Landmark California Cases Addressing Malice

Murder is an unlawful killing committed with malice aforethought. ( 187, subd. (a); People v. Robertson (2004) 34 Cal.4th 156, 164, overruled on another ground as stated in People v. Sarun Chun (2009) 45 Cal.4th 1172, 1201.) "Second degree murder is an unlawful killing with malice aforethought, but without the elements that elevate an unlawful killing to first degree murder." (People v. Robertson, supra, 34 Cal.4th at p. 164; see also People v. Nieto Benitez (1992) 4 Cal.4th 91, 102.) "Malice may be express or implied. 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.' More specifically, 'malice is implied "when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts in conscious disregard for life." ' " (People v. Robertson, supra, 34 Cal.4th at p. 164; see also People v. Nieto Benitez, supra, 4 Cal.4th at pp. 102-103.) "When it is established that the killing was the result of an intentional act committed with express or implied malice, no other mental state need be shown in order to establish malice aforethought." (People v. Nieto Benitez, supra, 4 Cal.4th at p. 103, citing 188.) " ' "A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of . . . voluntary manslaughter. " Generally, the intent to kill unlawfully constitutes malice. "But a defendant who intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined circumstances: either when the defendant acts in a 'sudden quarrel or heat of passion' , or when the defendant kills in 'unreasonable self-defense'--the unreasonable but good faith belief in having to act in self-defense ." Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide , voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder .' " 'Neither heat of passion nor imperfect self-defense is an element of voluntary manslaughter' that must be affirmatively proven. Rather, they are 'theories of partial exculpation' that reduce murder to manslaughter by negating the element of malice. "A heat of passion theory of manslaughter has both an objective and a subjective component. " ' "To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.' " ' 'The factor which distinguishes the "heat of passion" form of voluntary manslaughter from murder is provocation. The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim , or be conduct reasonably believed by the defendant to have been engaged in by the victim. The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. ' " (People v. Moye, supra, 47 Cal.4th at pp. 549-550.) The objective requirement for heat of passion ensures that a defendant may not " ' "set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believes that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man." ' " (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.) "To satisfy the subjective element of this form of voluntary manslaughter, the accused must be shown to have killed while under 'the actual influence of a strong passion' induced by such provocation. " (People. v. Moye, supra, 47 Cal.4th at p. 550.) When determining whether the evidence was sufficient to sustain a criminal conviction, we review the entire record in the light most favorable to the judgment to establish " 'whether it discloses substantial evidence--that is, evidence which is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Hillhouse (2002) 27 Cal.4th 469, 496.) "We draw all reasonable inferences in support of the judgment. " (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears " 'that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.' " (People v. Bolin (1998) 18 Cal.4th 297, 331.) " 'The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319 99 S.Ct. 2781.) " ' "It is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. . . ." ' " (People v. Abilez (2007) 41 Cal.4th 472, 504.) In a vehicular homicide case, a second degree murder conviction may be based on implied malice. Malice may be implied "when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created . . . ." (People v. Watson (1981) 30 Cal.3d 290, 298; People v. Ortiz (2003) 109 Cal.App.4th 104, 110.) In other words, the state of mind for implied malice is " 'I know my conduct is dangerous to others, but I don't care if someone is hurt or killed.' " (People v. Olivas (1985) 172 Cal.App.3d 984, 988.) Implied malice is determined by examining the defendant's subjective mental state to see if the defendant actually appreciated the risk of his or her actions. (People v. David (1991) 230 Cal.App.3d 1109, 1114, citing People v. Watson, supra, 30 Cal.3d at pp. 296-297.) It is not enough that a reasonable person would have been aware of the risk. (People v. Moore (2010) 187 Cal.App.4th 937.) Evidence of other crimes is inadmissible to prove a defendant's propensity to commit the crime charged. (Evid. Code 1101, subd. (a); People v. Guerrero (1976) 16 Cal.3d 719, 724.) "Propensity evidence" is not barred because such evidence is irrelevant. Instead, the evidence has too much probative value, creating a tendency by jurors to believe the defendant is guilty based on the commission of prior acts, irrespective of proof of guilt on the pending charge. (Id. at p. 725; People v. Ortiz, supra, 109 Cal.App.4th at p.111.) Despite the bar on "propensity evidence," evidence of other crimes, civil wrongs, or other acts is admissible if the evidence logically tends to prove a material element in the People's case, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. ( Evid. Code, 1101, subd. (b); see also People v. Kelley (1967) 66 Cal.2d 232, 239;.) This type of evidence may be admitted if it: "(a) 'tends logically, naturally and by reasonable inference' to prove the issue upon which it is offered; (b) is offered upon an issue which will ultimately prove to be material to the People's case; and (c) is not merely cumulative with respect to other evidence which the People may use to prove the same issue." (People v. Schader (1969) 71 Cal.2d 761, 775.) Evidence of other crimes which points to a defendant's guilt is prejudicial. Therefore, the admissibility of this type of evidence must be examined with care. (See People v. Kelley, supra, 66 Cal.2d at p. 239, citing People v. Peete (1946) 28 Cal.2d 306, 316; People v. Ortiz, supra, 109 Cal.App.4th at p. 116.) Under Evidence Code section 352, if the probative value of the other crimes evidence is substantially outweighed by undue prejudice, it should be excluded. (People v. Brogna (1988) 202 Cal.App.3d 700, 709-719.) The Governing Law on Attempted Murder and the Element of Express Malice: "'The mental state required for attempted murder has long differed from that required for murder itself. Murder does not require the intent to kill. Implied malice--a conscious disregard for life--suffices. ' In contrast, 'attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.'" (People v. Smith (2005) 37 Cal.4th 733, 739; see also People v. Bland (2002) 28 Cal.4th 313, 327-328.) Stated somewhat differently, in order to be found guilty of attempted murder, the jury must find the defendant acted with express malice, that is, the defendant intended to cause the death of a particular victim or knew to a substantial certainty that that result would occur. (Smith, at p. 739 "express malice requires a showing that the assailant '"'either desires the result, i.e., death or knows to a substantial certainty that the result will occur'"'"; Bland, at p. 328.)