Murder is the unlawful killing of another (homicide) with premeditation, malice aforethought, without justification, with the intent to kill, and/or with special circumstances (during the commission of a felony, murder-for-hire, etc.).
Under California Penal Code 187 P.C., you can be prosecuted for Murder even if you did not allegedly commit the act yourself, but were merely an “aider and abettor” or “co-conspirator”. You can also be charged with various “degrees” of Murder, such as “Capital Murder” (also known as First Degree Murder with Special Circumstances, which, if you are convicted, could result in the death penalty), First Degree Murder, and Second Degree Murder.
Capital Murder cases consist of First Degree Murders that include “special circumstances”, such as where the perpetrator intentionally ambushed the victim or killed the victim as part of a murder-for-hire scheme.
First Degree Murder charges typically involve “special allegations”, such as premeditation and deliberation on the part of the accused, or where the homicide occurred during the commission of an inherently dangerous felony (such as a Robbery, Burglary, rape, kidnapping or arson). The prosecutor will usually have to prove that you “harbored an intent to kill”, and that you had the opportunity to, or did in fact, reflect on the killing beforehand.
Senate Bill 1437:
On September 30, 2018, Governor Jerry Brown signed into law a new Felony Murder rule, which limits First Degree Murder charges to only those situations where the defendant intended to commit murder during the commission of another crime. (Prior to this legislation, defendants could be convicted of First Degree Murder if someone was killed during the commission of certain crimes, even if no murder was ever intended, or even if the defendant was unaware someone was killed.) This law goes into effect on January 1, 2019. (As a result, thousands of inmates in California who were convicted under the old Felony Murder rule will be able to petition the court for reduced sentences.)
First Degree Murder is a “specific intent” crime, meaning that you intended to kill the victim.
Second Degree Murder typically encompasses all intentional homicides that do not include the foregoing circumstances or that otherwise do not include the necessary specific intent to commit murder. For example, if you unintentionally killed someone during an intentional act, such as an Assault with a Deadly Weapon, then you will probably be charged with Second Degree Murder.
You can also be charged with Second Degree Murder if you committed an act that constitutes a “conscious and willful disregard” for the victim’s safety, such as killing someone while you were riding a motorcycle at an excessive rate of speed after getting voluntarily intoxicated. (For example, one of Ninaz Saffari’s clients was charged with Second Degree Murder under similar circumstances because the client had a prior DUI on his record.) The prosecutor will have to prove that your act greatly exceeded ordinary negligence (which is a legal duty that all Californians have to avoid exposing others to an unreasonable risk of harm).
Murder is a “strike” offense under California’s “Three Strikes Law”, which can result in sentencing enhancements and requires you to serve at least 85% of your sentence, even with good behavior.
Examples of First Degree Murder include the following:
To prove that you are guilty of First Degree Murder under California Penal Code 187 P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 521):
Poison. You murdered by using poison; or
To prove that you are guilty of First Degree Murder under California Penal Code 190.2 P.C., the prosecutor must prove that:
There is obviously a great deal of overlap between Capital Murder and First Degree Murders prosecuted under the Felony Murder rule. The prosecutor, therefore, has the discretion to charge you with one or the other. The primary distinction, however, is that a conviction for Capital Murder carries a mandatory sentence of life without the possibility of parole or the death penalty, while Felony Murder “only” carries a mandatory minimum of 25 years to life with the possibility of parole. (Typically, with good behavior, you would be eligible for parole after serving 85% of your sentence under California’s Three Strikes Law. In other words, if you were convicted of either Felony Murder or “regular” First Degree Murder, you could be eligible for parole after serving 21 years and three months (25 years X .85).
Murder under most other circumstances is considered to be Second Degree Murder.
Examples of Second Degree Murder include the following:
What Does the Prosecutor Need to Prove for a Second Degree Murder Charge?
To prove that you are guilty of Second Degree Murder under California Penal Code 187 P.C. & California Penal Code 189 P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 521):
There are two kinds of malice aforethought: express and implied malice (CALCRIM 521):
If you are convicted of Murder under California Penal Code 187 P.C., you face the following punishment (excluding any sentencing enhancements):
Fortunately, there are many defenses available to you if you are charged with Murder under either of the two degrees. All of them will require the services of a highly experienced, knowledgeable, and skilled Los Angeles County Murder attorney like Ninaz Saffari, as well as that attorney’s private investigator.
All of these defenses will also require witnesses who support your defense, such as alibi witnesses, expert witnesses, and, again, an experienced attorney to attack the credibility and/or reliability of the prosecution’s eyewitnesses. These defenses may even require character witnesses. Or your defense can be based on exculpatory evidence (that proves your innocence or otherwise attacks the prosecution’s evidence), including surveillance footage from security cameras, cell-tower “pings” that prove your location at the time of the murder, credit-card transaction receipts, etc.
Self-defense is also a viable method of proving that an alleged murder was actually justifiable. Under these circumstances, you either reasonably acted in defense of yourself or another person. To successfully assert this defense, a jury must believe that you objectively and reasonably believed that either you or the other person were in imminent danger of serious bodily harm or death from the “victim”.
Even if a self-defense claim does not completely exonerate you, it may nevertheless result in a mitigation of the charges; for example, from First to Second Degree Murder, or from Second Degree Murder to Voluntary Manslaughter. In this circumstance, your belief that either you or the person was in danger would be considered unreasonable or mistaken.
A “heat-of-passion” defense can also mitigate Murder charges down to Manslaughter. In this circumstance, a jury would have found that you had only acted upon reasonable provocation. In other words, you acted without the premeditated or deliberate intent to actually kill the “victim”.
Voluntary intoxication, where you intentionally drank alcohol or consumed a psychoactive (mind-altering) substance, can also mitigate a Murder charge. In this circumstance, a jury would find that you were so intoxicated that you could not have formulated an intent to actually kill the “victim”.
By contrast, if the homicide resulted from you being involuntarily intoxicated, meaning that someone inebriated or intoxicated you without your knowledge or permission, then a jury could find you completely innocent of any criminal charge. This is known as a “complete defense”.
Misidentification is also a potentially complete defense. A good expert witness can successfully challenge eyewitness identifications. (Similarly, an expert witness can also support a defense based on accident or self-defense.)
Keep in mind that out of all criminal charges, California prosecutors typically “overcharge” homicides the most. For example, this means that the District Attorney knowingly prosecutes a defendant for First Degree Murder even if he or she knows or believes (based on the evidence) that no premeditation or deliberation was involved. Therefore, it is critical that you hire a highly competent and skilled attorney who can recognize when the District Attorney’s Office is overreaching and, more importantly, how to fight the D.A. in this circumstance.
The following are the possible defenses to a Murder charge:
Under California Penal Code 664 P.C., you can be charged with Attempted Murder if you intentionally tried to kill someone without justification but were unsuccessful (a “direct step” with the “intent to kill”).
Just as with Murder, there are two degrees of Attempted Murder charges: First Degree Attempted Murder and Second Degree Attempted Murder.
Attempted Murder is a “strike” offense under California’s “Three Strikes Law”, which can result in sentencing enhancements and requires you to serve at least 85% of your sentence, even with good behavior.
To prove that you are guilty of Attempted Murder under California Penal Code 664 P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 600):
If you are convicted of Attempted Murder under California Penal Code 664 P.C., you face the following punishment (excluding any sentencing enhancements):
Most of the defenses to Murder also apply to Attempted Murder.
In addition, if you merely planned or even prepared to commit the murder, but did not take a “direct step” in competing it, then you cannot be convicted of Attempted Murder. This would include actually firing your gun at the intended victim or paying someone to carry out the murder. Keep in mind, however, that even if you voluntarily abandon your plan to kill the intended victim after taking this direct step, you can still be convicted of Attempted Murder under CALCRIM 600.
Under California Penal Code 192 P.C., you can be prosecuted for Manslaughter if you kill someone under certain aggravating circumstances. Manslaughter means that you allegedly killed the victim but specific mitigating factors were present at the time of the homicide.
There are two types of Manslaughter in California: Voluntary and Involuntary.
Under California Penal Code 192(a) P.C., Voluntary Manslaughter is a crime that would normally be charged as Second Degree Murder but for the presence of mitigating factors, such as “imperfect self-defense” (where you unreasonably believed you or a third person were in imminent danger from the “victim”), voluntary intoxication, or heat-of-passion acts. Voluntary Manslaughter is typically not charged as a crime in and of itself, but is provided to a jury as a lesser-offense option during a Murder trial.
Under California Penal Code 192(b) P.C., Involuntary Manslaughter is a crime that results from unlawfully killing someone as a result of your own criminal negligence. Specifically, the ADistrict Attorney must prove that the death was the result of you committing an act that posed a great risk of bodily injury or death.
Involuntary Manslaughter also includes Vehicular Manslaughter, which is charged as a crime under California Penal Code 192(c) P.C. This crime entails killing someone while you are negligently operating a vehicle (for example, when you are intoxicated but have no prior DUI convictions).
Vehicular Manslaughter is a “wobbler” crime, meaning the prosecutor can either charge it as a felony or a misdemeanor, depending on the circumstances of the case and your own criminal record.
To prove that you are guilty of Manslaughter under California Penal Code 192(a) P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 570):
If you are convicted of Manslaughter under California Penal Code 192(a) P.C. or California Penal Code 192(b) P.C., you face the following punishment (excluding any sentencing enhancements) (see California Penal Code 193 P.C.):
To prove that you are guilty of Manslaughter under California Penal Code 192(b) P.C., the prosecutor must prove each of the following elements (as required by the Judicial Council of California Criminal Jury Instructions CALCRIM 581):
Most of the defenses to Murder and Attempted Murder also apply to Manslaughter charges. In addition, defenses to Manslaughter include acting as a reasonable prudent person under the circumstances.
Since 2005, Ninaz Saffari has successfully represented many clients against these types of charges, including Murder and Attempted Murder charges with gang enhancements, as well as Voluntary, Involuntary, and Vehicular Manslaughter. Some of these clients faced life imprisonment. See her Case Results.--
If you or a loved one are currently being investigated or prosecuted for this crime, it is critical that you immediately hire a highly skilled, aggressive and experienced Los Angeles County Murder, Attempted Murder, and Manslaughter criminal defense attorney like Ninaz Saffari. Contact the Saffari Law Firm, P.C. now for a free telephone consultation. If Ms. Saffari believes she can help you, she will immediately schedule a free in-person meeting or, if you are in custody, she will visit you in jail (again, for free and with no obligation to hire her).
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