October 16, 2015 By Paul Wallin

The Elements of a Killing: How Malice Separates Murder from Manslaughter in California

Mark Twain once observed that while all animals kill, “man is the only one… that kills in malice.”1 While the end result of any killing is the same—death—there is something different about a killing accompanied by a malicious mental state.

This idea, that a killing is somehow affected by the thoughts and beliefs in the killer’s mind, sits at the core of how the California Penal Code treats homicide. Murder in California is defined as “the unlawful killing of a human being with malice aforethought.”1 While it may seem like a minor detail at first, “malice” separates homicide from manslaughter. It can mean the difference between a three-year sentence and life in prison.

The Many Definitions of Malice

murder from manslaughter
Malice separates murder from manslaughter.

Malice, in the general sense, means a desire to cause pain or injury to another.1 The law extends this idea to the killing of another person. Malice aforethought as it relates to homicide is defined as a conscious intent to cause death or great bodily harm to another.

But just how long do you have to harbor this intent before it becomes malice aforethought? This is the hard part of turning a belief into an element of a crime. The California Penal Code does not specify any particular time-length requirement, and the Judicial Council of California Criminal Jury Instructions only requires the mental state to have formed before the act that causes death takes place.1

California Penal Code 188 further defines malice as being either express or implied.1 Express malice exists if you unlawfully intended to kill. Implied malice exists when the act is committed intentionally, when danger to human life is the natural or probable consequence of the act, when the natural or probable consequence is known by the actor, and when the act is deliberately performed with a conscious disregard for human life.1

Malice Separates Murder from Manslaughter

Since malice is a requisite for murder in California, it is an element of the charges of capital murder, first degree murder, and second degree murder. Capital murder carries with it the potential for a sentence of life without parole or the death penalty. First degree murder has a penalty of 25 years to life in prison, and second degree murder carries a potential sentence of 15 years to life.

Compare this with the charge of manslaughter, where malice aforethought is no longer an element of the crime. Voluntary manslaughter has a penalty of 3, 6 or 11 years in prison, and involuntary manslaughter is punishable by a 2, 3 or 4 year prison sentence.

This dichotomy should make it clear just how seriously the California Justice System considers your mental state at the time of a killing. It should also be obvious how important it is to hire an experienced attorney if you are charged with murder or manslaughter in California.

Contact Wallin & Klarich Today if You Are Facing a Murder Charge in California

murder attorneys
Our murder attorneys can help you today.

Homicide cases are complex, and your entire future may depend on the work of the attorney you hire to represent you. Our attorneys at Wallin & Klarich have over 40 years of experience successfully defending our clients accused of murder and manslaughter. We can help you, too.

With offices in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, an experienced Wallin & Klarich attorney can help no matter your location.

Call us at (877) 4-NO-JAIL or (877) 466-5245 for a free telephone consultation. We will be there when you call.


1. [Twain, Mark. Autobiography of Mark Twain: The Complete and Authoritative Edition. Vol. 1. University of California Press, 2010. 312.]
2. [http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199]
3. [http://www.merriam-webster.com/dictionary/malice]
4. [http://www.courts.ca.gov/partners/documents/calcrim_juryins.pdf]
5. [Id.]
6. [Id.]

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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