Homicide: Murder

Question 1

What are the five types of Malice?

Answer 1

(1) Intent to Kill; (2) Intent to Cause Grievous Bodily Injury (IGBI); (3) Depraved Heart; (4) Felony Murder; and (5) Provocative Murder

Question 2

To be convicted of murder, what are the two possible types of malice that the defendant must possess at the time of the killing?

Answer 2

Express malice or implied malice.

(Defendant only needs to possess one type to be convicted)

Question 3

What is express malice?

Answer 3

Express malice is when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature

Question 4

What is intent to kill?

Answer 4

Defendant’s conscious object to kill with deliberate intention (express malice)

Question 5

What are the two ways express malice can be established?

Answer 5

Direct evidence and circumstantial evidence

Question 6

What is direct evidence?

Answer 6

Evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.

For example, a confession of the accused, or a testimony of an eyewitness

Question 7

What is circumstantial evidence?

Answer 7

Requires the trier of fact to draw one or more inferences from the evidence to what the evidence is offered to prove.

For example, motive, manner in which the killing occurred, and application of the deadly weapon rule.

Question 8

What is implied malice?

Answer 8

Malice may be implied by the conscious and voluntary conduct of the defendant that is dangerous to human life in one of the following ways: (1) IGBI, (2) Depraved Heart, (3) Provocative Act Murder, and (4) Felony Murder

Question 9

What is Intent to Cause Grievous Bodily Injury (IGBI)?

Answer 9

Defendant did not intend to kill victim, rather inflict only a serious non-fatal injury to victim. Victim died from injury (implied malice; California cases that fit this requirement are usually prosecuted as depraved heart or felony murder)

Question 10

What is depraved heart malice?

Answer 10

Circumstances attending the killing show an abandoned and malignant heart. With depraved heart, defendant did not intend to kill or hurt anyone (implied malice)

Question 11

What is felony murder?

Answer 11

Felony murder is when a killing occurs during the commission of a felony or the attempt to commit a felony (implied murder)

Question 12

What is Provocative Act Murder?

Answer 12

When defendant or accomplice, with a conscious disregard for life, intentionally commits an act likely to cause death, and victim or police officer kills in a reasonable response to such act, the defendant is guilty of murder (implied malice)

Question 13

What are the seven types of first degree murder in California?

Answer 13

The seven types are:
(1) Willful, Deliberate, and Premeditated;
(2) First-Degree Felony Murder;
(3) Torture Murder;
(4) Lying in Wait;
(5) Murder by Poison;
(6) Drive-by Shooting;
(7) Explosives or Armor Penetrating Ammunition

Question 14

What is Willful, Deliberate, and Premeditated (WDP)?

Answer 14

“Willful” means intent to kill. Killer deliberated and premeditated. (*Test is not time, but reflection)

Question 15

What is the dividing line between first-degree and second-degree intent to kill?

Answer 15

Premeditation and deliberation is the dividing line. Intentional killing is premeditated and deliberate if it occurred as a result of pre-existing thought and reflection rather than unconsidered rational impulse.

Question 16

What is premeditated?

Answer 16

It means “considered beforehand”

Question 17

What is deliberate?

Answer 17

Means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for or against the proposed course of action

Question 18

What three kinds of circumstantial evidence are considered when determining when premeditation and deliberation are supported?

Answer 18

The three kinds of circumstantial evidence are:
(1) Pre-existing motive;
(2) Planning activity; and
(3) Manner of killing (which may include consideration of the deadly weapon rule because when a person kills another with a deadly weapon, proof of intent to kill is more plausible and may be inferred when they used a deadly weapon directed at a vital part of a human being)

*You do not need to prove all three kinds when considering support for premeditation and deliberation

Question 19

What is First Degree Felony Murder?

Answer 19

A killing that occurs during the commission of a felony listed in PC § 189 which includes (1) arson, (2) rape, (3) carjacking, (4) robbery, (5) burglary, (6) mayhem, (7) kidnapping, (8) train-wrecking, and (9) other various non-rape sex offenses.

There needs to be a causal connection between the felony and the death. The defendant does not need to intend to kill or harm the victim and it may even be an accident

Question 20

What is Torture Murder?

Answer 20

Defendant intended to torture but not necessarily kill.

Must be a causal relationship between torture and victim’s death. (*Inflicting pain is not enough; must be evidence defendant wanted victim to suffer)

Question 21

What is Lying in Wait?

Answer 21

Perpetrator typically waits in ambush or concealment to take the victim by surprise but can also lie in wait without hiding. (*Defendant conceals his purpose from the victim; if this is proved, no other evidence of premeditation or intent is necessary)

Question 22

What is Murder by Poison?

Answer 22

Some murders perpetrated by poison are first-degree murder. The use of poison, standing alone, does not fulfill this element requirement unless it is carried out with a state of mind more culpable than the malice required for a second-degree murder conviction.

More culpable than either (a) intending to kill the victim without premeditation and deliberation (express malice) , or (b) intentionally giving the victim poison knowing that doing so was dangerous to human life and with conscious disregard for human life (implied malice).

While premeditated intent to kill is not required for the elements, the poisoning must be carried out with a mental state more culpable than malice.

Question 23

What is Drive-by Shooting Murder?

Answer 23

Any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with intent to inflict death

Question 24

What is Explosives or Armor Penetrating Ammunition Murder?

Answer 24

Murder by destructive device or explosive, a weapon of mass destruction, knowing the use of ammunition designed primarily to penetrate metal or armor is first degree, whether defendant intended to kill or not

Question 25

What is second degree murder?

Answer 25

Criminal homicide with malice aforethought that does not meet the requirements of first-degree murder

Question 26

What are the four types of Second-Degree Murder in California?

Answer 26

The four types are:
(1) Intent to Kill Without Premeditation and Deliberation;
(2) Provocation Sufficient to Lower First-Degree Intent to Kill Murder to Second-Degree Murder or Manslaughter;
(3) Depraved Heart Murder; and
(4) Second-Degree Felony Murder.

Question 27

What is Intent to Kill Murder Without Premeditation and Deliberation?

Answer 27

Person intends to kill but not with premeditation or deliberation; typically an immediate reaction to something the victim said or did

Question 28

What is Provocation Sufficient to Lower First-Degree Intent to Kill Murder to Second-Degree Murder or Manslaughter Murder?

Answer 28

If a defendant charged with first degree murder offers evidence that victim provoked them, jury may conclude that the defendant should be guilty of second-degree rather than first-degree.

Question 29

What is Depraved Heart Murder?

Answer 29

PC § 188(a)(2) is a “killing [that] results from an intentional act, the natural consequences which are dangerous to life (actus reus), which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life (mens rea).

Killing shows an “abandoned and malignant heart” and there was no social justification for the defendant’s conduct

Question 30

What is Second-Degree Felony Murder?

Answer 30

Homicide committed during the perpetration of a felony that is not listed in PC §189 but is inherently dangerous to human life (IDHL) and does not merge. (*There needs to be a causal connection to the felony and the murder)

Question 31

What are the two approaches to determining if an underlying felony is IDHL?

Answer 31

The two approaches are:
(1) Facts of the case approach; and
(2) the Abstract Approach

Question 32

What is the facts of the case approach?

Answer 32

To determine if the acts in question were inherently dangerous to human life, the court will examine “the facts of the case.” (Minority approach)

Question 33

What is the felony in the abstract approach?

Answer 33

Without regard to how the felony was committed, this approach only looks at the elements of the crime as set forth in the statute defining the felony and asks whether the felony is IDHL. (This is the majority approach and is used by California)

Question 34

For felony murder second-degree, if there is a way to violate a statute without it being IDHL, what occurs?

Answer 34

It is thus not IDHL, and felony will not support felony murder prosecution

Question 35

For felony murder second-degree, if there is no way to violate a statute without it being IDHL, what occurs next?

Answer 35

It is IDHL, and then you determine whether the crime merges

Question 36

What happens when a felony merges?

Answer 36

No felony murder prosecution occurs. The courts look at the elements, not the facts, to see if the elements have an assaultive aspect.

In this case they do, thus the crime merges with the underlying homicide even if the elements also include conduct that is not assaultive. (An “assaultive” felony involves a threat of immediate violent injury, such as an aggravated battery)

Question 37

What happens when a felony doesn’t merge?

Answer 37

There can be felony murder prosecution in the second-degree.