Murder Criminal Attorney



Long Beach Murder Attorney Explains Penal Code 187

Legal Definition of Murder 

California Penal Code Section 187 covers the crime of illegally taking the life of another human being, including that of a fetus, with “malice aforethought” and defines it as an act of “murder.” To have “malice aforethought” means to have a “premeditated intent to kill.” However, having an extreme reckless indifference to the life of other human beings can also qualify. 

What Must The Prosecutor Prove? 

For the prosecution to prove someone guilty of the crime of murder, the following three elements must be established beyond reasonable doubt:

  1. The defendant’s actions caused another human being, inclusive of a human fetus, to die.
  2. The defendant acted out of “malice aforethought” when he committed the death-causing act.
  3. The defendant’s action had no legal justification.

Establishing Malice Aforethought: 

In proving malice aforethought, a prosecutor is seeking to prove something very psychological in nature- that the “state of mind” of the accused was such as to qualify his/her accompanying act as an act of murder. There are two different classes of malice aforethought, either of which is sufficient to find a defendant guilty of murder. The first is “express malice,” which means the defendant willfully and illegally had intent to kill another human being. The second variety is known as “implied malice” and is established if the following be proved of the defendant:

  • He committed the death-causing act intentionally.
  • The likely consequence of the act was to endanger the life of another human being.
  • The defendant knew, when he acted, that his act would endanger the life of another.
  • The defendant, nonetheless, deliberately carried out the life-endangering act without any regard for human life.

First and Second Degree Murder 

Both first and second degree murder involve malice aforethought but not the same kind. First degree murder requires that the defendant premeditatedly and with prior deliberation committed the act of murder. Second degree murder, on the other hand, does not require such premeditation- it only requires the “implied malice” noted just above.

First Degree Murder 

First degree murder can be established in the California legal system in any of the following ways:

  • Showing that the defendant carefully considered the pros/cons of carrying out an illegal killing and then opted to kill- that is, by establishing “deliberation.”
  • Showing that the defendant made the decision to kill the other person before actually committing the act. It is not the length of time between the decision and the act that is relevant, though that may well vary with different people and with different circumstances. It is the amount of “reflection” that occurred that is at issue. That is, if a rash, impulsive decision is reached to kill, it is not substantially “deliberated” and “premeditated.” If, however, a callous, calculating decision to kill is reached after careful consideration- it is first degree murder.
  • Showing that the defendant used torture to murder. Torture involves willingly, with deliberation and premeditation, inflicting excruciating pain on another person for an extensive period of time. The purpose of the death-causing torture would be to exact revenge, extort money or something else, forcibly “persuade,” or to engage in purely sadistic activities.
  • Showing that the defendant killed by “lying in wait” for or ambushing his victim. If the defendant hid his purpose of killing, waited for a good opportunity to kill, and then suddenly attacked from an advantageous position, lying in wait was committed. This would be done at the moment of or just prior to the act of killing.
  • Showing that the defendant used a “destructive device” or explosive, a “weapon of mass destruction,” penetration ammo, or committed a drive-by shooting will prove first degree murder. Killing by means of poison also falls in this category.
  • Showing the defendant killed in the process of committing an inherently dangerous felony such as rape, robbery, kidnapping, or burglary. This is known as the “felony murder rule.”

Second Degree Murder 

All murder not classed as first degree is, by default, classed as second degree. PC 187 defines second degree murder as willful but not deliberated or premeditated. Thus, while reckless indifference is important in proving second degree murder, simply proving murder occurred but failing to prove first degree murder will result in a second degree conviction.

What About Abortion? 

While California law treats the killing of fetuses as murder in most situations, it makes an exception in the case of abortions, and this exception is legally defined this way:

  • The act was done by one who held, at the time, a physician’s/surgeon’s certificate, and it was “medically certain or medically likely” that the birth of the child would have resulted in the death of the mother.
  • The act was in compliance with the Therapeutic Abortion Act, which is included in the California Health and Safety Code under Division-106, Part-2, Chapter-2, Article-2.
  • The act was done with the mother’s consent, solicitation, aid, or abetment.

What Legal Defenses Are Available Against Charges of Murder? 

Some of the most common legal defenses a skilled attorney will likely use to attempt to defeat charges of murder include:

  • Self defense or defense of others: If the defense attorney can show that the death resulted from the defendant using reasonable and proportional force to defend himself against a reasonable and imminent fear of being killed or severely injured by another, it is self defense and not murder. Such a case cannot be valid, however, if there were only verbal attacks involved. There must have been elements to the circumstances that made it reasonable to perceive a real threat beyond mere words. If the defense attorney can show the exact same set of facts as for self defense, except that the person in danger was someone else, it is defense of others and not murder.
  • Accidental Killing: When someone is killed by accident in the course of fully legal acts, it is an accident and is not murder. However, this defense may not hold up if the defendant was engaged in a crime when the accidental killing happened.
  • Insanity: If a defendant can be shown to have acted out of a state of insanity during the commission of the killing, it will not count legally as murder. In California, the “McNaughten test of insanity” is the rule used. It specifies that, if the defendant did not or could not know that his/her act was wrong due to a mental illness, then the person is/was insane and is not a murderer. Such a person might be considered dangerous to society and in need of treatment, and therefore, confined to a mental institution. They would not, however, be imprisoned or executed as a murderer.
  • Mistaken Identity: In the world of crime, it is not at all uncommon for victims to wrongly identify their perpetrators. This is easy to do since they may have only caught glimpses of them in some dimly lit location. In the case of murder, it would be bystanders who witnessed the act who might mistakenly identify someone as the killer. To make this defense more convincing, the defense attorney will try to establish an alibi to show his client was somewhere else when the murder occurred. 

Possible Penalties for Murder

Murder can be punished in different ways, depending on the exact circumstances and on whether it is first or second degree murder. Some of the most common punishments are as follows: 

For First Degree Murder

  • Death by execution
  • A lifelong stay in the state prison system, without parole
  • Twenty-five years or more in state prison

The punishment for first degree murder must be one of the three above-listed sentences. In the case of a “hate crime,” it is automatically life in prison without parole. A hate crime is defined as a murder that was done because the perpetrator hated the victim based on any of the following factors:

  • Racial factors
  • Religious persuasion
  • Gender
  • Being a disabled person
  • Sexual orientation
  • Nationality

For Second Degree Murder 

Those found guilty of second degree murder must be sentenced to between 15 years and life in state prison. In some cases, however, there are enhancements based on who was killed, how they were killed, or past criminal history:

  • For murdering a police officer: Second degree murder against a law enforcement officer will result in 25 years to life in state prison.
  • For murder during a drive-by shooting: If a person is killed because someone shoots bullets out through their automobile window and intended to cause injury or death, the punishment is 20 years to life.
  • With a previous murder conviction: Life imprisonment without parole is the prescribed punishment for those who commit second degree murder while already having a previous murder conviction on their record. 

The Need for the Best Possible Legal Representation

Considering the severity of the alleged crime and of the possible punishments, it is obvious that everyone facing the charge of murder, be it in the first or second degree, is in need of the very best legal representation. At the Law Offices of David Givot, we understand the details of the statutes on murder and have deep experience in successfully handling these kinds of cases. Contact David J. Givot and the Legal Guardian today by calling 888-293-0396 for a free consultation and immediate attention to your case.

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3780 Kilroy Airport Way #200
Long Beach, CA 90806

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