Elements

1. Another Living Human Being
   1. Life
      1. C /L
         1. Fetus fully expelled from body + indep. circulation
         2. Imp. evid. were breathing & crying but not part of def.
      2. CA
         1. By PC 187, makes killing of fetus murder w/o consid. of viability
         2. Exception 4 abortion
   2. Death
      1. C /L
         1. Heart - lung test where irreversible cessation of heart & lung
      2. Modern
         1. Brain death test which is princ. / alt. in most states
         2. In CA, either heart lung / brain dead test ok
2. Unlawful Killing / Actus Reus
   1. Shortening of Life By Any Method
      1. Could B an act / commission /
         1. Phys'al act /
         2. Words
      2. Omission if duty
         1. No gen. legal duty 2 rescue strangers
         2. Duty if spec. rel.
            1. Parent -ch. rel.
            2. Taking charge of helpless person
   2. S /L
      1. In C/L, yr. & day
      2. In CA, 3 yrs. as rebuttable presumption
3. Causation
4. Malice Aforethought (M/A) / Intent / Mens Rea
   1. Murder v. Mansl.
      1. Must have M/A 4 murder & mansl. doesn't have it in C/L
   2. Murder Intent / Malice Quartet
      1. Intent 2 kill
      2. Intent 2 inflict great bodily harm
         1. Deadly weapon presumption
      3. Depraved heart
         1. Act creating very risk of death / great bodily harm
         2. Little / no soc'l utility
         3. Some awareness of risk
            1. Subj. in CA
            2. Other states & Eng. it's obj. / rsbl person stand.
         4. Lack of justific., excuse / mitig.
         5. This uses D's axn 2 det. D's M/S
      4. Felony murder
         1. If homicide while in perp. of felony
            1. End of perp. when D reaches place of temp. safety (subj.)
         2. Limiting the doc.
            1. PA do it by saying no prox. cause
            2. CA req. killing by felon / co-felon
   3. Modern Degrees of Murder
      1. CA First Degree
         1. Death penalty only 4 1st degree
         2. Types
            1. Intent 2 kill + premed. & delib.
               1. Premed. by thinking before hand
               2. Delib. if calm, not impulsive / passionate
               3. Choice & avail. of weapon 2 infer premed. & delib.
               4. Length of X but can have premed. & delib. right before
               5. Motive
               6. Nat. of killing
               7. MPC would do away w/premed. & delib. & go by aggravating & mitigating circ's 4 levels of homicide
            2. Felony Murder
               1. If homicide while perp. of listed felony in PC 189
            3. Depraved heart
               1. By using lang. of PC 189, 'ed 2 1st degree (like human shield)
               2. MPC would elim. felony murder & analyze like this
      2. Second Degree
         1. Other murder other than premed. & delib. + intent 2 kill
         2. Felony Murder w/Inherently Dang. Felony Not Listed
            1. In abstract see if inherently dang. 2 human life +
            2. High probability that act will result in death
            3. Felony must B indep. of murder / can't B assaultive
            4. Should look @ underlying intent of felony 2 det. if indep. incl'ing burglary which is listed in CA
5. Justification, Excuse, / Mitigation
   1. Murder v. Mansl.
      1. Murder req's none of these
      2. Mansl. req's no justifi. / excuse @ C/L
   2. Vol. Mansl.
      1. Intent 2 Kill Still Exists
      2. Heat of Passion
         1. Provocation
            1. C /L
               1. Sight of adultery
               2. Staggering blow even during fight
               3. Violent felony on self / close relative
               4. Illegal arrest
            2. C /L not recog.'ed
               1. Learning of adultery (modern ok)
               2. Slight battery
               3. Insulting words
               4. Trespass
               5. Non-dang. crime
            3. Modern not as categorical
         2. Suff. 2 tempt rsbl person 2 kill
         3. D actually impassioned
         4. No opp. 4 rsbl person 2 cool off
         5. D actually did not cool off
      3. Imperfect Self Defense (disc. later)
   3. Invol. Mansl.
      1. No Intent
      2. Creation of risk of death / great bodily harm
         1. Awareness of risk (CA)
         2. Risk of
            1. Gross / criminal neg. gen'ly
            2. Ord. neg. 4 CA vehicular mansl. (leg. can always do this)
      3. Illegal Act / Msdr Mansl.
         1. Malum in se (moral wrong & evil)
            1. Auto. invol. mansl.
         2. Malum prohibitum (stt. prohibition / reg. )
            1. Some if death foreseeable
            2. Some if death from unlawful excess
            3. Some if death from crim. neg.

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Ms. Haeji Hong

January 15, 1998