What is the burden of proving express malice in a case of attempted murder?

These principles equally apply to a charge of attempted murder, which requires express malice. The prosecution must prove beyond a reasonable doubt, among other things, the defendant acted with malice aforethought. To determine whether the defendant acted with malice aforethought, the prosecution must prove beyond a reasonable doubt that the defendant did not act in imperfect self-defense or heat of passion, when those theories are at issue based on the state of the evidence. Assuming the prosecution meets its burden on this element, and attempted murder's other elements, the defendant is guilty of attempted murder. If, however, the prosecution fails to establish beyond a reasonable doubt the defendant did not act in imperfect self-defense or heat of passion, the prosecution fails to carry its burden and the defendant is guilty of attempted voluntary manslaughter. (People v. Speight (2014) 227 Cal.App.4th 1229, 1241-1242.)

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