Murder PC 187

Murder

Murder – The unlawful killing of

a
human being by another with
malice
aforethought, express or
implied.
(Modern CA rule includes a
fetus)
 Homicide – Lawful killings

 Justifiable= Commanded or
authorized by law (killing
enemy within rules of war,
lawful execution).
 Excusable = Killing under

certain circumstances not

involving criminal guilt (self-
defense, accident)
 Homicide Common Law
 The killing of a human being by a human being with malice
aforethought:
 With Malice:

(1) intentional-expressed
(2)intention to inflict GBI- implied
(3) extreme reckless disregard of human life (depraved
heart)- implied
4) felony murder- implied
 Without malice

Manslaughter-he killing of a human being with out malice

 Voluntary –(intentional)-sudden heat of passion as a

result of adequate provocation

 Involuntary-(unintentional)-a lawful act done in an

unlawful manner, or an unlawful act (F/M)

 Modern Homicide
 Murder in the first degree- willful, deliberate and premeditated.
 Deliberate-intentional

 Premeditated-to think about beforehand

 Murder in second degree- (default)

 Intentional but not WDP.

 Extreme recklessness/Know (contra:

negligence/manslaughter/should know) Depraved heart.

 Felony Murder (first degree- -certain felonies).
 merger
 Modern degrees of murder
First Degree Murder (no degrees at CL)
• Willful, premeditated and deliberate intent to kill
• Poison
• Torture
• Lying in wait
• Bombing and explosives
• Child molestation
• Certain enumerated felonies – rape, robbery,
burglary, mayhem, kidnapping (BARKSM)
Second Degree Murder – includes all other kinds with
malice, or when there is insufficient evidence to
establish W, P & D; and 2nd degree FMR involving
“inherently dangerous felony”
Merger doctrine – exception to FMR; applies when
felonies that are an integral part of the homicide are
merged into homicide (in CA, limited to assault-based
 Manslaughter
Manslaughter – The unlawful killing of a human
being by another without malice aforethought.
It is not divided into degrees, but is of two
kinds.
Voluntary Manslaughter – unlawful &
intentional; would be murder except for
following (2 types):
1) HOP based upon AP
• Heat of Passion (subjective test)
• Adequate provocation (objective test)
AP must be so great to inflame the passion of a
reasonable person and tend to cause him/her
to act, for the moment, from passion rather
than reason. A rash act without reflection.
 Manslaughter
Heat of passion (subjective test): Must be so extreme
that for moment his action is being directed by
passion rather than reason. No cooling off period. Must
be a causal connection between the provocation, the
passion, and the fatal act.
2) Imperfect Self-Defense: Honest, but unreas. belief in
SD.
Involuntary Manslaughter – The unlawful killing of a
human being without malice aforethought and without
intent to kill.
• Criminal negligence – gross deviation from reasonable

standard of care. Must be more than mere tort

negligence; a gross deviation from reasonable person
standards.
• Unlawful act (2 types)
• Misdemeanor Manslaughter Rule
 Felony Murder
The FMR applies to a killing when the
perpetrators are conducting their escape or moving on
to another crime if their activities are part of one
continuous transaction.
In a FMR case, state not required to prove intent to
kill, premeditation or malice. Only need to prove (1) the
commission, or attempt to commit, one or more of the
enumerated felonies; (2) D’s participation in such
commission or attempt; and (3) the death of the V as a
result of injuries received during the course of such
commission or attempt.
 PEOPLE V. CHUN
Supreme Court of California (2009)
The second degree FMR in California is constitutional because
it is based upon Penal Code section 188’s definition of implied
malice.
However, all assaultive-type crimes such as shooting at an
occupied vehicle merge with the charged homicide and cannot
be the basis for a second degree FMR.
An "assaultive" felony is one that involves a threat of
immediate violent injury. In determining whether a crime
merges, the court looks to its elements and not the facts of the
case.
 People v. Patterson (1989) 49 Cal.3d 615], Justice Kennard
explained the reasoning behind and the justification for the second
degree felony-murder rule:

 ‘The second degree felony-murder rule eliminates the need for the
prosecution to establish the mental component [of conscious-
disregard-for-life malice]. The justification therefor is that, when
society has declared certain inherently dangerous conduct to be
felonious, a defendant should not be allowed to excuse himself by
saying he was unaware of the danger to life because, by declaring
the conduct to be felonious, society has warned him of the risk
involved. The physical requirement, however, remains the same; by
committing a felony inherently dangerous to life, the defendant has
committed “an act, the natural consequences of which are
dangerous to life” [citation], thus satisfying the physical component
of implied malice.’ [Citation.]” (Chun, at p. 1182, italics original.)
1st degree Murder – W, P &D

Willful = Intentional.
Deliberate = Formed or arrived at or determined upon a
result of careful thought and weighing of considerations for
and against the proposed course of action.
Premeditated = Considered beforehand.
 If killing result of pre-existing
reflection not product of sudden heat of
passion or other condition precluding
deliberation, it is 1st degree.
Law does not measure in units of time
length of period which thought must be
pondered. Cold, calculated decision may be
arrived at in short period of time. Mere
unconsidered and rash impulse even if it
included intent to kill insufficient. Must weigh
and consider question of killing and reasons for
and against such a choice, and having in mind
consequences, decides to and does kill.
 PEOPLE V. CHEVALIER
Supreme Court of Illinois (1989)
A person who kills an
individual without lawful
justification commits Voluntary
Manslaughter if at the time of the
killing he is acting under a sudden
and intense passion resulting from
serious provocation by the victim.
Serious provocation means
conduct sufficient to excite an
intense passion in a reasonable
 Categories recognized as
supporting serious provocation are:
(1) substantial physical injury or
assault; (2) mutual quarrel or
combat; (3) illegal arrest; and (4)
adultery with the offender’s spouse.
Mere
words or gestures or trespass to
property are insufficient and the rule
regarding words applies no matter
how aggravated, abusive,
opprobrious or indecent the
 PEOPLE V. CHEVALIER
Supreme Court of Illinois (1989)
In Illinois, adultery as
provocation has been limited to
those instances where the parties
are discovered in the act of
adultery or immediately before or
after such an act and the killing
immediately follows such discovery.
In Illinois, verbal
communication that adultery has
occurred or will occur falls within
the rule that mere words are
 COMMONWEALTH V. TROILA
Supreme Jud. Cnl. of Massachusetts (1991)
A homosexual advance, without
more, will not reduce a murder to
manslaughter based upon heat of
passion as a result of adequate
provocation.
Only evidence of provocation
was D’s alleged statement that the
victim “made a pass” at him and no jury
could find on the basis of this evidence
that reasonable provocation existed.
Accordingly, no manslaughter
instruction was necessary.
 PEOPLE V. WATKINS
Supreme Court of Colorado (1978)
A homicide is reduced from murder
to VM if D subjectively believed the
circumstances justifying the killing existed
but objective reality negates that
existence. Logically, D’s belief, sincere
though unreasonable, negates malice.
Cwealth v. Carter (1983 Penn)
Imperfect self-defense is based on an
unreasonable belief of D in the need for S-
D. The unreasonable belief may be based
on D’s erroneous conclusion that he was in
imminent danger of death or GBI. In such a
situation, D acts without malice. Christian
 HARRIS V. STATE
Court of Appeals of Georgia (1937)
When one voluntarily fires a loaded
pistol at another, without excuse and
not under circumstances of justification,
and kills the person at whom he shot,
the law conclusively presumes malice
on the part of the slayer and the
homicide will not be reduced to IM even
if the intent of the slayer was to wound
or cripple the deceased and not to kill.
 STATE V. SETY
Court of Appeals of Arizona (1979)
Use of a deadly weapon in a killing
is only a presumption of malice which
may be rebutted by evidence of
mitigation, justification or excuse
sufficient to raise a reasonable doubt as
to the existence of malice.
Fn - D may be guilty of VM if he kills
in self-defense but uses excessive force.
State v. Owens (1983 North Carolina)
 New felony-murder rule

SB 1437 substantially alters the traditional first degree felony-murder rule by

permitting such a conviction only if the defendant commits or attempts to
commit one of the designated offenses and at least one of the following
circumstances is proven:

(1) The defendant is the actual killer;

(2) The defendant is not the actual killer, but with the intent to kill, aided,

abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual killer in the

commission of murder in the first degree; or

(3) The person was a major participant in the underlying felony and acted

with reckless indifference to human life, as described in section 190.2,

subdivision (d).
(4) The victim is a peace officer who was killed while in the course of his or

her duties, where the defendant knew or reasonably should have known that
the victim was a peace officer engaged in the performance of his or her duties.
 § 210.0. Definitions.

 (1) "human being" means a person who has been born and is
alive;
 (2) "bodily injury" means physical pain, illness or any impairment
of physical condition;
 (3) "serious bodily injury" means bodily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of
any bodily member or organ;
 (4) "deadly weapon" means any firearm or other weapon, device,
instrument, material or substance, whether animate or inanimate,
which in the manner it is used or is intended to be used is known
to be capable of producing death or serious bodily injury
 § 210.1. Criminal Homicide.
 (1) A person is guilty of criminal homicide if he purposely, knowingly,
recklessly or negligently causes the death of another human being.
 (2) Criminal homicide is murder, manslaughter or negligent homicide.
 § 210.2. Murder.

 (1) Except as provided in Section 210.3(1)(b), criminal homicide

constitutes murder when:

 (a) it is committed purposely or knowingly; or

 (b) it is committed recklessly under circumstances manifesting

extreme indifference to the value of human life. Such reck-
lessness and indifference are presumed if the actor is engaged or
is an accomplice in the commission of, or an attempt to commit,
or flight after committing or attempting to commit robbery, rape
or deviate sexual intercourse by force or threat of force, arson,
burglary, kidnapping or felonious escape.
 (2) Murder is a felony of the first degree [but a person convicted of
murder may be sentenced to death, as provided in Section 210.6].
 500. Homicide: General Principles
Homicide is the killing of one human being by another. Murder and
manslaughter are types of homicide. The defendant is charged with
murder. Manslaughter is a lesser offense to murder.

A homicide can be lawful or unlawful. If a person kills with a legally

valid excuse or justification, the killing is lawful and he or she has not
committed a crime. If there is no legally valid excuse or justification,
the killing is unlawful and, depending on the circumstances, the
person is guilty of either murder or manslaughter. You must decide
whether the killing in this case was unlawful and, if so, what specific
crime was committed. I will now instruct you in more detail on what is
a legally permissible excuse or justification for homicide. I will also
instruct you on the different types of murder and manslaughter.
 505. Justifiable Homicide: Self Defense or Defense of Another

The defendant is not guilty of murder or manslaughter, or attempted

murder or attempted voluntary manslaughter, if he was justified in
killing or attempting to kill someone in self-defense or defense of
another. The defendant acted in lawful self-defense or defense of
another if:
1. The defendant reasonably believed that he or someone else
was in imminent danger of being killed or suffering great bodily injury
2. The defendant reasonably believed that the immediate use of
deadly force was necessary to defend against that danger;
AND

3. The defendant used no more force than was reasonably

necessary to defend against that danger.
 Belief in future harm is not sufficient, no matter how great or how
likely the harm is believed to be. The defendant must have
believed there was imminent danger of great bodily injury to
himself or someone else. Defendant’s belief must have been
reasonable and he must have acted only because of that belief.
The defendant is only entitled to use that amount of force that a
reasonable person would believe is necessary in the same
situation. If the defendant used more force than was reasonable,
the attempted killing or attempted killing was not justified.

 When deciding whether the defendant’s beliefs were reasonable,

consider all the circumstances as they were known to and
appeared to the defendant and consider what a reasonable
person in a similar situation with similar knowledge would have
believed. If the defendant’s beliefs were reasonable, the danger
does not need to have actually existed.
 Driving his car at 60 mph in a residential 25 mph zone, Ellison
swerved around a curve, lost control of the vehicle and, seeing
that he was heading straight toward a tree, violently jerked the
steering wheel to the right. Unfortunately, the car plowed directly
into a father and his 3 year-old, toddler son, killing them both.
Ellison has been charged with two counts of first degree murder.
Are these charges likely to be successful?
 A. Yes, by intentionally steering away from the tree and straight
into his two victims, Ellison committed first degree murder.
 B. Yes, by speeding at such a high rate of speed in a residential
area, Ellison acted maliciously and, accordingly, committed first
degree murder.
 C. No, there is no evidence that Ellison acted intentionally to kill
his two victims.
 D. No, there is no evidence that Ellison acted maliciously to kill his
two victims.
 C. Correct. In order to convict a person of first degree murder, the
prosecution must prove, inter alia, premeditation and deliberation,
i.e. the specific intent to kill. There is no evidence here that Ellison
actually intended to kill his two victims.
 If you find that the defendant received a threat from someone else that he
reasonably associated with Gustavo Lopez and/or Jonathan Gaeta, you may
consider that threat in deciding whether the defendant was justified in
acting in self-defense or defense of another.

 A defendant is not required to retreat. He is entitled to stand his ground

and defend himself and, if reasonably necessary, to pursue an assailant
until the danger of death or great bodily injury has passed. This is so even if
safety could have been achieved by retreating.

 Great bodily injury means significant or substantial physical injury. It is an

injury that is greater than minor or moderate harm.

 The People have the burden of proving beyond a reasonable doubt that the
killing and attempted killing were not justified. If the People have not met
this burden, you must find the defendant not guilty of murder or
manslaughter, attempted murder or attempted voluntary manslaughter.
520. First or Second Degree Murder With Malice Aforethought (Pen. Code, §
187)

The defendant is charged in Count 1 with murder in violation of Penal Code

section 187(a).

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act that caused the death of another
person;

2. When the defendant acted, he had a state of mind called malice
aforethought;

AND

3. He killed without lawful excuse or justification.

 521. Murder: Degrees

If you decide that the defendant has committed murder, you must decide
whether it is murder of the first or second degree.
The defendant is guilty of first degree murder if the People have proved that he
acted willfully, deliberately, and with premeditation. The defendant acted
willfully if he intended to kill. The defendant acted deliberately if he carefully
weighed the considerations for and against his choice and, knowing the
consequences, decided to kill. The defendant acted with premeditation if he
decided to kill before committing the act that caused death.

The length of time the person spends considering whether to kill does not alone
determine whether the killing is deliberate and premeditated. The amount of
time required for deliberation and premeditation may vary from person to
person and according to the circumstances. A decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and premeditated.
On the other hand, a cold, calculated decision to kill can be reached quickly. The
test is the extent of the reflection, not the length of time.

All other murders are of the second degree.

 There are two kinds of malice aforethought, express malice and implied malice. Proof of either is
sufficient to establish the state of mind required for murder.

 The defendant acted with express malice if he unlawfully intended to kill.

 The defendant acted with implied malice if:

 1. He intentionally committed an act;

 2. The natural and probable consequences of the act were dangerous to human life;
 3. At the time he acted, he knew his act was dangerous to human life; AND

 4. He deliberately acted with conscious disregard for human life.

 Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that
must be formed before the act that causes death is committed. It does not require deliberation or
the passage of any particular period of time.

 If you find that the defendant committed murder, you must then decide whether it is murder of the
first or second degree.
 570. Voluntary Manslaughter: Heat of Passion—Lesser Included
Offense Count 1 (Pen. Code, § 192(a))

Akilling that would otherwise be murder is reduced to voluntary

manslaughter if the defendant killed someone because of a sudden
quarrel or in the heat of passion.

The defendant killed someone because of a sudden quarrel or in the

heat of passion if:
1. The defendant was provoked;
2. As a result of the provocation, the defendant acted rashly
and under the influence of intense emotion that obscured his
reasoning or judgment; AND
3. The provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is, from
passion rather than from judgment.
 Heat of passion does not require anger, rage, or any specific emotion. It can be any
violent or intense emotion that causes a person to act without due deliberation and
reflection.
 In order for heat of passion to reduce a murder to voluntary manslaughter, the
defendant must have acted under the direct and immediate influence of
provocation as I have defined it. While no specific type of provocation is required,
slight or remote provocation is not sufficient. Sufficient provocation may occur over
a short or long period of time.
 It is not enough that the defendant simply was provoked. The defendant is not
allowed to set up his own standard of conduct. In deciding whether the provocation
was sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion rather than
from judgment.
 If enough time passed between the provocation and the killing for an ordinary
person of average disposition to "cool off" and regain his or her clear reasoning and
judgment, then the killing is not reduced to voluntary manslaughter on this basis.
 The People have the burden of proving beyond a reasonable doubt that the
defendant did not kill as the result of a sudden quarrel or in the heat of passion. If
the People have not met this burden, you must find the defendant not guilty of
murder.
 571. Voluntary Manslaughter: Imperfect Self Defense—Lesser Included
Offense Count 1 (Pen. Code, § 192)
 A killing that would otherwise be murder is reduced to voluntary manslaughter if the
defendant killed a person because he acted in imperfect self-defense.
 If you conclude the defendant acted in complete self-defense or defense of another, his
action was lawful and you must find him not guilty of any crime. The difference between
complete self-defense or defense of another and imperfect self-defense or imperfect
defense of another depends on whether the defendant's belief in the need to use deadly
force was reasonable.
 The defendant acted in imperfect self-defense or imperfect defense of another if:
 1. The defendant actually believed that he or someone else 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 to defend against the danger; BUT
 3. At least one of those beliefs was unreasonable.
 Belief in future harm is not sufficient, no matter how great or how likely the harm is
believed to be.
 In evaluating the defendant's beliefs, consider all the circumstances as they were known
and appeared to the defendant.
 If you find that the defendant received a threat from someone else that he reasonably
associated with Gustavo Lopez you may consider that threat in deciding whether the
defendant was justified in acting in self-defense or defense of another