Murder & Homicide

What is Malice?

For the Defendant to be convicted of either 1st or 2nd degree murder, the prosecution must prove beyond reasonable doubt that the Defendant acted with malice aforethought.  Malice aforethought may be express or implied.  

Express malice is the deliberate intention to kill another person. Penal Code §188.  A Defendant has a specific intent to kill if he possesses the intent to kill an individual or any member of a specific group.  In re Sergio R. (1991) 228 Cal.App. 3d 588.  

Implied malice exists when the killing was unprovoked or when the circumstances of the killing show an abandoned and maligned heart. Penal Code §188.

According to case law, the best definition of implied malice is the state of mind that exists when a person deliberately performs an act, the natural consequences of which are dangerous to life, with knowledge that his or her conduct endangers the life of another and with conscious disregard for life. People v. Dellinger (1989) 49 Cal.3d 1212.

This definition has been understood as containing a physical component and a mental component: the physical component is the performance of an act, the natural consequences of which are dangerous to life; the mental component is the requirement that the defendant know his or her conduct endangers life and acts with conscious disregard for life. People v. Patterson (1989) 49 Cal.3d 615, 626-627.

1st Degree Murder and 2nd Degree Murder

If the prosecutor is able to prove the killing was done with malice aforethought then the killing is considered a murder.  An intentional killing with malice that is premeditated and deliberate is 1st degree murder.  All other murders are 2nd degree murder.

Deliberation refers to careful weighing of considerations in forming a course of action, and premeditation means thought over in advance. People v. Koontz (2002) 27 Cal.4th 1041, 1080.  Basically, premeditation means considered beforehand and deliberate means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.  

The process of premeditation and deliberation does not require an extended period of time.  The test is not the duration of time, but the extent of the reflection. People v. Mayfield (1997) 14 Cal.4th 668.  Again, any murder which there is no premeditation or deliberation is a 2nd degree murder.

The California Supreme Court has established the “Anderson Test” to be applied on appellate review for evaluating whether there was sufficient circumstantial evidence of premeditation and deliberation.  Three types of evidence substantiate the existence premeditation and deliberation: (1) evidence of prior planning activity; (2) evidence of a motive to kill; and (3) evidence of a particular and exact means and manner of killing indicating that the killer must have had a preconceived design.  People v. Anderson (1968) 70 Cal.2d 15.

Voluntary Manslaughter

Voluntary manslaughter is distinguished from murder by the absence of malice.  The statutory definition of voluntary manslaughter is the unlawful killing of a human being without malice aforethought upon a sudden quarrel or heat of passion.  Penal Code §192(a).  The sudden quarrel or heat of passion refers to provocation. People v. Van Ronk (1985) 171 Cal.App.3d 818.

There are two basic types of voluntary manslaughter: the statutory definition with provocation for the killing or the “flannel theory” of imperfect self-defense.  Each of these theories basically negate the malice required for a murder conviction.

These two theories are the only time that an intentional killing can be reduced to manslaughter.

Involuntary Manslaughter

When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

Defenses to Homicide

When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter.

Without knowing the particular facts of a case it is difficult to cover every defense to homicide.  However, there are various defenses which should always be considered when the defendant is charged with homicide.  Those defenses include but are not limited to:

• Accident
• Self-Defense
• Alibi
• Third Party Culpability
• Battered Person's Syndrome
• Insanity
• Proximate Cause of the Death
• Reasonable Doubt as to the Elements of the Crime
• Heat of Passion/Sudden Quarrel when Prosecutor only charges Murder
• Lack of Malice when Prosecutor only charges Murder
• Imperfect Self-Defense when Prosecutor only charges Murder

Punishment for Homicide Crimes

There are base statutes that prescribe the punishment for homicide cases.  However, there are many factors that could affect how long a defendant found guilty is punished.  The Penal Code prescribes specific enhancements that may add to the sentence of a defendant who is found guilty.  For example, if a defendant were to use a firearm in the commission of the crime or commit the crime in furtherance of a criminal street gang, this would add to the statutory sentence in a homicide case.  Thus, without knowing the specific facts of a case it is difficult to say what the punishment will be.  However, the following is a list of base terms for homicide offenses:

• 1st Degree Murder - 25 years to Life (or death in capital cases)
• 2nd Degree Murder - 15 years to Life
• Voluntary Manslaughter - 3, 6, or 11 Years in the State Prison
• Involuntary Manslaughter - 2, 3, or 4 Years in the State Prison

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