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San Diego Criminal Lawyer

Murder - California Penal Code 187(a) PC


Defintions of Murder:

Murder Defined: 

Murder, under California Penal Code 187(a), is the unlawful killing of a human being, or fetus, with malice aforethought. 


First Degree Murder

A willfull, deliberate, and premediated murder. 


Second Degree Murder

A unlawful killing of a human being or fetus with malice aforethought that is not first degree murder.  


To prove that the defendant is guilty of a murder under California Penal Code 187(a) PC, the People must prove that:


1. The defendant committed an act that caused the death of (another person/ [or] a fetus);




2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)




3. (He/She) killed without lawful (excuse/[or] justification).]


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/she) unlawfully intended to kill.


The defendant acted with implied malice if:


1. (He/She) intentionally committed an act;


2. The natural and probable consequences of the act were dangerous to human life;


3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;




4. (He/She) deliberately acted with conscious disregard for (human/[or] fetal) 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.


A fetus is an unborn human being that has progressed beyond the embryonic stage after major structures have been outlined, which typically occurs at seven to eight weeks after fertilization.


An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.


There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.


To prove that the defendant is guilty of a first degree murder, the People must additionally prove that:


The defendant (he/she) acted willfully, deliberately, and with premeditation.


1. The defendant acted willfully if (he/she) intended to kill.


2. The defendant acted deliberately if (he/she) carefully weighed the considerations for and against (his/her) choice and, knowing the consequences, decided to kill.


3. The defendant acted with premeditation if (he/she) decided to kill before completing the act[s] 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.


Evidence in any combination from the following categories suggests premeditation and deliberation:

(1) events before the murder that indicate planning;

(2) motive, specifically evidence of a relationship between the victim and the defendant; and

(3) method of the killing that is particular and exacting and evinces a preconceived design to kill.

(People v. Anderson (1968) 70 Cal.2d 15, 26–27 [73 Cal.Rptr. 550, 447 P.2d 942].)


Although these categories have been relied on to decide whether premeditation and deliberation are present, an instruction that suggests that each of these factors must be found in order to find deliberation and premeditation is not proper. (People v. Lucero (1988) 44 Cal.3d 1006, 1020–1021 [245 Cal.Rptr. 185, 750 P.2d 1342].)  


Anderson also noted that the brutality of the killing alone is not sufficient to support a finding that the killer acted with premeditation and deliberation. Thus, the infliction of multiple acts of violence on the victim without any other evidence indicating premeditation will not support a first degree murder conviction. (People v. Anderson, supra, 70 Cal.2d at pp. 24–25.) However, “[t]he Anderson guidelines are descriptive, not normative.” (People v. Perez (1992) 2 Cal.4th 1117, 1125 [9 Cal.Rptr.2d 577, 831 P.2d 1159].) The holding did not alter the elements of murder or substantive law but was intended to provide a “framework to aid in appellate review.” (Ibid.)


Premeditation and Deliberation—Heat of Passion Provocation

Provocation may reduce murder from first to second degree. (People v. Thomas (1945) 25 Cal.2d 880, 903 [156 P.2d 7] [provocation raised reasonable doubt about premeditation or deliberation, “leaving the homicide as murder of the second degree; i.e., an unlawful killing perpetrated with malice aforethought but without premeditation and deliberation”]; see People v. Padilla (2002) 103 Cal.App.4th 675, 679 [126 Cal.Rptr.2d 889] [evidence of hallucination is admissible at guilt phase to negate deliberation and premeditation and to reduce first degree murder to second degree murder].) There is, however, no sua sponte duty to instruct the jury on this issue. (People v. Middleton (1997) 52 Cal.App.4th 19, 31–33 [60 Cal.Rptr.2d 366], disapproved on other grounds in People v. Gonzalez (2003) 31

Cal.4th 745, 752 [3 Cal.Rptr.3d 676, 74 P.3d 771].) 


Defenses to a Charge of Murder, Under California Penal Code 187(a) PC:


The most common defenses to a charge of murder are: 

(1) Self - Defense or Justification

(2) Accident

(3) Mistaken Identification

(4) Lack of Criminal Intent

(5) M'Naughten Rule/Insanity 

(6) Only Circumstantial Evidence


Self-Defense or Justifiable Homicide


The defendant is not guilty of murder/manslaughter/attempted murder or attempted voluntary manslaughter if (he/she) was justified in (killing/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/she/ [or] someone else) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed)];


2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger;




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 death or great bodily injury to (himself/ herself/ [or] someone else). Defendant’s belief must have been reasonable and (he/she) 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 killing was not justified.


When deciding whether the defendant’s beliefs were reasonable, the jury should 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.


The defendant’s belief that (he/she/ [or] someone else) was threatened may be reasonable even if (he/she) relied on information that was not true. However, the defendant must actually and reasonably have believed that the information was true.


If the victim threatened or harmed the defendant [or others] in the past, the jury may consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.]


[If the jury finds that the defendant knew that the victim had threatened or harmed others in the past, they may

consider that information in deciding whether the defendant’s conduct and beliefs were reasonable.


Someone who has been threatened or harmed by a person in the past, is justified in acting more quickly or taking greater self-defense measures against that person.


If the jury finds that the defendant received a threat from someone else that (he/she) reasonably associated with the victim, the jury may consider that threat in deciding whether the defendant was justified in acting in (self-defense/ [or] defense of another).


Self Defense - Stand Your Ground Defense to Murder

A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself 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 was not justified. If the People have not met this burden, the jury must find the defendant not guilty of murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter.


Imperfect Self Defense

Most courts hold that an instruction on imperfect self-defense is required in every case in which a court instructs on perfect self-defense. If there is substantial evidence of a defendant’s belief in the need for self-defense, there will always be substantial evidence to support an imperfect self-defense instruction because the reasonableness of that belief will always be at issue. (People v. Ceja (1994) 26 Cal.App.4th 78, 85–86 [31 Cal.Rptr.2d 475], overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675]; People v. De Leon (1992) 10 Cal.App.4th 815, 824 [12 Cal.Rptr.2d 825].) The court in People v. Rodriguez disagreed, however, and found that an imperfect self-defense instruction was not required sua sponte on the facts of the case where defendant’s version of the crime “could only lead to an acquittal based on justifiable homicide,” and when the prosecutor’s version could only lead to a conviction of first degree murder. (People v. Rodriguez (1992) 53 Cal.App.4th 1250, 1275 [62 Cal.Rptr.2d 345]; see also People v. Williams (1997) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d 961] [in rape prosecution, no mistake-of-fact instruction was required when two sides gave wholly divergent accounts with no middle ground to support a mistake-of-fact instruction].)


No Defense for Initial Aggressor

An aggressor whose victim fights back in self-defense may not invoke the doctrine of self-defense against the victim’s legally justified acts. (In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [30 Cal.Rptr.2d 33, 872 P.2d 574].) If the aggressor attempts to break off the fight and communicates this to the victim, but the victim continues to attack, the aggressor may use self-defense against the victim to the same extent as if he or she had not been the initial aggressor. (Pen. Code, § 197, subd. 3; People v. Trevino (1988) 200 Cal.App.3d 874, 879 [246 Cal.Rptr. 357]; see CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.)


In addition, if the victim responds with a sudden escalation of force, the aggressor may legally defend against the use of force. (People v. Quach (2004) 116 Cal.App.4th 294, 301–302 [10 Cal.Rptr.3d 196]; see CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.)


Transferred Intent Applies

“[T]he doctrine of self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander.” (People v. Mathews (1979) 91 Cal.App.3d 1018, 1024 [154 Cal.Rptr. 628]; see also People v. Curtis (1994) 30 Cal.App.4th 1337, 1357 [37 Cal.Rptr.2d 304].) There is no sua sponte duty to instruct on this principle, although such an instruction must be given on request when substantial evidence supports it. (People v. Mathews, supra, 91 Cal.App.3d at p. 1025; see also CALCRIM No. 562, Transferred Intent.)


Definition of “Imminent”

In People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [264 Cal.Rptr. 167], overruled on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089 [56 Cal.Rptr.2d 142, 921 P.2d 1], the jury requested clarification of the term “imminent.” In response, the trial court instructed:

“Imminent peril,” as used in these instructions, means that the peril must have existed or appeared to the defendant to have existed at the very time the fatal shot was fired. In other words, the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with. The Court of Appeal agreed with this definition of “imminent.” (Id. at pp. 1187–1190 [citing People v. Scoggins (1869) 37 Cal. 676, 683–684].)


Reasonable Person Standard Not Modified by Evidence of Mental Impairment

In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the court rejected the argument that the reasonable person standard for self-defense should be the standard of a mentally ill person like the defendant. “The common law does not take account of a person’s mental capacity when determining whether he has acted as the reasonable person would have acted. The law holds ‘the mentally deranged or insane defendant accountable for his negligence as if the person were a normal, prudent person.’ (Prosser & Keeton, Torts (5th ed. 1984)

§ 32, p. 177.)” (Ibid.; see also Rest.2d Torts, § 283B.)



Mistaken Identity

Lack of Criminal Intent

M'Naughten Rule/Insanity Plea

Circumstantial Evidence Defense