homicide murder in California

Murder is supposed to be one of the most serious criminal offenses. Depending on the circumstances of any particular case of the killing, a person facing conviction of murder can be sentenced to years in prison, a prison sentence with no possibility of Parole, or death penalty.
Sometimes a person can be innocent and, notwithstanding all circumstances, be accused of committing a crime by mistake.
Below, we will explain the main elements of the California Murder Law as well as we are ready to provide answers to your initial questions concerning murder charges in California for free.

1. Legal Definition of the Murder in California
2. Elements of the Murder
a) What does Unlawful killing mean?
b) What is Malice under California Law?
3. Murder in California
a) First Degree Murder
b) Second Degree Murder
c) Capital Murder
d) Felony Murder
4. Excusable and Justifiable Homicide
5. Legal Defenses to California Murder
6. Murder Penalties
7. Related Articles
In addition, we are ready to provide answers to your initial questions concerning fraud charges in California for free.

1. Legal Definition of the Murder in California
Homicide can be of different types, ranging from manslaughter to capital murder. Homicide is considered to be the killing of one human being by another, either lawfully or unlawfully. Homicide includes murder and manslaughter as well as justifiable homicide. A killing is supposed to be lawful if it is committed with justification or corresponding to the rules of California self-defense laws. Thus, it is important in case of being charged with murder to get a high skilled and professional California defense attorney who can reduce murder charge to manslaughter, or even dismiss it.
In general the following actions of the offender may be charged with murder if they cause death of a person:
– intentional murder;
– intentionally caused serious bodily injury which resulted in death;
– depraved heart or extreme recklessness which caused a killing;
– murder can result from accomplice during the commission, attempting of committing certain crimes.

2. Criminal Elements of the Murder
Thus, pursuant to California Penal Code 187 PC, murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
In order to understand the definition better, we need to clarify terms of which it is composed.

a) What does Unlawful killing mean?
Murder is always unlawful. Generally, the term “homicide” includes murder, homicide and justifiable killings. Nonetheless, all this types of homicide are different. Homicide is defined as the killing of one human being by another. It can be done either lawfully or unlawfully. A killing is lawful if it is committed with justification or as a self-defense to oneself or another person’s imminent threat of being killed.

b) What is Malice under California Law?
Referring murder we can say that malice is the crucial element of it and it differs murder charges from other homicide crimes. The term “malice aforethought” does not mean that the offense was planned or the offender felt malice toward the victim.
In general, there are 2 types of malice: express and implied.
Malice is express “when there is manifested an intention unlawfully to kill a human being”.
Malice may be implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”
In consequence, we can conclude that malice is implied when:
– the killing resulted from an intentional act;
– the natural consequences of the act are dangerous to human life;
– the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.

Note: if the prosecutor shows a killing resulted from act with express or implied malice, there is not any additional requirement to show the mental state of the defendant to be sanity. Related to the term “aforethought”, it only means that the required mental state of the offender must precede the act.

For example, if a person punches his neighbor in the nose, with the intent to injure the victim’s face, it can occur that the offender will be charged with murder. It can happen in the following case: the punched neighbor can die from blood blow and in this case causing intentionally serious bodily injury is equivalent to the intent to kill.
To conclude, we can say that the prosecutor in order to prove the guilt of defendant should prove the following elements of the crime:
– The killing was unlawful;
– It was killed a human being or a fetus;
– The offender committed the crime with malice aforethought.

2. The Crime of Murder in California
In California we differ several types of murder which involve different circumstances of the offense as well as it is set forth different penalties for the commission of any of them.

a) First Degree Murder
A person can face convicting of first degree murder if the killing was committed:
– in a way that is premeditated, willful and deliberate,
– by breaking the California felony murder rule.

Under California Penal Code 189 PC, it is defined that the first degree murders are 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,
– which is committed in the perpetration of, or attempt to perpetrate
a) arson,
b) rape,
c) carjacking,
d) robbery,
e) burglary,
f) mayhem,
g) kidnapping,
h) train wrecking,
i) torture(California Penal Code 206 PC),
j) unlawful acts of sodomy(California Penal Code 286 PC),
k) lewd acts with a minor (California Penal Code 288 PC),
l) unlawful acts of oral copulation (California Penal Code 288a PC),
m) forcible acts of penetration(California Penal Code 289 PC),
n) 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.

b) Second Degree Murder
All other kinds of murders are of the second degree. In other words, any murder that is not defined as being first degree murder is the second degree murder. Thus, it is not required to be deliberate and premeditated; however, it has to be willful. Generally, second Degree Murder includes deaths from various accidents which could have been prevented by the defended. For example, a person who has prior DUI conviction gets drunk and causes an accident which results in the death of a pedestrian.

c) Capital Murder
It is a murder offense that is punishable by the death penalty or life in prison without the possibility of parole (SWOP). Another saying, capital murder is the first degree murder with special circumstances previewed by California Penal Code 190.2 PC. According to this section, the following circumstances should be taken into consideration in order to qualify the offense as a capital murder (but are not limited to):
– the murder was intentional and carried out for financial gain
– the defendant was convicted previously of murder of the first or second degree
– the defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree
– the defendant intentionally killed the victim by means of lying in wait
– the victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin( “hate crime”)
– the murder was intentional and involved the infliction of torture.
– the defendant intentionally killed the victim by the administration of poison.

d) Felony murders
California Murder can be whether a misdemeanor or a felony.
Under California Criminal law, there is a list of crimes which make a murder be charged as a first degree felony-murder: arson, robbery, burglary, carjacking, train wrecking, kidnapping, mayhem, torture, and certain California sex crimes.
However, the incrimination of second degree felony-murder depends on the “inherently dangerous” nature of the acts which commission creates an essential risk that someone may be killed. Nonetheless, the list of second degree felony-murders which are “inherently dangerous” is not stated. Thus, all relevant cases are stated by judicial practice. For example, the manufacture of certain drugs or burning a car in garage which causes death of asleep people are considered to be second degree-felony murder. Thus, The second-degree felony-murder:
– is “inherently dangerous”,
– is not specifically included in the first-degree felony-murder California Penal Code rules.

4. Excusable and Justifiable Homicide
California Penal Code states that it can occur that homicide becomes justifiable or excusable and, consequently, the person accused of its commission has to be set free. In particular, the homicide has to correspond to the following criteria to be supposed excusable:
– When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent
– When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.
If your experienced and professional attorney proves that the homicide was justifiable and excusable, it results in the discharge of defendant.

8. Defenses to Murder Charges
An experienced and professional California defense attorney can use various legal defenses in order to reduce or dismiss the murder charge. Below, we represent some of them.
The state of insanity
False confessions
Illegal search or seizure
– Etc.

6. Murder Penalties
Penalties vary from the type of murder the person is convicted. In the table below, it is represented the main penalties for murder depending whether it is first degree, second degree or capital murder.




First Degree Murder

–    a 25 year-to-life prison sentence

–    in some cases a life sentence without the possibility of parole(SWOP), i.e., for the commission of hate crime that is to say based on the victim’s race, religion, gender, disability, sexual orientation, or nationality.

Second Degree Murder

–    a 15 year-to-life prison sentence

–    the sentence increases up to a 25 year-to-life sentence if the victim is a peace officer

Capital Murder

–    execution

–    in some cases a life sentence without the possibility of parole(SWOP)


It should be noted that the death penalty cannot be imposed upon any person who is under the age of 18 at the time of the commission of the crime. The burden of proof as to the age of such person is upon the defendant.
Moreover, the court may impose additional penalties in the following cases:
– if it was used a firearm during the commission of the crime, an additional 10, 20 or 25-years to life sentence;
– if the offense is gung-related or during the commission of the crime it was used a gun, the sentence will be enhanced;
– the loss of the right to own or possess a firearm;
– a fine up to $10000.

It is essential that the California murder is considered to be a “strike” according to California three strike laws[1].

7. Related Homicide Charges
a) Watson Murder.
It is an act committed:
– while driving, caused the death of another
– the defendant had malice aforethought
– there is no lawful justification.

b) Manslaughter
1. The defendant committed an unlawful act that might cause death
3. The defendant committed the lawful act that might cause death with negligence
4. The defendant’s negligent conduct caused the death of another person.
Another saying, manslaughter is defined as an unlawful killing of a human being without malice aforethought (California Penal Code 192 PC). Manslaughter may be voluntary or involuntary.

c) Vehicular Manslaughter
It means that when a person drives a vehicle, he or she unlawfully kills another human being with negligence.

If you have faced accusations of homicide, it is essential to contact an experienced California defense attorney who is will provide legal assistance.

The Margarian Law Firm aggressively protects the rights of criminal defendants in California. Each defense will be developed upon the facts of your individual case. Do not hesitate to contact us. We handle every aspect of your case, from the first step to the very last court hearing. 

You may file your request online, by telephone or by mail. 818-553-1000


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