Homicide

Murder

Murder is an unlawful killing of a human being that is committed with malice aforethought. Malice aforethought is conscious or wanton disregard for human life.

Malice aforethought can be express or implied.

Malice aforethought is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.

Malice aforethought is implied when no considerable provocation appears or when the circumstances attending the killing show an abandoned and malignant heart. 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

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.)

Malice forethought is not the same as “malice”.

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.