California Penal Code Sec 187 defines murder as:
(a). Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
California Penal Code Sec 188 states:
Such malice may be express or implied. It is express when there is manifested 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 to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.
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So in order to convict on 1st degree murder you must show that the killer had to have formed a malicious intent to kill the victim.
And unlike what most laymen think, malice is not just shown by killing someone. You must show that there had to be a volitional act.
No one, not the witnesses, not the investigators, not even the people with Grant could show that a volitional act occurred on Mehserle’s part.
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Cal Penal Code Sec 189 states that:
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or 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, 288a, 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. All other kinds of murders are of the second degree.
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None of these above conditions were met.
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Cal Penal Code 192(a) defines Voluntary Manslaughter as homicide committed when the defendant is provoked or during the “heat of passion.
Cal Penal Code 192(b) defines Involuntary Manslaughter as murder without malice and committed during a misdemeanor or a lawful but dangerous act.
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There was no provocation or “heat of passion” here so no Voluntary Manslaughter.
But there was a murder without malice while the defendant committed a lawful but dangerous act ie. arresting a suspect.
I know that most people’s notions of criminal law comes from television, but this is real life. The prosecution couldn’t charge 1st or 2nd degree murder because it wasn’t there. And if they did it would have been misconduct.
Amazing how people see what they want to see.
Again, the suspects sitting with their hands cuffed were in control and not resisting. The suspect on the ground, yelling, kicking, and refusing to withdraw his hand from is pants was not in control, was resisting, and was a clear danger to the officers.
Anyone trained to a emergency service job on the streets, fire, police, EMS, is trained first in scene safety. Always assume a hidden arm and hand is holding a weapon and act accordingly, otherwise you go home dead.
He was refusing to bring his arm around into view. He was fighting and struggling, and one man on the wrong drugs can easily fight off three men trying to restrain him. The safest number to restrain someone is FOUR - one for each extremity, minimum.
As cops don’t carry ativan, using a taser was a viable option to provide control and safety to a dangerous scene.