Common Questions
Did the defendant commit a voluntary act that lead to the death(s)?
Did the defendant create the peril?
If there was no act did the defendant have a duty, statutory or at common law, to act in a manner that would have prevented the death?
Was the person/thing that caused the death acting as an agent of the defendant?
CA Difference on Default Mens Rea
When a statute is silent on the element of mens rea, the common-law standard is recklessly; the CA standard is negligently
Recklessly (**objective and subjective**) – focuses on the risk, not what you knew but what you disregarded – more than negligent but less than knowingly – requires less than certainty
a. Subjective focus:
– Conscious disregard
– Substantial risk
– Unjustifiable risk
b. Objective focus:
– A gross deviation from the standard of societal conduct
– Nature and degree of conduct
– Nature and purpose of circumstances known to the actor
– Regina v. Cunningham (Eng. 1957) – D took gas meter and disregarded the outcome thus acting recklessly. This is also malice.
Negligently – A person acts negligently w/ respect to a material element of an offense when he should be aware of the substantial an unjustifiable risk; A gross deviation from the standard of care; The situation shows that he should have perceived the risk
DA’s Wish list
Felony Murder 1
No Anderson test, only specific intent to commit felony
Premeditated Murder 1
Felony Murder 2
Preferable to AMH since you might get two convictions (felony and murder)
AMH Murder 2
Voluntary Manslaughter
Involuntary Manslaughter
Homicide
Murder is unlawful killing with the mental state of “malice aforethought.” “When it is shown that the killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.” (CPC 188) “Manslaughter is the unlawful killing of a human being without malice.”; all expressed malice is implied; thus if there is considerable provocation, voluntary manslaughter is the most you can charge
Requirements for Homicide
Must be a human – in CA, you can murder a fetus past the embryonic stage (7-8 weeks), but you can’t manslaughter a fetus
Someone must die – CA only requires brain death
Death must occur within 1 year and a day at common law (3 years and a day in CA)
Homicide Outline
Degrees of Homicide
First degree murder
All murder which is perpetrated by means of 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,
Premeditated w/ ennumerated means (manner)
or by any other kind of willful, deliberate, and premeditated killing,
Premeditated (Anderson test)
or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289 (lewd & lascivious conduct)
Ennumerated Felonies
[killing by victim after legally sufficient provocation (not in statute)]Taylor-type
or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death,
Drive-by (intent to kill without premeditation)
Second degree murder – “all other kinds of murder shall be deemed murder in the second degree”; kinds of second degree murder:
implied malice “when the circumstances attending the killing show an abandoned and malignant heart” (AMH)
implied malice felony 2nd degree murder
Anderson – if you charge 1st degree premeditated but can’t show planning, motive, AND manner, the court will lower the charge to 2nd degree
Voluntary manslaughter – unlawful killing of a human being without malice … upon a sudden quarrel or heat of passion
Involuntary manslaughter – unlawful killing of a human being without malice … in the commission of [a misdemeanor]; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection; the phrase “without due caution and circumspect
to have requisite intent; DA can counter by showing that intent was formed prior to alcohol consumption
D regretted act and tried to make it better
Accidental
Victim had control
Intervening acts were the actual cause
Honest, actual, and reasonable mistake of fact; DA can counter by arguing mistake was so unreasonable that it had to be dishonest
Motive – Must show that defendant had a goal that could only be achieved by the death of the victim. Measured objectively.
Possible motives:
Defendant’s prior relationship and/or conduct with the victim
Was killing the victim the only way to accomplish def’s goal?
Money
Exchange of Words/Confrontations?
Covering up a previous crime
Hate crime (racially or sexually motivated)
Defenses:
There were other ways to achieve the goal (and killing was unintended)
No prior relationship
D didn’t mean to kill V – D was just angry at V; D just wanted to get back together w/ V; D just wanted to scare V
Manner – These are facts about the nature of the killing from which the jury could infer that the manner of the killing was particular and exacting and that the defendant must have intentionally killed according to reasons in planning and motive.
Ed’s notes from exam: 1. Support inference killing [was a] result of pre-existing and “careful thought” 2. Was weighing of consideration rather than mere unconsidered/rash impulse hastily executed
The ennumerated manners in CPC 189 (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) essentially prove manner.
Factors:Type of weapon used – Is it a weapon usually considered deadly?
