Murder

In California, murder under Penal Code Section 187 (a) is the unlawful killing of another person with malice aforethought.

California murder is the unlawful killing of another person with malice aforethought. Malice aforethought is present when there is (1) an intent to kill another or (2) the defendant acts with reckless disregard for human life. California law recognizes first- and second-degree murder, capital murder, and first- and second-degree felony murder. Both first- and second-degree murder require malice aforethought.

1. Killing committed
   1. with an explosive device, weapon of mass destruction, metal/armor penetrating ammunition, or poison; or
   2. by lying in wait, torture;
2. Killing in any other kind of deliberate, willful, or premeditated way; or
3. Felony Murder (discussed below)

First-degree murder can also be elevated to capital murder if it involves over 20 situations listed in the California Penal Code Section 190.2, including if the victim was a peace officer or the murder was carried out for financial gain.

Second-degree murder is defined as any willful unlawful killing that is not deliberate and premeditated and is not first-degree murder.

Felony murder applies to both first- and second-degree murder. California’s felony murder rule makes a person and their accomplices guilty of murder if a killing occurs during the commission of a felony. The felony murder applies even if the killing was accidental, unintentional, or negligent.

First-degree felony murder only applies to the following felonies:

• Arson
• Burglary
• Robbery
• Kidnapping
• Car-jacking
• Train- wrecking
• Mayhem
• Torture, and
• Some California sex crimes including rape and lewd acts with a minor.

Second-degree felony murder applies to (1) felonies that are “inherently dangerous” and (2) not specified in first-degree felony murder. An inherently dangerous felony is one that cannot be accomplished without creating a risk that someone will be killed.

If convicted of first-degree murder under Section 187, a defendant faces 25 years to life in a California state prison. However, the sentence may be elevated to life without the possibility of parole if the killing involved a “hate crime.” A hate crime is defined by California law as a crime motivated by hatred that is based on “race, religion, ethnicity, sexual orientation or disability.”

Capital murder carries the possibility of the death penalty or life without the possibility of parole.

If convicted of second-degree murder under Section 187, a defendant faces 15 years to life in a California state prison. This sentence may be increased to:

• Life without the possibility of parole
• if the defendant has a previous murder conviction or
• the victim was a peace officer and the defendant either
  • intended to kill,
  • intended to severely injure, or
• used a deadly weapon on the officer
• 25 years to life if the victim was a peace officer
• 20 years to life if the defendant killed the victim by shooting a firearm from a vehicle with the intent to cause injury

There are also additional penalties that can be attached to any murder conviction. If convicted of murder, a defendant is also subject to:

• A fine up to $10,000
• An added 10, 20, or 25 years to life if the defendant used a firearm
• Additional gang enhancements
• A strike under California’s three strikes law
• The loss of the right to own and carry a firearm

There are several defenses that a defendant can assert when charge with murder depending on the circumstances.

• Insanity. To present insanity as a defense, the defendant must prove that she either (1) did not know the difference between right and wrong or (2) did not understand the nature of her actions.
• Self-defense/ defense of others. California’s self-defense laws allow a person to kill another if they reasonably believe that it is necessary to prevent death or great bodily injury to himself or herself or another person.
• Accident. If a person is killed by accident and the defendant (1) was acting lawfully, (2) was not negligent at the time of the accident, and (3) had no intention to do harm, they cannot be found guilty of murder.
• 5th Amendment violations. Confessions that are the product of coercion or that were obtained without proper Miranda warnings are inadmissible in court.
• 4th Amendment violations. Evidence that is obtained from an unreasonable search or seizure without a warrant is inadmissible in court.
• Mistaken identity. Eyewitness identification is notoriously unreliable. If there is a questionable identification, the defense may challenge police identification procedures, demand another live line up, and call an identification expert at trial.

Our criminal defense attorney at the Johnson Criminal Law Group will provide you with experienced legal defense for murder charges. If facing possible charges it is important to get in touch with our Orange County criminal defense lawyer as soon as possible. We can be reached by phone at (949) 622-5522 or you can send us a message online today.