Murder Charges: Penal Code 187

Penal Code section 187(a) defines murder as the unlawful killing of a human being with malice aforethought.

Malice can be express or implied. It is express when a person deliberately intends to unlawfully take another life. It is implied when no considerable provocation appears, or when the circumstances show what the statute calls an “abandoned and malignant heart.” In very simple terms, express malice is intending to kill; implied malice is knowingly doing something extremely dangerous to life. Section 188 also provides that, except in the narrow case described in section 189(e), malice cannot be inferred based solely on your participation in a crime.

First degree murder. First degree murder is a killing that is willful, deliberate, and premeditated, or carried out by means that Penal Code 189(a) lists, such as lying in wait, poison, or torture. A killing during the perpetration or attempted perpetration of listed felonies, including robbery, burglary, arson, rape, and kidnapping can also be first degree murder, but the prosecution must prove additional requirements concerning the defendant’s role in the felony and the killing.

Second degree murder. Second degree murder is defined in Penal Code 189(b) simply as “all other kinds of murder” not qualifying as first degree.

Attempted Murder: PC 664/187

Section 664 is California’s attempt statute. Attempted murder requires proof of a direct but ineffectual act toward killing another person committed with the specific intent to kill.

What matters most, and what many people and even attorneys miss, is whether the attempted murder is alleged to be premeditated. This is the difference between you or your loved one being probation eligible or facing life in prison. Section 664(a) punishes a premeditated attempted murder by imprisonment in the state prison for life with the possibility of parole. Premeditation must be proven beyond a reasonable doubt to the jury. The premeditation allegation is often the central fight in a 664/187 case.

The Sentence You Are Facing

Below are the basic terms of imprisonment set forth in the Penal Code for murder and attempted murder cases. Your attorney must calculate your actual exposure and advise regarding your eligibility for different parole opportunities. Your case may involve additional special allegations that significantly increase the maximum sentence that could be imposed based on the alleged conduct in your case or your prior criminal history.

First degree murder. Section 190(a) authorizes death, life in state prison without the possibility of parole, or 25 years to life as available sentences for first degree murder. For a death sentence or life without parole to be imposed, a jury must find true beyond a reasonable doubt special circumstances proven in section 190.2(a).

Second degree murder. The sentence for second degree murder is generally 15 years to life, with higher terms set in specific situations described in Penal Code 190(b-d), such as a drive-by shooting or the killing of an on-duty peace officer.

Attempted murder sentence. Per section 664(a), the sentence for premeditated attempted murder is life in prison. For attempted murder without premeditation, probation may be imposed or a prison sentence of five, seven, or nine years.

Enhancements. Enhancements such as firearm allegations under section 12022.53 and gang allegations can add substantial time to the base term.

Manslaughter: An Alternative to Murder

Section 192 defines manslaughter as an unlawful killing without malice. A killing can be unlawful and still not be murder. Voluntary manslaughter is one of the most common alternative charges that the defense requests the prosecution agree to in lieu of murder.

Voluntary manslaughter under section 192(a) is a killing upon a sudden quarrel or heat of passion, punishable under section 193(a) by three, six, or eleven years in state prison.

Imperfect self-defense is not written into section 192; it comes from California case law. It applies where a person actually believed deadly force was necessary, but that belief was unreasonable. The belief negates malice, so murder becomes voluntary manslaughter: an unlawful killing without malice. This is a partial defense to murder, not an acquittal.

Involuntary manslaughter is an unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life. Involuntary manslaughter carries two, three, or four years in prison.

Vehicular manslaughter can be committed in various ways that result in various maximum punishments ranging from misdemeanor handling to life in prison, depending on the person’s conduct, level of intoxication, mental state, prior criminal history, and other factors.

The Felony Murder Rule and SB 1437

The felony murder rule once allowed a participant in certain felonies to be convicted of murder for a death occurring during the crime, without proof of intent to kill. Senate Bill 1437 narrowed the California felony murder rule significantly.

Section 189(e) now makes a participant in a listed felony liable for murder only if one of three things is proven: the person was the actual killer; the person was not the actual killer but, with the intent to kill, aided or abetted the actual killer in committing first degree murder; or the person was a major participant in the underlying felony and acted with reckless indifference to human life.

PC 1172.6 petitions. Section 1172.6, formerly numbered 1170.95, lets a person convicted of felony murder, murder, attempted murder, or manslaughter petition the sentencing court to vacate the conviction and be resentenced, if that person could not be convicted today under the amended law. If the court finds a prima facie case, it issues an order to show cause and holds a hearing at which the prosecution must prove beyond a reasonable doubt that the petitioner remains guilty.

Juveniles Charged with Murder

If your child was age 15 or younger when he or she allegedly committed a homicide, the case must be handled in the juvenile court. Your child cannot be sent to prison. A narrow exception exists for individuals who are not apprehended until later in adulthood, but rest assured, if your child is still a minor, and the killing allegedly occurred when he or she was age 15 or younger, your child will remain in the juvenile system.

If your child was 16 or 17 at the time of the alleged crime, the case could be transferred to adult court. Your child will be entitled to a transfer hearing, which requires extensive preparation and specialized knowledge and experience in juvenile law. The Ventura County Public Defender is well-equipped to handle your child’s transfer hearing. You should carefully examine the credentials of any private attorney who is offering to handle a transfer hearing for your child, as this is an incredibly complex and niche area of law that requires special training and extensive resources to handle effectively.

Detailed information regarding available juvenile case dispositions and transfer hearings is available here. Freedom Law 805 founding attorney Hali Ford has handled hundreds of juvenile delinquency cases and will answer your questions from an experienced and honest perspective. Call 805.853.3733 for a free consultation.

Defending a Homicide Case in Ventura County

No honest attorney can tell you at the outset how a homicide case will end. A skilled defense attorney will test every aspect of the prosecution’s case and advise whether trial or a potential resolution for a lesser charge may be in your best interest. Read more about ways to win your case here. Some of the most common and effective defenses in murder cases include:

Self-defense and defense of others. A lawful killing in self-defense is not a crime. California does not require a person to retreat rather than engage in self-defense, but the force used must be objectively reasonable. Where the belief in the need for deadly force was genuine but unreasonable, imperfect self-defense reduces the offense.

Lack of Intent. Mental state is often the element of a murder charge that is most vulnerable to attack. For example, if an alleged co-conspirator drives a shooter to the scene of a murder, but the prosecution cannot prove the driver knew the shooter was going to kill someone, the driver is not guilty. Intent requirements for murder are complex and the prosecution’s failure to prove one aspect of intent can result in an acquittal at trial.

Mistaken identity. Eyewitness identification can be unreliable, particularly when witnesses are under stress or if suggestive police procedures were used. Police also sometimes identify a suspect early on in the investigation and then view all evidence through the lens of that suspect being the killer. This “tunnel vision” approach to an investigation can lead police to ignore exculpatory evidence and evidence pointing to the actual killer. Police place unjustified emphasis on evidence that corroborates their own theory and miss the truth.

Unconsciousness. The legal defense of unconsciousness does not require someone to be completely unresponsive. The law recognizes that people sometimes commit crimes due to an altered mental state that negates the mental state required for a crime. Because murder is a specific intent crime, legal unconsciousness is a complete defense.

Insanity. A person is not guilty by reason of insanity if, when the person killed someone, he or she was suffering from a mental disease or defect that prevented the person from understanding the nature of the act or that it was wrong. Not guilty by reason of insanity is a means to obtain treatment rather than prison, even where the person is otherwise guilty of murder.