THE LAW OF CRIMINAL HOMICIDES: MURDER AND MANSLAUGHTER. PART I. MURDER...1 A. CAPITAL MURDER..1 Special circumstances...2

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1 THE LAW OF CRIMINAL HOMICIDES: MURDER AND MANSLAUGHTER PART I. MURDER...1 A. CAPITAL MURDER..1 Special circumstances...2 B. FIRST-DEGREE MURDERS...9 Corpus Delecti..10 Degree...10 Malice Aforethought.10 Penal Code section 194 Presumption...11 Willful, Deliberate, and Premeditated Murder 11 Anderson Factors...13 Sua Sponte Instructions on Lesser Included Offenses to Premeditated, Deliberate Murder...14 Statutory First-Degree Malice Murders...14 Destructive device or explosive...15 Weapon of mass destruction.15 Knowing use of ammunition designed to penetrate metal or armor...16 Killing by poison...16 Lying in wait.17 Torture..19 Murder perpetrated by discharging a firearm intentionally at another person outside of the vehicle with intent to inflict death.. 22 First-degree Felony-Murder.23 Specific felony offenses. 26 Proximate cause in Felon-murder context...27 Provocative Act Murder...27 What are the elements of a provocative act murder..28 A particular level of violence is not required to support provocative act murder liability...28 The defendant s acts, rather than the underlying felony, must provoke the fatal act 29 The act is not measured by the violence of the defendant s conduct alone, but also by the likelihood of a violent response...30 Proximate cause.32 Independent Criminal Act, aka Independent Intervening Act i

2 Can defendant s conviction be based on the provocative act of a deceased accomplice...33 Degree of Provocative Act Murder...34 The degree of the provocative act murder may depend on whether the defendant committed provocative act or an accomplice committed the provocative act 35 Mens rea and malice..36 Miscellaneous Issues..37 Provocative Act Murder and Gang Murder Special.37 Provocative Act Murder and Gun Enhancement sub. e(1) Aider and Abettor Liability and Natural and Probable Consequences...38 General Principles of Aider and Abettor Liability...38 Mental State The Natural and Probable Consequences Doctrine..40 Mental State...41 Malice...42 Target Offense...42 Reasonable foreseeability...43 Intoxication 44 Gangs.44 Is the unintended crime the product of the perpetrator s independent plan?...47 Contract killings...48 No first-degree premeditated murder under the Natural and Probable Consequences doctrine..49 Lesser included offenses...49 Attempted premeditated murder...50 Collateral Estoppel...50 C. SECOND-DEGREE MURDER.51 Intentional killing with no deliberation or premeditation..51 Implied malice non-intentional killings..51 Vehicular murders: People v. Watson (1981) 30 Cal.3d 290, and its progeny.54 Second-degree felony-murder.58 Implied Malice and the Second-Degree Felony-Murder rule...59 Inherently Dangerous Felony.59 Examples of inherently dangerous felonies Ireland Merger Doctrine...61 Determination of whether or not a felony is assaultive The merger doctrine is inapplicable to first-degree felony-murder...63 Merger and Child abuse cases (Pen. Code 273a)...64 ii

3 PART II. MANSLAUGHTER..65 Must the trial court instruct the jury on heat of passion or imperfect self-defense manslaughter when the defense claims malice is lacking because the homicide was accidental? A killing without malice during the commission of an inherently dangerous felony may require an involuntary manslaughter instruction..67 A. VOLUNTARY MANSLAUGHTER...68 Sudden Quarrel/Heat of Passion...69 Objective and subjective elements...69 Codification of Panic Defense eliminates objective basis 70 Provocation...70 Cooling off period.76 Court s Duty to Instruct Jury 76 Voluntary Intoxication/Mental Abnormality in Heat of Passion Manslaughter...77 Imperfect self-defense (Flannel defense)...78 Objective and subjective elements 78 Court s Duty to Instruct Jury 79 Mental Defenses, Mental Syndromes, and Voluntary Manslaughter...80 Voluntary Intoxication and Implied Malice..82 Voluntary Intoxication and Express Malice..84 Hallucinations...85 Intellectual Deficits...87 Role of Intimate Partner (Battered Women s) Syndrome.88 Post-Traumatic Stress Disorder or Dissociation..89 Chronic homelessness...89 B. INVOLUNTARY MANSLAUGHTER..90 Mens rea 91 Misdemeanor manslaughter..91 Felony manslaughter.92 Negligent homicides (Non-statutory negligent homicide) Involuntary Manslaughters which result from voluntary intoxication leading to unconsciousness 94 Pre-Amendment Cases..94 Involuntary Manslaughter from delusions?...95 iii

4 C. VEHICULAR MANSLAUGHTER Penal Code section 191.5(a), Gross vehicular manslaughter while intoxicated 95 Penal Code section 191.5(b), Vehicular manslaughter while intoxicated without gross negligence...97 Penal Code section 192, subdivision(c )(1) 97 Penal Code section 192, subdivision (c )(3), in commission of P.C a)(3), where the accident was knowingly caused for financial gain and proximately resulted in death 99 PART III. JUSTIFIABLE AND EXCUSABLE HOMICIDES A. JUSTIFIABLE HOMICIDES..100 Self-defense..101 Castle Doctrine 102 Justifiable Homicide in Making an Arrest.103 Necessity..103 B. EXCUSABLE HOMICIDES 104 Accident or Misfortune 104 Persons Incapable of Committing Crimes Mistake of Fact Duress..106 Unconsciousness..106 PART IV. MISCELLANEOUS ISSUES Accusatory Pleadings..109 Juror Unanimity..110 Human being or fetus..111 Unlawful..111 Criminal act or omission.112 Proximate Cause..112 The Transferred Intent Doctrine..115 Voluntary Intoxication Are Penal Code 29.4 s limitations unconstitutional? Other issues relating to voluntary intoxication iv

5 THE LAW OF CRIMINAL HOMICIDES: MURDER AND MANSLAUGHTER Updated: April 2017 By: Robin Bernstein-Lev Los Angeles County Public Defender s Office PART I. MURDER Penal Code 187 defines murder: Murder is the unlawful killing of a human being or a fetus with malice aforethought. Three types of murder: Capital Murder, First-degree Murder, and Second-degree Murder Degrees of murder The degrees of murder are defined in PC 189: All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first-degree. All other kinds of murders are of the second-degree. In People v. Steger (1976) 16 Cal.3d 539, , the Cal. Supremes explained the underlying reasons for delineating different degrees of murder: Murder, the unlawful killing of another human being with malice aforethought, is undoubtedly one of the most heinous crimes that can be committed in a civilized society. Given the gravity of the act, it may not be readily apparent why the law should distinguish between degrees of murder. In fact, the early common law made no distinctions: murder, regardless of its characteristics, was punished with death. (1 Warren on Homicide (1914) 77, p. 353.) But in 1794 Pennsylvania adopted a statute defining two degrees of murder, and other states soon followed. There appear to be two major reasons for delineating separate degrees of murder and imposing different punishments. (See Hart, Punishment and Responsibility (1968) pp ; Pike, What is Second-degree Murder in California? (1936) 9 So.Cal.L.Rev. 112, 133.) First, some murders can more easily be prevented than others by the deterrent effect of severe penalties: e.g., a hired assassin is more likely to reflect upon the possibility of imprisonment for life than an enraged husband who shoots his wife in a drunken Saturday night quarrel. (See Zimring & Hawkins, Deterrence (1973) pp. 194 ff.) Second, society draws a moral distinction between murders: as morally wrong as murder per se is, some murders are more deplorable than others. Society instinctively senses a greater revulsion for a calculated, deliberate murder than it does for any other type of killing....only by appropriately circumscribing the application of first-degree murder can society preserve that pervasive moral distinction. 1

6 These goals are a significant aspect of the law of homicide in California. Under section 189 of the Penal Code, first-degree murder is primarily willful, deliberate, and premeditated murder. With a few limited exceptions, all other unlawful killing is second-degree murder or manslaughter. The legislative and judicial efforts to navigate these twin goals has culminated in an Impenetrable labyrinth that California s homicide law has become built, as it is, upon a series of flawed decisions and patchwork legislative solutions [that have] left the law governing homicide in California confusing and is some cases anomalous. (People v. Wright (2005) 35 Cal.4th 964, Justice Brown concurring.) A. CAPITAL MURDER First-degree murder with special circumstances as defined in Penal Code section subd. (a): Special circumstances 1) Financial gain, (Pen. Code 190.2, subd. (a)(1)); 2) First-degree murder with a prior murder of either first or second-degree, (Pen. Code 190.2, subd. (a)(2)); The unambiguous language and purpose of section 190.2(a)(2) requires that a defendant, already convicted of murder in a prior proceeding, must be considered eligible for the death penalty if convicted of first-degree murder in a subsequent trial, even when the murder resulting in the previous conviction was committed after the charged murder. Additionally, there is no requirement that the prior murder conviction be final. (People v. Rogers (2013) 57 Cal.4th 296.) 3) Multiple murders, at least one of which is of the first-degree, in the instant proceeding, (Pen. Code 190.2, subd. (a)(3)); If the trials are severed and the defendant is convicted of a second-degree-murder in the first trial and a first-degree-murder in the second trial, the special circumstance applies and the defendant is subject to the death penalty. If the defendant is convicted of first-degree murder in the first trial and second-degree murder in the second trial, the special circumstance does not apply. (People v. Ward (2005) 36 Cal.4th 186.) When there is evidence from which a jury could base its convictions for multiple counts of murder on the theory that the defendant was guilty as an aider and abettor, and not as the actual perpetrator, the trial court must instruct the jury that to find true a multiple-murder special-circumstance allegation as to that defendant, it must find that the defendant intended to kill the murder victims. (People v. Nunez and Satele (2013) 57 Cal.4th 1, 45.) 4) Murder by bomb or explosive device planted or concealed in any way, (Pen. Code 190.2, subd. (a)(4)); 2

7 5) Murder to prevent arrest or perfect escape from custody, (Pen. Code 190.2, subd. (a)(5)); 6) Bomb or explosive device mailed or delivered to victim, (Pen. Code 190.2, subd. (a)(6)); see also, People v. Clark (1990) 50 Cal.3d 583, ) 7) The victim was a peace officer intentionally killed while engaged in the performance of his/her duties, (Pen. Code 190.2, subd. (a)(7)); Evidence supported a conclusion that defendant resented peace officer s treatment of him and fellow gang members, and that he intentionally killed the victim in retaliation for his employment as an officer. It is immaterial that the victim may not have actually mistreated defendant and his fellow gang members. It is the accused s subjective intent that is crucial to establish the peace officer killing special circumstance. Here the defendant s own statements made his intention abundantly clear. (People v. Boyce (2014) 59 Cal.4th 672.) 8) The victim was a federal peace officer intentionally killed while engaged in the performance of his/her duties, (Pen. Code 190.2, subd. (a)(8)); 9) The victim was a fire fighter intentionally killed while engaged in the performance of his/her duties, (Pen. Code 190.2, subd. (a)(9)); 10) Witness killing, (Pen. Code 190.2, subd. (a)(10)); 11) Retaliatory killing of a state or federal prosecutor, (Pen. Code 190.2, subd. (a)(11)); 12) Retaliatory killing of a state or federal judge (Pen. Code 190.2, subd. (a)(12)); 13) Murder of elected official, (Pen. Code 190.2, subd. (a)(13)); 14) Heinous, atrocious and cruel, (Pen. Code 190.2, subd. (a)(14)), but see, People v. Superior Court (Engert) (1982) 31 Cal.3d 797, which declared this provision unconstitutional; 15) Intentional murder committed by means of lying in wait, (Pen. Code 190.2, subd. (a)(15)); [I]n March 2000, the voters passed Proposition 18, which changed the definition of the lying-in-wait special circumstance from a killing while lying in wait to a killing by means of lying in wait, mirroring the language of the first-degree murder statute. (See Stats. 1998, ch. 629, 2, p. 4163, enacted as Prop. 18, approved by voters, Primary Elec. (Mar. 7, 2000) eff. Mar. 8, 2000.) (People v. Johnson (2016) 62 Cal.4th 600, emphasis added.) Having determined that the voters purpose in amending the lying-in-wait special circumstance was to eliminate the temporal distinction between the special circumstance and lying-in-wait first-degree murder, 3

8 and thereby expand the class of cases in which the special circumstance could be found true, the question remains whether the special circumstance provision still adequately distinguishes itself from other murders and does so in terms that are not so vague as to permit arbitrary determinations regarding the truth of the special circumstance allegation....[w]e conclude that the amended lying-in-wait special circumstance satisfies the Eighth Amendment in both respects. (People v. Johnson (2016) 62 Cal.4th 600, 636.) Pre-Proposition 18 version while lying in wait Insufficient evidence to support lying in wait special circumstance in a 1993 homicide where there was no evidence the defendant arrived at the crime scene before the victims or waited in ambush for their arrival. In the absence of such evidence, there was no factual basis for an inference that before approaching the victims, the defendant waited for a time when they would be vulnerable to attack. [At the time of the crime, the special circumstance required that the murder be committed while lying in wait. ] (People v. Nelson (2016) 1 Cal.5th 513.) Insufficient evidence to support lying in wait special circumstance where there was no evidence the defendant had lured the victim to his home intending to kill her. The evidence was sufficient to show the defendant killed the victim because she had not dropped raped charges against him; missing, however, was any evidence that defendant learned before the victim s fatal trip to his home that she had not dropped the charges. Thus, there is no evidence of a substantial period of watching and waiting for an opportune time to act. [At the time of the crime, the special circumstance required that the murder be committed while lying in wait. ] People v. Becerrada, 2017 Cal.LEXIS 2629; 2017 WL ) Racially motivated killing, (Pen. Code 190.2, subd. (a)(16)); 17) Felony-based murder: killing committed while engaged in or as an accomplice to the commission or attempted commission or the flight from the commission or attempted commission of the following crimes, (Pen. Code 190.2, subd. (a)(17)): For the special circumstance to apply, the felony must not be merely incidental to the murder. [I]f the felony is merely incidental to achieving the murder the murder being the defendant s primary purpose then the special circumstance is not present, but if the defendant has an independent felonious purpose (such as burglary or robbery) and commits the murder to advance that independent purpose, the special circumstance is present. (People v. Navarette (2003) 30 Cal.4th 458, 505.) (People v. Rountree (2013) 56 Cal.4th 823, 854.) [Exceptions apply for arson and kidnapping; see (m) below.) a) robbery, b) kidnapping, c) rape, 4

9 d) sodomy, e) child molestation, f) oral copulation, g) burglary (of the first or second-degree), h) arson, Insufficient evidence to support an arson-murder special circumstance where the arson did not involve an inhabited structure or property. The arson-murder special circumstance requires an arson in violation of subdivision (b) of Section 451, which defines the term inhabited as currently being used for dwelling purposes whether occupied or not. Here there was no evidence that the car was used for dwelling purposes. (People v. Debose (2014) 59 Cal.4th 177, 195.) i) train wrecking, j) mayhem, k) rape by foreign object, l) carjacking, m) No independent purpose necessary for felony-murder specials of arson or kidnapping if there is specific intent to kill; it is only required that there be proof of the elements of those felonies. If so established, those two special circumstances are proven even if the felony of kidnapping or arson is committed primarily or solely for the purpose of facilitating the murder. Since the purpose of subparagraph (m) was to overrule Green s [27 Cal.3d 1] independent purpose requirement and create special circumstance liability where kidnapping and arson are incidental to the murder or, stated another way, where the murder is accomplished by way of kidnapping or arson, we agree both the actual killer and the accomplice must have the intent to kill. (People v. Odom (2016)244 Cal. App. 4th 237, 255.) The introductory felony-murder instruction, CALCRIM No. 703, incorrectly told the jury the People could prove either intent to kill or reckless indifference to human life if defendant was a major participant in the crime. Because the only felony-murder special circumstance on which the jury was instructed was intent to kill kidnapping, the prosecution was required to prove intent to kill. (People v. Odom, supra, 244 Cal. App. 4th 237, 257.) Felony-Murder Special and Intent to Kill The felony-based special circumstances do not require that the defendant intend to kill. It is sufficient if the defendant is the actual killer or either intends to kill or with reckless indifference to human life and as a major participant, aids, abets, counsels, commands, induces, solicits, requests, or assists in the commission of the felony. ( 190.2, subd. (d); see People v. Estrada (1995) 11 Cal.4th 568, 575.) The felony-based special circumstances do not require that the defendant intend to kill. If the defendant is liable for first-degree murder as an aider and abettor or a coconspirator, a jury must find the defendant acted with reckless indifference to 5

10 human life and as a major participant in order to find the felony-based special circumstance true. (People v. Covarrubias (2016) 1 Cal.5th 838, 926.) Carlos/Anderson Window: In Carlos v. Superior Court (1983) 35 Cal.3d 131, we held that even when the defendant is the actual killer, intent to kill is an element of the felony-murder special circumstance. While this aspect of Carlos was overruled in People v. Anderson (1987) 43 Cal.3d 1104, we subsequently held that [c]ases involving the felony-murder special circumstance committed after Carlos but before Anderson must apply the intent-to-kill requirement. (People v. Wharton (1991) 53 Cal.3d 522, 586, fn. 16.) The murder in the present case occurred in the Carlos/Anderson window period. The trial court s failure to instruct the jury on the intent-to-kill requirement was not harmless beyond a reasonable doubt, therefore the court reversed the special circumstance findings and resulting death sentence. (People v. Haley (2004) 34 Cal.4th 283, 288.) Anderson has since been applied to appellants convicted of pre-carlos felony-murder. (People v. Whitt (1990) 51 Cal.3d 620, 638). Cases involving the felony-murder special circumstance committed after Carlos but before Anderson must apply the intentto-kill requirement. [Citation.] (People v. Wharton, supra, 53 Cal.3d at p. 586, fn. 16.) (People v. Haley (2004) 34 Cal.4th 283, 310.) Aider/Abettor must be a major participant and act with reckless indifference Evidence that defendant was a getaway driver for an armed robbery in which a guard was killed was insufficient to find true the felony-murder special circumstance under Pen.Code, 187, subd. (a), 190.2, subd. (a)(17), and under the United States Supreme Court s decisions regarding the minimum degree of culpability to impose the death penalty within the constraints of the Eighth Amendment, U.S. Const., 8th Amend., because defendant's conduct did not amount to major participation. [A] defendant s personal involvement must be substantial, greater than the actions of an ordinary aider and abettor to an ordinary felonymurder. (People v. Banks (2015) 61 Cal. 4th 788, 803.) Nor did defendant show reckless indifference to human life by aiding and abetting others in committing an inherently dangerous felony listed in Pen. Code, 189, knowing they were armed. Reckless indifference requires the defendant be aware of and willingly involved in the violent manner in which the particular offense is committed, demonstrating reckless indifference to the significant risk of death his or her actions create. (People v. Banks (2015) 61 Cal. 4th 788, 801.) (See also, People v. Perez (2016) 243 Cal. App. 4th 863.)... [C]onsistent with the principle that only the most culpable maybe subjected to the death penalty (Banks, supra, 61 Cal.4 th at p. 797), the reckless indifference to life necessary for death penalty eligibility requires subjective awareness of a higher degree of risk than the conscious disregard for human life required for conviction of second-degree murder based on implied malice. (People v. Johnson (2016) 243 Cal.App.4th 1247.) 6

11 There was substantial evidence that the defendant was a major participant where he helped plan the robbery, provided the shooter with the gun even after the shooter boasted he had just shot someone in the head, was on scene for the robbery and held the door open to guarantee an escape, stood by watching as the killer counted down to the murder, rendered no assistance to either victim, and instead fled the scene with the murderer. (In re Loza, (2017) 10 Cal.App.5th 38.) Substantial evidence supported the finding that defendant Estrada was a major participant and acted with reckless indifference to human life. Estrada was identified as the person who first proposed robbing Rosales. When she did so, she informed co-defendants Gonzalez and Garcia that Rosales was a drug dealer who had been physically violent in the past. Thus, unlike in Banks, there was a substantial probability the robbery would result in resistance and the need to meet that resistance with deadly force. Estrada then set up the robbery by calling Rosales and asking him to meet her at the laundromat. Her act of luring Rosales to the laundromat was critical to the robbery's success. (Lopez, supra, 198 Cal.App.4th at p ) Estrada also was identified as being at the scene, and pointing Rosales out to the shooter. After a shot was fired, she neither called 911 to assist the victim, nor called the police to report the shooting. Like the defendant in Lopez, Estrada spent the afternoon with the shooter. Garcia was also found to be a major participant and acted with reckless indifference to human life because he was present when Estrada proposed robbing Rosales and described his violent nature. There was evidence he participated in the planning of the robbery with Estrada and Gonzalez and offered to assist as a lookout. His phone records showed calls to Rosales shortly before the murder. Garcia was present at the scene, in a position to facilitate or prevent the actual murder. (Banks, supra, 61 Cal.4th at p. 803.) He made no attempt to prevent the shooting or to notify authorities after Rosales was shot. Garcia chose to flee with the shooter, rather than come to Rosales's aid or summon help. He also accompanied Gonzalez when he disposed of the murder weapon. (People v. Gonzalez (2016) 246 Cal.App.4th 1358.) An aider and abettor who does not have the intent to kill may still be convicted of special circumstance murder where he with reckless indifference to human life and as a major participant aids and abets certain underlying felonies. ( 190.2, subd. (d).) The statute thus imposes both a special actus reus requirement, major participation in the crime, and a specific mens rea requirement, reckless indifference to human life. (Banks, supra, 61 Cal.4th at p. 798, fn. omitted.) (People v. Medina (2016) 245 Cal.App.4th 778, 787.) Sufficient evidence supported the special circumstance for an aider and abettor who knew the other participants were not reluctant to shoot and other evidence demonstrated he was eager to be a part of their armed confrontation with the victim. Although there was no evidence that this defendant was involved in planning the attempted robbery, when he found out about it he asked to go along, and participated fully as armed backup. When he and the shooter arrived at the scene, he was the first out of the car and immediately pulled out his gun. The defendant left before the actual 7

12 shooting because he was ordered to take another person away. At the time the defendant left the scene, the shooter was visibly angry at the victim and holding him at gunpoint. Even though the defendant was not present at the shooting, he heard it and then came to the aid of the shooter. He made no effort to determine if anyone else was injured or to offer aid. The defendant argued his young age, 18 years 39 days, demonstrated that he was not subjectively aware his conduct carried a grave risk of death. Defendant relied on the observations in Miller v. Alabama (2012) 567 U.S. [183 L.Ed.2d 407, 132 S. Ct. 2455] of the hallmark features of youth that reduce the culpability of minors. However, the defendant failed to produce evidence showing that his youth, or other personal characteristics, diminished his ability to appreciate the danger created by his conduct in eagerly joining the shooter and the other aider/abettor as armed backup in their ill-fated attempt to remedy an illegal drug deal gone bad. (People v. Medina, supra, 245 Cal.App.4th at ) 18) Intentional murder involving the infliction of torture, (Pen. Code 190.2, subd. (a)(18)); The torture-murder special-circumstance allegation requires an intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose. (People v. Elliot (2005) 37 Cal.4th 453, 479.) Unlike torture murder, it also requires an intent to kill.... It does not require a premeditated and deliberate intent to torture (People v. Cole (2004) 33 Cal.4th 1158, 1226), a causal relationship between the torturous act and death (People v. Crittenden (1994) 9 Cal.4th 83, ), or proof the victim subjectively experienced pain (People v. Davenport (1985) 41 Cal.3d 247, 271.). Distilled, the statutory language requires intent to kill, intent to torture, and infliction of an extremely painful act upon a living victim. (People v. Bemore (2000) 22 Cal.4th 809, 839.) (People v. Edwards (2013) 57 Cal.4th 658, 718.) Severity of injuries were insufficient to support a torture-murder special circumstance finding under Penal Code section 190.2(a)(18) even though there was ample evidence that defendant battered the elderly victim to death with a blunt object, causing great pain and suffering. The prosecution introduced statements showing the defendant intended to kill the victim to avoid being identified. The prosecution relied on the nature of the injuries to establish the intent to torture. The California Supremes rejected the prosecution s arguments and found insufficient evidence to establish a sadistic intent based on the nature of the injuries. The intent to torture is a state of mind which, unless established by the defendant s own statements (or by another witness s description of a defendant s behavior in committing the offenses), must be proved by the circumstances surrounding the commission of the offense, which include the nature and severity of the victim s wounds. (People v. Crittenden (1994) 9 Cal.4th 83, 141.) We have, however, cautioned against giving undue weight to the severity of the wounds (People v. Chatman (2006) 38 Cal.4th 344, 390.); severe injuries may also be consistent with the desire to kill, the heat of passion, or an explosion of violence. (People v. Mungia (2008) 44 Cal.4th 1101, 1137.) 8

13 19) Intentional killing by poison, (Pen. Code 190.2, subd. (a)(19)); 20) Murder of a juror, (Pen, Code subd. (a)(20)); 21) Intentional murder committed by means of a drive-by shooting (as defined), (Pen. Code 190.2, subd. (a)(21)); 22) Intentional gang-related murder, (Pen. Code 190.2, subd. (a)(22)). Section subd. (a) (22) contains three basic elements: (1) the defendant must intentionally kill the victim; (2) while an active participant in a criminal street gang; (3) in order to further the activities of the gang. The gang murder special circumstance defined in PC subd. (a) (22) can apply to provocative act murder. To the extent a defendant, with express malice, premeditation, and deliberation, proximately causes a death by committing the requisite provocative act, he has intentionally killed, thus establishing the first element. This is so even if the victim is his partner in crime. To the extent a defendant is not the actual provocateur, he may nevertheless be liable for the special circumstance as an accomplice of the provocateur in the underlying crime pursuant to the vicarious liability provisions of PC sec subd. (c): the actor he aids and abets is not the actual killer, but his accomplice in the underlying crime whose provocative act proximately causes death through a third party. (People v. Mejia (2012) 211 Cal.App.4th 586.) B. FIRST-DEGREE MURDERS Section 189 establishes four types of first-degree murder, in two categories; malice murders and felony-murders. (1) Establishes a category of first-degree murder consisting of various types of premeditated killings, and specifies circumstances (use of explosives or armor-piercing ammunition, torture, etc.) which are deemed the equivalent of premeditation. Creates three types of malice aforethought murders which are first-degree pursuant to Penal Code section 189: (a) Willful deliberate and premeditated murder (express malice); (b) Statutory first-degree murders (express or implied malice); (c) Murder perpetrated by discharging a firearm intentionally at another person outside of the vehicle with the intent to inflict death (express malice). (2) Establishes a category of first-degree felony-murders (murder perpetrated during felonies or attempted felonies such as arson, rape, carjacking, torture (Pen. Code 206), etc.); the felonymurder rule dispenses with premeditation and malice as elements of first-degree murder. 9

14 General Issues in murder cases Corpus Delecti The corpus delicti of the crime of murder consists of two elements, the death of the alleged victim and the existence of some criminal agency as the cause, either or both of which may be proved circumstantially or inferentially. (People v. Cullen (1951) 37 Cal.2d 614, 624; People v. Frye (1992) 7 Cal.App.4th 1148, 1154; Matthews v. Superior Court (1988) 201 Cal.App.3d 385, 392.) Degree The degree of murder is not an element of murder. (People v. Visciotti (1992) 2 Cal.4th 1, 56.) Because it is not an element of murder, the degree of murder is not subject to the corpus delecti rule and need not be proven independently of the defendant s statements. (People v. Bacigalupo (1991) 1 Cal.4th 103,129.) Malice Aforethought Penal Code section 188 defines malice: Malice can be express or implied. 1 / Express malice: When there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. Implied malice: When a killing results from an intentional act, the natural consequences 2 / of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for life. (People v. Cook (2006) 39 Cal.4th 566) The statutory definition of implied malice, a killing by one with an abandoned and malignant heart ( 188) is far from clear in its meaning. The better practice is to charge juries solely in the straightforward language of the conscious disregard for human life definition of implied malice. (People v. Knoller (2007) 41 Cal.4th 139, 152.) In short, implied malice requires a defendant s awareness of engaging in conduct that endangers the life of another - no more, and no less. (People v. Knoller (2007) 41 Cal.4th 139, 143.) 1 / Some types of murder require express malice. Some types of murder are satisfied with either express or implied malice. The only types of murder that do not require proof of malice are first degree felony-murders and second degree felony-murders, since the commission of the felony in each instance replaces proof of malice. 2 / Do not confuse the term natural consequences in the context of implied malice with the doctrine of natural and probable consequences in the context of aider and abetter liability. The malice necessary for second degree murder can be implied when there is an intentional act, the natural consequences of which are dangerous to human life. This concept is distinct from the natural and probable consequences theory of accomplice liability. (People v. Martinez (2007) 154 Cal.App.4th 314, 333.) (See section on Aider/Abetter.) 10

15 A defendant s lack of concern as to whether the victim lived or died, expressed or implied, has been found to be substantial evidence of an abandoned and malignant heart by the appellate courts of this state. (People v. Burden (1977) 72 Cal.App.3d 603, ) Penal Code section 194 Presumption Penal Code section 194 creates a presumption that a death occurring after that period is not criminal, but this presumption is rebuttable by the prosecution. (Pen. Code 194.) Death need not occur within three years and one day of the time of the defendant s act to make the killing a criminal homicide. In People v. Moncada (2012) 210 Cal.App.4th 1124, the Court of Appeal held that the rebuttable presumption under Pen. Code, 194, did not require an even higher standard than reasonable doubt. The jury was instructed, The law presumes that a killing is not criminal if the person killed dies more than three years and one day from the day of the incident that caused the death. The People must overcome this presumption by proving that the killing was criminal. If you have a reasonable doubt whether the killing was criminal, you must find the defendant not guilty. The trial court instructed the jury on causation, and natural and probable consequences, and told the jury that if the injury inflicted by the defendant was a substantial factor causing the death, then the defendant was legally responsible for the death even though the doctors or medical staff may have failed to use reasonable care. On the other hand, if the injury inflicted by the defendant was not a substantial factor, but the death was caused by grossly improper treatment by doctors or medical staff, then the defendant is not legally responsible for the death. The jury was instructed that it had to find every element of the crimes, including proximate cause, true beyond a reasonable doubt. Willful, Deliberate, and Premeditated Murder CALJIC 8.20/CALCRIM 521 elements: it is important to note that all of these elements must be present; they are in the conjunctive and not the disjunctive or. Watch out for an instruction from a DA which uses or. Such an instruction is erroneous. (People v. Smith (1973) 33 Cal.App.3d 51, 67.) Willful means intentional (it should be noted that some older cases seemed to say that an intentional killing, by itself is enough for first-degree murder. (See, e.g., People v. Watts (1926) 198 Cal. 776, 800). This is wrong; an intentional killing is only one element of first-degree murder. (People v. Thomas (1945) 25 Cal.2d 880.) An intentional killing is not the same as willful, deliberate, and premeditated. (People v. Stress (1988) 205 Cal.App.3d 1259.) Some DAs still try to argue the old law to the jury; it is an incorrect statement of the law and objectionable. Deliberate means formed or arrived at or determined upon as the result of careful thought and weighing of considerations for and against the proposed course of action and having 11

16 the consequences of the killing in mind. (People v. Stress (1988) 205 Cal.App.3d 1259, 1270.) No specific time period is required; deliberation can occur in a splitsecond. (People v. Williams (1997) 16 Cal.4th 153, 224.) People v. Cordero (1989) 216 Cal.App.3d 275: consequences means only one consequence and may include any flowing from the killing, including consequences to the killer, the victim, a third party or some other consequence. Note reliance on People v. Sirhan (1972) 7 Cal.3d 710. Reflection must be substantially more than mere intention to kill; i.e., substantially more understanding and comprehension of the character of the act than the formation of the intent to kill. (People v.risenhoover (1968) 70 Cal.2d 39, 51; People v. Wolff (1964) 61 Cal.2d ) Premeditated means considered beforehand. 3 / Premeditation can occur in a brief period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.... (People v. Perez (1992) 2 Cal.4th 1117, 1127; accord, People v. Thomas (1945) 25 Cal.2d 880, 900; People v. Kelly (1990) 51 Cal.3d 931, 956; People v. Miranda (1987) 44 Cal.3d 57, 87.) However, the length of time involved in an incident is relevant to determination of whether deliberation and premeditation occurred. (People v. Mendes (1950) 35 Cal.2d 537.) CALJIC 8.20 and CALCRIM 521 restate the well-established rule that deliberation and premeditation are not dependent on the length of time involved in the fatal incident. (People v. Thomas (1945) 25 Cal.2d 880, ; People v. Velasquez (1980) 26 Cal.3d 425, 435.) It is error to instruct that deliberation can be instantaneous. (People v. Bender (1945) 27 Cal.2d 164, 182; but see People v. Williams (1997) 16 Cal.4th 153, 224, which holds that no specific time is required and deliberation can occur in a split-second.) Brutality of a killing does not establish premeditation and deliberation. (People v. Moon (2005) 37 Cal.4th 1; People v. Pensinger (1991) 52 Cal.3d 1210, 1238 ( brutality alone cannot show premeditation; a brutal killing is as consistent with a killing in the heat of passion as with a premeditated killing. ) The Cal Supremes ruled that this concept is adequately covered in CALJIC (People v. Moon (2005) 37 Cal.4th 1.) Pulling the hammer back on a loaded gun and pointing it at another is not sufficient to support a finding of premeditation and deliberation. (People v. Boatman (2013) 221 Cal.App.4th 3 / Defunct element: The element that the defendant maturely and meaningfully contemplated the gravity of his act (See, e.g., People v. Sedeno (1974) 10 Cal.3d 703, 713) was legislatively repealed in

17 1253, ) Anderson Factors: The factors used by appellate courts on review, per People v. Anderson (1968) 70 Cal.2d 15, suggest premeditation and deliberation: i) What did the defendant do prior to the homicide to show that he was engaged in activity directed toward the commission of the homicide, i.e., planning activity? ii) What facts are there about the prior relationship between the defendant and the victim from which a motive could be inferred? iii) Is there anything about the manner of the killing from which a preconceived plan can be inferred? Applying the Anderson factors, the COA found that there was no evidence of planning. After the shooting, defendant did not behave like someone who had fulfilled a preconceived plan, but rather was horrified and distraught; and there was no relevant motive evidence. Although the evidence supported a finding of implied malice, there was nothing in defendant s statements (that he knew the gun was loaded and intentionally cocked the hammer back, albeit jokingly, and the hammer slipped, causing the gun to fire), to indicate that he considered shooting the victim beforehand or carefully weighed considerations for and against killing her. Premeditation and deliberation were not established by the fact that defendant s statements regarding the shooting were inconsistent in significant respects. The manner of killing, shooting the victim in the face, was not alone sufficient to establish a preconceived design. (People v. Boatman (2013) 221 Cal.App.4th 1253.) Although appellate courts still use the Anderson guidelines in evaluating the sufficiency of evidence for first-degree murder convictions, (see, e.g., People v. Combs (2004) 34 Cal.4th 821), the Supreme Court has suggested that this list is not exhaustive and serves only as an appellate court guideline as to when a murder will be the result of reflection rather than rash impulse. (People v. Prince (2007) 40 Cal.4th 1179, 1253; People v. Pride (1992) 3 Cal.4th 195, 247.) Factors other than these will suffice to support a first-degree murder conviction on review. (People v. Perez (1992) 2 Cal.4th 1117, 1125.) The Anderson factors are the standards on review and should not be given as a jury instruction (People v. Lucero (1988) 44 Cal.3d 1006, ); It has been suggested that using the Anderson factors as an instruction limits the jury s consideration of other evidence which falls outside their limits. (People v. Moon (2005) 37 Cal.4th 1.) The Anderson guidelines are descriptive not normative. (People v. Nazeri (2010) 187 Cal.App.4th

18 Sua Sponte Instructions on Lesser Included Offenses to Premeditated, Deliberate Murder: Under the accusatory pleading test, the allegation of malice murder with deliberation and premeditation on its face gave rise to possible lesser included offenses of second-degree murder, voluntary manslaughter, and involuntary manslaughter. While the prosecutor was free to try the case on a theory of felony-murder, defendants were nonetheless legally entitled under the accusatory pleading test to jury instructions on lesser included offenses of first-degree malice murder, provided there is substantial evidence to support the commission of the lesser offenses but not the greater. (People v. Campbell (2015) 233 Cal. App. 4th 148, ) Conspiracy to Commit Murder See, Penal Code section 182 subdivision (a) (6), which says that all conspiracies to commit murder must be punished as first-degree murders. In People v. Cortez (1998) 18 Cal.4th 1223, the Cal. Supremes held all conspiracy to commit murder is necessarily conspiracy to commit premeditated first-degree murder and is therefore punishable in the same manner as first-degree murder pursuant to the provisions of Penal Code section 182. (Disapproving People v. Horn (1998) 12 Cal.3d 290.) Conspiracy to commit murder requires that the particular defendant charged actually harbor the specific intent that the victim be killed. (People v. Petznick (2003) 114 Cal.App.4th 663.) Statutory First-Degree Malice Murders All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture... is murder in the first-degree. (PC 189) These statutory first-degree murders are substitutes for deliberation and premeditation; they are not substitutes for malice aforethought. (People v. Diaz (1992) 3 Cal.4th 495, 538 (poison).) It is important to remember that before these enumerated first-degree murders can make a homicide first-degree murder, the prosecution must prove that the crime is a murder, the unlawful killing of a human being with malice aforethought. Only then does the crime become first-degree murder. (People v. Mattison (1971) 4 Cal.3d 177, ) To prove first-degree murder of any kind, the prosecution must first establish a murder within section that is, an unlawful killing with malice aforethought. (People v. Dillon (1983) 34 Cal.3d 441, 465; People v. Mattison (1971) 4 Cal.3d 177, ; People v. Hyde (1985) 166 Cal.App.3d 463, 475.) Thereafter, pursuant to section 189, the prosecution must prove the murder was perpetrated by one of the specified statutory means, including lying in wait, or by any other 14

19 kind of willful, deliberate, and premeditated killing, Lying in wait is the functional equivalent of proof of premeditation, deliberation, and intent to kill. (People v. Hardy (1992) 2 Cal. 4th 86, 162.) (People v. Stanley (1995) 10 Cal.4th 764, ) Many first-degree malice murders will be based on express malice. However, implied malice is also acceptable to satisfy the murder element, as will be discussed below. Second-degree felony-murder theory cannot be used as a substitute for malice in proving first-degree murder, i.e. can t rewrite 189 from All murder which is perpetrated by means of a destructive device to all homicide which is perpetrated by a destructive device. This would be tantamount to adding another felony to the felony-murder rule. People v. Morse (1992) 2 Cal.App.4th 620; (prejudicial error to instruct jury that possession of a destructive device came within the scope of the felony-murder rule and, that a finding of guilty of second-degree murder required a finding of guilty of first-degree murder. The court ruled that reckless possession of a bomb, while an inherently dangerous felony under Cal. Penal Code 189, did not automatically raise second-degree murder to first-degree murder.) (1) Destructive device or explosive Destructive device is defined in Penal Code section (tracer or incendiary ammunition; bombs, grenades, explosive missiles or launchers; any gun (except antique cannon or shotgun) of larger than.60 caliber; any rocket or rocket propelled projectile greater than.60 caliber which contains an explosive device other than the propellant (i.e., a warhead ); or a Molotov Cocktail ). Explosive is defined in Health and Safety Code section and includes a variety of explosives. CALJIC Use note requires that the trial court give at least partial instruction on Penal Code section or Health and Safety Code section to define the applicable device. CALCRIM 521 requires instruction on Penal Code or Health and Safety Code section to define the device. Bear in mind that this is still an intentional malice murder. If there is neither intent nor transferred intent there can be no murder. Unlike a felony-murder, murder by this type of device still requires proof of the malice element. (2) Weapon of mass destruction A weapon of mass destruction is defined in Penal Code section Use note to CALCRIM 521: When instructing on murder by weapon of mass destruction, explosive, or destructive device, the court may use the bracketed sentence stating, is a weapon of mass destruction or is a chemical warfare agent, only if the device used is listed in the code section noted in the instruction. For example, Sarin is a chemical warfare agent. However, the court may not instruct the jury that the defendant used the prohibited weapon. For example, the court may not state, the defendant used a chemical warfare agent, sarin, or the 15

20 material used by the defendant, sarin, was a chemical warfare agent. (People v. Dimitrov (1995) 33 Cal.App.4th 18, ) (3) Knowing use of ammunition designed to penetrate metal or armor (4) Killing by poison In People v. Mattison (1971) 4 Cal.3d 177, the California Supreme Court held that there was insufficient evidence to find the defendant guilty of first-degree murder where the defendant supplied decedent with pruno made from methyl alcohol because the evidence did not establish defendant entertained a specific intent to kill (express malice) nor that defendant had knowledge that his conduct endangered the life of decedent (implied malice). The CA Supremes said: Before the question can arise whether a killing is murder of the first-degree because committed by one of the enumerated means, it must first be established that the killing was with malice aforethought. (Id. at p. 183.) In order for a jury to find a defendant guilty of the crime of murder, the jury must have been satisfied beyond a reasonable doubt that the defendant had full knowledge that his conduct endangered the life of decedent, but that he nevertheless deliberately administered the poison with conscious disregard for life. (Id. at p. 183.) (Relying on People v. Milton 145 Cal.169, ) If the poison was innocently given under the belief that it was a harmless drug and that no serious results would follow, there would be no malice, express or implied, and any resulting death would not be murder. If, however, the defendant administered poison to his victim for an evil purpose, so that malice aforethought is shown, it is no defense that he did not intend or expect the death of this victim. (People v. Thomas 41 Cal.2d 470, concurring opinion.) Here, the prosecution did not establish the defendant acted with conscious disregard for life, therefore the first-degree murder conviction was improper. Cases mention that an innocent purpose would negate malice and serve to reduce the offense to manslaughter. In People v. Blair (2005) 36 Cal.4th 686 the California Supreme Court found that the trial court did not err in instructing only on a theory of first-degree murder and declining to instruct the jury as to second-degree murder under Penal Code sections 189 and 347 because there was no substantial evidence of an intent merely to injure the victim. The evidence established that defendant believed the victim owed him money, deliberately obtained cyanide and placed it in a gin bottle so that the bottle appeared sealed, and had someone deliver the bottle to the victim, knowing that she liked to drink; this course of conduct evidenced at a minimum a conscious disregard for the victim s life, if not a specific intent to kill the victim. Additionally, the California Supremes recognized the jury, having found the special circumstance of murder by poison true, required the jury to find the killing was intentional. However, the Cal. Supremes acknowledged that an accidental or negligent poisoning can result in a second-degree murder on a felony-murder 16