gang-related motive. “[T]he fact the attack involved a hallmark deadly weapon and serious chest wounds leaves little room to doubt the assailants intended to kill. [¶ ] Taken together and combined with the fact one of the gang's primary activities is homicide, the jury could readily infer [the defendant] initiated this encounter with premeditation and deliberation. In other words, the jury could reasonably conclude [the defendant] first identified a victim and then launched a gang-related attack while intending to kill. The fact it appears [the defendant]'s and the victim's paths crossed fortuitously is immaterial.” (Ibid. (quoted portion not certified for publication).)

“[T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killing—which means that the person guilty of attempted murder as an aider and abettor must intend to kill.” (People v. Lee, 31 Cal. 4th 613, 624, 3 Cal. Rptr. 3d 402, 74 P.3d 176 (2003).)

“For implied malice, the intent requirement is satisfied by proof that the actual perpetrator knows that his conduct endangers the life of another and … acts with conscious disregard for life. Therefore, notwithstanding Senate Bill 1437's elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life.” (People v. Gentile, 10 Cal. 5th 830, 850, 272 Cal. Rptr. 3d 814, 477 P.3d 539 (Cal. 2020) (internal quotes and citations omitted).) In People v. Superior Court (Valenzuela), 73 Cal. App. 5th 485, 490, 288 Cal. Rptr. 3d 627 (4th Dist. 2021), the Court of Appeal framed the issue as follows: “what evidence suffices, for purposes of a preliminary hearing, to bind over a defendant on a direct aiding and abetting theory of implied malice murder.” (emphasis in original.) The defendant, Valenzuela (age 39), along with confederates participated in a fight with several teenagers at a neighborhood park. Valenzuela came to the park armed with a screw driver. He brought several others with him, including Diaz, who was a known gang member and came armed with a knife. During the fight, Diaz stabbed and killed one of the teenagers. The People charged Valenzuela with aiding and abetting implied malice murder. The magistrate dismissed the charge, finding insufficient evidence. The People refiled the murder charge and the defense filed a Penal Code § 995 motion. The trial court granted the 995 motion, and the People appealed. The Court of Appeal reversed and found sufficient evidence to hold Valenzuela to answer. The Court of Appeal relied upon the California Supreme Court's ruling in Gentile, supra, and the Court of Appeal's decision in People v. Powell, 63 Cal. App. 5th 689, 278 Cal. Rptr. 3d 150 (3d Dist. 2021). “In Gentile, the Supreme Court stated that notwithstanding … [the] elimination of natural and probable consequences liability for second degree murder, an aider and abettor who does not expressly intend to aid a killing can still be convicted of second degree murder if the person knows that his or her conduct endangers the life of another and acts with conscious disregard for life. We understand this to mean that an aider and abettor who acts with implied malice can be guilty of murder entirely apart from the natural and probable consequences doctrine… [¶ ] Powell carefully explains that direct aiding and abetting of an implied malice murder is based on the aider and abettor's own mens rea. Emphasizing the point, Powell adds that the requisite intent must be personally harbored by the direct aider and abettor and consists of knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life. In this key respect, Powell is entirely consistent with Gentile in basing murder liability on the aider and abettor's own state of mind—conscious disregard for life.” (Valenzuela, supra, at p. 499 (internal quotes and citations omitted; emphasis in original).)

Turning to the facts of the case, the Court of Appeal wrote: “There was sufficient evidence that Valenzuela instigated and encouraged Diaz's participation in an armed melee, which under the circumstances was conduct that carried with it a significant risk of death. Valenzuela arranged for the fight, specified its time and place, solicited Diaz, a known gang member, to join him, and brought him to the fight armed with a knife.” (Valenzuela, supra, at p. 502.) The court further stated: “[W]hile it is fair to say that the ‘act’ Valenzuela fostered and instigated was an assault with a deadly weapon, his culpability for implied malice murder on a direct aiding and abetting theory requires more than just showing an intended aggravated assault. Rather, a determination that the intended assault involved a significant risk of death is necessary. Perhaps more importantly, even if the requisite act were the same, the required mental state is significantly different. As both Gentile and Powell make clear, to commit implied malice murder as an aider and abettor one must personally harbor implied malice. This means the defendant knows that his conduct endangers the life of another and … acts with conscious disregard for life… Considering all the evidence and reasonable inferences at this stage of the proceedings, there is some rational ground for assuming the possibility that Valenzuela knowingly instigated and encouraged conduct by Diaz, fully appreciating that it posed a significant risk to human life, and consciously disregarded that risk.” (Valenzuela, supra, at pp. 503-504 (internal quotes and citations omitted).)

The court in People v. Glukhoy, 77 Cal. App. 5th 576, 588, 292 Cal. Rptr. 3d 623 (3d Dist. 2022), review granted, see Cal. Rules of Court, rules 8.1105 and 8.1115, 295 Cal. Rpt. 3d 878, 513 P.3d 165 (Cal. 2022) (Case No. S274792), cited for persuasive authority pursuant to Cal. Rules of Court, rule 8.1115, described the elements of implied malice murder as an aider or abettor as follows: “In Powell, we explained the actus reus and mens rea elements of direct aiding and abetting implied malice. [¶ ][¶ ] To be culpable as a direct aider and abettor of implied malice murder, the accomplice ‘must, by words or conduct, aid the commission of the life-endangering act.’ (Powell, supra, 63 Cal.App.5th at p. 713, 278 Cal.Rptr.3d 150.) Thus, the aider and abettor's actus reus ‘includes whatever acts constitute aiding the commission of the life endangering act.’ (Ibid.; accord Valenzuela, supra, 73 Cal.App.3d at p. 501, 288 Cal.Rptr.3d 627.) [¶ ] ‘The mens rea, which must be personally harbored by the direct aider and abettor, is knowledge that the perpetrator intended to commit the act, intent to aid the perpetrator in the commission of the act, knowledge that the act is dangerous to human life, and acting in conscious disregard for human life.’ (Powell, supra, 63 Cal.App.5th at p. 713, 278 Cal.Rptr.3d 150; accord Valenzuela, supra, 73 Cal.App.5th at p. 501, 288 Cal.Rptr.3d 627.)” Ibid. (emphasis in original); see also People v. Pacheco, 76 Cal. App. 5th 118, 127, 290 Cal. Rptr. 3d 891 (4th Dist. 2022), review granted, see Cal. Rules of Court, rules 8.1105 and 8.1115, 293 Cal. Rptr. 3d 598, 509 P.3d 955 (Cal. 2022) (Case No. S274102), cited for persuasive authority pursuant to Cal. Rules of Court, rule 8.1115) [“‘Thus, proof of [direct] aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime’”].)

Second degree murder under a direct aiding and abetting theory “requires that the aider and abettor … know and share the murderous intent of the actual perpetrator.” (People v. Gentile, 10 Cal. 5th 830, 850, 272 Cal. Rptr. 3d 814, 477 P.3d 539 (Cal. 2020) (internal quotes and citations omitted).) Express malice murder requires a specific intent—the perpetrator must manifest “a deliberate intention to unlawfully take away the life of a fellow creature.” (Penal Code § 188(a)(1).) “The primary difference between express malice and implied malice is that the former requires an intent to kill but the latter does not.” (People v. Soto, 4 Cal. 5th 968, 976, 231 Cal. Rptr. 3d 732, 415 P.3d 789 (Cal. 2018); People v. Coley, 77 Cal. App. 5th 539, 547, 292 Cal. Rptr. 3d 257 (1st Dist. 2022) [intent to kill is equivalent of express malice].)

Shooting

These principles, taken together, reflect that the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice. That the shooter had no particular motive for shooting the victim is not dispositive, although again, where motive is shown, such evidence will usually be probative of proof of ***170 intent to kill. Nor is the circumstance that the bullet misses its mark or fails to prove lethal dispositive—the very act of firing a weapon “ ‘in a manner that could have inflicted a mortal wound had the bullet been on target’ ” is sufficient to support an inference of intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 742.)

Defendant's conviction for multiple counts of attempted murder was affirmed where the defendant shot numerous rounds into a group waiting in a barber shop parking lot. (People v. Foster, 61 Cal. App. 5th 430, 439-440, 275 Cal. Rptr. 3d 649 (2d Dist. 2021), review denied, (May 12, 2021).) The Court of Appeal wrote: “A person who acts with intent to kill in firing at a group of people is guilty of attempted murder even if he or she intended to kill a random person rather than a specific one. (People v. Stone (2009) 46 Cal.4th 131, 141, 92 Cal.Rptr.3d 362, 205 P.3d 272 (Stone).) ‘Although a primary target often exists and can be identified, one is not required.’ (Id. at p. 140, 92 Cal.Rptr.3d 362, 205 P.3d 272.) In describing the theory, the California Supreme Court explained that ‘[a]n indiscriminate would-be killer is just as capable as one who targets a specific person.’ (Ibid.) Multiple attempted murder convictions can be supported by the same reasoning.” (Id. at 440.)

The court in Foster went on to describe the difference between the ‘kill zone’ theory of attempted murder and the theory from People v. Stone, 46 Cal. 4th 131, 92 Cal. Rptr. 3d 362 (Cal. 2009): “The absence of a specific target distinguishes this case from the ‘kill zone’ theory. The kill zone theory applies when the defendant chooses, as a means of killing a specific, targeted individual, to kill everyone in the area in which the targeted individual is located (i.e., the ‘kill zone’) as the means of accomplishing the killing of the targeted victim. (People v. Canizales, supra, 7 Cal.5th at pp. 607-608, 248 Cal.Rptr. 3d 370, 442 P.3d 686.) In contrast, the Stone theory applies when there is no specifically targeted individual. The two theories are mutually exclusive. (See People v. McCloud (2012) 211 Cal.App.4th 788, 798, 802, fn. 6, 149 Cal.Rptr.3d 902 (McCloud); see also People v. Thompkins, supra, 50 Cal.App.5th at p. 396, fn. 10, 264 Cal.Rptr.3d 186 [‘Stone establishes that the kill zone theory cannot be used when the defendant fires indiscriminately at a crowd of people, not aiming to kill anyone in particular, but hoping to kill as many as possible’].)” (Foster, supra, at p. 441, fn. 16.)

Kill zone

CALCRIM 600: [A person may intend to kill a primary target and also [a] secondarytarget[s] within a zone of fatal harm or “kill zone.” A “kill zone” is anarea in which the defendant used lethal force that was designed andintended to kill everyone in the area around the primary target.

In order to convict the defendant of the attempted murder of<insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>, the People must prove thatthe defendant not only intended to kill <insert name ofprimary target alleged> but also either intended to kill<insert name or description of victim charged in attempted murder count[s]on concurrent-intent theory>, or intended to kill everyone within the kill zone.

In determining whether the defendant intended to kill<insert name or description of victim charged in attempted murder count[s]on concurrent-intent theory>, the People must prove that (1) the onlyreasonable conclusion from the defendant’s use of lethal force, is that thedefendant intended to create a kill zone; and (2) <insertname or description of victim charged in attempted murder count[s] onconcurrent-intent theory> was located within the kill zone.

In determining whether the defendant intended to create a “kill zone” and the scope of such a zone, you should consider all of the circumstances including, but not limited to, the following:

• The type of weapon used(;/.)

• The number of shots fired(;/.)

• The distance between the defendant and <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>(;/.)

• The distance between <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory> and the primary target.

If you have a reasonable doubt whether the defendant intended to kill<insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory> or intended to kill<insert name or description of primary target alleged> by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>.]

In People v. Canizales, 7 Cal. 5th 591, 442 P.3d 686, 248 Cal. Rptr. 3d 370 (2019), the California Supreme Court addressed and clarified the necessary intent to kill for attempted murder in a kill zone case. The People must establish “(1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death—around the primary target; and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm.” (Id. at p. 607.) The Court identified several factors to be considered when assessing the defendant's intent to create a zone of fatal harm: the type of weapon used; the number of shots fired; the distance between the defendant and the alleged victims; the proximity of the alleged victims to the primary target; whether the attack location was open or instead had a limited means of escape; and whether the defendant hit any of his or her intended targets. (Id. at pp. 607, 611.)

The following cases affirmed the use of the kill zone instruction: People v. Cerda, 45 Cal.App.5th 1, 16-17, 258 Cal. Rptr. 3d 409 (Cal. App. 2d Dist. 2020), review granted, see Cal. Rules of Court, rules 8.1105 and 8.1115, 262 Cal. Rptr. 3d 369, 463 P.3d 168 (Cal. 2020) and cause transferred and opinion not citable, 2022 WL 57723 (Cal. 2022) (Case No. S260915), cited for persuasive value pursuant to Cal. Rules of Court, rule 8.1115 [evidence was sufficient to support a kill zone theory of liability where defendants shot into two houses with an assault rifle, with shots targeted at locations in houses where victims were congregated]; People v. Dominguez, 66 Cal. App. 5th 163, 187, 281 Cal. Rptr. 3d 82 (4th Dist. 2021) [“We conclude that sufficient evidence was presented that would support the attempted murder convictions. The very fact that [Defendants] created a hail of bullets at close range to two individuals who were within a few feet of each other as well as Sanabria (the target) is the very definition of creating a kill zone. Moreover, Defendants fired the 21 shots into a small space enclosed on three sides. And they fired so rapidly that the victims had little chance of escape.” (internal quotes and citations omitted; brackets in original)].

The following cases were reversed based upon an erroneous kill zone instruction: In re Lisea, 73 Cal. App. 5th 1041, 1055-1056, 288 Cal. Rptr. 3d 824 (3d Dist. 2022) [“the instruction, when combined with the prosecutor's arguments regarding the instruction, impermissibly allowed the jury to convict petitioner of the attempted murder of the victim based on an intent to kill anyone in the kill zone”]; People v. Thompkins, 50 Cal. App. 5th 365, 394-396, 264 Cal. Rptr. 3d 186 (1st Dist. 2020), as modified on denial of reh'g, (June 17, 2020) and review denied, (Aug. 26, 2020) [trial court erred in giving kill zone instruction where defendant fired 10 shots into crowd at restaurant, killing two people and wounding five, with no evidence of an intended target]; People v. Mariscal, 47 Cal. App. 5th 129, 139, 260 Cal. Rptr. 3d 571 (2d Dist. 2020) [jury was erroneously instructed on kill zone theory where defendant killed intended target and then shot at four of the target's friends]; In re Rayford, 50 Cal. App. 5th 754, 779-781, 264 Cal. Rptr. 3d 401 (2d Dist. 2020), review denied, (Sept. 23, 2020) [Canizales applies retroactively to final cases; kill zone instruction was improperly given where shooters fired a total of eight bullets toward house without targeting specific victims]; People v. Cardenas, 53 Cal. App. 5th 102, 114-115, 266 Cal. Rptr. 3d 788 (4th Dist. 2020) [insufficient evidence to warrant kill zone instruction where first two bullets were fired at primary target from close range, with alleged attempted murder victim standing at least one car's length behind primary target, and second round of bullets was fired as shooters retreated]; People v. Booker, 58 Cal. App. 5th 482, 499-500, 272 Cal. Rptr. 3d 421 (2d Dist. 2020), review denied, (Feb. 24, 2021) [kill zone instruction not warranted where defendant fired three to seven shots directed at front driver's side of stationary car, shots were directed at driver, who was killed, from close range, although driver's side front window of car was shattered, there were no bullet holes in car's body or doors that would have reflected spray of bullets, there was no evidence any bullets reached front passenger side of car where owner was sitting, and owner was not injured].)

In In re Sambrano, 79 Cal. App. 5th 724, 727, 294 Cal. Rptr. 3d 826 (4th Dist. 2022), the Court of Appeal granted the habeas petition, reversing the attempted murder convictions because the jury was given a kill zone instruction that was erroneous under Canizales, supra. The Sambrano Court summarized the facts as follows: “Sambrano and his two codefendants, Anthony Lares and Daniel Torres, are all alleged members or associates of a gang called Varrio Coachella Rifa 52 (Varrio Coachella). On the night in question, they drove into the territory of a rival gang, North Side Indio (North Side). Sambrano drove the car, Torres was the front passenger, and Lares was in the back seat. After repeatedly driving past a group of people gathered outside a house, Sambrano stopped the car, and Lares and Torres began shooting. Lares admitted firing at least 10 rounds from his .30-caliber M1 carbine rifle. Torres filed an unknown number of shots from a .22-caliber handgun that held 5 rounds. The shots killed one person and seriously wounded two others, all of whom were outside the house at the time of the shooting. (Id., at p. 728.) The Sambrano Court described the kill zone theory of attempted murder as follows: “The elements of attempted murder are ‘specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ ‘When a single act is charged as an attempt on the lives of two or more persons, the intent to kill element must be examined independently as to each alleged attempted murder victim; an intent to kill cannot be “transferred” from one attempted murder victim to another under the transferred intent doctrine.’ But consistent with those requirements, the kill zone theory, which was first approved by the Supreme Court in [Bland, supra, 28 Cal.4th at pp. 327, 121 Cal.Rptr.2d 546, 48 P.3d 1107], ‘yields a way in which a defendant can be guilty of the attempted murder of victims who were not the defendant's “primary target.”’” (Sambrano, supra, at p. 730 (internal quotes and citations omitted).)

In Sambrano, the appellate court found the trial court erred by giving the kill zone instruction. The court noted that “[t]here is no evidence that any person at the gathering in front of the Rodriguez house was the primary target of defendants' attack. There is no evidence that Sambrano knew or recognized anyone at the gathering or that the Rodriguez house had been defendants' planned destination. Moreover, there is no evidence that any particular person at the gathering did nor said anything that might have led defendants to target a particular person when the shooting commenced. Instead, the evidence showed only that defendants began firing at the group because of the group's location within rival gang territory. Because there was no evidence of a primary target, the kill zone instruction should not have been given.” (Id. at p. 734 (internal citations omitted).) The Sambrano Court reiterated these principles re the kill zone theory: “If there is no evidence of a primary target, then the kill zone theory does not apply.”

• “Relatedly, if the evidence shows only that the defendant intended to kill everyone in a particular area, but not as a means of ensuring the death of a primary target, then the kill zone theory does not apply.”

• “If there is evidence of a primary target, but the evidence shows only that the defendant subjected people near the primary target to lethal risk, or that the defendant acted with conscious disregard of the risk of serious injury or death for people near the primary target, then the kill zone theory does not apply.”

• “Jury instructions on the kill zone theory are never required.” (Id. at pp. 727-728 (internal citations omitted; emphasis in original).) In People v. Lee, 81 Cal. App. 5th 232, 296 Cal. Rptr. 3d 499 (2d Dist. 2022) as modified (June 24, 2022), review granted, see Cal. Rules of Court, rules 8.1105 and 8.1115, 299 Cal. Rptr. 3d 569, 518 P.3d 276 (Case No. S275449), cited for persuasive authority pursuant to Cal. Rules of Court, rule 8.115, the appellate court found the kill zone instruction to be erroneous, but the error harmless. The court described two different versions of “concurrent intent”: “Attempted murder requires the specific intent to kill the victim(s), and the commission of a direct but ineffectual act toward completing the killing. As here relevant, there are two scenarios in which a defendant concurrently intends to kill multiple victims. [¶ ] Under one scenario, a defendant intends primarily to kill a specific victim while concurrently intending to kill others within a zone of fatal harm or ‘kill zone.’ The Supreme Court in Canizales narrowed the circumstances in which courts may instruct on this kill zone theory. The Court held that the kill zone theory applies only when ‘(1) the circumstances of the defendant's attack on a primary target, including the type and extent of the force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm—that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death … and (2) the alleged attempted murder victim who was not the primary target was located within that zone of harm. [¶ ] Another scenario of concurrent intent exists when a defendant indiscriminately fires into a group of people with the intent to kill ‘a random person rather than a specific one.' Under this theory, the defendant need only intend to kill anyone who got in the way of his bullets.” (Lee, supra (internal citations omitted; quoted portion not certified for publication).)

Pointing a gun

To be guilty of attempted murder, the prosecution must prove the defendant intended to kill the victim and took a direct but ineffectual step towards accomplishing the intended killing. (People v. Ervine, 47 Cal. 4th 745, 785, 102 Cal. Rptr. 3d 786, 220 P.3d 820 (Cal. 2009).) A direct act is something more than mere preparation. (People v. Superior Court (Decker), 41 Cal. 4th 1, 12, 58 Cal. Rptr. 3d 421.) “Conduct that qualifies as mere preparation and conduct that qualifies as a direct but ineffectual act toward commission of the crime exists on a continuum, ‘“since all acts leading up to the ultimate consummation of a crime are by their very nature preparatory.”’” (Ibid.) Whether acts are merely preparatory or sufficiently close to the consummation of the crime to constitute an attempt depends on the circumstances of the case. (Ibid.) The California Supreme Court has recognized that “the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized.” (People v. Dillon, 34 Cal. 3d 441, 455, 194 Cal. Rptr. 390, 668 P.2d 697 (Cal. 1983).)

There are certain circumstances where pointing a gun at a victim will support an attempted murder conviction. In People v. Ervine, supra, 47 Cal. 4th at p. 786, our Supreme Court concluded that sufficient evidence supported a conviction for attempting to murder a third police officer, because the evidence indicated that the defendant wanted to kill all the officers at the scene but had undertaken a direct but ineffectual act toward accomplishing the intended killing by firing at the two officers who posed the most immediate threat. In People v. Nelson, 51 Cal. 4th 198, 212, 120 Cal. Rptr. 3d 406, 246 P.3d 301 (Cal. 2011), cert. denied, 132 S.Ct. 183, 181 L.Ed.2d 93 (2011), there was sufficient evidence to convict the defendant of attempted murder even though he merely pointed his gun at the victim because he only changed his target when he noticed a nearby patrol car and decided to shoot at the officers who posed a more immediate threat.

Death

Death is 1) irreversible cessation of circulatory and respiratory functions or 2) cessation of all functions of the entire brain, including the brain stem. (Health and Saf. Code, § 7180.) Prosecution must prove brain death beyond a reasonable doubt. (People v. Mitchell (1982) 132 Cal.App.3d 389, 396.)

Fetuses.

"a fetus is defined as "the unborn offspring in the postembryonic period, after major structures have been outlined." (Sloane-Dorland Ann. Medical-Legal Dict. (1987) p. 281.) This period occurs in humans "seven or eight weeks after fertilization" (ibid.), and is a determination to be made by the trier of fact." (People v. Davis (1994) 7 Cal.4th 797, 810.)

People v. Valdez (2005) 126 Cal.App.4th 575.))

there is no crime of manslaughter of a fetus. (People v. Brown (1995) 35 Cal.App.4th 1585, 1592-1594, 42 Cal.Rptr.2d 155; accord, People v. Dennis, supra, 17 Cal.4th at pp. 505-506, 71 Cal.Rptr.2d 680, 950 P.2d 1035.)

Multiple causes of death

The defendant's criminal act or omission must have been the cause of death. (People v. Morgan (1985) 177 Cal.App.3d 466.)

Cause is determined by ordinary principles of causation. (People v. Armitage (1987) 194 Cal.App.3d 405, 420.)

Whether defendant's act or omission was cause of death is question of fact. (People v. Harris (1975) 52 Cal.App.3d 419, 427; People v. Collins (1947) 80 Cal.App.2d 526, 535 (jury was permitted to draw conclusion based on circumstantial evidence that defendant had caused victim's death).)

People v. Moncada (2012) 210 Cal.App.4th 1124.)

Defendant's act or omission may be cause of death as long as it shortened the victim's life. (People v. Phillips (1966) 64 Cal.2d 574, 579 (defendant was convicted of murder when victim's parents postponed surgery that might have cured victim in reliance on defendant's misrepresentation that he could cure cancer); People v. Stamp (1969) 2 Cal.App.2d 203)

People v. Funes (1994) 2 3Cal.app.4th 1506, 1524 (defendant guilty of murder despite decision not to administer antibiotics for pneumonia caused by defendant's beating.)

People v. Matta (1976) 57 Cal.App.3d 472, 481 (cause of death was pneumonia, but pneumonia was caused by injury to lungs by defendant)

People v. Mai (1994) 22 Cal.App.4th 117, disapproved by People v. Nguyen (2000) 24 Cal.4th 767 (defendant's act must be a proximate cause, substantial factor resulting to result.)

People v. Sanchez (2001) 26 Cal.4th 834, 844-849

People v. Canizalez (2011) 197 Cal.App.4th 832, 845 (defendant engaging in street race with co-defendant was proximate cause of car collision)

People v. Lewis (1899) 124 Cal.551, 554-559 (murder where defendant fatally shot victim, even though victim slit his own throat.)

People v. Armitage (1987) 194 Cal.App.3d 405 (victim's contributory negligence does not provide a defense)

People v. Vernon (1979) 89 Cal.App.3d 853, 864.

People v. Harris (1975) 52 Cal.App.3d 419, 426-427

People v. McGee (1947) 31 Cal.2d 229, 240-242 (doctor's negligence doesn't change that defendant inflicted fatal injury); People v. Dilworth (1969) 247 Cal.App.2d 27, 33 (same)

People v. Cobler (1934) 2 Cal.App.2d 375, 378-379 (defendant poisoned victim, so victim fell and hit head and die)

People v. Moan (1884) 65 Cal.532, 536-537 (alcohol abuse)

‘’People v. Ah Fat’’ (1874) 48 Cal. 61, 64. (gunshot wound)

Eggshell plaintiff rule (People v. Morgan (1969) 275 Cal.App.2d 603, 609 (murder where senior citizen died of heart attack caused by hits to the head, though a normal person would not have died from the hits.)

(People v. Wattier (1996) 51 Cal.App.4th 948, 953-954 (failure to use seatbelt was properly excluded at vehicular manslaughter trial)

(People v. Marlin (2004) 124 Cal.App.4th 559, 570 (victim's speeding doesn't change murder)

Vicarious liability

People v. Gardner (1995) 37 Cal.app.4th 473, 482-483 (2nd degree murder under NPC when he intentionally and provicately fired gun down street at fleeing victim, which caused a third person to fire back, which killed the victim.)

People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1076-1079 (Robbery gone bad which caused person robbed to fire back and kill his own girlfriend, thus 1st degree murder)

Natural and probable consequences

"sets in motion a chain of events that produces as a direct, natural, and probable consequence of the act or omission the death in question and without which the death would not occur." People v. Fiu (2008) 165 Cal.App.4th 360

High speed chase which causes officer to to crash into another car and kill a person is up to jury to determine whether harm was foreseeable. (People v. Schmies (1996) 44 Cal.App.4th 38.)

Death of firefighters is reasonably foreseeable consequence of reckless setting fire in woods (People v. Brady (2005) 129 Cal.App.4th 1314)

Implied malice towards fetus when pregnant woman is killed even if killer did not know of pregnancy. (People v. Taylor (2004) 32 Cal.4th 863.)

Multiple shooters

‘’People v. Sanchez’’ (2001) 26 Cal.4th 834, 844-849.

‘’People v. Canizalez’’ (2011) 197 Cal.App.4th 832, 845.

‘’People v. Gardner’’ (1995) 37 Cal.App.4th 473, 482-483

Multiple deaths

People v. Bunyard (1988) 45 Cal.3d 1189, abrogated by People v. Diaz (2015) 60 Cal.4th 1176

People v. Smith (1987) 188 Cal.App.3d 1495-1517-1519, abrogated on other grounds by People v. Davis (1994) 7 Cal.4th 797.

Delay of death

Penal code section 194

To make the killing either murder or manslaughter, it is not requisite that the party die within three years and a day after the stroke received or the cause of death administered. If death occurs beyond the time of three years and a day, there shall be a rebuttable presumption that the killing was not criminal. The prosecution shall bear the burden of overcoming this presumption. In the computation of time, the whole of the day on which the act was done shall be reckoned the first.

Old rule created by statute in 1850, of "one-year-and-a-day rule" required victim die within a year or day for defendant to be charged with murder or manslaughter. (People v. Clark (1951) 106 Cal.App.2d 271.) In 1969, it was changed to "three years and one day." (People v. Snipe (1972) 25 Cal.App.3d 742) Current law is Penal Code section 194, enacted in 1996.

Lesser Included Offenses

N.337.02 N.337.03

N.337.1 N.337.3 N.337.3.2

Defenses

A killing is lawful if excusable or justifiable.

A killing is excusable when:

• committed by accident or misfortune
• in the heat of passion
• upon sudden and sufficient provocation
• upon sudden combat
• when no undue advantage is taken nor any dangerous weapon used

Excusable self-defense because of heat of passion

Penal Code § 195(2); People v. Perdue, 49 Cal. 425, 428–429, 1874 WL 1551 (1874) (homicide was not excusable when evidence tended to prove that undue advantage was taken of deceased where defendant renewed his assault on victim after a struggle leaving victim lying on floor and crying that he had enough); People v. Jones, 215 Cal. App. 2d 341, 347, 30 Cal. Rptr. 280 (2d Dist. 1963); People v. Dugger, 179 Cal. App. 2d 714, 722, 4 Cal. Rptr. 388 (1st Dist. 1960); People v. Pilgrim, 73 Cal. App. 2d 391, 394, 166 P.2d 636 (3d Dist. 1946); People v. Hampton, 96 Cal. App. 157, 159–160, 273 P. 854 (2d Dist. 1929). 2 People v. Mayes, 262 Cal. App. 2d 195, 197, 68 Cal. Rptr. 476 (5th Dist. 1968) (court rejected argument that if homicide is excusable, battery is also excusable, and held that immunity provided by § 195 has not been extended to battery; court explained that if A, in heat of passion and with sufficient provocation, strikes B with no intent to injure B, and B dies, homicide is excusable under Penal Code § 195, but A is guilty of battery).

Penal Code section 195

Homicide is excusable in the following cases:

1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent.

2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.

Justifiable homicide: self-defense

PC197 PC198 PC198.5

Self-defense of life

Flannel instruction. People v. Flannel (!979) 25 Cal.3d 668, 680-683

Self-defense need only create a reasonable doubt. N.84 N.85 N.86

Duty to retreat

N. 67

N. 68

N. 69

N.70 N.71 N.72

Self-defense against citizen’s arrest.

N.73.1 73.15[2]

Evidence considered

The victim’s state of mind, showing mortal fear of defendant n.298

Evidence of victim’s state of mind to show death resulted from suicide n. 299

Evidence used to cause victim’s death. N.300, n. 301

Voluntary intoxication to negate intent to kill n. 309.

If the prosecution does not establish implied malice, voluntary intoxication will negate express malice to reduce offense to involuntary manslaughter.

Contributory negligence is not a defense

Defendant claims that the victim's attempt to swim ashore, whether characterized as an intervening or a superseding cause, constituted a break in the **525 natural and continuous sequence arising from the unlawful operation of the boat. The claim cannot hold water. It has long been the rule in criminal prosecutions that the contributory negligence of the victim is not a defense. (People v. Harris, supra, 52 Cal.App.3d at p. 426, 125 Cal.Rptr. 40; People v. Tracy (1962) 199 Cal.App.2d 163, 168, 18 Cal.Rptr. 487; People v. Freudenberg (1953) 121 Cal.App.2d 564, 583–584, 263 P.2d 875; People v. Lett (1947) 77 Cal.App.2d 917, 921, 177 P.2d 47; People v. Fator (1936) 14 Cal.App.2d 403, 404, 58 P.2d 402.)10 In order to exonerate a defendant the victim's conduct must not only be a cause of his injury, it must be a superseding cause. “A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve defendant of liability.” (People v. Harris, supra, 52 Cal.App.3d at p. 427, 125 Cal.Rptr. 40.) As Witkin further notes, “[a]n obvious illustration of a dependent cause is the victim's attempt to escape from a deadly attack or other danger in which he is placed by the defendant's wrongful act.” (1 Witkin, Cal. Crimes, supra, § 82, p. 81.) Thus, it is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, *421 which rises to the level of an exonerating, superseding cause. (People v. Hebert (1964) 228 Cal.App.2d 514, 520–521, 39 Cal.Rptr. 539; see also People v. Sam (1969) 71 Cal.2d 194, 210–211, 77 Cal.Rptr. 804, 454 P.2d 700.) Consequently, in criminal law a victim's predictable effort to escape a peril created by the defendant is not considered a superseding cause of the ensuing injury or death. (People v. Harrison (1959) 176 Cal.App.2d 330, 335, 1 Cal.Rptr. 414. See also People v. Monk (1961) 56 Cal.2d 288, 296, 14 Cal.Rptr. 633, 363 P.2d 865; People v. Lewis (1899) 124 Cal. 551, 555, 57 P. 470.) As leading commentators have explained it, an unreflective act in response to a peril created by defendant will not break a causal connection. In such a case, the actor has a choice, but his act is nonetheless unconsidered. “When defendant's conduct causes panic an act done under the influence of panic or extreme fear will not negative causal connection unless the reaction is wholly abnormal.” (Hart & Honore, Causation in the Law (2d ed. 1985) p. 149.) Here defendant, through his misconduct, placed the intoxicated victim in the middle of a dangerous river in the early morning hours clinging to an overturned boat. The fact that the panic stricken victim recklessly abandoned the boat and tried to swim ashore was not a wholly abnormal reaction to the perceived peril of drowning. Just as “[d]etached reflection cannot be demanded in the presence of an uplifted knife” (Brown v. United States (1921) 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963, Holmes, J.), neither can caution be required of a drowning man. Having placed the inebriated victim in peril, defendant cannot obtain exoneration by claiming the victim should have reacted differently or more prudently. In sum, the evidence establishes that defendant's acts and omissions were the proximate cause of the victim's death.

People v. Armitage (1987) 194 Cal.App.3d 405

Provocation

“Sudden quarrel or heat of passion” are referred to as provocation.

People v. Van Ronk, 171 Cal. App. 3d 818, 823, 217 Cal. Rptr. 581 (3d Dist. 1985) (requirement of provocation is implicit in statutory definition of voluntary manslaughter); People v. Spurlin, 156 Cal. App. 3d 119, 124, 202 Cal. Rptr. 663 (4th Dist. 1984).

his or her reason was disturbed or obscured by “passion” to such an extent that an ordinary person of average disposition likely would act rashly or without due deliberation and reflection

People v. Valentine, 28 Cal. 2d 121, 137–144, 169 P.2d 1 (1946); People v. Wharton, 53 Cal. 3d 522, 546, 280 Cal. Rptr. 631, 809 P.2d 290 (1991), as modified on denial of reh'g, (July 9, 1991)

The amount of provocation need not rise to the level where it would cause an ordinary person of average disposition to kill.4

People v. Beltran, 56 Cal. 4th 935, 157 Cal. Rptr. 3d 503, 301 P.3d 1120 (2013), as modified on denial of reh'g, (Aug. 28, 2013). “‘To be adequate, the provocation must be one that would cause an emotion so intense that an ordinary person would simply react, without reflection …. [T]he anger or other passion must be so strong that the defendant's reaction bypassed his thought process to such an extent that judgment could not and did not intervene. Framed another way, provocation is not evaluated by whether the average person would act in a certain way: to kill. Instead, the question is whether the average person would react in a certain way: with his reason and judgment obscured.’ [Citation.]” (People v. Wright, 242 Cal. App. 4th 1461, 1482, 196 Cal. Rptr. 3d 115 (1st Dist. 2015).)

Provocation must be both objective, that a reasonable person would have experienced it, and subjective, that the accused actually experienced it.

People v. Wickersham, 32 Cal. 3d 307, 326, 327, 185 Cal. Rptr. 436, 650 P.2d 311 (1982) (disapproved of by, People v. Barton, 12 Cal. 4th 186, 47 Cal. Rptr. 2d 569, 906 P.2d 531 (1995)); People v. Berry, 18 Cal. 3d 509, 515, 134 Cal. Rptr. 415, 556 P.2d 777 (1976); People v. Brooks, 185 Cal. App. 3d 687, 694, 695, 230 Cal. Rptr. 86 (2d Dist. 1986); CALJIC No. 8.42 (7th ed. 2003 bound vol.).

The victim must be the source of the provocation. People v. Brooks, 185 Cal. App. 3d 687, 693, 694, 695, 230 Cal. Rptr. 86 (2d Dist. 1986); In re Thomas C., 183 Cal. App. 3d 786, 798, 228 Cal. Rptr. 430 (2d Dist. 1986); People v. Spurlin, 156 Cal. App. 3d 119, 125–126, 202 Cal. Rptr. 663 (4th Dist. 1984).

People v. Lee, 20 Cal. 4th 47, 59, 82 Cal. Rptr. 2d 625, 971 P.2d 1001 (1999).

Since it is in heat of passion and provocation, the defendant cannot have exercised judgment. People v. Rich, 45 Cal. 3d 1036, 1112, 248 Cal. Rptr. 510, 755 P.2d 960 (1988)

Provoked rage. People v. Danielly, 33 Cal. 2d 362, 377, 202 P.2d 18 (1949).

Anger. Penal Code § 192(a); People v. Berry, 18 Cal. 3d 509, 515, 134 Cal. Rptr. 415, 556 P.2d 777 (1976); People v. Borchers, 50 Cal. 2d 321, 329, 325 P.2d 97 (1958); CALJIC No. 8.44 (7th ed. 2003 bound vol.).

Brooding is provocation. People v. Hyde, 166 Cal. App. 3d 463, 473, 212 Cal. Rptr. 440 (4th Dist. 1985); People v. Hudgins, 252 Cal. App. 2d 174, 179, 60 Cal. Rptr. 176 (2d Dist. 1967).

Jealousy is provocation. People v. Borchers, 50 Cal. 2d 321, 329, 325 P.2d 97 (1958); People v. Jones, 215 Cal. App. 2d 341, 347, 30 Cal. Rptr. 280 (2d Dist. 1963).

Resistance to rape is not provocation. People v. Rich 45 Cal. 3d 1036, 1112, 1113, 248 Cal. Rptr. 510, 755 P.2d 960 (1988), as modified on denial of reh'g, (Aug. 25, 1988).

Resistance to attack is not provocation. People v. Jackson, 28 Cal. 3d 264, 305, 168 Cal. Rptr. 603, 618 P.2d 149 (1980) (disapproved of by, People v. Cromer, 24 Cal. 4th 889, 103 Cal. Rptr. 2d 23, 15 P.3d 243 (2001)) (victim's response to discovery that defendant is burglarizing her home is not sufficient provocation to reduce killing to manslaughter).

Resistance to unlawful arrest is not provocation. People v. Roman, 256 Cal. App. 2d 656, 659, 64 Cal. Rptr. 268 (2d Dist. 1967).

Escalation of a fistfight started by defendant that becomes lethal is not provocation. People v. Johnston, 113 Cal. App. 4th 1299, 7 Cal. Rptr. 3d 161 (2d Dist. 2003).

However, the defendant's own emotional and mental abilities are not to be used to determine provocation.

People v. Padilla, 103 Cal. App. 4th 675, 126 Cal. Rptr. 2d 889 (5th Dist. 2002). See CALJIC No. 8.73.1 (7th ed. 2003 bound vol.); In re Thomas C., 183 Cal. App. 3d 786, 228 Cal. Rptr. 430 (2d Dist. 1986).

Penal Code section 29 prevents putting on mental state, because that would be forbidden diminished capacity.

Imperfect self-defense

"When the trier of facts find that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter." (In re Christian S. (1994) 7 Cal.4th 768, 771.)

(People v. Barton (1995) 12 Cal.4th 186, 200-201, 47 Cal.Rptr.2d 569, 906 P.2d 531.)

Statutes

Penal code section 195

Homicide is excusable in the following cases: 1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.

Penal code section 196

Homicide is justifiable when committed by peace officers and those acting by their command in their aid and assistance, under either of the following circumstances: (a) In obedience to any judgment of a competent court. (b) When the homicide results from a peace officer’s use of force that is in compliance with Section 835a.

Penal code section 197

Homicide is also justifiable when committed by any person in any of the following cases: (1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person. (2) When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein. (3) When committed in the lawful defense of such person, or of a spouse, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he or she was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed. (4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.

Penal code section 198

A bare fear of the commission of any of the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent which homicide may be lawfully committed, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence of such fears alone.

Penal code section 198.5

. Any person using force intended or likely to cause death or great bodily injury within his or her residence shall be presumed to have held a reasonable fear of imminent peril of death or great bodily injury to self, family, or a member of the household when that force is used against another person, not a member of the family or household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using the force knew or had reason to believe that an unlawful and forcible entry occurred. As used in this section, great bodily injury means a significant or substantial physical injury.

Penal code section 199

The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.