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Malice Aforethought

Malice Aforethought in Murder Cases

California defines Penal Code 187 PC murder as the unlawful killing of a human being, or a fetus, with malice aforethought, which is the required mental state to be found guilty of murder. Simply put, suppose you were charged with murder. In that case, prosecutors have the burden to prove you killed somebody specifically with malice aforethought.

Malice Aforethought in Murder Cases
Malice aforethought is the required mental state someone must have to be found guilty of murder.

 Notably, there are two types of malice aforethought: express and implied malice. Express malice means a defendant had the specific intent to kill the victim. Implied malice means a conscious disregard for human life, known as “depraved indifference.”

Thus, to convict a defendant of PC 187 murder, it must be proven beyond a reasonable doubt they acted with malice. Malice aforethought is not the same mental state as premeditated or deliberate, which are crucial factors in first-degree murder cases. 

Suppose malice aforethought can't be proven. In that case, prosecutors could file lesser charges such as Penal Code 192(a) PC voluntary manslaughter or Penal Code 192(b) PC involuntary manslaughter. This means experienced criminal defense lawyers will often build their strategy around targeting the issue of malice in the victim's death. 

Whether a Penal Code 187 PC defendant acted with this required mental state is an issue decided by a jury. Prosecutors will typically attempt to prove malice by showing the defendant thought about murder before committing it and showing they took direct steps to facilitate the murder.

Malice Aforethought - Defined

As noted, malice aforethought refers to an intentionally harmful act that typically leads to someone's death. It is a critical “element of the crime” that separates murder from other types of homicide cases, such as manslaughter. Simply put, malice aforethought is the following:

  • The killer's state of mind at the time of the murder,
  • Shows the killer thought about murder before committing it and
  • The killer took specific steps to facilitate the murder.

As noted above, under California law, there are two types of malice: express malice and implied malice. Penal Code 188 PC says, “(a) For purposes of Section 187, malice may be express or implied.

(1) Express malice is when a deliberate intention is manifested to take away the life of a fellow creature unlawfully.

(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, 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 means the defendant had a clear and deliberate intent to kill someone. It suggests they made a conscious decision to take another person's life unlawfully.

Express malice is typically related to PC 187 first-degree murder, which carries the most severe penalties. To convict, the District Attorney will try to prove express malice by showing a willful intent to kill in addition to the elements of deliberation and premeditation, which means acting with consideration of the consequences and planning.

Simply put, express malice is when a defendant unlawfully intends to kill someone.

What is Implied Malice?

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

This means the defendant might not have intended to kill but were aware that their actions could result in death and chose to act anyway. Implied malice is often connected to second-degree murder, which usually carries lesser penalties than first-degree murder. Thus, a defendant acted with implied malice under the following elements:

  • They intentionally committed an act,
  • The natural and probable consequences of it were dangerous to human life,
  • When the defendant acted, they knew their act was dangerous to human life and
  • They deliberately acted with conscious disregard for human life.

Deliberation and premeditation are not the same as killing someone with malice. Deliberation means someone carefully weighed the considerations for and against the act and committed it knowing its consequences.  An act is done with premeditation if the decision to commit the act is made before it's done.

How Can Prosecutors Prove Malice Aforethought?

In a PC 187 murder case, prosecutors have the burden of proof to establish the existence of malice aforethought beyond a reasonable doubt. Otherwise, they would have to try and convict them of a lesser manslaughter charge.

Thus, to prove malice aforethought, a prosecutor will typically depend on different types of evidence, such as the following:

  • Defendant's statements before, during, and after the murder showing they had the intent crime to cause harm or death.
  • Testimony from witnesses about the defendant's behavior, which can establish their mental state around the time of the murder.
  • The type of weapon or the method used to commit the murder, which can often show a deliberate and premeditated act.
  • The defendant's behavior leading up to the murder, such as any planning or preparation that would prove their intent.
  • The way the crime was committed, such as showing a clear and calculated approach to committing murder.

What are Some Defense Strategies?

If you're facing California Penal Code 187 PC murder charges, our California criminal defense lawyers can use different strategies to challenge the existence of malice aforethought, as discussed below. 

California Penal Code 187 PC murder

Maybe we can argue the victim's death occurred due to an accident or unforeseen event and was not a willful intent or conscious disregard for human life.

Maybe we can argue about self-defense or defense of others. Perhaps we can prove that you were acting in self-defense or protecting another person from imminent harm, which might disprove malice aforethought.

Maybe we can argue a heat of passion, meaning you acted impulsively, which may disprove malice aforethought. However, the heat of passion defense requires showing that you were provoked to such an extent that you lost self-control and acted without premeditation or deliberation. 

Perhaps we can negotiate to get the charges reduced from murder to voluntary manslaughter. Maybe we can argue a mental Incapacity or insanity. You can contact our law firm for a free case evaluation. Cron, Israels & Stark is based in Los Angeles, CA. 

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