THE SAFFARI LAW FIRM

Murder

California Penal Code 187 P.C.
California Penal Code 189 P.C.
California Penal Code 190.2 P.C.

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.).

What are Murder Charges?

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.

What are Examples of First Degree Murder?

Examples of First Degree Murder include the following:

  1. After robbing a bank, you fled the building and shot to death a witness whom you ran into on the way to your getaway car.
  2. While your accomplice raped a woman, you held your hands over her mouth to keep her quiet and she died from asphyxiation (although that was not your intention).
  3. You set fire to a mobile home, knowing the owner was sleeping inside, in an attempt to force him out so you could rob him at gunpoint. However, he died as a result of the fire.

What Does the Prosecutor Need to Prove for a First Degree Murder Charge?

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):

  1. Deliberation and premeditation. You acted willfully, deliberately, and with premeditation in killing another person. You acted willfully if you intended to kill. You acted deliberately if you carefully weighed the considerations for and against your choice and, knowing the consequences, decided to kill. You acted with premeditation if you decided to kill before completing the act(s) that caused death; or
  2. Torture. You willfully, deliberately, and with premeditation intended to inflict extreme and prolonged pain on the person killed while that person was still alive; and
  3. You intended to inflict such pain on the person killed for the calculated purpose of revenge, extortion, persuasion, or any other sadistic reason; and
  4. The act(s) causing death involved a high degree of probability of death; and
  5. The torture was the cause of death; or
  6. Lying in wait. You concealed your purpose from the person killed; and
  7. You waited and watched for the opportunity to act; and
  8. Then, from a position of advantage, you intended to and did make a surprise attack on the person killed; or
  9. Destructive device or explosive. You murdered by using a destructive device or explosive; or
  10. Weapon of mass destruction. You murdered by using a weapon of mass destruction; or
  11. Penetrating ammunition. You murdered using ammunition designed primarily to penetrate metal or armor to commit the murder and you knew that the ammunition was designed primarily to penetrate metal or armor; or
  12. Discharge from vehicle. You shot a firearm from a motor vehicle; and
  13. You intentionally shot at a person who was outside the vehicle; and
  14. You intended to kill that person; or
  15. Poison. You murdered by using poison; or

  16. Felony Murder rule (as of January 1, 2019). You directly killed someone during the commission of a felony or the attempted commission; or
  17. You aided and abetted that killing; or
  18. You were a major participant in that killing; or
  19. The person killed was a peace officer acting in his or her capacity as a peace officer.
  20. What Does the Prosecutor Need to Prove for a Capital Murder Charge?

    To prove that you are guilty of First Degree Murder under California Penal Code 190.2 P.C., the prosecutor must prove that:

    1. The murder was intentional and carried out for financial gain; or
    2. You were previously convicted of First or Second Degree Murder; or
    3. The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and you knew, or reasonably should have known, that your act(s) would create a great risk of death; or
    4. The murder was committed to avoid or prevent a lawful arrest, or during an escape from lawful custody; or
    5. The murder was committed by means of a destructive device, bomb, or explosive that you mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and you knew, or reasonably should have known, that your act(s) would create a great risk of death; or
    6. The victim was a peace officer, federal law enforcement officer or agent, firefighter, current or former prosecutor, current or former judge, current or former elected or appointed official, or juror who was engaged in his or her official duties at the time of the killing (these are all known as “protected persons”); or
    7. The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal proceeding, or in retaliation for his or her testimony;
    8. The murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity; or
    9. You intentionally killed the victim by means of lying in wait; or
    10. The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin (a “hate crime”); or
    11. The murder was committed while you were engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies:
      • Robbery;
      • Kidnapping;
      • Rape;
      • Sodomy;
      • The performance of a lewd or lascivious act upon a child under the age of 14;
      • Oral copulation;
      • Burglary;
      • Arson; or
      • Carjacking; or
    12. The murder was intentional and involved the infliction of torture; or
    13. You intentionally killed the victim by using poison; or
    14. The murder was intentional and perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person or persons outside the vehicle with the intent to inflict death; or
    15. You intentionally killed the victim while you were an active participant in a criminal street gang, and the murder was carried out to further the activities of the gang.
    16. 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.

      What are Examples of Second Degree Murder?

      Examples of Second Degree Murder include the following:

      1. You fired your revolver through the window of a house party merely to scare the occupants and killed someone.
      2. In a fit of rage, you kicked your pregnant girlfriend in the stomach, intending to kill the fetus but, instead, killing your girlfriend.
      3. During a bar fight, you cracked a full vodka bottle over your opponent. You killed him despite the fact that your intention was only to injure him.

      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):

      1. You committed an act that caused the death of another person or a fetus; and
      2. When you acted, you had a state of mind known as “malice aforethought”; and
      3. You killed without lawful excuse or justification.

      There are two kinds of malice aforethought: express and implied malice (CALCRIM 521):

      1. You acted with express malice if you unlawfully intended to kill;
      2. You acted with implied malice if:
        1. You intentionally committed an act;
        2. The nature and probable consequences of the act were dangerous to human life;
        3. At the time you acted, you knew your act was dangerous to human life; and
        4. You deliberately acted with conscious disregard for human or fetal life.
      3. What Happens If I am Convicted of a Murder Charge?

        If you are convicted of Murder under California Penal Code 187 P.C., you face the following punishment (excluding any sentencing enhancements):

        1. Life imprisonment without the possibility of parole or death by execution (if you are convicted of Capital Murder of Felony Murder); or
        2. Twenty-five years to life in prison (if you are convicted of First Degree Murder, including Felony Murder); or
        3. Fifteen years to life in prison (if you are convicted of Second Degree Murder);
        4. A maximum $10,000 fine;
        5. Victim restitution;
        6. Permanent ban from possessing or owning a firearm;
        7. Possible loss of ability to obtain or maintain a professional license, loss of employment or educational opportunities, or adverse immigration consequences (if applicable).
        8. What are My Possible Defenses to a Murder Charge?

          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:

          1. Self-defense of yourself or another person (justifiable homicide). For example, the alleged victim threatened you with force, attempted to assault you, or did in fact attack you or another person, and you reasonably believed you or the other person were in danger. Under California law, you are entitled to use force against someone to prevent wrongful injury to yourself or another. However, the force must be only that which was reasonably necessary to prevent the injury. Alternatively, if your belief that you or another person was not reasonable, then this defense could at least mitigate the charge from First to Second Degree Murder, or from Second Degree to Voluntary Manslaughter.
          2. Lack of a felony (defense to Felony Murder). Although you did kill the victim, it was not during the commission or attempted commission of a felony.
          3. Lack of willfulness. For example, the death resulted from a mistake (you thought the person you shot in your darkened house was a burglar but it was your relative, etc.).
          4. Accident (excusable homicide). According to the Judicial Council of California Criminal Jury Instructions CALCRIM 510, you are not guilty of Murder if you killed someone by accident or misfortune if:
            1. you were doing a lawful act in a lawful way;
            2. you were acting with usual and ordinary caution; and
            3. you were acting without any unlawful intent.
          5. Lack of specific intent (Felony Murder or Second Degree Murder). At the time of the killing, you did not have the specific intent to actually kill the victim.
          6. “Heat-of-passion”. Mitigates the murder from First Degree to Second Degree, or from Second Degree to Voluntary Manslaughter.
          7. Voluntary intoxication. Mitigates the murder from First Degree to Second Degree, or from Second Degree to Voluntary Manslaughter.
          8. Involuntary intoxication. For example, someone spiked your drink with LSD and handed you a pistol, which you accidentally fired and killed someone with. This can be a complete defense, as opposed to merely a mitigation defense.
          9. Insanity. You failed to understand that the nature of the killing was a criminal act or that it was morally wrong.
          10. False accusations. The alleged victim or supposed eyewitness may have ulterior motives for lying to the police. Some of the most common motives include child custody disputes and romantic strife with current or former lovers.
          11. Misidentification by the accuser or witness. For example, your act was misunderstood or misinterpreted, or you were not the actual person who allegedly committed the murder. Eyewitness identification can be affected by many different factors, including bad lighting, witness stress, cross-racial identification, suggestions by the police, etc.
          12. Constitutional defenses. These include lack of probable cause, police misconduct (coerced confession, planted evidence, falsified police report, racial profiling, tainted forensic evidence, etc.), Miranda violations (suppressing any statements you made to the police if your Miranda rights were violated), and suppression of evidence that was seized without reasonable suspicion, probable cause, or a valid warrant (in violation of the Fourth Amendment).
          13. Insufficient evidence. The prosecutor failed to provide sufficient evidence to prove you are guilty beyond a reasonable doubt of one or more charges.
          14. The accuser and/or witnesses are not credible. In other words, for any host of reasons, the jury simple does not believe what the accuser and/or witnesses are claiming about your criminal culpability.
          15. Attempted Murder -- California Penal Code 664 P.C.

            What is an Attempted 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.

            What Does the Prosecutor Need to Prove for an Attempted Murder Charge?

            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):

            1. You took at least one direct but unsuccessful step towards killing another person or a fetus; and
            2. You intended to kill that person or fetus.

            What Happens If I am Convicted of an Attempted Murder Charge?

            If you are convicted of Attempted Murder under California Penal Code 664 P.C., you face the following punishment (excluding any sentencing enhancements):

            1. Life in prison with the possibility of parole (if you are convicted of First Degree Attempted Murder). (If you attempted to murder a police officer or other “protected person” during the performance of his or her duties, you will have to serve a minimum of 15 years before you are eligible for parole.); or
            2. Five, seven, or nine years in prison (if you are convicted of if you are convicted of Second Degree Attempted Murder); and
            3. A maximum fine of $10,000;
            4. Permanent ban from possessing or owning a firearm;
            5. Victim restitution (if applicable);
            6. Possible loss of ability to obtain or maintain a professional license, loss of employment or educational opportunities, or adverse immigration consequences (if applicable).
            7. What are My Possible Defenses to an Attempted Murder Charge?

              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.

              Manslaughter -- California Penal Code 192 P.C.

              What are Manslaughter Charges?

              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.

              What are Examples of Voluntary Manslaughter?

              1. You saw someone setting your car on fire so in a fit of rage, you shot him.
              2. You came home early from work and caught your wife in bed with your gardener. You grabbed a golf club next to the bed and bludgeoned them both to death.
              3. You learned that one of your neighbors had raped your daughter. At that moment, you saw that neighbor emerge from his house so you jumped in your car and ran him over, killing him.

              What Does the Prosecutor Need to Prove for a Voluntary Manslaughter Charge?

              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):

              1. You killed someone because of a sudden quarrel or in the heat of passion;
              2. You were provoked;
              3. As a result of the provocation, you acted rashly and under the influence of intense emotion that clouded your emotion or judgment; and
              4. The provocation would have caused an average person to act rashly and without due deliberation (in other words, from passion rather than judgment).

              What Happens If I am Convicted of a Voluntary or Involuntary Manslaughter Charge?

              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.):

              1. Three, six, or 11 years in prison (if you are convicted of felony Voluntary Manslaughter); or
              2. Two, three, or four years in prison (if you are convicted of felony Involuntary Manslaughter); and
              3. A maximum fine of $10,000;
              4. Probation of three or five years;
              5. Permanent ban (felony) or 10-year ban (misdemeanor) from possessing or owning a firearm;
              6. Possible loss of ability to obtain or maintain a professional license, loss of employment or educational opportunities, or adverse immigration consequences (if applicable).
              7. What are Examples of Involuntary Manslaughter?

                1. You stole a car and accidentally struck and killed a pedestrian as you drove away.
                2. You tried to shoot an apple off your willing friend’s head and accidentally killed him.
                3. To save money, you failed to install safety features in your factory. As a result, one of your employees died in an industrial accident.

                What Does the Prosecutor Need to Prove for an Involuntary Manslaughter Charge?

                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):

                1. You committed a crime or a lawful act in an unlawful manner;
                2. You committed the crime or act with criminal negligence; and
                3. Your act(s) caused the death of another person.

                What are My Possible Defenses to a Manslaughter Charge?

                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.

                What Kind of Murder, Attempted Murder, and Manslaughter Charges Has Ninaz Saffari Defended?

                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.

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                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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