"Malice Aforethought" in Murder and California Penal Code 188

Malice aforethought is the requisite mental state a killer must have in order to be found guilty of murder in California. If a person causes someone's death unlawfully but without this mental state, the crime is manslaughter (voluntary manslaughter in California or involuntary manslaughter in California).

The law is found in the state penal code sections 187 and 188, which read:

Murder is the unlawful killing of a human being, or a fetus, with malice aforethought….[1]

Such malice may be express or implied. It is express when there is manifest 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 ....[2] 

The mental state is about the accused's intent. It is "express" when someone kills another intentionally. It is "implied" when someone does not necessarily harbor an intent to kill, but nevertheless acts with a conscious disregard for human life. 

For example, the following show express malice

  • strangling someone until the victim is unconscious and no longer breathing,
  • shooting firearms at close range at rival gang members, 
  • using a killer-for-hire to take another's life, or
  • poisoning someone on purpose. 

The following examples show implied malice

  • allowing young children to play with one's guns and ammunition without supervision,
  • driving drunk when one has been repeatedly warned about the dangers or prosecuted for it previously, 
  • letting one's dogs run free at a park when they have previously attacked and severely injured other people, or 
  • dropping bricks off of a freeway overpass to see them hit the road or cars.

This mental state is different than similar terms. "Malicious" crimes, like mayhem in California (or just "malice") require ill will. "Deliberation" and "premeditation" for first-degree murder require reflection before killing.

In this article, our California criminal defense lawyers answer frequently-asked-questions. Click on a question below to jump to an answer.

1. What is "malice aforethought"?

Malice aforethought refers to the deadly intent that a killer must have in order to be found guilty of murder. It can be either "express" or "implied." This means either the intent to kill (express) or the intent to do something that shows a conscious disregard for life (implied). The California state legislature made this a key part of teh definition of murder. 

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California law requires malice aforethought for murder.

1.1. Why is malice aforethought in California's murder statute? 

Malice aforethought is in the statute because it is an element of the crime. It is something the state has to prove beyond a reasonable doubt in order to establish the crime of murder. Whether the accused acted with malice is a factual matter for the jury to decide in a murder trial. 

Most crimes require a physical act and a mental state. With murder, the act is the unlawful killing. Malice aforethought is mental state. In fact, no other motive or mindset must be shown.[3] 

Example: Joe has a history of criminal activity. One evening he and some others get together at a bar. During the evening Joe shoots and kills one of the other guests. The police do not know why Joe did this. Witnesses are not willing to talk, and Joe is silent. There is video evidence from the bar's security camera footage, however. The video shows that Joe shot the gun without any provocation. 

Since the evidence shows that Joe killed the guest intentionally, Joe could be liable for the crime of murder. Malice aforethought is present, even without a clear motive. 

1.2 What is "express malice"?

Express malice means that one's behavior clearly shows intent to kill. The word "express" means direct or explicit. Penal Code 188 defines it as when killers "manifest a deliberate intention unlawfully to take away the life of a fellow creature."

Example: Gang members begin shooting high-powered assault rifles into a crowd of rivals. The behavior shows intent to kill the those targeted. There is no lawful reason for the shooting, such as California self-defense law. So express malice is present.[4]  

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1.3 What is "implied malice"?

Implied malice means that one intends to do an act that shows a conscious disregard for human life.[5] The word "implied" means indirect or by reference. Penal Code Section 188 defines it as "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."

One doesn't intend to kill. But one knows or should know that his action is likely to cause the death of another person.  

Example:  With a group of prisoners, an inmate assaults an imprisoned child molester. They assault the man for over 20 minutes. The man's injuries become on par with car accident trauma or a fall from multiple stories. 

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In this case, express malice aforethought might be absent. The inmate who joined the assault may not have intended to take the child molester's life. But the circumstances show he knew the activity would be a threat to the man's life. And he took part anyway.

This shows an abandoned and malignant heart -- a conscious disregard for human life. A jury may find it to be implied malice.[6]

2. Distinguishing "malicious" crimes 

"Malice" in the homicide context differs from the concept of "malicious" used in the context of other California crimes. Penal Code 7 provides the definition. Subsection 4 states: 

The words "malice" or "maliciously" suggest a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.

These other terms require ill will or evil intent. The mental requirement in Penal Code 188, on the other hand, doesn't require ill will. In fact, one can believe they are doing a good and kind thing.[7]

Example: Renee's father has a terminal illness and is in a lot of pain. She cannot stand to see him in so much pain. She decides to end his suffering. She gives him an overdose of medication, and her father dies.

In this case, Renee may have believed that she was doing the right thing. This certainly was not malicious. But it was murder; she intended to end someone's life unlawfully.[8]

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Malice aforethought does not require evil motives.

On the other hand, the terms in Penal Code 7 sub. 4 refer to malicious criminal acts, such as the crime of mayhem.[9]

3. Distinguishing "deliberation" and "premeditation"

Deliberation and premeditation refer to a different mental state than malice aforethought. While the crime of murder always requires malice aforethought, it does not always require deliberation and premeditation. Deliberation and premeditation come into play when the accused also reflected on the act and understood its significance. 

Those murders that show deliberation and premeditation are defined in California as first-degree murder. California Penal Code 189 states that first-degree murder includes "killing in a way that is willful, deliberate and premeditated."[10] 

First-degree murder is categorized as the highest level of felony in California. The state considers those who kill after reflecting on the act to be most worthy of heightened penalties.

Example: Alex is feuding with his girlfriend over her infidelity. At work he gets into arguments with coworkers. After a particular argument, Alex takes a gun and threatens to kill a coworker. Moments later, Alex fires two separate shots. The coworker dies. 

Here Alex showed the "express" mental element of murder. His behavior demonstrated intent to kill. Additionally, a jury may find that he reflected on the act beforehand. He had the chance to think about what he was doing. And he acted to kill his coworker anyway.

A jury, therefore, could find this murder to be willful, deliberate, and premeditated. The circumstances likely show that Alex considered his act and its consequences. He was not reacting suddenly to provocation, for example.[11]

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Deliberation and premeditation show reflection about the act and its consequences.

Willful, deliberate, and premeditated murder is one of three kinds of first-degree murder. The others include:

4. What are defense strategies to negate a finding of malice aforethought?


There are a number of defense strategies to convince the court that the accused did not act with malice aforethought. Some common ones include:

  • Self-defense / defense of others / imperfect self-defense
  • Accident or non-deadly reckless behavior
  • Insanity

4.1 Self-defense / defense of others / imperfect self-defense

The accused may have been trying to protect himself or another person. If reasonable in the circumstances, one's intent to kill is excused under California self-defense law.

Example: Antoine is bringing home groceries when he's confronted by an armed robber. This man says that he will shoot Antoine if he doesn't give him his money and valuables. The man says, "There better be more than $100." Antoine, who has only $6 in his wallet, is fearful for his life. He grabs the gun from the man. As the man fights for the gun back, Antoine shoots, killing the man.

Here Antoine honestly believed his life was in jeopardy. And his use of deadly force was reasonable given the danger. Self-defense likely applies. 

A person's belief about the need to use deadly self-defense, however, may have been unreasonable. If so, California's Flannel doctrine on imperfect self-defense applies to reduce the crime to manslaughter. 

Example: Consider the same scenario, except that the robber doesn't have a gun. It's someone that Antoine knows from his residential building. This man says that Antoine better give him money, because the man needs drug money for his addition. He says that if Antoine doesn't given him money right now, the man will "find a way to get back at him." This time, again fearing for his life, Antoine pulls out a gun and shoots the man.

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Self-defense is a strategy against being found liable for murder.

In this case Antoine may have believed his life was in danger. But a reasonable person in the circumstances would not have. Or they would not have felt the need to use deadly force. The threat was not immediate or clearly against Antoine's life. Imperfect self-defense may apply. 

4.2 Accident or non-deadly reckless behavior

If a person's deadly behavior was an accident or not foreseeable, then the person didn't have malice aforethought. There is no express or implied deadly intent.

Even if someone was reckless, the mental state necessary for murder requires at least a conscious disregard for life. If someone didn't know the behavior was dangerous enough to cause death, the requirement isn't met.

Example: A man owns a dog that plays freely in his fenced yard. The dog bit a visiting child in the past, but the bite was superficial. The man also knows that the dog can jump the fence. This has only happened a few times, however, over several months. One day the man goes to work. The dog jumps the fence and attacks a neighbor child, who dies.

The man's decision to leave the dog in this fashion may have been reckless. But he would have expected someone to be bitten at worst. The man didn't consciously disregard human life.[13]

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Reckless behavior isn't always a conscious disregard for life.

4.3 Insanity

If someone killed another intentionally or did so with conscious disregard for life, insanity can be a defense. California's insanity rule, governed by the M'Naghten test, applies when a person:

  1. doesn't understand the nature of the act, and/or
  2. can't distinguish between right and wrong. 

Example: Eddie has a history of severe mental illness. His father takes him swimming in the ocean. Eddie does not have a clear understanding of death. He thinks it would be fun to see his father drown. He holds his father underwater until his father dies. Later, Eddie thinks his father might come alive again.  

In this case, Eddie didn't understand the nature of taking someone's life. The insanity defense would apply. 

A finding of "not guilty by reason of insanity" usually results in commitment to a California state hospital, due to one's severe mental illness.[14]

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Legal References:

  1. California Penal Code 187 PC.
  2. California Penal Code 188 PC.
  3. 17A Cal. Jur 3d Criminal Law: Crimes Against the Person Sect. 31 (Feb. 2018 update).
  4. Facts based on In re Sergio R., 228 Cal. App. 3d 588, 279 Cal. Rptr. 149 (Ct. App. 1991).
  5. The Rutter Group-California Sect. 5.8 (Nov. 2017 update). 
  6. Facts based on People v. Guillen, 227 C.A.4th 934, 944, 174 C.R.3d 703, 716 (Ct. App. 2014). 
  7. People v. Harris, 169 Cal. 53, 145 P. 520 (Cal. 1914) ("The malice essential to constitute [murder] is something distinct from [Penal Code 7].").
  8. See, for example, Crime and Punishment, the classic 1866 novel by Russian author Fyodor Dostoyevsky. 
  9. People v. Wright, 93 Cal. 564, 566, 29 P. 240, 241 (Cal. 1892) (describing a crime were the defendant seized a person's "ear with his teeth [and] bit a part of it off").
  10. California Penal Code 188 PC. 
  11. Facts based on People v. Holt, 25 Cal. 2d 59, 153 P.2d 21 (Cal. 1944).
  12. California Penal Code 189 PC. 
  13. Fact similar to People v. Knoller, 41 Cal. 4th 139, 59 Cal. Rptr. 2d 390 (Cal. 2007).
  14. People v. Dobson, 161 Cal. App 4th 1422, 1432, 75 Cal. Rptr. 3d 238 (Ct. App. 2008) (stating that the "commitment of the defendant to a state hospital" is for treatment, not punishment).

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