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Murder 1Penal Code Section 187 States:

“(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought, and without justification or excuse.”

Although the term homicide is sometimes used interchangeably with murder, homicide is broader in scope than murder and simply refers to the death of one person being the result of another person’s conduct. Murder is a form of criminal homicide; other forms of homicide might not constitute criminal acts. These homicides are regarded as justified or excusable. For example, individuals may, in a necessary act of Self-Defense, kill a person who threatens them with death or serious injury, or they may be commanded or authorized by law to kill a person who is a member of an enemy force or who has committed a serious crime. Typically, the circumstances surrounding a killing determine whether it is criminal. The intent of the party usually determines whether a criminal homicide is classified as murder and at what degree.

The laws regarding criminal homicide are complex and often unique to the jurisdiction where the crime took place.

In order to convict a defendant of murder, the prosecution must prove beyond reasonable doubt that the defendant committed the acts in question under a specific mental state. Individuals who have been charged with murder should immediately seek the advice an experienced defense attorney about their legal rights and options.

MURDER: What the Prosecutor Must Prove Beyond a Reasonable Doubt:

Jury Instruction 520. First or Second Degree Murder With Malice

The defendant is charged [in Count ] with murder [in violation of Penal Code section 187].

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant committed an act that caused the death of (another person/ [or] a fetus);


2. When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.)

<Give element 3 when instructing on justifiable or excusable homicide.>


3. (He/She) killed without lawful (excuse/[or] justification).]

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if (he/she) unlawfully intended to kill.

The defendant acted with implied malice if:

1. (He/She) intentionally committed an act;

2. The natural and probable consequences of the act were dangerous to human life;

3. At the time (he/she) acted, (he/she) knew (his/her) act was dangerous to human life;


4. (He/She) deliberately acted with conscious disregard for (human/ [or] fetal) life.

Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

[It is not necessary that the defendant be aware of the existence of a fetus to be guilty of murdering that fetus.]

[A fetus is 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.]

[An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.]

[There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.]

[(A/An) <insert description of person owing duty> has a legal duty to (help/care or/rescue/warn/maintain the property of/ <insert other required action[s]>) <insert description of decedent/person to whom duty is owed>.

If you conclude that the defendant owed a duty to <insert name of decedent>, and the defendant failed to perform that duty, (his/her) failure to act is the same as doing a negligent or injurious act.]

<Give the following bracketed paragraph if the second degree is the only possible degree of the crime for which the jury may return a verdict>

[If you find the defendant guilty of murder, it is murder of the second degree.]

<Give the following bracketed paragraph if there is substantial evidence of first degree murder>

[If you decide that the defendant committed murder, you must then decide whether it is murder of the first or second degree].

If you or someone you know has been charged with Murder, contact John J. Stanley & Associates at (818) 769-5200 for your free consultation.


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