By Ronald S. Coen
It is sometimes said that a murder case is the same as any other trial except it has a dead body. However, murder and other homicide offense cases involve unique elements that both practitioners and judges must understand when handling these charges.
The objective of this article and self-study test is to familiarize readers with the basic elements of homicide crimes. Readers will learn about the corpus delicti of a homicide; proximate cause; the differences between murder in the first and second degree; and the related charges of voluntary, involuntary, and vehicular manslaughter.
A homicide is "the killing of one human being by another" CALCRIM 500. Homicides include both different types of murder and different types of manslaughter.
The corpus delicti, or minimum that must be proved to establish a homicide, is that death was caused by a criminal agency. People v. Towler, 31 Cal.3d 105 (1982). Death is defined as the total and irreversible cessation of brain function. People v. Mitchell, 132 Cal.App.3d 389 (1982). Under People v. Towler, the prosecution need not eliminate all inferences tending to show a noncriminal cause of death. Rather, the foundation may be laid by the introduction of evidence that creates a reasonable inference that the death could have been caused by a criminal agency even though there is an equally plausible noncriminal explanation of the event.
In most cases, death by a criminal agency can be shown by location of the bullet or stab wounds or by evidence of the instrumentality of death. In cases when no body is recovered or the body found is so decomposed that determining the cause of death is impossible, the existence of a criminal agency as the cause of death may be reasonably inferred from the suspicious circumstances of the victim's disappearance. See People v. Weaver, 26 Cal.4th 876 (2001). For example, a victim's abrupt disappearance, failure to contact relatives and friends, failure to seek resumption of Medi-Cal or Social Security payments, and abandonment of personal effects all support a reasonable inference of criminal agency. People v. Ruiz, 44 Cal.3d 589 (1988).
The death must have been proximately caused by the defendant's actions. The act of another can only be a superseding cause precluding responsibility of the initial actor if the other's conduct is both unforeseeable and causes harm that was not a foreseeable consequence. People v. Brady, 129 Cal.App.4th 1314 (2005). For example, the decision to withhold medication to a beaten victim, allowing a comatose victim to die, is not an independent intervening cause. Instead, it is a normal and reasonably foreseeable result of the defendant's original act. People v. Funes, 23 Cal.App.4th 1506 (1994).
To relieve a defendant of criminal liability, an intervening cause must be an unforeseeable and extraordinary occurrence. A defendant remains criminally liable if either the possible consequence might reasonably have been contemplated or the defendant should have foreseen the possibility of harm of the kind that could result from his or her act. People v. Crew, 31 Cal.4th 822 (2003).
If a victim dies more than three years and a day after the stroke received or the cause of death administered, a rebuttable presumption exists that the killing was not criminal, and the prosecution bears the burden of overcoming this presumption. Penal Code Section 194.
There are two types of murder: malice murder and felony murder.
Malice murder is the unlawful killing with malice aforethought of a human being or fetus. Penal Code Section 187(a). Fetal murder does not include viability as an element. This means that there is no requirement that the fetus have achieved the capability for independent existence outside the womb at the time of the fatal blow. As long as the murder of the fetus occurred in the postembryonic period (i.e., seven to eight weeks after fertilization), the defendant may be convicted of fetal murder. People v. Davis, 7 Cal.4th 797 (1994).
Malice may be express or implied. Penal Code Section 188. Malice is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature; it is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
Malice and the intent to unlawfully kill are one and the same. When an intentional killing is shown, malice aforethought is established. People v. Saille, 54 Cal.3d 1103 (1991). Malice is implied when the killing is proximately caused by an act, the natural consequences of which are dangerous to life, and the act was deliberately performed by a person who knows the conduct endangers the life of another and who acts with conscious disregard for life. People v. Knoller, 41 Cal.4th 139 (2007). In short, implied malice requires a defendant's awareness of engaging in conduct that endangers the life of another; no more, no less.
The elements of felony murder are that the defendant intentionally committed or attempted to commit a felony, and while committing or attempting to commit the felony, the defendant did an act that caused the death of another person. CALCRIM 540A. Malice is not an element of the crime of felony murder. People v. Dillon, 34 Cal.3d 441 (1983). The only mental state required for felony murder is that necessary for commission of the underlying felony. See People v. Balderas, 41 Cal.3d 144 (1985). The substantive crime of felony murder does not require an intent to kill. People v. Davis, 189 Cal.App.3d 1177 (1987). Under the felony-murder doctrine, the perpetrator must have the specific intent to commit the underlying felony, even if the underlying felony is a general intent crime. People v. Jones, 29 Cal.4th 1229 (2003).
The felony-murder rule applies to the death of a cohort as much as to the death of an innocent person, when defendant is present at the scene of the crime. Thus, felony-murder liability for any death in the course of an enumerated felony attaches to all accomplices in the felony, at least when one or more of the surviving accomplices was present at the scene and an active participant in the crime. People v. Billa, 31 Cal.4th 1064 (2003). For the felony-murder rule to apply, the murder victim need not be the target of the underlying felony. People v. Davis, 36 Cal.4th 510 (2005). Hence, the accidental death of an accomplice triggers the felony-murder rule. People v. Schaefer, 118 Cal.App.4th 893 (2004).
Under Penal Code Section 189, all murders that constitute willful, deliberate, and premeditated killing are considered murder in the first degree. Under this section, first degree murder also includes all murder that 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, murder committed in the perpetration of certain designated felonies under the felony-murder rule discussed above, and any murder that 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. All other murders are considered to be murder in the second degree. Penal Code Section 189.
People v. Anderson, 70 Cal.2d 15 (1968), noted that there are three categories of evidence pertinent to determining premeditation and deliberation: planning activity, motive, and manner of killing. A first degree verdict will be upheld if there is evidence of all three types or at least extremely strong evidence of planning activity or evidence of motive in conjunction with either planning activity or manner of killing. People v. Anderson, however, did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation. The Anderson factors are not exclusive. People v. Perez, 2 Cal.4th 1117 (1992).
Second degree murder includes homicides committed with implied malice when, using a subjective standard, the defendant actually appreciates the risk involved and nonetheless acts deliberately with conscious disregard for life. See People v. Watson, 30 Cal.3d 290 (1981). It also includes murders committed under the second degree felony-murder rule: a homicide that is a direct causal result of the commission of a felony inherently dangerous to human life other than those listed for first degree felony-murder in Penal Code Section 189. People v. Patterson, 49 Cal.3d 615 (1989). An important limit to the second degree felony-murder rule is that under People v. Chun, 45 Cal.4th 1172 (2009), the underlying felony must not be an "assaultive" crime that involves a threat of immediate violent injury.
Manslaughter is the unlawful killing of a human being without malice. Penal Code Section. There are three types: voluntary manslaughter, involuntary manslaughter, and vehicular manslaughter.
Voluntary manslaughter is a homicide committed upon a sudden quarrel or heat of passion. Penal Code Section 192(a). A killer who, acting with conscious disregard for life and knowing that the conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or heat of passion is guilty of voluntary manslaughter. An unlawful killing without malice - because of a sudden quarrel or heat of passion - is voluntary manslaughter, regardless of whether there was an intent to kill. People v. Lasko, 23 Cal.4th 101 (2000). Voluntary manslaughter also occurs when a defendant acts in the good faith belief that he needed to defend himself or others, and the belief was objectively unreasonable under the circumstances. See People v. Flannel, 25 Cal.3d 668 (1979).
Involuntary manslaughter occurs when a homicide is done in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act that might produce death, in an unlawful manner, or without due caution and circumspection. Penal Code Section 192(b). The difference between implied malice second degree murder and involuntary manslaughter lies in the defendant's subjective appreciation of risk. As explained by People v. Watson, involuntary manslaughter occurs when the defendant acts with gross negligence, when a reasonable person in defendant's position would have been aware of the risk. With implied malice, the defendant actually appreciated the risk involved and acted wantonly.
Gross vehicular manslaughter while intoxicated is the unlawful killing without malice aforethought while driving a vehicle when the driving was in violation of any of the driving - under-the-influence statutes, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence. Penal Code Section 191.5(a). Vehicular manslaughter while intoxicated is the same offense when gross negligence is absent. Penal Code Section 191.5(b).
Three other forms of vehicular manslaughter are defined in Penal Code Section 192(c): driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or driving a vehicle in the commission of a lawful act that might produce death in an unlawful manner, and with gross negligence; the same offense without gross negligence; and driving a vehicle in connection with causing or participating in vehicular collision for the purpose of insurance fraud, when the collision was knowingly caused for financial gain and proximately resulted in a death.
Ronald S. Coen is a judge of the Los Angeles County Superior Court.