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PRACTICE NOTE: In common usage, a person is killed only when he or she is totally lifeless, i.e., when both heart and brain have ceased to operate. (See Barber v. Superior Court (CA 1983) 147 CA3d 1006, 1013 [195 CR 484] [noting that death has historically been defined to require cessation of heart as well as respiratory functions].) But, because California law now defines death as cessation of brain or cardiac activity (see "definition of viable fetus" above), the term "killing" has a technical meaning different from the common usage upon which the trial court must instruct sua sponte when appropriate. For example, when the acts which are relied upon to prove the defendant's mental state (e.g., premeditation, deliberation, torture, malice) may have occurred after the cessation of the heart or respiratory system then there is a danger that the jury will not make a proper determination of concurrence of act and intent without an adequate definition of "death."

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    92.1.2    Prosecution Must Prove No Irreversible Cessation Of Circulatory, Respiratory And Brain Functions

PRACTICE NOTE: An infant who is indisputably alive during the birth process is a human being within the meaning of the California homicide statute. (People v. Flores (CA 1992) 3 CA4th 200, 208 [4 CR2d 120].) However, it is the prosecution's burden to establish that the infant was alive. (Wharton’s Criminal Law (West, 15th ed. 1994) § 116, pp. 140-41.) To do so it must be established that there was (1) no irreversible cessation of circulatory and respiratory functions and (2) no irreversible cessation of all functions of the entire brain, including the brain stem. (Id. at 210; California Health & Safety Code § 7180(a).) While the lack of evidence of some form of brain activity does not establish that the fetus/infant was born dead, it does not establish that it was born alive either. Under such circumstances the prosecution has failed to meet its burden. (Flores, 3 CA4th at 211; see also People v. Dennis (CA 1998) 17 C4th 468, 507 [71 CR2d 680] [citing Flores for the proposition that both disjunctive prongs of Health & Safety Code § 7180(a) must be absent to find that the fetus was dead].)

RESEARCH NOTES:

Annotation, See Homicide Based On Killing Of Unborn Child, 64 ALR5th 671.

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    92.1.3    Homicide: Causation

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PRACTICE NOTE: "Courts have concluded that under certain circumstances, public welfare offenses, such as traffic violations, need not contain a general criminal intent or criminal negligence requirement in order to comply with the due process clause." (Haxforth v. State (ID 1990) 786 P2d 580, 582-3; see also Morissette v. U.S. (1952) 342 US 246, 251 [72 SCt 240; 96 LEd 288].) Instead, such crimes can be premised upon ordinary negligence, or in some instances, even strict liability. (See e.g., Haxforth, 786 P2d at 583; State v. Wojahn, (OR 1955) 282 P2d 675, 702; Holdridge v. United States (8th Cir. 1960) 282 F2d 302, 310.) "The proposition which appears to emerge from these cases is that when a crime (a) does not find its roots in the common law, (b) carries only a light penalty, (c) does not gravely besmirch the offender's character, and (d) embodies a rule of conduct with which compliance can be reasonably expected, then the crime can be treated as a public welfare offense requiring only ordinary negligence. [Citation.]." (Haxforth, 786 P2d at 582.)

    Ordinarily, most of these factors militate against allowing simple negligence as the predicate for conviction of criminal homicide. (See Commonwealth v. Heck (PA 1985) 491 A2d 212, 228-29.)

Annotation, What Amounts To Negligence Within Meaning Of Statutes Penalizing Negligent Homicide By Operation Of Motor Vehicle, 20 ALR3d 473.

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PRACTICE NOTE: The defendant's liability for the death of an accomplice is predicated upon principles of causation and foreseeability. (See People v. Caldwell (CA 1984) 36 C3d 210, 222-23 [203 CR 433] [liability for murder was upheld where the defendant's legal acts in precipitating a gun battle were the proximate cause of the death of the victim, which was a natural and foreseeable result]; People v. Harris (CA 1975) 52 CA3d 419, 427 [125 CR 40] ["the determination of whether defendant's unlawful act or acts were a proximate cause of the death is a question for resolution by the trier of fact [citation] and is determined according to the ordinary principles governing proximate causation"].) Hence, if the jury finds that the killing by the third party was an unreasonable response to the defendant's act (e.g. the third party began firing a gun indiscriminately to apprehend an unarmed shoplifter), the jury would be warranted in finding that the causation and foreseeability requirements were not proven. Hence, when appropriate, the jury should be instructed upon the relationship between the reasonableness of the third party's response and the causation/foreseeability requirements.

    However, in People v. Gardner (CA 1995) 37 CA4th 473, 481 [43 CR2d 603], the court held that the "reasonable response" issue should not be addressed in the body of CALJIC 8.12 (CALIFORNIA JURY INSTRUCTIONS - CRIMINAL, CALJIC [Murder--Killer Other Than Perpetrator Of] (West, 6th Ed. 1996)), but should be encompassed within the causation instructions themselves. Gardner suggested that the term should be deleted from CALJIC 8.12 because there "would be some danger that the term might be taken to mean that liability for murder could only attach ... if the acts of the third party ... who fired in response to [the defendant's] gunfire were subjectively reasonable." (Original emphasis.) (Gardner, 37 CA4th at 481.)

    It should be noted that proper instruction on causation also requires instruction on intervening causation when appropriate. In Gardner, the court noted that the jury was properly instructed on this issue as follows: "An intervening act may be so disconnected and unforeseeable as to be a superseding cause, so that in such a case the defendant's act will be a remote and not a proximate cause." (Gardner, 37 CA4th at 483.)

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PRACTICE NOTE: If the homicide statute proscribes the killing of a human being then the victim must be alive at the time of the homicidal act. (See People v. Dlugash (NY 1976) 380 NYS2d 315, 316; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:17, comment [Homicide-First Degree Premeditated Murder And Second Degree Specific Murder (No Justification Or Mitigation Generated)] (Micpel, 1999); Perkins & Boyce, Criminal Law (Foundation Press, 1982) § 1(A)(1)(a) pp. 48-49, § 9(20), p. 825 [Definition of Death]; LaFave & Scott, Substantive Criminal Law (West, 1986) 7.10(d) pp. 187-190.) This is so because a dead person is not a human being.

RESEARCH NOTES:

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PRACTICE NOTE: Under the doctrine of mistake of fact, an honest belief that the victim is already dead may be a defense to intentional homicide. For example, Cheser v. Commonwealth (KY 1994) 904 SW2d 239 held that the defendant's reasonable belief that her newborn infant was already dead required a specific instruction on mistake of fact as to the intent element of the charge. (Cheser, at 243.) The mistake-of-fact defense may also apply to defendants who attempt to destroy or conceal bodies believed to be dead as the result of their own potentially justified conduct or as a result of someone else’s criminal conduct but not as result of their own criminal conduct. (See People v. Rollins (IL 1998) 695 NE2d 61, 65.)

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RATIONALE: Specific intent to kill requires a conscious decision to kill. When at issue, the jury may not understand this point without special instruction.

POINTS AND AUTHORITIES: Commonwealth v. Logan (PA 1988) 549 A2d 531, 542 [specific intent to kill means that the killer plans and carries out the act to advance his own desire and that he knows the act will result in the death of another]; see also Commonwealth v. Nickerson (MA 1983) 446 NE2d 68, 73 ["specific intent is ‘a conscious act’ with the determination of mind to do an act."]; Commonwealth v. Blow (MA 1976) 348 NE2d 794, 798 ["it is the purpose or objective of the defendant at the time the crime was committed"]; Carter v. State (OK 1957) 309 P2d 737, 740 [specific intent is deliberate purpose to accomplish the consequences].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

    You must find beyond a reasonable doubt that the defendant, before acting, made a conscious decision to kill. Put another way, the defendant must be found to have had in [his] [her] mind the conscious objective to cause the death of another.

[See Model Penal Code § 210.2; see also  Commonwealth v. Nickerson (MA 1983) 446 NE2d 68, 73.]

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Annotation, Homicide As Affected By Lapse Of Time Between Injury And Death, 60 ALR3d 1323.

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PRACTICE NOTE: Some jurisdictions impose the burden of proving mitigation upon the defendant for purposes of reducing an offense to a lesser offense. (E.g., degrees of homicide.) However, when the prosecution charges the lesser degree of the offense based on the presence of mitigating factors, it would be improper to instruct the jury that the defendant has the burden of proving the mitigating factors. "By charging a defendant with second degree murder, the State is alleging that it can prove the elements of first degree murder, but is conceding the presence of mitigating factors. Under these circumstances the defendant bears no burden to prove any mitigating factors. Of course, if the instant defendant is tried by a jury and the cause reaches the deliberations stage, special jury instructions will be needed to explain the elements of the offense." (People v. Burkes (IL 1989) 545 NE2d 782, 784; see also ILLINOIS PATTERN JURY INSTRUCTIONS - CRIMINAL, IPI-Criminal 4th 7.01S, note [Definition Of Second Degree Murder When first Degree Murder Is Not Charged] (West, 4th ed. 2000) [prosecution required to prove all elements of first degree murder but the verdict if conviction results must be second degree murder] .)

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