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Criminal Defense Information for Murder (Cal. Penal Code s. 187)

  1. What is the difference between Murder and Homocide?
  2. What is Murder?
  3. What are the degrees of Murder?
  4. What are the necessary elements to be found guilty of Murder?
  5. What is the sentence / punishment for Murder?
  6. What are possible defenses to charges of Murder?
  1. What is the difference between Murder and Homocide?

    Homicide is one person killing another person. Murder is a type of homocide.

  2. What is Murder?

    Murder crime scene

    Murder crime scene

    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 intentionally committed some act;
    • The natural and probable consequences of the act were likely to harm a person;
    • At the time the defendant acted, the defendant knew the act was likely to harm a person; and
    • The defendant consciously acted with a disregard for human life.

    Cal. Pen. Code s. 188 Opens in New Window

    Legal abortions are exempted from this definition of murder.

  3. 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. Cal. Pen. Code s. 189 Opens in New Window. 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.

  4. What are the necessary elements to be found guilty of Murder?

    To prove the defendant committed Murder, the state must show that the defendant:

    1. Did something that caused the death of a person;
    2. Acted with malice aforethought; and
    3. Killed without a lawful justification.
  5. What is the sentence / punishment for Murder?

    First degree murder is a felony 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). Cal. Pen. Code s. 190.03 Opens in New Window

    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.

  6. 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.
See also, Manslaughter.