Penal Code section 187 states:
“(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.”
If you or a loved one have been accused of murder, you need the best lawyer you can get as soon as you can get them. If a person is convicted of murder in California, the Court will be able to make the final decision on the penalty, which can be death under certain circumstances. The average convicted murderer in California does about 9 actual years in state prison, but there are over 700 people on “death row.”
If a person has been accused of murder, the process can be long and painful. There will likely be many court hearings including the preliminary hearing in which your attorney gets to question and face his accusers to see if the Court thinks there is enough evidence to go to trial. Trial of a murder case can take weeks if there are multiple witnesses.
The burden of proof is the same as any criminal case. The standard is “Reasonable doubt”. This means that the facts and elements of the crime being presented by the prosecution must be proven to the extent that there could be no “reasonable doubt” in the mind of a “reasonable person” that the defendant is guilty. Who is this reasonable person? In fact, most jurors probably think the average defendant is guilty just because he got arrested.
Every crime has elements. In a murder case you must have had “malice aforethought”.
Under section 188 of the California Penal Code, malice is divided into two types: express and implied.
Express malice exists “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature”.
"Malice may be implied by a judge or jury “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”
Even a person who unintentionally causes the death of another person also may be charged with murder under the depraved-heart theory. Depraved-heart murder refers to a killing that results from gross negligence. For example, suppose that a man is practicing shooting his gun in his backyard, located in a suburban area. If the man accidentally shoots and kills someone, he can be charged with murder under the depraved-heart theory, if gross negligence is proven.
But if it can be proved that the killing was not intentional, it is still possible that the defendant could be charged with manslaughter or murder in the “second degree”. If a murder does not qualify by statute for first-degree murder, it is charged as second-degree murder. A second-degree murder may be downgraded to Manslaughter if mitigating factors were involved in the killing, such as adequate provocation by the victim, or the absence of intent or recklessness on the part of the defendant.
Many Defendants try to us an alibi defense (“I was somewhere else”) or the SODDI defense. (“Some other dude did it”) One man in Northern California killed the mayor of San Fransisco and then tried to claim he was not responsible because he had too much sugar in his blood. (“The twinkie defense”)
Other defenses to a murder charge are provocation, defense of others and Self-Defense. If the defendant acted completely in self-defense, this fact alone may win him an acquittal.
If it does not relieve the defendant of all liability, self-defense at least may reduce the charge from murder to manslaughter.
Provocation rarely results in an acquittal, but it may reduce the defendant’s criminal liability. For example, suppose that a man had his daughter raped by a neighbor. The neighbor has never been charged and laughs at the man and his family. If the father kills the neighbor and is charged with murder, the father may argue that the provocation by the victim was so great that if it was “justifiable homicide”, or that he should be found liable for manslaughter, not murder.
“SPECIAL CIRCUMSTANCES” “DEGREES OF MURDER”
In California there are about 20 different “special circumstances” that can trigger a shift to murder from second to first degree, or affect the penalty, including:
- murder carried out for financial gain;
- murder committed with a bomb;
- murder to escape from lawful custody;
- murder of a police officer, prosecutor, judge, or government official;
- murder committed in an especially heinous, atrocious, or cruel fashion where the killer lay in wait for, or hid from, the victim;
Also – murder where the victim was tortured, used poison; or during a rape, robbery, kidnapping, burglary, arson, train wrecking, sodomy, the performance of a lewd or lascivious act upon a child under age 14, or oral copulation with a child under age 14 (Cal. Penal Code § 190.2).
California also has a felony murder statute. Under the felony murder doctrine, a person who attempts or commits a specified felony may be held responsible for a death caused by an accomplice in the commission of the felony; an attempt to commit the felony; or flight from the felony or attempted felony. For example, if three people rob a bank and one of them kills a security guard, even the getaway driver who never saw the killings will be charged with murder.
The felonies that most commonly give rise to a felony murder charge are murder, rape and robbery.
If you need more information about our services in a murder case, (we have handled numerous PC 187 case, call us to see how we can the charges dropped.