ACL Section D: Homicide

define homicide

the unlawful killing of a human being or a fetus by another

what is the common law definition of murder

murder was the unlawful killing of a human being with malice aforethought

the killing of a fetus as murder was added to the CA definition in what year, and as a response to what CA supreme court case?

1970, Keeler v. Superior Court

the killing of a fetus as murder only applies in what cases in CA?

only applies to third party killing, NOT if based on a decision by the pregnant woman (abortion)

what are the 4 types of murder in California

1. Capital Murder

2. Premeditated Murder

3. Felony Murder

4. Manslaughter

what are the two degrees that premeditated and felony murder both have?

1st and 2nd degree

what are the three types of manslaughter?

voluntary, involuntary, vehicular

what are the two types of voluntary manslaughter?

provocation, imperfect self-defense

what are the two types of involuntary manslaughter

misdemeanor manslaughter, negligent homicide

what are the three types of vehicular manslaughter

watson murder, regular, gross

which penal code addresses capital murder?

penal code 190.2

which penal code addresses premeditated murder?

penal code 187

which penal code addresses felony murder?

penal code 189

which penal code addresses manslaughter?

penal code 192

what is defined as capital murder in the first degree?

the commission of murder which involves an AGGRAVATING FACTOR

define capital murder

murder committed with special means and special circumstances

what are aggravating factors

factors that make a crime much more serious or harsher

capital murder cases are one of the only cases where Jury gets to decide the ______

punishment

what is the procedure for jury deciding punishment in capital murder cases?

1. guilt finding stage

2. sentencing

3. if jury is hung twice, judge must impose sentence of life imprisonment without parole

define premeditated murder

the unlawful killing of a human being or fetus by another with malice aforethought committed PURPOSEFULLY and AFTER PREEXISTING REFLECTION, and CAREFUL THOUGHT AND WEIGHING OF CONSIDERATIONS

what are the three elements of premeditated murder?

willfulness, premeditation, deliberation

define willfulness

an intent to kill or purposefully kill

define premeditation

a PREEXISTING reflection (days before the murder, offender sits down and contemplates in his head: i need to kill A because A has life insurance)

define deliberation

careful thought and weighing of considerations

which element of premeditated murder shows specific intent or mens rea?

premeditation

premeditation does NOT require ______

long term planing, offender can plan it in a very short amount of time. all that matters is that he had that premeditated planning in his head before he killed the victim

1st degree premeditated murder must have

must have malice but also premeditation and deliberation. (2nd degree premeditated murder does not have premeditation and deliberation)

how does a court decide if a premeditated murder was 1st degree?

anderson factors test

what are the 3 Anderson factors?

1. Planning activity

2. Prior relationship with and conduct with the victim

3. exacting manner of the killing

define planning activity

facts about what the defendant did PRIOR to the killing that show the crime was PLANNED or designed AHEAD OF TIME

define “prior relationship with and conduct with the victim”

Facts about the defendant’s prior relationship or conduct with the victim can ESTABLISH A MOTIVE; husband kills wife, weeks before; neighbors overheard violent arguments and husband sent vicious text messages. This prior relationship and the animosity between the two show a SPECIFIC motive to kill pointing toward premeditation rather than a random act of passion

define “exacting manner of the killing

to show a “preconceived design” for the killing (facts about how the physical attack was carried out showing an exact, calculation RATHER than a sudden, uncalculated explosion of violence

the penalty for attempted murder is ____ that of actual murder

half

in 2nd degree murder, malice is ______, not ______

Implied, not expressed

what 3 elements are required for second degree murder

1. Implied Malice

2. Killing without premeditation and deliberation

3. lack of explicit intent to cause harm (guilt is based on circumstances)

define implied malice

murder that shows an abandoned and malignant heart (conscious disregard for human life)

according to implied Malice, an offender is subjectively ______ of the actions posing danger to human life and deliberately ______ such danger

subjectively aware, deliberately ignore

according to the jury instruction code for 2nd degree murder

the killing must:

1. result from an intentional act

2. the natural consequences of the act were DANGEROUS to human life

3. at the time of the accused act, the defendant KNEW (subjectively) his act was dangerous to human life

4. the defendant deliberately acted with a conscious disregard for human life

which aggravating factors can cause a sentence to increase

1. drive-by shooting

2. victim is a police officer

3. if perpetrator intends to kill police officer / inflict serious bodily injury

4. an additional 10, 20, or 25 years for using a firearm

define felony murder

murder committed in the perpetration of or attempt to perpetrate certain enumerated felonies: When a death happens during a dangerous crime (robbery or arson, etc..) even if there were no plan, desire, or intent to kill anyone, offender can be charged with FELONY MURDER

what is an example of felony-murder

A and B robbed a convenience store, on their way out, B shot and killed the clerk, both A and B will be charged with felony-murder because murder happened during the perpetration of another felony (robbery of convenience store) and did not involve premeditation 

why does felony-murder rule exist

1. to prevent negligent or accidental killing of a human being during the commission of a felony

2. to prevent the commission of the underlying felony itself

the felony murder rule what to any killing, accidental or intentional during the commission of any 189 felony?

strict liability

felony murder rule applied what to everyone involved in the underlying felony EVEN if they were not present or did not participate in the killing?

accomplice liability

felony murder must involve the continuous _____

continuous transaction of the commission

for felony murder, the death must be the _____

direct result of the commission or attempted commission of the underlying felony (robbery, rp)

1st degree felony murder has been in effect since when?

1872

felony murder is considered to be in the 1st degree IF it is committed during the perpetration of which crimes?

1. ALL murder

2. attempt to perpetrate arson

3. rp

4. carjacking

5. robbery

6. mayhem

7. kidnapping

8. train wrecking

9. sd

strict liability is applied in felony murder, what is the only requirement?

the specific intent to commit the underlying felony

felony murder must be proved _____

by the prosecutor BEYOND A REASONABLE DOUBT, all the elements of UNDERLYING felony for which the defendant had a SPECIFIC INTENT to commit or attempted to commit

which crimes are specific intent crimes?

1. petty theft

2. burglary

3. forgery

4. lew or lascivious acts

5. 1st degree premeditated murder

6. capital murder

which crimes are general intent crimes?

1. battery

2. assault

3. rp

4. arson

5. driving under the influence

which crimes are excluded from felony murder rule?

1. burglary with the intent to commit assault (merger doctrine)

the merger doctrine was overturned by which court case?

people v. farley

define what is the escape rule according to the felony murder rule

for burglary, determines when the felony murder rule extends in the case, if killing happens after offender has already escaped from the scene, then it is NOT felony-murder

what are the three rules for the “escape rule”

1. defendant is deemed to have completed a burglary when he escapes from the scene

2. is no longer being chased

3. and has unchallenged possession of the property

under the felony murder rule, The crime of burglary continues until when?

he perpetrator has actually reached a temporary place of safety,

when was the new felony murder rule created in California?

2019

what are the two rules to the new felony murder rule?

A person commits felony murder, and therefore is liable for murder, when he commits, attempts, or participates in a felony, and one of the following is true:

1. he killed the victim

2. He Aided and abetted in the commission of the 1st degree murder with malice aforethought - Express or implied

3. He was a major participant in the commission of the underlying felony and acted with reckless disregard for human life (he had implied Malice)

4. Because of the defendant’s acts, a PEACE OFFICER was KILLED while in the performance of his/her duties

RESENTENCING OFFENDERS convicted under the OLD FELONY MURDER RULE:

1. The person was prosecuted for felony murder under an NPC theory:

2. The person was convicted of first-degree or second-degree murder following a trial, or accepted such charges as a plea offer; and,

3. The person would NOT have been convicted of murder under California's new felony murder law

in a resentencing hearing, it is not the job of the petitioner to show that his sentence should be reduced but what?

1. it is the PROSECUTOR who must prove BEYOND A REASONABLE DOUBT that the petitioner’s sentence SHOULD NOT be reduced

if the prosecutor in a resentencing hearing under the new felony murder rule can’t make this requisite proof, then ____

Any allegations (specified facts or actions that were alleged (not necessarily proven) during the original trial that led to the conviction) attached to the conviction SHALL BE VACATED and the petitioner shall be sentenced on the REMAINING charges

in a resentencing hearing under the new felony murder rule, what does the judge do?

Judge hearing the case makes the final decision as to what new sentence gets imposed

expanded rules for resentencing hearing under the new felony murder rule to include those convicted of ATTEMPTED MURDER and MANSLAUGHTER under the NATURAL AND PROBABLE CONSEQUENCES THEORY. 

Senate Bill 755

define 2nd degree Felony murder

a killing that occurs during the commission of a felony, which is NOT one of the felonies enumerated in PC 189

what is the difference between express and implied Malice?

Express malice is a clear, direct intent to kill someone, whereas implied malice is extreme recklessness that shows a conscious disregard for human life without a specific plan to end it

which court case held that homicide during the commission of another felony CAN be 2nd degree murder IF, the felony is “inherently dangerous to human life”

People v. Ford (1964)

Which court case held that any act is “inherently dangerous to human life when there is a high probability that its commission will result in death”

People v. Patterson

which court case held that an offense is inherently dangerous if it creates “substantial risk that someone will be killed, or carries a high probability that death will result”

People v. Robertson

People v. Chun (2009) held that

2nd degree felony murder is NOT a judge-made rule, it is based on the state

all felonies that contain an assaultive element merge with the resulting homicide and may not longer serve as the basis of a felony-murder charge, judicial determinations of merger will now be based on the FACE OF THE STATUTE, and no longer the particular facts of a defendant’s case

A crime is considered to have an “assaultive element” if…

its purpose is to inflict or threaten injury, rather than to commit an independent, underlying felony (E.g. shooting at a crowd attending a party (assaultive element exists)

Under felony murder rule, the prosecution must first prove what?

BEYOND A REASONABLE DOUBT all of the elements of the underlying felony (robbery, etc.)  for which the defendant had a specific intent to commit or attempted to commit

Next, the prosecution has to prove that the killing was A PART of the continuous transaction of the commission or attempted commission of the underlying felony (robbery,

The jury must FIRST find the defendant GUILTY BEYOND A REASONABLE DOUBT of having a specific intent to commit or attempt to commit the predicate or underlying felony BEFORE finding the defendant guilty of felony-murder (people v. Granados)

what is the penalty for 1st degree felony murder?

death penalty, life without parole, 25 years to life, plus other enhancement add-ons

what is the penalty for 2nd degree felony murder?

15 years to life or increased penalties if Aggravating factors exist

since which court case have CA prosecutors stopped charging defendants with 2nd degree felony murder?

People v. Chun (2006)

Define manslaughter

the unlawful killing of a human being without Malice (without the intent to kill)

manslaughter is a less culpable form of homicide than ____

murder

define voluntary manslaughter

the unlawful killing of a human being without Malice “upon a sudden quarrel or heat of passion”

what is the reasonable standard of manslaughter?

would the totality of the circumstances that provoked the defendant to kill have provoked a reasonable person to kill

What is the cooling of the passion test

1. Lapse of time

2. rational activity on the part of the actor; and

3. acts indicating rational preparation for the killing

under the imperfect self-defense, for murder to become voluntary manslaughter, what must exist within the defendant?

an honest (subjectively honest) and unreasonable (to the reasonable person) fear of being killed

what are the three elements for imperfect self-defense?

1. The person believes themselves or others to be in IMMINENT PERIL of being killed or suffering great bodily injury

2. The person believes that the immediate use of DEADLY FORCE is necessary to defend against the danger; and

3. At least one of these mistaken beliefs is unreasonable (to a reasonable person)

strategies to claim imperfect self-defense include showing that…

1. The accused’s beliefs, if true, would have justified the act

2. The victim’s aggression was unlawful; and

3. The accused’s circumstances and background help to explain their actions

what are the penalties for lower tier voluntary manslaughter?

3 years

what is the penalty for middle tier voluntary manslaughter?

6 years

what is the penalty for upper tier voluntary manslaughter?

11 years

HOWEVER, prosecutors RARELY file voluntary manslaughter charges against defendants ___

Outright, it is usually the result of a plea agreement or a conclusion reached by a jury

define involuntary manslaughter

the unlawful killing of a human being WITHOUT MALICE in the commission of an UNLAWFUL act, not amounting to a felony; OR in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection

involuntary manslaughter is the lowest ____

least culpable form of criminal homicide

what are two types of involuntary manslaughter?

1. Misdemeanor manslaughter

2. Negligent homicide

what is an example of misdemeanor manslaughter?

brandishing a gun and accidently shoots a person who struggles to take the gun away

define negligent homicide

the negligence MUST be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences

what are examples of negligent homicide?

parental negligence, an 85 year old man let his chronically-ill wife starve to death 

what is the punishment for involuntary manslaughter

Lower tier: 2 years

Middle tier: 3 years

Upper tier: 4 years

define vehicular manslaughter

The unlawful killing of a human being without malice under the following circumstances:

1. The operation of a motor vehicle with gross negligence, simple negligence, resulting in the death of a human being

2. Knowingly and deliberately causes or participates in a collision for the purpose of defrauding the insurance company resulting in the death of a human being

define gross negligence

a failure to exercise any care, or the exercise of so little care that you (the jury) are justified in believing that the person whose conduct is involved was wholly indifferent to the consequences of his conduct and to the welfare of others

what is an example of gross negligence?

a driver continued to drive at excessive speed DESPITE the requests of passengers to slow down

define simple negligence?

 failure to exercise that degree of care that a reasonable person would exercise in the same or similar circumstances

DUI second degree murder is known as what in CA?

a Watson murder, is the most serious of California felony DUI charges

Unlike ordinary or gross negligence, watson murder involves allegations of ____

IMPLIED MALICE or malice aforethought