Is your friend or loved one charged with murder? You arrived at the right place.
We're a law firm of former cops and former prosecutors with more than a 100 years combined experience investigating, prosecuting...and now defending...California murder cases.
We work with some of the nation's best private investigators, forensic analysts, DNA experts and jury consultants.
We have just one objective: to get our clients to a NOT GUILTY verdict.
Below, our California criminal defense attorneys1 address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Attempted Murder; Penal Code 192(a) Voluntary Manslaughter; Penal Code 192(b) Involuntary Manslaughter; Penal Code 192(c) Vehicular Manslaughter; California's Driving Under the Influence Laws; Penal Code 191.5(a) Gross Vehicular Manslaughter While Intoxicated Law; Penal Code 191.5(b) Negligent Manslaughter While Intoxicated Law; DUI Murder / Watson Murder; California's Felony-Murder Rule; California Legal Defenses; California's Self-Defense Laws; Accident as a Legal Defense; The Insanity M'Naghten Rule; Police Misconduct; Illegal Searches and Seizures; California's Three Strikes Law; and California Aiding a Suicide Penal Code 401 PC.
In Penal Code 187 (a) PC, California law defines murder as "the unlawful killing of a human being or a fetus with malice aforethought."2
And while this definition may seem fairly straightforward, there are some terms that require further explanation.
Let's start off with the basics. A "homicide" refers to the killing of another person, whether lawful or unlawful. A homicide therefore includes murder, manslaughter, as well as justifiable killings.
"Murder" is the most aggravated type of homicide. It is always unlawful. What distinguishes murder from manslaughter in California law is the fact that malice is necessarily involved in a murder.
"The mental state constituting malice aforethought does not presuppose or require any ill will or hatred of the particular victim. When a defendant 'with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,' he acts with malice aforethought."3
Under California murder law, Penal Code 187 (a), malice may be express or implied.
Express malice means that you specifically intend to kill the victim. Malice is implied when: (a) The killing resulted from an intentional act; (b) The natural consequences of the act are dangerous to human life; and (c) The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.4 Both first- and second-degree murder require malice.
Under California law, there are three ways to be convicted of first-degree murder:
- by killing in a way that is willful, deliberate, and premeditated, OR
- by way of the felony-murder rule (that is, by committing a specifically enumerated felony that automatically turns any logically related death into first-degree murder, discussed below).5
Examples of first-degree murder include (but are not limited to):
- going to someone's house intending to kill him/her, and
- lying in wait for someone to return to his/her car in order to kill that individual, and
- any murder that is perpetrated using a destructive device or explosive.
Under California law, capital murder...also referred to as first-degree murder with special circumstances...refers to first-degree murder charges that are punishable by either
- capital punishment (the death penalty) in California, or
- a state prison sentence for life without the possibility of parole "LWOP".
Capital murder applies to over 20 different situations that involve murder. These "special circumstances" that elevate first-degree murder to capital murder are listed in California Penal Code 190.2 PC and include (but are not limited to):
- murdering another for financial gain,
- murdering more than one victim,
- murdering a police officer, firefighter, prosecutor, judge, juror, or elected official,
- murdering a witness to prevent him/her from testifying,
- murdering another while committing, attempting to commit, or immediately after committing any of the felonies that subject a defendant to the first-degree felony-murder rule,
- murdering another because of his/her race, color, religion, nationality, or country of origin,
- murdering another by discharging a firearm from a motor vehicle (otherwise known as a "drive-by" shooting), and
- murdering another for the benefit of a criminal street gang pursuant to Penal Code 186.22 PC.6
Under California Penal Code 187, second-degree murder is also willful but is not deliberate and premeditated. Second-degree murder is any murder that isn't defined as first-degree murder.7 Examples of second-degree murder include (but are not limited to):
- shooting a gun into a crowded room and killing someone, even if that wasn't your intention (this is also a violation of Penal Code 246.3 PC negligently discharging a firearm),8 and
- a convicted DUI offender getting drunk and causing an accident that kills another person.
California's felony-murder rule applies to both first- and second-degree murder. It essentially creates murder liability for individuals.or their accomplices.who kill another person during the commission of a dangerous felony.
Under California murder law, there is no requirement that you kill the victim in furtherance of the underlying felony. In fact, any death that is logically related to the felony will suffice, regardless of whether it was intentional, accidental, or negligent.9 This means that even unforeseeable deaths will subject you to murder charges, so long as there is more than a mere coincidence between the time and place of the murder and the other felony.
Example: John enters a gas station with a gun in order to rob the attendant. When the attendant doesn't immediately comply with John's demands, John fires a warning shot into the air. The bullet ricochets off the ceiling and hits the attendant. Even though John didn't intend to kill the attendant.but rather only intended to scare him.he is liable for murder under California's felony-murder rule.
The first-degree felony-murder rule only attaches during the commission of the following felonies:
- Penal Code 451 PC arson,
- Penal Code 211 PC robbery,
- Penal Code 459 PC burglary,
- Penal Code 215 PC carjacking,
- Penal Code 219 PC train wrecking,
- Penal Code 207 PC kidnapping,
- Penal Code 203 PC mayhem,
- Penal Code 206 PC torture, and
- certain California sex crimes, including
The second-degree felony-murder rule attaches to felonies that (1) are "inherently dangerous", and (2) not specifically included under the first-degree felony-murder rule.11
California courts have defined "inherently dangerous" felonies as those which cannot be committed without creating a substantial risk that someone will be killed.12 There is no established list of inherently dangerous felonies. As a result, the second-degree felony-murder rule is applied on a case-by-case basis.
The following are examples of some cases where the court applied the second-degree felony-murder rule.
In People v. James, the defendant was convicted of second-degree murder under the felony-murder rule when three of her children were killed in an explosion while she was manufacturing methamphetamines in her home-based lab. The court held that because manufacturing methamphetamines necessarily involves possessing, using, and mixing hazardous, flammable substances with heat, there is a substantial risk that someone will be killed in the process.13
Willfully or maliciously burning a car
In People v. Nichols, the defendant was convicted of murder under the second-degree felony-murder rule. At the time of the offense, the defendant's wife (whom he was separated from) was living in a home with a couple and the couple's two children.
The defendant was angry with his wife for possibly seeing another man. He went to the home where the wife was living and set fire to the wife's car (which was in the garage). Although he claimed he only intended to scare her, the fire spread to the garage and to the house, killing the couple's two children.
The court held that intentionally burning a car.which normally contains gasoline and is typically found in close proximity to people.is inherently dangerous to human life and triggers the second degree felony-murder rule.14
In order to prove that you are guilty of violating California's murder law, the prosecutor must prove the following three facts (otherwise known as "elements of the offense"):
- that you committed an act that resulted in death to another person (or a fetus),
- that you committed the act with malice aforethought, and
- that you killed without lawful excuse or justification.15
Fortunately, there are a variety of legal defenses to a Penal Code 187 (a) murder charge that a skilled California criminal defense lawyer could present on your behalf. Cases of excusable and justifiable homicide in California law often result in dismissal or acquittal. The following are some examples.
If you kill another person because you were defending yourself or another person, California's self-defense laws may excuse your conduct. If you reasonably believe that you or another person are in imminent danger of
- being killed,
- suffering great bodily injury, or
- being raped, maimed, robbed, or the victim of some other forcible and atrocious crime,
you may take whatever measures are reasonably necessary, including the use of deadly force, to prevent that from happening.16
Example: Albert routinely beat his wife Evelyn. On one particular day, he was allegedly very drunk, was hitting her and even fired a gunshot at her, although he missed. The next day, he beat her more and as Evelyn believed he was about to pick something up to throw at her, she shot him. He ultimately died from the bullet wound.
As a battered woman, there was evidence that Evelyn reasonably believed she was about to suffer imminent death or great bodily injury and acted to prevent that from happening. As such, she was entitled to prevail on a theory of self-defense.17
If.at the time you kill someone.you
- had no criminal intent to do harm,
- were not acting negligently, and
- were otherwise engaged in lawful activity at the time of the killing,
then accident serves as a valid California legal defense to Penal Code 187 murder.18
Example: An elderly woman.who had been having regular fights with her downstairs neighbor.shoots and kills him as he is standing outside her apartment. The court ruled that she was entitled to present the accident defense because she claimed that she only intended to scare him away with the gun when it accidentally fired.19
California murder law allows the accused to plead "not guilty by reason of insanity." If he can prove that he only killed because he
- didn't understand the nature of his/her act, OR
- couldn't distinguish between right and wrong,
then he is entitled to an acquittal. This California insanity defense, governed by the M'Naghten test.which comprises the two elements just set forth.excuses your otherwise criminal conduct.20
Example: A mother drowns her five children because she believes she is a bad mother and deserves to be punished. Clearly, this would be an example of murder. However, psychiatric testimony about the woman's postpartum psychosis supports the fact that this crime was motivated by severe mental illness and not malice aforethought.21
Not only are the police required to follow proper Miranda procedures. They are forbidden from using coercive tactics to force a confession from a suspect.22
Such illegal and coercive interrogation methods include making threats against the suspect or his family,23 threatening the suspect with the death penalty,24 or offering more lenient treatment in exchange for a confession.25
If the police use coercive tactics to force an involuntary confession, the remedy is for the court to exclude the confession from evidence.26
Example: Detectives are interrogating a man they suspect of murder. The detectives suggest that he can avoid a potential charge of first degree murder if the confesses, and if he says that his act was not premeditated. The man confesses. The court later excludes the statement from evidence, finding that the police obtained it by way of an implied promise that a confession could help the man avoid trial and avoid a conviction for the more serious charge of first-degree murder.27
Even though police coercion is clearly illegal, it's not at all uncommon. Social science research has shown that coercion has led to widespread false confessions, and the wrongful conviction of many innocent people.
In a California Penal Code 187 murder case involving an admission or confession, it's critical for the defense attorney to scrutinize the interrogative methods used by the police. If we can convince the court that the confession was illegally obtained, we can most likely get it thrown out of court...and perhaps the entire murder case as well.
California search and seizure laws place limits on the power of the police to search your person and property.
If the cops didn't follow proper procedure.and obtained evidence in violation of your Fourth Amendment right to be free from unreasonable searches and seizures.we can petition the court to have that evidence excluded from your trial via a Penal Code 1538.5 motion to suppress evidence.28
If the judge grants our motion and suppresses the evidence, the prosecutor may be unable to proceed and the Penal Code 187 murder charges may be dismissed.
Example: Defendant...a gang member.was illegally detained by the police prior to his alleged involvement in a murder that had not yet taken place. During that illegal detention, the police photographed him and included that picture in a "gang book".
Because it was that illegally taken photo that was ultimately used to identify the defendant, the court ruled that the photo and the identification should have been excluded from evidence.29
Research shows that mistaken identification is the greatest single cause of wrongful conviction, leading to more convictions of innocent people than all other causes combined.30 Numerous factors can detract form an eyewitness's ability to remember and correctly identify a suspect, including the stress of the encounter, fixation on a weapon, intoxication, the suspect being of a different race, the passage of time, and improper suggestion by the police.31
In a California murder case where the prosecution is based on questionable eyewitness identification, there are several measures the criminal defense lawyer may take. These include
- Demanding a live lineup to see if the eyewitness really can distinguish and identify the defendant
- Challenging the police procedures in previous photospreads and lineups, seeking to get the identifications excluded from evidence
- Calling an "Eyewitness Identification Expert" at trial to explain to the jury how memory processes work, and how common it is even for well-intentioned eyewitnesses to be mistaken
The key, of course, is to demonstrate that the identification is unreliable and that a reasonable doubt exists as to the identity of the real perpetrator.
For a more detailed discussion, read our page on witness misidentification leading to wrongful conviction in California criminal cases.
Depending on whether you are convicted of
- first-degree murder,
- capital murder, or
- second-degree murder,
your potential sentence will vary quite a bit. Below is a summary of the types of sentences you face for each.
If convicted of Penal Code 187 as first-degree murder, you face 25 years-to-life in the California state prison.32
However, if your first-degree murder conviction was based on a "hate crime".that is, a crime committed based on the victim's race, religion, gender, disability, sexual orientation, or nationality.you face a state prison sentence for life without the possibility of parole (LWOP).33
A "life sentence without the possibility of parole" means just that.that you will spend your life in prison and will not be eligible for early release on parole.
Capital murder is the most serious charge under California murder law. If your case involved one of the special circumstances that elevates first-degree murder to capital murder, it means that you face the possibility of execution. Capital murder is punishable by either
- the death penalty (which includes a choice of either a lethal dose of gas or an intravenous injection of a lethal substance),34 or
- a state prison sentence for life without the possibility of parole.35
If convicted of California Penal Code 187 as second-degree murder, you face 15 years-to-life in the state prison.36 However, there are some circumstances that can increase your potential sentence. These are as follows:
- your second-degree murder sentence may increase to life without the possibility of parole if you have previously served a sentence for a murder conviction,37
- your sentence increases to 20-years-to-life if you killed the victim by shooting a firearm out of a vehicle with the intent of causing serious injury,
- your sentence increases to 25-years-to-life if the victim is a peace officer, and
- your sentence increases to life without the possibility of parole if the victim is a peace officer AND
- you specifically intended to kill the officer,
- you specifically intended to inflict great bodily injury on the officer, or
- you killed the officer using a deadly weapon or firearm.38
In addition to the prison terms above, California murder law subjects you to
- An additional 10, 20 or 25-years to life in prison if the defendant personally used a firearm during the commission of the murder39
- a "strike" on your record pursuant to California's three strikes law,
- additional sentencing enhancements if a gun is used or if the offense is gang-related
- victim restitution,
- a maximum $10,000 fine, and
- the loss of the right to own or possess a firearm pursuant to Penal Code 29800 PC California's "felon with a firearm" law.40
These severe penalties demonstrate why it's so critical to have an experienced California criminal defense attorney in your corner.
There are a variety of crimes closely related to California's murder law. Some because they are the felonies that will trigger the felony-murder rule, described above. Others, because they are also offenses that involve the unlawful killing of another. These are briefly described below.
California's attempted murder laws apply when you
- take at least one direct (but ineffective) step towards killing another person (or fetus), and
- you intend to kill that person (or fetus).41
If convicted of Penal Code 187 as attempted murder, you face a life sentence with the possibility of parole.42 You additionally face victim restitution, substantial fines, and a "strike" pursuant to California's three strikes law.
Penal Code 192(a) PC California's voluntary manslaughter law may be charged when you kill another person during a sudden quarrel or in the heat of passion. This charge is very similar to first-degree murder. The difference is that voluntary manslaughter doesn't involve malice, since the killing is done spontaneously.43
Example: The classic example of a murder charge being appropriately reduced to a voluntary manslaughter charge takes place when a person walks in on his/her partner in bed with another person. The type of rage that one experiences when presented with such a startling revelation serves as adequate or reasonable provocation which relieves you of some of the culpability you would otherwise face.
If convicted of voluntary manslaughter, you face three, six, or eleven years in the state prison.44
Prosecutors can charge you with Penal Code 192(b) PC California's involuntary manslaughter law when you kill another person
- without malice,
- without an intent to kill, but
- with conscious disregard for human life.45
Example: Defendant buys illegal drugs for himself and his girlfriend. After taking the drugs himself, he gives some to his girlfriend. She overdoes and dies. Because the defendant didn't intend to kill his girlfriend.but arguably acted with a conscious disregard for human life by giving her dangerous illicit drugs.he could be liable for involuntary manslaughter.
The difference between involuntary manslaughter and killing someone by excusable accident is that with involuntary manslaughter, you are necessarily involved in either
- an unlawful act (not amounting to a felony), or
- a lawful act which involves a high degree of risk of death or great bodily injury (where you fail to act with the proper caution)
at the time you kill the other person.46 By contrast, when you accidentally kill another person, you are not violating any laws or acting recklessly at the time of the killing.
Involuntary manslaughter does not generally apply to acts that you commit while driving a car (those are covered by California's vehicular manslaughter laws).47
If convicted of involuntary manslaughter, you face two, three, or four years in the state prison.48
California's vehicular manslaughter laws punish acts of driving that kill another person when the driver
- drives in an unlawful way (not amounting to a felony), with or without gross negligence,
- drives during the commission of a lawful act which might produce death in an unlawful manner, or
- knowingly causes the accident for financial gain (which can also be prosecuted under California's automobile insurance fraud laws).49
Vehicular manslaughter is what's known as a "wobbler". Prosecutors can charge wobblers as either felonies or misdemeanors. If convicted of felony vehicular manslaughter, you face two-to-ten years in the state prison. If convicted of misdemeanor vehicular manslaughter, you face up to one-year in a county jail.50
And with respect to DUI.
If the driver was accused of simultaneously violating California's driving under the influence laws, prosecutors would likely charge either
- Penal Code 191.5(b) vehicular manslaughter,
- Penal Code 191.5(a) California's gross vehicular manslaughter while intoxicated law, or
- second-degree murder under California's DUI murder laws.
Prosecutors may charge one with California's DUI murder laws (also referred to as Watson murder) if he causes an accident while intoxicated, kills another person, and the circumstances are especially egregious.
DUI murder charges are almost always based on a second-degree, implied malice theory. This means the prosecutor is not alleging the defendant deliberately intended to kill anyone. Rather, it's alleged that the accused intentionally committed a dangerous act with knowledge of the danger to, and with conscious disregard for, human life.
Because of this legal standard, DUI murder charges are usually reserved for situations where the defendant has a prior DUI conviction and.at the time of conviction.acknowledges what's known as a "Watson advisement." When a person pleads guilty or no contest to DUI in California, the judge or prosecutor reads this Watson advisement to the defendant in open court, stating that:
- it is extremely dangerous to human life to drive while under the influence of alcohol and/or drugs, and
- if you kill someone while you are DUI, California prosecutors may charge you with murder.51
With gang-related killings, prosecutors typically charge Penal Code 187 murder as well as California's street gang enhancement. The latter is a special allegation that requires the state to prove that the murder was committed at the direction of, for the benefit of, or in association with a criminal street gang. If the jury finds the person guilty of murder, and finds the gang enhancement true, it subjects the accused to an additional minimum 15 years-to-life prison term (on top of the underlying sentence for murder).52
Prosecutors like to charge the gang enhancement any time a homicide is even remotely gang-related. Not only does it increase the potential sentencing, but it allows them to present to the jury highly inflammatory evidence about the gang in question and the defendant's connection to it. Even if the jury is not totally convinced that the accused committed the murder, it may want to convict him nonetheless just to put away someone it perceives as a dangerous gang member.
California aiding a suicide, Penal Code 401 PC, is the crime of deliberately helping someone commit suicide, or encouraging or advising someone to commit suicide.53
The line between aiding a suicide and murder can sometimes be blurry. You are guilty of aiding a suicide if you provide someone with the means to kill him/her-self. But if you kill another person at his/her own request, you are still guilty of murder.
Assisting a suicide is a California felony. But it carries both a lesser sentence (up to 3 years in state prison) and significantly less stigma than a murder conviction.54
Call us for help.
If you or loved one is charged with Penal Code 187 (a)PC homicide and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's murder laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.55
1Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
2California Penal Code 187 PC -- California's murder law. ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. (b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply: (1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code. (2) The act was committed by a holder of a physician's and surgeon's certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not. (3) The act was solicited, aided, abetted, or consented to by the mother of the fetus. (c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.")
3People v. Summers (1983) 147 Cal.App.3d 180, 184.
4California Jury Instructions, Criminal - CALJIC 8.11 - "Malice Aforethought". (""Malice" may be either express or implied. [Malice is express when there is manifested an intention unlawfully to kill a human being.] [Malice is implied when: 1 The killing resulted from an intentional act; 2 The natural consequences of the act are dangerous to human life; and 3 The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.] [When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.] The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.")
See also California Penal Code 188 PC -- Malice, express malice, and implied malice defined. ("Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.")
5California Penal Code 189 PC -- California's murder laws; degrees. ("All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture [pursuant to Penal Code 206 PC California's torture law], or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree. As used in this section, "destructive device" means any destructive device as defined in Section 25850, and "explosive" means any explosive as defined in Section 12000 of the Health and Safety Code. As used in this section, "weapon of mass destruction" means any item defined in Section 11417. To prove the killing was "deliberate and premeditated," it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.")
6California Penal Code 190.2 PC et seq. -- Death penalty or life imprisonment without parole; special circumstances. This section (as well as several subsequent related sections) enumerates more than 20 "special circumstances" that subject you to execution or life without the possibility of parole, including discharging a firearm from a motor vehicle (otherwise known as a "drive-by" shooting), and murdering another for the benefit of a criminal street gang pursuant to Penal Code 186.22 PC.
7See California Penal Code 189 PC -- California's murder laws; degrees, endnote 5, above. ("All other kinds of murders are of the second degree.")
8Penal Code 246.3 PC negligently discharging a firearm. ("(a) Except as otherwise authorized by law, any person who willfully discharges a firearm in a grossly negligent manner which could result in injury or death to a person is guilty of a public offense and shall be punished by imprisonment in a county jail not exceeding one year, or by imprisonment in the state prison.")
9People v. Cavitt (2004) 33 Cal.4th 187, 197. ("The purpose of the [California] felony-murder rule is to deter those who commit the enumerated felonies from killing by holding them strictly responsible for any killing committed by a cofelon, whether intentional, negligent, or accidental, during the perpetration or attempted perpetration of the felony. ( Burton, supra, 6 Cal.3d at p. 388, 99 Cal.Rptr. 1, 491 P.2d 793.) "The Legislature has said in effect that this deterrent purpose outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof." ( Ibid.)")
10California Penal Code 189 PC California's murder law, endnote 5, above. ("All murder which is.committed in the perpetration of, or attempt to perpetrate, [Penal Code 415 PC] arson, [Penal Code 261 PC] rape, [Penal Code 215 PC] carjacking, [Penal Code 211 PC] robbery, [Penal Code 459 PC] burglary, [Penal Code 203 [PC] mayhem, [Penal Code 207 PC] kidnapping, [Penal Code 219 PC] train wrecking, or any act punishable under [Penal Code Section 206 [PC, torture], [or California sex crimes punished under] [Penal Code 286 PC unlawful acts of sodomy] , [Penal Code 288 PC lewd acts with a minor], [Penal Code 288a PC unlawful acts of oral copulation], or [Penal Code 289 PC forcible acts of penetration]. is murder of the first degree.")
11People v. Granados (1957) 49 Cal.2d 490.
12People v. James (1998) 62 Cal.App.4th 244, 258. ("For many years, the California Supreme Court found it unnecessary to define "inherently dangerous felony." In People v. Burroughs, supra, 35 Cal.3d 824, however, it referred to an inherently dangerous felony as one which "by its very nature, ... cannot be committed without creating a substantial risk that someone will be killed ...." ( Id., at p. 833.) Later, in People v. Patterson, supra, 49 Cal.3d 615, it defined an inherently dangerous felony as "an offense carrying 'a high probability' that death will result." ( Id., at p. 627 (lead opn. of Kennard, J.); see also id., at pp. 640 (conc. and dis. opn. of Mosk, J., joined by Broussard, J.), 641 (conc. and dis. opn. of Panelli, J.).) Most recently, the court reaffirmed both of these definitions, treating them as if they were equivalent and interchangeable. ( People v. Hansen, supra, 9 Cal.4th at p. 309.)")
13See same at 270. (".one cannot commit the felony of manufacturing methamphetamine without possessing at least some hazardous substances; without using, pouring and mixing those substances; or without applying heat. Thus, manufacturing methamphetamine "by its very nature, ... cannot be committed without creating a substantial risk that someone will be killed ...." ( People v. Burroughs, supra, 35 Cal.3d at p. 830.)")
14People v. Nichols (1970) 3 Cal.3d 150 (overruled on other grounds). ("Certainly the burning of a motor vehicle, which usually contains gasoline and which is usually found in close proximity to people, is inherently dangerous to human life. We therefore conclude that the willful and malicious burning of a motor vehicle calls into play the second degree felony-murder rule.")
15Judicial Council Of California Criminal Jury Instruction - CALCRIM 520 - California's murder law. ("The defendant is charged [in Count ] with murder [in violation of Penal Code section 187]. To prove that the defendant is guilty of this crime, the People must prove that:  The defendant committed an act that caused the death of (another person/ [or] a fetus); [AND]  When the defendant acted, (he/she) had a state of mind called malice aforethought(;/.) <Give element 3 when instructing on justifiable or excusable homicide.> [AND  (He/She) killed without lawful (excuse/[or] justification).]")
16CALCRIM 505 -- Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant acted in lawful (self-defense/ [or] defense of another) if:  The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party<) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime<)];  The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.")
17Facts based on People v. Humphrey (1996) 13 Cal.4th 1073.
18California Penal Code 26 PC -- Persons capable of committing crime; exceptions. ("All persons are capable of committing crimes except those belonging to the following classes.Five--Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.")
See also California Penal Code 195 PC -- Excusable homicide. ("Homicide is excusable in the following cases: 1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.")
See also California Penal Code 199 PC -- Justifiable and excusable homicide; discharge of defendant. ("JUSTIFIABLE AND EXCUSABLE HOMICIDE NOT PUNISHABLE. The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.")
19Facts based on People v. Slater (App. 1 Dist. 1943) 60 Cal.App.2d 358.
20California Penal Code 25 - Insanity as a California legal defense. (". (b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.")
See also People v. Horn (1984) 158 Cal.App.3d 1014, 1032. ("Accordingly, we hold that Penal Code section 25, subdivision (b), reinstates the California M'Naghten right and wrong test as the standard for the insanity defense in this state."...")
See also CALJIC 4.00 -- Insanity as a California legal defense. ("A person is legally insane when by reason of mental disease or mental defect, [he] [she] was incapable at the time of the commission of the crime of one of the following:  Knowing the nature and quality of [his] [her] act; or  Understanding the nature and quality of [his] [her] act; or  Distinguishing what is legally right from what is legally wrong; or  Distinguishing what is morally right from what is morally wrong." Italics added).")
21Facts based on State of Texas v. Andrea Yates. Yates was found not guilty by reason of insanity following her second trial. Texas's insanity defense is the same as California's.that is, whether the defendant understood that his/her actions were wrong.
22"It is axiomatic that the use in a criminal prosecution of an involuntary confession constitutes a denial of due process of law under both the federal and state Constitutions. In California, before a confession can be used against a defendant, the prosecution has the burden of proving that it was voluntary and not the result of any form of compulsion or promise of reward." People v. Jimenez (1978) 21 Cal.3d 595, 602, 147 Cal.Rptr. 172, 580 P.2d 672, citations omitted.
The reason for excluding involuntary confessions is to provide the accused with an "essentially free and unconstrained choice" whether to confess. Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225-226; that is to say, free of police conduct which is overreaching. See Colorado v. Connelly (1986) 479 U.S. 157, 163-164."It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied." (People v. Jimenez, supra, 21 Cal.3d at p. 611) Since threats of harsh penalty often contain an implicit promise of more lenient treatment, they are treated as promises of leniency. (See People v. McClary (1977) 20 Cal.3d 218, 229, 142 Cal.Rptr. 163, 571 P.2d 620.)
23"Where a confession is coerced by a threat to arrest a near relative, it is not admissible" People v. Rand (1962) 202 Cal.App.2d 668, 673 (police told defendant unless he confessed, his wife would go to jail and his children may go to juvenile hall); In re Shawn D. (1993) 20 Cal.App.4th 200 (police threatened to arrest his girlfriend unless defendant confessed); People v. Trout (1960) 202 Cal.App.2d 668, 674 (police told defendant if he confessed, his wife would be released to care for their children); Lynumm v. Illinois (1963) 372 U.S. 528, 531-32 (police told defendant unless she cooperated her children would be taken and strangers would have custody of them); Rogers v. Richmond, supra 365 U.S. 534, 549 (habeas petition granted where police compelled confession by threatening to take defendant's wife into custody for questioning).
24Police may not compel a confession by threatening the suspect with the possibility of the death penalty. People v. Hinds (1984) 154 Cal.App.3d 222, 238; People v. Jiminez (1978) 21 Cal.3d 595, 609-613; People v. McClary (1977) 20 Cal.3d 218, 229; People v. Johnson (1969) 70 Cal.2d 469, 478-79.
25"If the defendant is given to understand that he might reasonably expect benefits in the nature of more lenient treatment at the hands of the police, prosecution or court in consideration of making a statement, even a truthful one, such motivation is deemed to render the statement involuntary and inadmissible." People v. Hill (1967) 66 Cal.2d 536, 549.
26An involuntary confession must be suppressed regardless of its apparent trustworthiness. See Rogers v. Richmond (1961) 365 U.S. 534, 541.
27People v. Cahill (1994) 22 Cal.App.4th 296.
28Penal Code 1538.5 PC -- Motion to Suppress Evidence. ("(a)(1) A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure on either of the following grounds: (A) The search or seizure without a warrant was unreasonable. (B) The search or seizure with a warrant was unreasonable because any of the following apply: (i) The warrant is insufficient on its face. (ii) The property or evidence obtained is not that described in the warrant. (iii) There was not probable cause for the issuance of the warrant. (iv) The method of execution of the warrant violated federal or state constitutional standards. (v) There was any other violation of federal or state constitutional standards.")
29Facts based on People v. Rodriguez (1993) 21 Cal.App.4th 232.
30See Gary Wells et al, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, Law and Human Behavior, Vol. 22, No. 6, 1998.
31See Cutler and Penrod, Mistaken Identification, (1995) Cambridge University Press.
32California Penal Code 190 PC -- Punishment for violating California's murder laws. ("(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5.")
33California Penal Code 190.03 PC -- Life imprisonment without parole; hate crimes. ("(a) A person who commits first-degree murder that is a hate crime shall be punished by imprisonment in the state prison for life without the possibility of parole. (b) The term authorized by subdivision (a) shall not apply unless the allegation is charged in the accusatory pleading and admitted by the defendant or found true by the trier of fact. The court shall not strike the allegation, except in the interest of justice, in which case the court shall state its reasons in writing for striking the allegation. (c) For the purpose of this section, "hate crime" has the same meaning as in Section 422.55. (d) Nothing in this section shall be construed to prevent punishment instead pursuant to any other provision of law that imposes a greater or more severe punishment.")
34California Penal Code 3604 PC -- Method of execution; election. ("(a) The punishment of death shall be inflicted by the administration of a lethal gas or by an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death, by standards established under the direction of the Department of Corrections. (b) Persons sentenced to death prior to or after the operative date of this subdivision shall have the opportunity to elect to have the punishment imposed by lethal gas or lethal injection. This choice shall be made in writing and shall be submitted to the warden pursuant to regulations established by the Department of Corrections. If a person under sentence of death does not choose either lethal gas or lethal injection within 10 days after the warden's service upon the inmate of an execution warrant issued following the operative date of this subdivision, the penalty of death shall be imposed by lethal injection. (c) Where the person sentenced to death is not executed on the date set for execution and a new execution date is subsequently set, the inmate again shall have the opportunity to elect to have punishment imposed by lethal gas or lethal injection, according to the procedures set forth in subdivision (b). (d) Notwithstanding subdivision (b), if either manner of execution described in subdivision (a) is held invalid, the punishment of death shall be imposed by the alternative means specified in subdivision (a).")
35California Penal Code 190.2 PC, et seq., endnote 6, above.
36California Penal Code 190 PC -- Punishment for violating California's murder laws, endnote 25, above. ("Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.")
37California Penal Code 190.05 PC -- Penalty for second degree murder for defendants who have served a prior prison term for murder. ("(a) The penalty for a defendant found guilty of murder in the second degree, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life. For purposes of this section, a prior prison term for murder of the first or second degree is that time period in which a defendant has spent actually incarcerated for his or her offense prior to release on parole.")
38See same. ("(b) Except as provided in subdivision (c), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 25 years to life if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties. (c) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of life without the possibility of parole if the victim was a peace officer, as defined in subdivision (a) of Section 830.1, subdivision (a), (b), or (c) of Section 830.2, subdivision (a) of Section 830.33, or Section 830.5, who was killed while engaged in the performance of his or her duties, and the defendant knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, and any of the following facts has been charged and found true: (1) The defendant specifically intended to kill the peace officer. (2) The defendant specifically intended to inflict great bodily injury, as defined in Section 12022.7, on a peace officer. (3) The defendant personally used a dangerous or deadly weapon in the commission of the offense, in violation of subdivision (b) of Section 12022. (4) The defendant personally used a firearm in the commission of the offense, in violation of Section 12022.5. (d) Every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 20 years to life if the killing was perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury.")
39California Penal Code 12022.53 PC - California's "10-20-life 'use a gun and you're done' law". ("(a) This section applies to the following felonies: (1) Section 187 (murder).(d) Notwithstanding any other provision of law, any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 26100, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.")
40California Penal Code 667 PC -- Habitual criminals; enhancement of sentence; amendment of section (otherwise known as California's Three Strikes Law). ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")
See also California Penal Code 1192.7(c) PC. ("As used in this section [a California] 'violent felony' means any of the following. (1) murder or voluntary manslaughter.")
See also California Penal Code 1203.1 - California's probation law. ("(j) The court may impose.other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.")
See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
See also Penal Code 29800 PC California's "felon with a firearm" law. ("(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.")
41CALCRIM 600 -- Attempted Murder. ("The defendant is charged [in Count ] with [violating California's] attempted murder law. To prove that the defendant is guilty of attempted murder, the People must prove that:  The defendant took at least one direct but ineffective step toward killing (another person/ [or] a fetus); AND  The defendant intended to kill that (person/ [or] fetus).")
42California Penal Code 664 PC -- Attempts; punishment. (".if the crime attempted is willful, deliberate, and premeditated murder, as defined in Section 189, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole.The additional term provided in this section for attempted willful, deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact.")
43California Penal Code 192 PC -- Manslaughter. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary--upon a sudden quarrel or heat of passion.")
See also CALJIC 8.40 -- Voluntary manslaughter. ("Every person who unlawfully kills another human being [without malice aforethought but] either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a). [There is no malice aforethought if the killing occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in the necessity to defend [oneself] [or] [another person] against imminent peril to life or great bodily injury].]")
44California Penal Code 193 PC -- Manslaughter; punishment. ("(a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.")
45CALJIC 8.45 -- Involuntary manslaughter. ("Every person who unlawfully kills a human being, [without malice aforethought,] [and] [without an intent to kill, and without conscious disregard for human life,] is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192, subdivision (b).")
46CALJIC 8.45 -- Involuntary manslaughter. ("A killing is unlawful within the meaning of this instruction if it occurred:  During the commission of an unlawful act [not amounting to a felony] which is dangerous to human life under the circumstances of its commission; or  In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.")
47California Penal Code 192(b) -- Involuntary manslaughter. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds.(b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.")
48California Penal Code 193 PC -- Manslaughter; punishment. ("(b) Involuntary manslaughter is punishable by imprisonment in the state prison for two, three, or four years.")
49California Penal Code 192(c) -- Vehicular manslaughter. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds.(c) Vehicular-- (1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. (2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. (3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person [also known as California automobile insurance fraud]. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.")
50California Penal Code 193 PC -- Manslaughter; punishment. ("(c) Vehicular manslaughter is punishable as follows: (1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years. (2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year. (3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.")
51The Watson admonition which is on all DUI plea Tahl waiver forms states "I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle, and is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged [in California] with murder."
52Penal Code 186.22 PC -- California's criminal street gang enhancement law. ("(5) Except as provided in paragraph (4), any person who violates this subdivision in the commission of a felony punishable by imprisonment in the state prison for life shall not be paroled until a minimum of 15 calendar years have been served.")
53Penal Code 401 PC - California's aiding a suicide law.
55Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Neil Shouse for any questions relating to Nevada's murder laws. Our Nevada law offices are located in Reno and Las Vegas.