Murder is the killing of another person with malice aforethought (Pen. Code § 187). Malice can either be express where the killing was intentional. Or malice can be implied by the defendant’s intentionally committing a mortally dangerous act while knowing the risk and consciously disregarding it.

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) lied 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; 7) killed the victim as a hate crime. All other killing of another person with malice aforethought qualifies as second-degree murder.

“Felony murder” is where the defendant or his co-participant caused 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, or 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 then 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 the 12) of a peace officer, firefighter, witness, judge, prosecutor, government official, juror, or transportation worker.

A conviction for second-degree murder is punished 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 yeas 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 of a 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). Vehicular manslaughter includes vehicular manslaughter while intoxicated (Pen. Code § 191.5) and misdemeanor vehicular manslaughter.

A conviction for voluntary manslaughter is punished by 3, 6, or 11 years in state prison. Involuntary manslaughter is punished 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 5 years to the sentence.

The law considers some killing as justifiable or excusable, including if the killing was 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 the deadly act was committed accidentally or unconsciously.

Any case involving a victim who died is a serious and complex case, which requires an attorney with the necessary expertise and experience. Contact me today for a confidential consultation regarding your homicide criminal matter.

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