“Express Malice” in California Murder Cases

Express malice is a form of malice aforethought and a mental state that makes a killer liable for the crime of murder in California. A killer acts with express malice if he or she harbors a specific intent to kill the victim.

The state penal code section 188 provides the definition:

“[Malice aforethought] is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature….”

Express malice is often referred to as the “willfulness” of an intentional murder.[1] It’s killing someone on purpose. The following are some examples:

• A person who intentionally poisons his or her spouse.
• A man who stabs a victim repeatedly during a fight.[2]  
• A man who pushes his girlfriend down the stairs, chokes her until she’s not breathing, and hits her in the head with a hammer.[3]
• A person who shoots his partner while driving together, during a lover’s quarrel prompted by the partner’s alleged unfaithfulness.[4] 

Malice aforethought can be implied in other circumstances. Where there is no intent to kill (no express malice), it is still implied where the accused consciously disregards a risk to life.

Example: A man owns two dogs. They are aggressive towards people. In a past instance, these dogs severely maimed and hospitalized a teenager that was visiting the man’s home. The man, however, continues to keep the dogs as guard dogs. He also takes them out for walks sometimes. They continue to act aggressively. A few months later at a park with people nearby he decides to let the dogs off the leash. The dogs attack a child, who dies.

In this case, the man probably didn’t intend for the dogs to kill the child. There’s no express malice. But malice may be implied. The man very well may have understood the risk of his actions, based on the past dangerous event. And the man’s intentional conduct could be seen to consciously disregard a serious risk to human life.

“Deliberation” and “premeditation” are not the same thing as express malice. They are the mental state required for first-degree murder in California, because they show more than just sudden intent to kill.[5] They show reflection about the act and consequences. They show a decision to kill even after reflection. Because of the additional mental state shown by these terms, the charge becomes first-degree murder. First-degree murder has harsher penalties than those of second-degree murder, including a minimum sentence of 25 years in prison.[6]

Example: Consider the first example of someone intentionally poisoning her spouse. A woman carefully puts antifreeze into her husband’s alcoholic mixed drinks over several nights. The man gets more and more ill. She continues to put antifreeze into medications, suggesting that they will help him recover. The man eventually loses consciousness and dies at home.

In this case, the woman intentionally killed her husband. It’s murder because of express malice aforethought. However, the woman also almost certainly reflected on her actions. She understood her acts and saw the consequences. She acted to kill her husband anyway. This shows deliberation and premeditation for first-degree murder.

Malice aforethought can be proven

• by physical evidence,
• by people’s statements, and
• by circumstances of the event.

The prosecution will try to prove that the accused intentionally and unlawfully killed another person.

Defense strategies to negate a finding of express malice include

• self-defense in California (as well as imperfect self-defense),
• the insanity rule and M’Naghten test, 
• challenging the admissibility of confessions, and
• challenging eyewitness identifications.  

Statements or confessions made by the accused to police may have been illegally obtained and inadmissible. And eyewitness identifications may be mistaken or too unreliable to admit as evidence.

To help you better understand phrases relevant to homicide law, our California criminal defense attorneys discuss “express malice” below:

• 1. What is “express malice”? 
  • 1.1. Distinguishing “implied malice”
  • 1.2. Distinguishing “deliberation” and “premeditation” 
• 2. How is express malice proven? 
• 3. What are defense strategies against a murder charge based on express malice? 
  • 3.1. Self-defense / defense of others / imperfect self-defense 
  • 3.2. Insanity and the M’Naghten test
  • 3.3. False or coerced confessions
  • 3.4. Mistaken identifications 

1. What is “express malice”?

California’s crime of murder in state penal code section 187 requires a mental state called malice aforethought.[7] This mental state is express, meaning apparent, when the accused kills a victim intentionally. The killing was on purpose.

California penal code section 188 states:

“[Malice aforethought] is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature….”

Example: Several friends run an illicit drug dealing operation together. Over time, however, money begins to go missing. Some of them believe that one is taking it without letting the others know. They abduct this person and shoot him. They leave his deceased body on the street.

In this case, the killers clearly intended to kill the victim. Their actions show intent to kill. The killing was on purpose.[8]

In many ways, express malice aforethought exemplifies the archetypical “murder.” Because it’s an intentional killing, it’s often the simplest and clearest example of this crime.

1.1. Distinguishing “implied malice”

Malice aforethought may be implied where the accused’s actions amount to a conscious disregard for the value of human life.[9] Murder does not require intent to kill. In some circumstances, the accused understands that he or she is intentionally acting so dangerously that death could result. Even though the accused doesn’t intend to kill, malice aforethought may be implied for murder.

After defining express malice, state Penal Code section 188 goes on to state:

“[Malice aforethought] is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

Courts have interpreted this language to mean a killing that shows “a conscious disregard for life.”[10]

Example: Some friends hang out together at a home. They are drinking alcohol. Several, including the host, are military veterans with firearms training. The host gets out a firearm and jokingly points it at another person. The gun discharges and hits the victim in the neck. He soon dies.

In this case, the host did not intend to kill the victim. But his behavior was intentional. And his behavior was highly dangerous to life. As a person with firearms training, he also knew the level of danger in his activity. Malice may be implied for murder.[11] 

Example: A man with several DUIs once again drives home from a night of drinking at a local bar. He had parked nearby and needed to get approximately seven miles home. While driving drunk, he veered away from his lane and collided head-on with another car. This killed the other driver.

Here malice may be implied. The drunk driver knew from past DUIs that his behavior was extremely dangerous to others. And he still intended to drink and drive home once again on this night. He drove illegally and dangerously and caused the death of the victim. Such events are often called Watson murders in California.[12]

1.2. Distinguishing “deliberation” and “premeditation”

Deliberation and premedication refer to a different mental state than malice aforethought. These terms refer to reflection about the act of killing and the consequences.[13] Killings after deliberation and premedication, therefore, are charged as first-degree murder in California.[14]

Penal code section 189 states that first-degree murder includes “killing in a way that is willful, deliberate, and premeditated.” Express malice aforethought is the “willful” part, intentional killing. If the killer also reflected on their act beforehand and chose to do so anyway, the crime is first-degree murder. If not, malice aforethought remains for second-degree murder.[15]

Example: A prison inmate creates a shank and plans to use it on a rival. He coordinates events so that he’ll be alone with the victim in a hallway. To do so he bribes a corrections officer and several other inmates a few days in advance. When this opportunity occurs, the inmate stabs the victim several times in the mid-section, including kidneys and stomach.

Here the killing was not only intentional but also preconceived and coordinated. This makes it very likely that the killer reflected on his coming act and the consequences. Despite this reflection, he moved forward and took the victim’s life.

Example: Imagine instead in the scenario above that the inmate did not coordinate the killing. Instead, the inmate ran across an opportunity to attack the victim spontaneously. One day they passed unexpectedly in a hallway during inmate location shifts. The inmate attacks the victim and uses his sock to choke the victim to death before corrections officers can intervene.

Now, a jury may find that the inmate possessed only a spontaneous intent to kill. He may not have reflected on the act in that instant. If not, it’s not first-degree murder. Because he did intend to kill, however, express malice aforethought exists. He may be convicted of second-degree murder.

Both first-degree murder and second-degree murder are serious felonies in California. Under the rules of felony sentencing in California, however, the penalty for first-degree murder is higher. If convicted of penal code section 187 as first-degree murder, the defendant faces 25 years-to-life in the California state prison.[16]

2. How is express malice proven?

The evidence admitted in a prosecution is what proves murder by express malice aforethought. Evidence includes the circumstances surrounding the event. It includes the physical evidence and documents or data associated with the event. And it includes the statements that people make, such as a confession by the accused.

Because express malice is the “intent to kill,” key issues are determining the accused’s identity and intent. These are often key areas of focus for the prosecution.

Example: In the prison murder example directly above, the identity of the killer must be firmly established. And the jury may or may not infer intent-to-kill based on the circumstances and the killer’s actions.

If the shank has the accused’s fingerprints or DNA on it, for example, this would strengthen the claim that this inmate was the perpetrator. So would a confession by the accused or statements from other reliable people that the accused did so. Likewise, the shank’s length and lethality would be considered. And the number and mode of stabbings would be relevant to whether intent-to-kill was present.

The accumulated evidence may convince the jury in a California criminal jury trial that the accused committed the crime. The jury then renders a verdict of guilty on the charge.

Even if the prosecution cannot prove express malice, however, murder is still a potential charge. Where the accused intentionally commits a dangerous felony, and that felony naturally leads to someone’s death, California’s felony murder rule may apply.[17]

3. What are defense strategies against a murder charge based on express malice?

There are many strategies available to defend against a murder charge based on express malice. Homicides may be legally justified or excused under the law. And the defense attorney may help to establish that the prosecution lacks the evidence to prosecute or convict the accused.

Common strategies include:

• self-defense / defense of others / imperfect self-defense,
• insanity,
• false or coerced confessions, and
• mistaken identifications.

Strategies like these may demonstrate why the accused’s behavior does not amount to murder. This helps the jury to find a lesser crime or even acquit the accused of the crime (to find him or her “not guilty”). The strategies also may demonstrate that the prosecution does not have enough admissible evidence to prove their accusation. Consequently, sometimes the state will drop the charges altogether.

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

The accused may have killed someone intentionally while defending his or her own life, or another that of another persob. If so, California’s self-defense laws may justify the act.[18] Similarly, California’s imperfect self-defense law may decrease the offense from murder to manslaughter.[19]

If someone is in imminent danger of:

1. being killed,
2. suffering great bodily injury, or
3. being raped, maimed, robbed, or the victim of some other forcible and atrocious crime,

a person may take reasonable actions to defend one’s own safety or the safety of others.[20]. If deadly force is reasonable in light of the danger, the law permits a person to use deadly force.

Example: Tony is walking home from work in the evening. An aggressor approaches him with a knife and demands money. Tony pulls out of small handgun he legally carries everywhere. He shoots the aggressor, who dies.

Here self-defense law likely permits Tony’s actions, given the circumstances. Tony’s use of deadly force was legally justified. He was faced with a deadly threat: a man with a knife who was robbing him. And reasonable people may have used deadly force to protect themselves in such situations.

If a person’s beliefs about the threat or use of force are not reasonable, imperfect self-defense may apply.

Example: In Tony’s situation above, imagine that the aggressor doesn’t try to rob Tony. Instead, the man is playing a dice game on the sidewalk. The man tells Tony that he’s busy on this side of the street. He tells Tony to walk home on the other side of the street “unless he wants a black eye.”  Tony, however, takes out his gun and shoots the aggressor, who dies.

Here self-defense law probably does not excuse the killing. Tony’s reaction was not reasonable under the circumstances. He used deadly force without an imminent threat of death, serious bodily injury, or being the victim of another forcible or atrocious crime. He was threatened with a black eye. But most people wouldn’t feel the need to kill the aggressor in light of this threat.

Tony’s beliefs about the threat against him and need to use his gun may have been sincere. His crime may be lessened from murder to voluntary manslaughter. This is known as “imperfect” self-defense. He did kill intentionally and illegally. But at least he thought he was acting lawfully.

3.2 Insanity and the M’Naghten Test

The insanity rule in California may excuse killings done with express malice. Where the accused meets the standard of the M’Nagten test, he or she is entitled to a verdict of “not guilty by reason of insanity.”[21]

Under the M’Nagten test, the accused must prove that he or she only killed the victim because:

• He or she didn’t understand the nature of the act, or
• He or she couldn’t distinguish between right and wrong.[22]

Example: A woman is suffering from severe post-partum depression. Her mental illness begins to affect her thoughts about the life and death of her baby. She begins to believe that the death of her baby is necessary for its eternal salvation. She thinks that her religious community and society generally would support her decision. She drowns the baby in the bathtub.

In this case express malice is present. The woman intended to take the life of her baby by drowning her. However, if she didn’t understand the nature of life and death due to her diagnosable depression, she may be excused under the law. Likewise, if she believed that society would in fact favor the drowning of her baby as the proper thing to do, she may be excused.[23]

3.3 False or coerced confessions

When speaking with a suspect, the police must not violate constitutional rights. This helps to ensure that people are treated fairly and not taken advantage of by government officials.

The police, therefore, are not permitted to coerce confessions from suspects.[24] If the police do so, the person’s California criminal defense attorney may file a Penal Code 1538.5 motion to suppress evidence. Then the court may grant the motion and exclude the statements from the prosecution’s evidence. When this happens, there is less admissible evidence to be used to convict a person. And the prosecution may even drop the charges.

When trying to elicit a confession from a suspect, police may not:

• make threats against the suspect or his or her family,
• threaten the suspect with the death penalty, or
• offer more lenient treatment in exchange for a confession.[25]

Example: Detectives have arrested a man for murder. They tell the man about evidence of the crime found in his home. They say that if he doesn’t admit to the crime, the evidence will be used instead to prosecute his wife and kids. If the man confesses in this situation, the court may exclude the confession from the prosecution’s evidence.[26]

Police also may not try to illegally elicit a confession from someone after he or she is in custody. They must follow the Miranda rules.[27] This means that police must inform a custodial suspect about his or her right to remain silent and right to have an attorney present during questioning. And the police must obtain a waiver of those rights from the person in order to elicit a confession.[28]

Example: Police arrest a woman for murder. She rides in the back of the police vehicle to the county jail. The police ask her whether she committed the crime for her own reasons for because someone asked her to. She states that she did so because her relative wanted her to.

The police did not inform the woman of her right to remain silent, however, or her right to have an attorney present when questioned by police. The police didn’t obtain from her a knowing and voluntary waiver of those rights. Upon the defense attorney’s motion, the court may exclude the woman’s statement from evidence.

3.4 Mistaken identifications

Mistaken identifications in criminal justice prosecutions are notoriously common. In fact, an eyewitness’s identification of a suspect is not very reliable and is the greatest cause of wrongful convictions.

Many factors account for an eyewitness’s inability to perceive and recall a suspect’s identity. These include, among others:

• The stress of the encounter,
• Fixation on a weapon,
• Intoxication,
• The suspect being a different race, age, and/or gender,
• The passage of time, and
• Improper suggestion by police.[29]

The defense at trial may call in an “Eyewitness Identification Expert.” This person would explain to the jury why misidentifications happen and what may have led to a misidentification in this particular case.

Example: A man with a gun robs a convenience store. He’s wearing large sunglasses and a baseball hat to cover most of the top of his face and head. A convenience store clerk encounters the man. The man holds the gun visibly up between himself and the clerk. She hands him money from the cash register. The man leaves.

A detective interviews her after she calls the police. She provides a description of the perpetrator. Several hours later the police bring in a man who fits the description. He was arrested nearby because someone noticed he was illegally carrying a firearm. He was also found to have significant cash on him. The woman identifies him as the perpetrator.

Here the defense may call an expert in a trial. The expert would likely point out factors that negatively impacted the eyewitness’s ability to accurately perceive the perpetrator and identify him later. Specifically, there was great stress during this event, a weapon that likely drew attention away from the man’s features, and a very suggestive identification procedure being presented by police.

The defense also may demand a live lineup in court to see if the eyewitness really can distinguish and identify the suspect.

Such techniques are designed to create reasonable doubt in the minds of jurors and lead them toward a verdict of not guilty (acquittal).

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Legal References:

1. 1. People v. Moon, 37 Cal. 4th 1, 30, 32 Cal. Rptr. 3d 894, 915, 117 P.3d 591, 609 (2005) (“An intention to kill is the functional equivalent of express malice.”); CALJIC No. 8.11 (7th ed. 2003). 
   2. Facts based on People v. Turk, 164 Cal. App. 4th 1361, 80 Cal. Rptr. 3d 473 (Ct. App. 2008).
   3. Facts based on People v. Moon, 37 Cal. 4th 1. 
   4. Facts based on People v. Washington, 58 Cal. App. 620, 130 Cal. Rptr. 96 (Ct. App. 1976).
   5. People v. Perez, 2 Cal. 4th 1117, 831 P.2d 1159, 9 Cal. Rptr. 2d 577 (Cal. 1992). The court approved of a jury instruction that reads: “If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been fired up on pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of premeditation, it is murder in the first degree.” Perez, 2 Cal. 4th at 1123-24. 
   6. California Penal Code 190 PC — Punishment for violating California’s murder laws (“(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in sections 190.1, 190.2, 190.3, 190.4, and 190.5.”)
   7. California Penal Code 187 PC (“Murder is the unlawful killing of a human being or a fetus with malice aforethought.).
   8. Facts based on People v. Sanchez, 221 Cal. App. 4th 1012, 164 Cal. Rptr. 3d 880 (Ct. App. 2013).
   9. People v. Bryant, 56 Cal. 4th 959, 965, 157 Cal. Rptr. 522, 524, 301 P.3d 1136, 1138 (Cal. 2013).  “Malice aforethought may be express or implied…. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”  Bryant, 56 Cal. 4th at 965 (citations and quotes omitted).
   10. People v. Bryant, 56 Cal. 4th at 965 (“The mental component is the requirement that the defendant knows that his conduct endangers the life of another and acts with a conscious disregard for life.” (citations and quotes omitted).
   11. Facts based on People v. McNally, 236 Cal App. 4th 1419, 187 CAl. Rrtr. 3d 391 (Ct. App. 2015).
   12. This is because of the seminal California case of People v. Watson, 30 Cal. 3d 290, 179 Cal. Rptr. 43, 637 P.2d 279 (Cal. 1981).
   13. People v. Perez, 2 Cal. 4th 1117, 83
   14. People v. Anderson, 70 Cal. 2d 15, 25, 447 P.2d 942, 947, 73 Cal. Rptr. 550, 555-56 (Cal. 1968). (Without deliberation and premeditation, there is a “presumption that an unjustified killing of a human being constitutes murder of the second, rather than the first, degree….”).
   15. People v. Anderson, 70 Cal. 2d. at 25.
   16. California Penal Code 190 PC (requiring “death,” “life [in state prison] without the possibility of parole,” or “25 years to life” in state prison).
   17. California Penal Code 189 PC — Homicide — “All murder … which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 287, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.”
   18. CALCRIM 505 — Justifiable Homicide: Self-Defense or Defense of Another (describing proper self-defense or defense of another where the defendant “reasonably believed that [he or she] was in imminent danger of being killer or suffering great bodily injury [or was in imminent danger of being raped/maimed/robber or victim of another forcible and atrocious crime]; the defendant reasonably believed that the immediate us of deadly force was necessary to defend against that danger, [and the] defendant used no more force that was reasonably necessary to defend against that danger”).
   19. People v. Manriquez, 37 Cal. 4th 547, 581, 36 Cal. Rptr. 3d 340, 369, 123 P.3d 614, 638 (Cal. 2005) (describing imperfect self-defense as “one type of voluntary manslaughter” as opposed to a type of murder).
   20. CALCRIM 505 — Justifiable Homicide: Self Defense or Defense of Another (listing these three criteria).
   21. People v. Horn, 158 Cal. App. 1014, 205 Cal. Rptr. 119 (Ct. App. 1984) (clarifying the M’Naghten rule’s application in California).
   22. CAL JIC 4.00 — Insanity as a California Legal Defense. (“A person is legally insane when by reason of a mental disease or mental defect, [he or she] was incapable at the time of the commission of the crime of one of the following: [1] Knowing the nature and quality of [his or her] act; or [2] Understanding the nature and quality of [his or her] act; or [3] Distinguishing what is legally right from what is legally wrong; or [4] Distinguishing what is morally right from what is morally wrong.”)
   23. Facts based on the famous case of Andrea Yates in Texas. Like California, Texas also follows the M’Naghten rule for the insanity defense. Beatrice R. Maidman, Note: The Legal Insanity Defense: Transforming the Legal Theory Into a Medical Standard, Boston Univ. Law Review 96;1831 (2016) (stating that “Alabama, California, … Texas, Virginia, and Washington all use the M’Naghten rule” and citing a U.S. Dept. of Justice publication).
   24. People v. Jimenez, 21 Cal. 3d 595, 602, 147 Cal. Rptr. 172, 175, 580 P.2d 672, 675 (Cal. 1978) (“It is axiomatic that the use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions.”)
   25. People v. Jimenez, 21 Cal. 3d at 609-13 (describing these criteria and noting that such rules are “well-settled”).
   26. Facts based on People v. Rand, 202 Cal. App. 2d 668, 21 Cal. Rptr. 89 (Ct. App. 1962).
   27. People v. Peevy, 17 Cal. 4th 1184, 1187-88, 953 P.2d 1212, 1214, 73 Cal. Rptr. 865, 867 (Cal. 1998) (“In order to protect the exercise of the privilege against self-incrimination, the United States Supreme Court has declared that persons subject to custodial interrogation must be informed of certain rights, including the right to counsel, and that once such a person invokes the right to counsel, the police must cease interrogation until counsel if provided or the suspect initiates further contact and makes it clear that he or she wishes to proceed without counsel.”)
   28. People v. Peevy, 17 Cal. 4th at 1187-89.
   29. Ferdico, et. al (2013). Criminal Procedure for the Criminal Justice Professional. 540-42. Cengage: Belmont, CA.