Murder is the killing of another person with malice aforethought (Pen. Code § 187). Malice can be “express” where the killing was intentional or “implied” by the defendant’s intentionally committing a mortally dangerous act while knowing, but consciously disregarding, that risk.
Murder in the first degree (Pen. Code §189) can be charged where the defendant: 1) killed willfully, deliberately, and with premeditation; 2) tortured the victim during the commission of the killing; 3) lay in wait and made a surprise deadly attack on the victim; 4) killed with a destructive device or weapon of mass destruction; 5) killed with armor-penetrating ammunition; 6) killed by shooting a firearm from a car at victim; 6) killed by poison; or 7) killed the victim as a hate crime.
All other instances of one killing another person with malice aforethought qualify as second-degree murder.
“Felony murder” occurs when the defendant or his co-participant causes the death of the victim during the commission of an inherently dangerous felony. Felony murder can qualify as first-degree murder if the underlying felony is arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, drive-by shooting, or certain sex crimes.
A conviction for first-degree murder is punished by death, life in prison without the possibility of parole, or 25 years to life. If any “special circumstances” are alleged and found true beyond a reasonable doubt by the jury, the penalty is death or life without parole (Pen. Code §190.2). These special circumstances include a killing: 1) for financial gain; 2) because of the victim’s race, religion, or nationality; 3) to escape arrest; 4) by a defendant with a prior murder conviction; 5) in the commission of another violent felony like arson or kidnapping; 6) by a criminal street gang member; 7) by means of a destructive device; 8) while lying in wait; 9) with torture; 10) with poison; 11) by discharging a firearm from a vehicle; or 12) of a peace officer, firefighter, witness, judge, prosecutor, government official, juror, or transportation worker.
A conviction for second-degree murder is punishable by 15 years to life with a few exceptions. If the victim was a police officer performing a lawful duty, then the penalty is 25 years to life or life without parole. If the killing was by shooting a firearm from a vehicle with the intent to kill or inflict great bodily injury on another person, then the penalty is 20 years to life.
Manslaughter is the unlawful killing of a human being without malice (Pen. Code § 192). There are three kinds of manslaughter: voluntary, involuntary, and vehicular. Voluntary manslaughter includes killing in the heat of passion (where the defendant acted after sufficient provocation) and imperfect self-defense (where the defendant believed he was in danger or needed to use deadly force but at least one of those beliefs was unreasonable).
A conviction for voluntary manslaughter is punishable by up to 11 years in state prison. Involuntary manslaughter is punishable by up to four years. Vehicular manslaughter can carry a sentence of up to 6 years, unless the defendant was intoxicated, in which case the sentence could be as much as 10 years. Fleeing the scene after committing vehicular manslaughter can add an additional five years to the sentence.
The law considers some killing as justifiable or excusable, including killing done in valid self-defense or defense of another or in defense against home invasion or by a public officer for a lawful purpose or if the deadly act is committed accidentally or unconsciously.
Finally, a defendant can be charged with homicide even if no death occurred. Attempted murder (Penal Code §§ 664 / 187) can be charged based on allegations that the defendant 1) intended to kill another person, and 2) took at least one direct but unsuccessful step towards killing that person. Attempted murder can be in the first degree based on a further allegation that the defendant acted willfully, deliberately, and with premeditation. First-degree attempted murder carries a sentence of life with the possibility of parole. All other attempted murder is classified as second-degree and carries a sentence of up to nine years in prison.
Any case involving an accusation of homicide is a serious and complex case which requires an attorney with the necessary expertise and experience. Contact me today for a free confidential consultation regarding your homicide criminal matter.