Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. There are two types of murder: murder in the first degree and murder in the second degree. In order to bring murder charges, the victim must die within a year of the crime causing his death. Murder is defined in Penal Code Section 187.



However, not all homicides are a crime, particularly when there is a lack of criminal intent. Lack of criminal intent provides the basis for homicide defenses committed as a result of acting in self-defense. It may also provide a defense for accidents occurring in dangerous activities like hunting. It may also provide a defense for automobile wrecks occurring without a violation of law like reckless driving. Another type of homicide is legal government execution, by way of the death penalty. Even suicide is considered a homicide, but in most cases there is no one to prosecute if the suicide is successful. However, assisting or attempting suicide can be a crime.

First-Degree Murder

The basic issues involved in first degree murder are that the crime was committed:

?By a sane person

?With intent

?With malice aforethought, which means prior intention to kill the particular victim or anyone who gets in the way, and

?With no legal excuse or authority

In those clear circumstances, this is first degree murder. By statute, many states consider a killing in which there is torture, movement of the person before the killing (kidnapping) or the death of a police officer or prison guard, or it was as an incident to another crime (as during a hold-up or rape), to be first degree murder, with or without premeditation and with malice presumed. Such a willful, deliberate, and premeditated killing usually is characterized by torture, lying in wait, or using poison or an explosive device specifically to kill a person. If a person kills while committing arson, burglary, lewd acts against children, rape, or robbery, the court will decide the person had malice and premeditation, and will rule the person guilty of first degree murder.

Second-Degree Murder

Murder of the second degree is similar to murder of the first degree, except the element of premeditation does not have to be proven. All that is required is subjective awareness on the part of the defendant that his conduct is dangerous to human life. Second degree murder is such a killing without premeditation, as in the heat of passion or in a sudden quarrel or fight. Malice in second degree murder may be implied from a death due to the reckless lack of concern for the life of others (such as firing a gun into a crowd or bashing someone with any deadly weapon). Under California law, the penalty for second-degree murder is life imprisonment without the possibility of parole.

Depending on the circumstances and state laws, murder in the first or second degree may be chargeable to a person who did not actually kill, but was involved in a crime with a partner who actually did the killing or someone died as the result of the crime. For example, in a liquor store stick-up in which the clerk shoots back at the hold-up man and kills a bystander, the armed robber can be convicted of at least second degree murder.

Another example of second degree murder is if a person kills while committing a felony that is inherently dangerous to human life other than arson, burglary, etc. the person will be found guilty of second degree murder. For example, if the defendant furnishes heroin to someone who uses it and dies of an overdose, the defendant probably will be charged with murder in the second degree. Under the law it is assumed that if the defendant had the specific intention to furnish the heroin, he or she had malice enough to be charged with murder.

Death of an unborn child who is "quick" (fetus is moving) can be murder, provided there was premeditation, malice and no legal authority. Thus, abortion is not murder under the law. For example, someone who shoots a pregnant woman, resulting in the death of the fetus would be charged with murder.

“Watson" Murder

A “Watson" Murder is named after the case People vs. Watson, which prosecuted a multiple DUI offender with second degree murder, based on the premise of "implied malice." "Implied malice" second-degree murder can be characterized like this: "I know what I am doing is very dangerous to human life, but I don't care, I'm going to do it anyway."

Implied malice prosecutions are generally, but not exclusively, based upon scenarios where the defendant has repeatedly been convicted of DUIs, and where the offender has attended alcohol education classes that informed him about how dangerous driving under the influence is, but then the offender gets drunk, drives, and kills.

Implied malice is defined in California Penal Code Section 188, which reads:

“Such malice may be express or implied. It 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.

When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice."

Case law has found implied consent where the offender has:

?Prior DUI conviction(s)

?Attended Alcoholic Anonymous meetings

?Attended alcohol education classes

In order to catch more offenders in the Watson-murder category, courts are increasingly requiring DUI offenders to sign statements saying they understand that driving under the influence is dangerous.