Homicide: Murder, Manslaughter, Felony Murder, and California Degrees

Common-law murder is the unlawful killing of a human being with malice aforethought. 'Malice' is a term of art covering four distinct mental states, any one of which suffices. First, intent to kill (express malice) — the conscious objective to cause death, often inferred from the deliberate use of a deadly weapon on a vital part of the body. Second, intent to inflict serious bodily injury — a killing resulting from an intent to cause grievous harm short of death is still murder.

Third, depraved-heart (or 'abandoned and malignant heart') murder — a killing caused by reckless indifference to an unjustifiably high risk to human life, such as firing a gun into an occupied room or driving at extreme speed through a crowd. Fourth, felony murder — a killing during the commission of certain felonies, where the malice is supplied by the felonious intent. 'Aforethought' no longer requires any actual premeditation for malice generally; it simply distinguishes murder from manslaughter. The year-and-a-day rule (death must occur within a year and a day of the act) has been abolished in California and many jurisdictions.

California Penal Code section 189 divides murder into degrees.

First-degree murder is (1) a willful, deliberate, and premeditated killing; (2) a killing by enumerated means — poison, lying in wait, torture, an explosive, armor-piercing ammunition, or a weapon of mass destruction;

or (3) felony murder committed during an enumerated felony (arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, and certain sex crimes). 'Premeditation and deliberation' require that the defendant actually reflected on the killing, though the reflection can be very brief — California cautions that 'the test is not the duration of time as much as the extent of the reflection.' All murder that is not first-degree is second-degree, including depraved-heart killings and second-degree felony murder.

Voluntary manslaughter is an intentional killing committed in a sudden heat of passion upon adequate, legally recognized provocation (provocation that would cause a reasonable person to lose self-control, with no cooling-off period) or under an honest-but-unreasonable belief in the need for self-defense ('imperfect self-defense,' a doctrine California fully recognizes). Involuntary manslaughter is an unintentional killing resulting from criminal (gross) negligence or during the commission of a misdemeanor or a non-inherently-dangerous felony.

Felony murder imputes malice from the felony, making any killing during the felony murder. Limitations apply across jurisdictions: the underlying felony must be independent of the killing (the merger rule bars felonies like assault and battery from supporting felony murder), the death must be foreseeable, the death must occur during the felony or immediate flight (before reaching a place of temporary safety), and the victim must not be a co-felon. California's most important reform is Senate Bill 1437, effective January 1, 2019. Before SB 1437, all participants in a qualifying felony could be convicted of first-degree murder for any death.

Now, under Penal Code section 189(e), a defendant who was not the actual killer is guilty of felony murder ONLY if he (1) was the actual killer, (2) with intent to kill aided and abetted the actual killer in the murder, or (3) was a major participant in the underlying felony who acted with reckless indifference to human life (the Tison/Banks-Clark standard). SB 1437 also created a resentencing petition mechanism.

Separately, where a third party or the victim does the killing (e.g., a store owner shoots back and kills a bystander or co-felon), California rejects classic 'redline' felony murder and instead uses the provocative-act doctrine: a surviving felon can be liable for murder if his own conduct was so provocative and life-endangering that it proximately caused the lethal response, requiring proof of the felon's own malice.

Several finer rules decide close homicide questions. The heat-of-passion mitigation that reduces murder to voluntary manslaughter has four traditional elements: (1) legally adequate provocation that would cause a reasonable person to lose self-control, (2) the defendant must in fact have been provoked, (3) there must not have been a reasonable cooling-off period between provocation and killing, and (4) the defendant must not in fact have cooled off.

Adequate provocation classically includes a serious battery, mutual combat, or discovering a spouse in the act of adultery; words alone are insufficient at common law and in California, a frequent trap. The standard is objective as to adequacy but the defendant's actual state of passion is subjective. The MPC broadens this into 'extreme mental or emotional disturbance' judged from the actor's situation, a more defendant-favorable formulation than California's traditional rule.

California also recognizes provocation as relevant to negate premeditation, potentially reducing first-degree to second-degree murder even where it is not adequate for full voluntary-manslaughter mitigation. On felony murder, distinguish the two California degrees: first-degree felony murder rests on the enumerated felonies in Penal Code section 189 (arson, robbery, burglary, rape, carjacking, kidnapping, mayhem, torture, and listed sex offenses); second-degree felony murder is a judge-made doctrine resting on felonies inherently dangerous to human life judged in the abstract (e.g., poisoning with intent to injure).

The merger (Ireland) rule bars assaultive felonies whose only purpose is the assault that caused death from supporting second-degree felony murder, because allowing it would swallow the malice requirement. Work two hypotheticals. First: D, enraged moments after his spouse slaps him, grabs a knife and kills — words and a minor slap are likely inadequate provocation, so this is murder, not voluntary manslaughter, though a jury could find provocation negating premeditation to drop it to second degree. Second: D and E rob a bank; fleeing, E shoots a guard.

Under pre-2019 law both could be first-degree felony murderers; after SB 1437, D is guilty of felony murder only if he was the actual killer, aided with intent to kill, or was a major participant acting with reckless indifference — so a getaway driver who reasonably believed the robbery would be non-violent and took no role in the shooting may now escape a murder conviction entirely while remaining guilty of robbery.

A third trap concerns the misdemeanor-manslaughter (unlawful-act) rule: an unintended death during a dangerous misdemeanor or a non-inherently-dangerous felony is involuntary manslaughter in California, codified in Penal Code section 192, which also defines vehicular manslaughter. Keep the analytical order fixed on an essay: classify the killing, test for malice and its form, apply the California degree statute, then run any available mitigation (heat of passion or imperfect self-defense) before reaching felony-murder or provocative-act theories.

California Homicide Ladder