In California, the prosecution must prove “malice aforethought” if a defendant is to be found guilty of the crime of murder. Even if the perpetrator of a homicide did not have the intent to kill the victim, the element of malice aforethought may be implied. Malice can be implied if the defendant showed a conscious disregard of the risk of their actions to human life. “Malice” is the state of mind that a person must have had at the time of a killing in order to be guilty of murder.
“Malice” is defined in the California Penal Code, section 188, as follows:
“[Malice aforethought] is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”
A California lawyer consultation would help a person understand California law regarding murder.
What Is “Malice” in California Criminal Law?
In California law, “malice aforethought” is an element of the crime of murder. Malice can be express or implied. The perpetrator of a homicide acts with express malice if they entertain the specific intent to kill their victim. The California Penal Code states that malice is express when the perpetrator of a homicide manifests “a deliberate intention to unlawfully take away the life of a fellow creature.”
Basically, “malice aforethought” means that the perpetrator of a homicide intends to take the life of their victim. The act is not the result of recklessness. It is not in any way accidental. It is intentional.
What Is the Crime of Murder in California and the Role of Malice?
California Penal Code 187 sets forth the elements of the crime of murder. It defines murder as “the unlawful killing of a human being or a fetus with malice aforethought.” Malice aforethought is the critical element that distinguishes murder from other types of homicide, e.g., manslaughter. It is important to note that the unlawful killing of a fetus can lead to a criminal charge for murder.
The elements of murder are as follows:
- Act Causing Death: The perpetrator must have committed an act that was the direct cause of the death of another person or a fetus.
- Unlawful Killing: The killing must be one that cannot be justified or excused by the law. For example, if a person kills another as an act of self-defense, it may be excused by the law.
- Malice Aforethought: Then, again, the perpetrator must have committed the killing with malice aforethought, which is the mental state or intent that the perpetrator must have.
- Felony Murder: If a victim is killed when the perpetrator is committing another felony, then the perpetrator can be charged with felony murder. If a perpetrator is charged with felony murder, the prosecution does not have to prove malice aforethought, express or implied. Rather, the prosecution must only prove that the murder was committed as the direct result of the perpetrator’s commission of another felony. For example, a perpetrator may kill a bank clerk in the course of committing a bank robbery. This would be felony murder.
- Murders committed in the course of such crimes as felony burglary, robbery, kidnapping, or rape would qualify as felony murders.
An individual may use deadly force resulting in the death of their victim, if they are defending themselves against impending serious bodily injury or death. Deadly force may also be used in defense in the following situations:
- To protect a third party from serious bodily injury or death
- To prevent the commission of a crime
- By law enforcement.
A court may have to decide whether the use of deadly force was justified and in doing so, would consider the following factors:
- The amount of force used
- Whether the amount of force was reasonable in the circumstances
- Whether the victim was the first to use deadly force
- The victim’s height, age, and weight as compared to the perpetrator’s weight, height, and age
- Whether deadly weapons were used by the victim or the perpetrator
- Whether either party was trained in combat or martial arts.
What Does “Malice” Mean in California Law?
Proving malice aforethought does not mean proving that the perpetrator harbored hatred or intense dislike for the victim. Rather, it means that the perpetrator had the specific intent to take the victim’s life. This is express malice. Or, the perpetrator may have acted in a way that shows a conscious disregard for human life. This is implied malice.
What Are Express vs. Implied Malice in California?
The perpetrator of a murder acts with express malice when they have the specific intent to take the victim’s life. They do not have to have planned the murder. The perpetrator’s intent may have been formed in their mind at the moment of the killing.
If the prosecution can prove that the perpetrator planned their killing and committed it according to their plan, then that would certainly strengthen the prosecution’s case. For example, the perpetrator of a murder may plan to kill a family member by poisoning them with toxic mushrooms.
They may hunt for the mushrooms in a nearby field or forest. They may look up information on their computer about the kinds of mushrooms that can be fatally toxic to humans. They may have been seen in possession of just such mushrooms. They may have had their relative to dinner soon before they became fatally ill. And then, medical evidence may show that the toxin in a certain type of mushroom was the cause of death of the perpetrator’s relative.
Such evidence would serve to prove malice aforethought on the part of the perpetrator.
However, a different perpetrator may have become involved in a barroom fight that broke out quickly when a disagreement about competing football teams in a game on the bar’s T.V. developed. The victim may have hurled a particularly offensive insult at the perpetrator, who, in an impulsive rage, pulled out a firearm and shot the victim at close range in the head, killing him. This set of facts could also serve as proof of malice aforethought.
Specifically, implied malice can be proven for the intent element of murder when the facts of the offense show that the victim did not provoke the perpetrator in any way. Or, the facts show that the perpetrator had “an abandoned and malignant heart.” This means that the perpetrator did the act with gross recklessness or extreme negligence that caused the victim’s death.
For example, the perpetrator may have consumed alcohol until they had a blood alcohol concentration (BAC) that was well above the limit for driving while intoxicated, 0.08%. They may then have gotten into the large, heavy pick-up truck and started driving at a high rate of speed down a 2-lane road.
Because of their intoxicated condition, they may have driven across the median strip and hit an oncoming car head-on, killing the driver. This set of facts would support a case for murder with implied malice, because the perpetrator acted with gross recklessness.
Is Malice Different from Criminal Intent in California?
Malice is the specific kind of criminal intent that the perpetrator of a homicide must have if their act is to constitute the crime of murder in California. So, arguably, it is not different from the criminal intent that is required for other kinds of crimes in California. However, of course, the intent required to prove armed robbery is not the same as the intent to commit murder. However, both crimes require proof of the perpetrator’s intent.
Is Malice Used Outside California Criminal Law?
Today, malice aforethought is the mental element required to prove murder in the first degree under federal law and in some states other than California. Of course, federal law applies in California as in all other states in the U.S. Texas, Florida and New York have all adopted different language to express the type of intent that qualifies a homicide as murder. Their statutes no longer refer to “malice aforethought.”
When Can Malice Increase Jail or Prison Exposure in California?
An individual who has been convicted of first-degree murder may be sentenced to prison for 25 years to life. If the killing included torture, a destructive device, or lying in wait, the defendant could be sentenced to life in prison without parole or even the death penalty.
Capital murder is murder with special circumstances. There are about 20 types of crimes in California that could be charged as capital murder, for example, the following:
- Murder as a hate crime
- Murder for financial gain
- Murder of a public servant.
A person convicted of capital murder could be sentenced to life in prison without parole or the death penalty.
Second-degree murder includes murder committed with malice aforethought but with no deliberation or premeditation before the crime is committed. Second-degree murder may also be charged in any case in which the murder does not qualify as first-degree murder. The possible punishment for second-degree murder is imprisonment for a minimum of 15 years to life.
Basically, killing with malice aforethought is the crime of murder, and malice aforethought is one of the essential elements of the crime. It does not, however, specifically lead to a more harsh sentence. A California lawyer could explain the law of criminal sentencing for crimes involving homicides in California.
When Should I Talk to a California Lawyer About My Case
If you have been charged with the crime of murder in California, you definitely want to talk to a California criminal defense lawyer. If you have been charged with any type of crime that involves a homicide, e.g., voluntary manslaughter, you too want to talk to a California criminal defense lawyer. Crimes that involve a homicide are among the most serious in California law, and you want a knowledgeable and experienced California criminal defense lawyer at your side guiding you to the best possible outcome.
