Whenever someone gets charged with murder, one of the first questions people ask is “Will the D.A. seek the death penalty?”
Prosecutors do have a great deal of discretion as to when to seek capital punishment. But they can't do it in every homicide case. They can only do it when there are “special circumstances” in California murder cases.
Special circumstances refer to what society adjudges to be the most serious, aggravated or heinous types of killings. Examples would include murdering a prosecutor or judge in retaliation for their work, or murder by torture of lying in wait for the victim.
Penal Code 190.2 contains the specific list of types of killings for which the prosecutor may charge special circumstances.
If the jury at trial finds special circumstances to exist, it elevates the types of punishment the defendant may receive: either the death penalty or life in prison without the possibility of parole (sometimes called “LWOP”).