Frequently Asked Questions (FAQ) about
Murder 
What is the
difference between Murder and Homocide?
Homicide is one person killing another person. Murder is a type of homocide.
What is Murder?
Murder is the killing of a person (from fetus on up) with malice.
Planning does not have to be elaborate or lengthy. It is possible to have "planned"
a killing moments before the killing. In other words, the planning requires only
the thought to enter your head that you are going to kill a person.
Malice simply means that you wanted to kill the person. Malice can be explicit or
implicit. Explicit malice simply means the defendant intended to kill a person.
Implicit malice requires that:
- The defendant intentially committed some act;
- The natural and probable consequences of the act were likely to harm a person;
- At the time the defenant acted, the defendant knew the act was likely to harm a
person; and
- The defendant consciously acted with a disregard for human life.
California Penal Code section 188 (PC 188)
.
Legal abortions are exempted from this definition of murder.
What are the
degrees of Murder?
There are two different "severities" or degrees of murder in the eyes of the law:
first and second degree murder.
California Penal Code section 189 (PC 189)
. If the defendant acted willfully, deliberately, and with premeditation, the murder
is classified as first degree. "Willful" means the defendant intended to
kill. "Deliberately" means the defendant carefully weighed the considerations
for and against killing another person and, knowing the consequences, decided to
kill. "Premeditation" means the defendant decided to kill before committing
the act that caused death. Premeditation does not require much time at all—in
some cases, a second is enough to find premeditation.
Additionally, any murder committed by a bomb, explosive, weapon of mass destruction
(WMD), armor piercing ammunition, poison, lying in wait (ambush), or torture is
first degree murder.
Finally, any murder committed during the attempt to or actual committing of
arson,
rape,
carjacking,
robbery,
burglary,
mayhem,
kidnapping,
train wrecking, drive-by shooting, sodomy,
lewd or lascivious acts with children,
oral sex, penetration of the genitals by a foreign object is first degree murder.
All other murders are considered second degree murders.
What are the necessary elements to be found guilty of Murder?
To prove the defendant committed
Murder, the state must show that the defendant:
- Did something that caused the death of a person;
- Acted with malice aforethought; and
- Killed without a lawful justification.
What is the sentence / punishment for Murder?
California Penal Code section 190 (PC 190)
First degree murder is punished by death, imprisonment in the state prison for life
without the possibility of parole, or imprisonment in the state prison for a term
of 25 years to life. If the first degree murder is a
hate crime
(i.e., based on the victim's disability, gender, nationality, race, ethnicity, religion,
or sexual orientation), the crime shall be punished by imprisonment in the state
prison for life without the possibility of parole (LWOP).
California Penal Code section 190.03 (PC 190.03)
.
Unless special circumstances increase the penalty, every person guilty of second
degree murder shall be punished by imprisonment in the state prison for a term of
15 years to life.
If the murder was in the second degree and if the victim was a peace officer engaged
in the performance of his duties and the murderer knew or should have known the
victim was a peace officer, the sentence will be 25 years to life in prison. If
the defendant specifically intended to kill the peace officer, the defendant specifically
intended to inflict great bodily injury on a peace officer, or the defendant personally
used a dangerous or deadly weapon in the commission of the offense, the penalty
is life in prison without the possibility of parole (LWOP).
Finally, if the defendant murdered the victim by shooting a firearm from a motor
vehicle with the intent to cause great bodily injury to someone outside the vehicle,
the punishment is 20 years to life in prison.
What are possible defenses to charges of Murder?
To prove someone committed a crime, the state (through its prosecutors) must prove
beyond a reasonable doubt that the defendant committed each element of the crime.
Therefore, defenses to any crime start with negating one or more of the elements
of the crime. Additionally, some crimes allow for "affirmative" defenses
which, if the defendant can prove the defense applies, will result in a verdict
of "not guilty" even if the prosecutor proves the defendant met each of
the elements of the crime.
For murder, convincing the jury that the prosecutor did not prove beyond a reasonable
doubt that the defendant did something that caused another person to die or that
the defendant did not act with malice would be enough to get a not guilty verdict.
If the prosecutor can prove all the elements of murder, however, the defendant must
prove that one or more justifications for his actions existed (i.e., it is the defendant's
burden to prove an affirmative defense). For murder, some of these justifications
include:
- Self-defense;
- Defense of another;
- Alibi;
- Duress / Threats;
- Necessity;
- Accident; and
- Entrapment.
As with all information on this site, this information is provided for background
information only. It is not all inclusive and important information relevant to
your situation may not be on the website. If you have a legal issue, please do not
take any action (or inaction) based on information on this or any other site. Please
contact an attorney to discuss your case before making a decision on how to proceed.
You can reach an attorney at the
American Justice Center
by calling toll-free
1-877-432-5325.
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