The California Penal Code divides criminal homicide into two categories: murder and manslaughter. Section 189 further defines two types of murder: first and second-degree murder. Similarly, section 192 defines three types of manslaughter: voluntary manslaughter, involuntary manslaughter and vehicular manslaughter. The primary distinction between murder and manslaughter is the mens rea requirement of malice aforethought. Whereas section 187 provides that a homicide committed with malice aforethought constitutes murder, section 192 provides that an unlawful killing without malice constitutes manslaughter.
1. First-Degree Murder
California Penal Code section 189 distinguishes between first- and second-degree murder. First-degree murder can be satisfied in different ways. One can be charged with first-degree murder if the killing is “willful, deliberate, and premeditated;” 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 if the killing constitutes felony-murder. The only criminal intent required to trigger the felony-murder doctrine is the specific intent to commit an enumerated underlying felony.
2. Second-Degree Murder
Second-degree murder is a catchall category that encompasses “all other kinds of murders” that do not qualify as first-degree murder or felony-murder. Although second-degree murder is a hodgepodge of numerous types of murder, it can be divided into three basic categories: purposeful killing without premeditation, implied malice murder or inherently dangerous felony-murder.
A. Purposeful Killing Without Premeditation
First, a purposeful killing without premeditation is usually defined as “the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.” This type of second-degree murder has three elements: an intentional killing with express malice, without premeditation and without provocation.
B. Implied Malice Murder
The second category of second-degree murder is implied malice murder, which is an unintentional killing caused by extremely reckless behavior. California law provides two types of implied malice murder: depraved heart murder and provocative act murder. In California, the courts do not use the term “depraved heart murder.” The concept is instead discussed in terms of implied malice. However, California courts do utilize the term “provocative act murder.” These two categories of implied malice share the same mens rea requirement of extreme recklessness. The primary difference between them is that in provocative act murder, liability attaches because of a particular causal pattern involving a defendant’s action and a third party’s reaction that kills the victim.
The two basic elements of implied malice murder are: an unlawful act resulting in dangerous consequences, and the defendant knew about the danger of the acts, yet consciously and deliberately disregarded the danger to human life. These elements together show that the defendant acted with extreme recklessness.
In People v. Watson, the California Supreme Court defined implied malice as a subjective determination that the defendant in fact realized that his actions had “a high probability … [of] … resulting in death … [and yet acted] with a base antisocial motive and with a wanton disregard for human life.” However, the prosecution does not need to prove that the defendant intended to kill.
The second category of unintentional killing caused by extreme recklessness is provocative act murder. Provocative act murder does not require that the defendant or the defendant’s cohorts commit an act that immediately leads to death or even intend to kill the victim. Instead, the defendant acts in a manner that provokes a deadly response from a third person. The actus reus element of the crime is the provocation and the mens rea element of the offense is knowledge that the provocation has a high probability of “eliciting a life-threatening response from the third party.”
Provocative act murder is often used when criminals attempt to escape the crime scene, law enforcement officers pursue them, and the criminals act in a manner that provokes the officers to kill one of them. Provocative act murder theory is also used to convict gang members who partake in a gunfight that kills one of their members, or when a victim kills a co-conspirator or agent in self-defense.
Provocative act murder often raises causation concerns because the defendant is charged with murder when the defendant did not pull the trigger. In People v. Garcia, the California Court of Appeal explained that liability for provocative act murder is based on “proof of malice and vicarious liability.” However, a mere showing that the defendant committed an “intentional provocative act whose natural consequences are dangerous to human life” is not enough. The prosecution must also show that the killing was proximately caused by the defendant’s intentional and dangerous acts.
Although most provocative act murders occur in the course of a felony, such as attempting to resist arrest or robbery, this doctrine differs from felony-murder. Under the felony-murder doctrine, the defendant and the defendant’s co-conspirators begin their criminal enterprise with intent to commit a felony and they kill a third party in order to further their crime. However, provocative act murder does not require that the defendant or one of the defendant’s cohorts actually fire the fatal shot; in fact, a third party, such as a police officer, may pull the trigger. Moreover, unlike felony-murder where the killing furthers a criminal enterprise, provocative act murder does not require that the killing further a criminal design