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.

Manslaughter

Voluntary manslaughter is intentional killing without malice

Involuntary manslaughter is homicide with gross negligence.

Vehicular manslaughter is gross or simple negligence.

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.

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.

Lesser Included Offenses

N.337.02 N.337.03

N.337.1 N.337.3 N.337.3.2

Defenses

Excusable or justifiable

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

Self-defense of life

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.

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.)

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.