| Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. If the prosecution cannot prove that the defendant acted with malice aforethought then they cannot prove murder, however, they still may be able to prove some type of manslaughter. 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. 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 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. HEAT OF PASSION/SUDDEN QUARREL: The theory behind the statutory “heat of passion” doctrine is that the Defendant is less morally culpable, because the killing was the result of passion, rather than rational decision. People v. Borchers (1958) 50 Cal.2d 321. Generally, if the Defendant killed under provocation so great as to produce that response in a reasonable person, there is no malice aforethought and the crime is manslaughter. People v. Ogen (1985) 168 Cal.App.3d 611. Most cases require that the provocation be objectively reasonable: i.e., what a reasonable person would do under the circumstances. (See, e.g., People v. Berry (1976) 18 Cal.3d 509, 515.) However, the true test is both objective and subjective: would a reasonable person have reacted this way, and was the Defendant actually responding to the provocation. In re Thomas C. (1986) 183 Cal.App.3d 786, 798. Generally, an intentional killing during mutual combat which does not rise to the level of complete self defense may constitute heat of passion where: (1) there was no cooling off period; (2) the fight was relatively equal; and (3) neither side did anything to take advantage. People v. Sanchez (1864) 24 Cal. 17, 27. Additionally, provocation need not be a single event; a series of acts may be cumulative over a long period of time and can constitute provocation. People v. Kanawyer (2003) 113 Cal.App.4th 1233. In assessing provocation, the focus of inquiry is on the conduct of the victim. People v. Spurlin (1984) 156 Cal.App.3d 119, 125-128. “The essence of the sudden quarrel/heat of passion voluntary manslaughter is that the killer is so provoked by acts of the victim, that he strikes out in the heat of passion, an emotion that obliterates reason that would prevail in the mind of a reasonable person.” People v. Johnson (2003) 113 Cal.App.4th 1299. When the facts suggest heat of passion and provocation, the bad acts of the victim toward the Defendant are admissible. However, while the overall relationship between the Defendant and victim are relevant and admissible, there must be some triggering event which is temporarily related to the actual killing. People v. Kanawyer (2003) 113 Cal.App.3d 786. This also means that the character of the victim may be admissible if the Defendant knew of it. People v. Carter (1957) 48 Cal.2d 737, 749-750. Malice aforethought is negated only where the Defendant has not had a chance to cool off after the provocation. There appears to be both an objective and subjective component to the cooling off period: would a reasonable person’s passions have cooled; and did the Defendant’s passions cool. People v. Gosh (1923) 63 Cal.App. 609, 616-617. IMPERFECT SELF-DEFENSE: Imperfect self defense is an intentional killing done in the honest but unreasonable belief in the necessity for self defense. In re Christian S. (1994) 7 Cal. 4th 768; People v. Flannel (1979) 25 Cal.4th 768. This is not an actual defense, but it does negate the malice required to sustain a murder conviction. People v. Barton (1995) 12 Cal.4th 186, 200. There are basically three elements of imperfect self defense: (1) The Defendant actually believed that he was in imminent danger of being killed or suffering great bodily injury; and (2) the Defendant actually believed that the immediate use of deadly force was necessary; and (3) one or both of those two beliefs was wrong or unreasonable. (If the Defendant actually had both beliefs and the beliefs were reasonable, then he or she may have acted in self defense and not guilty of any crime.) The idea behind imperfect self defense is that a person is less morally culpable when he or she actually holds this belief, that self defense was necessary, even if that belief was unreasonable. The courts have stated that, Imminent peril means that the peril must have existed or appeared to the Defendant to be immediate and present and not prospective or in the near future. People v. Aris (1989) 215 Cal.App.3d 1178. 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: (In No Particular Order) 1. Accident 2. Self-Defense 3. Alibi 4. Third Party Culpability 5. Battered Person's Syndrome 6. Insanity 7. Proximate Cause of the Death 8. Reasonable Doubt as to the Elements of the Crime 9. Heat of Passion/Sudden Quarrel when Prosecutor only charges murder 10. Lack of Malice when Prosecutor only charges Murder 11. Imperfect Self-Defense when Prosecutor only charges Murder 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 |
| MURDER AND HOMICIDE |
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| DEFINITION OF MALICE |
| 1ST AND 2ND DEGREE MURDER: |
| VOLUNTARY MANSLAUGHTER: |
| INVOLUNTARY MANSLAUGHTER: |
| DEFENSES TO HOMICIDE |
| PUNISHMENT IN HOMICIDE CASES |
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