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 (People v. Antick (1975) 15 Cal.3d 79, 87 (superseded by Constitutional amendment on other grounds); Berber v. Superior Court (1983) 147 Cal.App.3d 1006, 1011).)

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).)

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).)

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

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”.

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).

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

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.

Felony-murder

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.

Multiple causes of death

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

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

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

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.

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.