Murder is defined as the unlawful killing of a human being or a fetus, with malice aforethought. There are two kinds of malice aforethought, express malice and implied malice. Express malice is where the defendant acted unlawfully and intended to kill the victim. Implied malice is when the defendant (a) intentionally committed an act; (b) the natural consequences of the act were dangerous to human life; (c) at the time they acted, they knew the act was dangerous and acted deliberately and with a conscious disregard for human life.
Malice aforethought must be proved for murder in the first or second degree.
1. First-degree murder
California Penal Code § 189 distinguishes between first and second-degree murder. First-degree murder can be me in a couple of ways. First-degree murder if the killing is (1) "willful, deliberate, and premeditated;" (2) committed by 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, [and] torture;" or (3) if the killing constitutes felony-murder (committed in the perpetration of, or attempt to perpetrate and felony with the intent to inflict death.
2. Second-degree murder
Second-degree murder includes "all other kinds of murders" that do not qualify as first-degree murder or felony-murder. Second-degree murder can be divided into three basic categories: 1) purposeful killing without premeditation, 2) implied malice murder, or 3) inherently dangerous felony-murder.
It is important to talk to an experienced criminal defense attorney as soon as possible. There are an assortment of legal defenses that can be presented for a Penal code section 187 (murder charge). Ask a skilled attorney what defenses could be used in the defense of a murder charge.
