The unlawful killing of a human being, or a fetus, with malice aforethought. (Penal Code Section 187(a))

A fetus is defined as "an unborn human being that has progressed beyond the embryonic stage after major structures have been outlined, which occurs at seven to eight weeks of development." (CALCRIM Jury Instruction No. 520) 

Certain exceptions apply relating to the death of a fetus. These exceptions are contained in Subsection (b) of section 187:

     (1)  The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400)  of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code of California. In other words, an abortion performed pursuant to this act;

     (2)  The act was committed by the holder of a physician's and surgeon's certificate, as defined in Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus, or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not. In other words, procedures that are medcially necessary to save the mother's life;

     (3)  The act was solicitated, aided, abetted, or consented to by the mother of the fetus.

However, Subsection (b) does not prohibit or prevent prosecution of any person under any other provision of the law.

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The basic requirement for criminal liability is that there be an overt act or actus reus. There has to be an affirmative act or an omission to act where there is a duty to act.

The overt act must be accompanied by the necessary mental state or mens rea.

However, murder not only requires the overt act and mental state but malice aforethought, which distinguishes murder from manslaughter.

There are two kinds of malice, express and implied.

     Express malice is the "deliberate intention unlawfully to take away the life of a fellow creature." (Penal Code Section 188)

     Implied malice exists "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and a malignant heart." (Penal Code Section 188)

However, in felony murder where one kills someone during the commission or attempted commission of certain specified felonies, malice for the killing is imputed to the felon; it is a strict liability statute, one only need to have the specific intent to commit the specific felony. The reasoning behind this is a public policy concern of deterring felons from accidentally or negligently killing during the commission of a felony.

Eliminate malice and specific intent and you have Manslaughter.

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There are two degrees of Murder: First and Second.

     First Degreee Murder:

          (1) Willful, Deliberate and Premeditated.

          (2)  Committed by a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, drive-by shooting with the intent to inflict death.

          (3)  If the killing constitutes Felony Murder as discussed above.

          Punishment: Death. LWOP (Life without possibility of parole (release), 25 years to life.

     Second Degree Murder:

          (1)  Intentional killing with express malice but without premeditation and without provocation.

          (2)  Unintentional killing with implied malice caused by extremely reckless behavior such as killing someone while operating a motor vehicle intoxicated typically classified as a "Watson" murder relating to the California Supreme Court case of People v. Watson.

          Punishment: 15 years to life, unless the killing was of a peace officer engaged in the performance of his or her duties and the defendant knew of same, then it is 25 years to life. Further, if is was a peace officer engaged in the performance of his or her duties, the defendant knew of same, and any of the following apply: (1) the defendant specifically intended to kill the peace officer, (2) the defendant specifically intended to inflict great bodily injury on the peace officer, (3) the defendant personally used a deadly or dangerous weapon (4) the defendant personally used a firearm...then LWOP (Life without possibility of parole (release)) and 20 years to life for someone convicted of an intentional drive-by shooting with the intent to inflict great bodily injury. 

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Defenses relating to Murder:

          (1)  Justifiable:  Self Defense or Defense of Others (Penal Code Section 197).

          (2)  Excusable:  Accidental (Penal Code Section 195). 

Contact Gregory B. Pike

Toll free at (888) 387-1101 or at gregorypike@gmail.com