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Malice Aforethought in Murder

Malice Aforethought in California Murder Cases

The State of California has a simple definition for murder under Penal Code 187 PC: "Murder is the unlawful killing of a human being, or a fetus, with malice aforethought."

This means that if you're charged with murder, the burden of proof is on prosecutors to show that you killed someone or caused their death and that you did so specifically with malice aforethought.

Malice Aforethought in California Murder Cases
Malice aforethought is a required mental state for killers to get convicted of PC 187 murder.

Simply put, malice aforethought is the required mental state a perpetrator must have to be found guilty of PC 187 murder. You should know some important information about malice aforethought in murder cases.

First, there are two types of malice aforethought: express malice and implied malice. Express malice is when the defendant had the specific intent to kill the victim. Implied malice is when the defendant demonstrates a conscious disregard for human life, called a “depraved indifference.”

To get a PC 187 murder conviction, a prosecutor must prove beyond a reasonable doubt that a defendant acted with malice.

Notably, malice aforethought is a different mental state than premeditated or deliberate, which are elements of the crime for first-degree murder.

Homicide without malice aforethought could be filed as a lesser crime of Penal Code 192(a) PC voluntary manslaughter or Penal Code 192(b) PC involuntary manslaughter.

Thus, in many murder cases, a good California criminal defense attorney will focus much of their defense strategy on disproving that malice was involved in the victim's death. Let's discuss this concept at length and learn how important it is to your case if you've been accused of murder.

What Is Malice Aforethought?

Malice aforethought is a legal term referring to the intentional commission of a harmful act, often resulting in the death of another person.

It is a critical element in distinguishing murder from other forms of homicide (e.g., manslaughter), as it represents the accused's mental state and intent at the time of the offense.

Malice Aforethought
Malice aforethought in murder cases refers to an intentional act resulting in someone's death.

This proof often shows that the killer thought about murder before committing the crime and took specific steps to facilitate the murder. As noted, two types of malice are recognized under California law: express malice and implied malice.

Penal Code 188 PC says, “(a) For purposes of Section 187, malice may be express or implied.

(1) Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.

(2) Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

(3) Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on their participation in a crime.

(b) If it is shown that the killing resulted from an intentional act with express or implied malice, as defined in subdivision (a), no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite that awareness is included within the definition of malice.”

What is Express Malice?

Express malice occurs when the accused has a clear and deliberate intent to kill another person. In other words, the accused must have consciously decided to take someone's life unlawfully.

Express Malice
Express malice means the defendant had a clear and deliberate intent to kill their victim.

Express malice is often associated with first-degree murder, which typically carries the most severe penalties of any homicide charge.

To procure a conviction of first-degree murder, prosecutors will attempt to prove express malice, a willful intent to kill, along with the elements of deliberation and premeditation, which is acting with consideration of the consequences and planning in advance, respectively.

Example: A man plans to kill his business partner to gain full control of their company. He purchases a weapon, studies his partner's daily routine, and then lies in wait until the opportune moment to carry out the murder. In this case, the man acted with express malice because he had a direct intention to kill his partner.

Penal Code 189(a) says, “(a) All murder that is perpetrated by means of a destructive device or explosive, … lying in wait, torture, or other kinds of willful, deliberate, and premeditated killing, or committed in the perpetration of arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act under Section 206, 286, 287,288, or 289, or former Section 288a, or murder by discharging a firearm from a motor vehicle with the intent to inflict death, is the murder of the first degree.”

What is Implied Malice?

Implied malice occurs when the accused knowingly engages in an inherently dangerous act demonstrating a conscious disregard for human life.

The accused may not have intended to kill anyone but were aware that their actions could result in death and chose to act anyway.

Implied malice is often linked to second-degree murder charges, which generally carry less severe penalties than first-degree murder.

Example: A person, frustrated with a noisy neighbor, decides to set fire to the neighbor's house in the middle of the night as an act of revenge. The fire quickly spreads, and the neighbor dies from smoke inhalation.

Although the person did not specifically plan to kill the neighbor, their deliberate and dangerous act of setting fire to the house, knowing the potential risks, demonstrates implied malice, not to mention the likely additional charge of arson.

How Can a Prosecutor Prove Malice Aforethought?

In a murder case, the burden of proof is on prosecutors to establish the existence of malice aforethought beyond a reasonable doubt. If no malice aforethought can be established, all prosecutors can hope to achieve is a conviction under a lesser manslaughter charge.

To prove malice aforethought, prosecutors may rely on various types of evidence, such as:

  • Statements made by the accused before, during, or after the crime indicating a desire or intention to cause harm or death.
  • Witness testimony—third-party observations of the behavior of the accused, which can help establish their mental state at the time of the offense.
  • The nature of the weapon or method used in the homicide, which may suggest a deliberate and premeditated act.
  • The accused's actions leading up to the offense, including any planning or preparation demonstrating intent.
  • The manner in which the crime was committed, mainly if it exhibits a clear and calculated approach.

What are the Defense Strategies Against Malice Aforethought?

If you're facing murder charges, a skilled defense attorney will explore various strategies to refute the existence of malice aforethought, which are discussed below.

Perhaps we can argue it was an accident or misfortune. Defense attorneys might be able to say that the death occurred due to an accident or unforeseen event rather than your willful intent or conscious disregard for human life.

Defense Strategies Against Malice Aforethought
Contact our defense lawyers for legal guidance.

Perhaps we can argue self-defense or defense of others. If the defense can show that you were acting in self-defense or protecting someone else from imminent harm, it may disprove malice aforethought.

Perhaps we can argue there was a heat of passion. If your attorney can demonstrate that you acted impulsively in the heat of passion, it may disprove malice aforethought.

The heat of passion defense requires showing that the accused was provoked to such an extent that they lost self-control and acted without premeditation or deliberation. This defense could potentially reduce the charge from murder to voluntary manslaughter.

Perhaps we can argue a mental Incapacity or insanity. A defense attorney may argue that wee mentally incapable of forming the intent necessary for malice aforethought due to a mental disorder or temporary insanity.

This defense is typically only used in extraordinary circumstances because it may result in your commitment to a state hospital if it is effective. You can phone our law firm to review the case details or use the contact form. Eisner Gorin LLP is based in Los Angeles, California.

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