California Penal Code § 187 is California’s statute applicable to homicide and murder. Homicide is the killing of another person, whether lawful or unlawful. Thus, “homicide” includes not only those killings that are justifiable, and therefore lawful, but murder and manslaughter. Murder is the most egregious form of homicide and is always unlawful. Murder is distinguished from manslaughter in that it includes malice aforethought.

Thus, for an individual to be found guilty of murder, he or she must have the mental state required by law, which is malice aforethought (“malice”). The issue of whether a defendant acted with malice is a jury question. When a defendant ‘with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,’ he acts with malice aforethought.”

Malice aforethought is not entirely the same mental state as killing another with deliberation or premeditation. An individual may act with malice aforethought but without premeditation or deliberation. In most states, including California, any murder perpetrated by deliberation and premeditation is first-degree murder.

Under California law, malice may be either express or implied. If the prosecution shows that the killing resulted from an intentional act with express or implied malice, it is unnecessary to show any other mental state to establish malice aforethought.

Malice is express when there is manifested a deliberate intention to unlawfully take away the life of another person. In this situation, a person may act deliberately but without premeditation. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

An act is done with premeditation if the decision to commit the act is made before the act is done. Killing someone with deliberation means a person:

  1. carefully weighs the considerations for and against an act, and
  2. commits the act knowing its consequences.

In California, murder may be charged as first-degree or second-degree. First-degree murder generally carries a sentence of 25 years to life in state prison. First-degree murder may be charged when the killing:

  1. Is accomplished by means of a destructive device, weapon of mass destruction, armor-piercing ammunition, poison, lying in wait, or torture; or
  2. Is done in a way that is willful, deliberate and premeditated; or
  3. Invokes the California felony-murder rule because the murder occurs during the commission of certain serious felony crimes.

All other forms of murder are second-degree. Second-degree murder generally carries a sentence of 15 years to life in state prison.

It is important to have an experienced attorney who will obtain the best possible results. John Patrick Dolan is a California State Bar Certified Specialist in Criminal Law. Certification as a Specialist in Criminal Law is the highest achievement awarded by the State Bar of California to attorneys in the field of criminal law. The attorneys at the Dolan Law Offices have decades of experience defending individuals charged with drug possession, domestic violence, DUI, and violent felonies. Call us today at (760) 775-3739 or find out more online here.

Deliberation, Premeditation, And Malice

Leave a Reply