Murder: Law, Sentence, & Defense
Information on the crime of murder and attempted murder are found at California Penal Code sections 187(a) and 664/187(a), respectively.
PC 187(a): Murder is defined as the unlawful killing of another human being with malice aforethought and without legal justification.
PC 664/187(a): Attempted murder is defined as taking an ineffectual, but substantial step towards, killing another person, with the specific intent of killing that person.
Notice, that according to the definitions above, the crime of murder can be charged even when the defendant did not specifically intend to kill another person, but the crime of attempted murder requires that the defendant actually intended to kill another person.
The definition of murder is short, but to understand the law of murder requires a deeper understanding of the definition. Below you will find a review of the different terms in the definition of murder (and attempted murder), including the often-times misunderstood concept of malice aforethought. In addition, you will find an explanation of the differences between the degrees of murder, such as murder in the first degree versus murder in the second degree. Punishment an common defenses to murder and attempted murder are also included.
PC 187(a) Terms
The term unlawful killing implies that some killings are lawful, such as killings sanctioned by the state of California for death penalty crimes or to take someone off life support.
The term another human being means that murder is not found where animals are killed or where a person commits suicide. The killing of a fetus is considered to be another human being. A fetus is defined by medical terms and generally means an unborn person in the last trimester of pregnancy.
In PC 187(a), the term without legal justification implies that that some killings are not considered to be murder because there exists a legal justification such as a killings that occur in self-defense.
The term malice aforethought is the most commonly misunderstood term in the definition of murder and it means that the killing was committed by the defendant while the defendant was in a particular mental state of mind. There are four different types of mental states that make up malice aforethought. Only one of the below mental states in needed to find that the defendant acted with malice aforethought (PC 187(a)).
Intent to kill: The first way to show malice aforethought is with the specific intent to kill. Intent to kill means the defendant intended to kill another person.
Circumstantial Evidence Used to Prove Intent: When the defendant does not confess that he or she intended to kill another person the prosecutor will often rely on circumstantial evidence to prove the defendant's intent to murder the victim. For example, shooting someone in the head at point blank range would be good evidence, even without the defendant's confession, that the defendant intended to kill the victim.
Transferred Intent: When the defendant intends to kill another person, but kills a different person than the one that the defendant intended to kill, the defendant's intent to kill will be transferred from the intended victim to the actual victim. For example, if the defendant intended to kill his wife by shooting her, but when the defendant shot at his wife the bullet actually killed another person, then the intent to kill his wife will be transferred to the actual victim. This is true even if the defendant never actually intended to kill the other person.
Intent to commit great bodily injury (GBI): The second way to show malice aforethought under PC 187(a) is for the prosecutor to prove that the defendant intended to severely injure another person and that the injury caused the death of the other person.
For example: If the defendant intended to stab another person (i.e. Intent to commit GBI) without intending to kill the other person, but nevertheless, the other person died as a result of the stab wound, then the defendant's intent to commit great bodily injury will serve as malice aforethought.
Reckless Endangerment (Malignant Heart): The third way to show malice aforethought is acting with reckless indifference to human life. Under PC 187(a), if the defendant commits some act that is subjectively reckless, extremely dangerous, and indifferent to human life, and another person actually dies as a result of that reckless conduct, the defendant will be charged with Malignant Heart Murder (PC 187(a)).
For example, if the defendant shoots bullets in the air in a busy city and a person dies from one of the falling bullets then the defendant will probably be charged with murder under the malignant heart murder rule because of the extreme reckless nature of his or her conduct. Another common example would be the defendant driving with extreme recklessness on the freeway that leads to death.
Inherently Dangerous Felony Murder: The fourth way to show malice aforethought under PC 187(a) is for the prosecutor to prove that the victim's death occurred during the defendant's commission of an inherently dangerous felony which was committed by the defendant. This is also known as the Felony Murder Rule. Inherently dangerous felonies are felonies that are so dangerous to human life that the likelihood of death during the commission of the crime is very high. Inherently dangerous felonies include, residential burglary, robbery, rape, kidnapping, torture, mayhem, carjacking, arson, evading police, hostage taking, and more.
For example: If the defendant is robbing a liquor store and the clerk of the store dies from a heart attack during the robbery then the defendant will likely be charged with murder because the death was caused by the robbery and the crime of robbery is considered an inherently dangerous felony (PC 187(a)).
Temporary Place of Safety: The felony murder rule is used where the killing occurs in the course or commission of an inherently dangerous felony. Therefore, if the commission of the felony is finished and the defendant has reached a temporary place of safety, then any killing that occurs after that point is not in the commission of, or during the course of, the inherently dangerous felony. This is known as the temporary place of safety doctrine (PC 187(a)).
Note: under PC 187(a), malice aforethought is not found where an officer accidentally kills another human being while in pursuit of the defendant. For example, if the defendant flees from the police, and the police shoot at the defendant, but the police accidentally kill an innocent bystander, then the defendant will not be charged with murder.
Degrees of Murder
First Degree Murder: Per PC 187(a), First degree murder is murder that is premeditated and deliberate, or murder that is committed during the commission of an inherently dangerous felony.
Premeditation and deliberation: in simple terms, premeditation and deliberation means that the defendant intended to kill another human being and that before the defendant intended to kill another person he or she had time to consider the wrongfulness of his or her act and had spent time considering the idea. The formation of premeditation and deliberation of intent can happen within the span of a few seconds.
Second Degree Murder: Second degree murder is murder that is not first degree murder. As silly as this definition sounds it’s actually the definition in the law under PC 187(a). It simply means that if the murder is not considered first degree murder under the definition set out above, then by default, the murder is considered to be murder in the second degree.
Examples of murder in the second degree include murder by way of intent to cause great bodily injury, murder by drunk driving after a prior conviction of drunk driving, AKA "Watson Murder" (See Below), and Reckless Endangerment Murder (aka Malignant Heart Murder).
Note: Second degree Watson Murder (DUI Murder) Once upon a time a killing that happened as a result of the defendant driving while intoxicated (DUI) was charged as a vehicular manslaughter. This is true even if the defendant had a prior DUI conviction on his or her criminal record. Today, if a defendant drives while under the influence of drugs or alcohol and he or she kills another human being, and the defendant has a prior DUI conviction, then the criminal charge is usually second degree murder.
Special Circumstances Murder: Special Circumstance murder is murder which is committed under a special circumstance. Examples include multiple murder (murder of more than one person), murder of uniformed officers, torture which leads to death, murder by bomb, death during the commission of rape, and more.
Most murders that are accompanied by special circumstances are subject to the death penalty in California. The list of special circumstances is found at penal code 190.2(a)(1) through 190.2(a)(22).
Attempted Murder PC 664/187
Attempted Murder is charged under penal code 664/187. To be found guilty of attempted murder under PC 664/187(a) the District Attorney will need to prove beyond a reasonable doubt that the defendant made a substantial step towards the act of killing another person, while simultaneously intending to kill that other person. A substantial step is conduct that goes beyond mere preparation of the crime.
For example: If a defendant stabs another person with the intent to kill, but the person stabbed lives, then the defendant should be charged with attempted murder under PC 664/187(a) because stabbing another person would be considered a substantial step towards killing another person and the defendant had the required intent to kill at the time of the stabbing.
Sentence for Attempted Murder: If found guilty of attempted murder under PC 664/187(a), the defendant could face up to life in prison where premeditation is proved by the district attorney. If premeditation (planning) is not proved, the defendant may face up to nine (9) years in prison.
Punishment for First Degree Murder: The sentence for first degree murder under California PC 187(a) is either probation, or twenty-five years to life. Probation (no jail sentence) is only granted in very unusual cases. This means the defendant is not granted probation in a first degree murder case, the defendant is not eligible for parole until twenty-five years has passed (no time off for good behavior).
Note: Murder is considered a strike offense per California's Three Strikes Law. First degree murder is also considered a crime of moral turpitude, which means that a murder conviction will leads to severe negative consequences for professional licenses and immigration issues.
Punishment for Second Degree Murder: The prison sentence for a conviction of murder in the second degree under PC 187(a) is either probation, or fifteen years to life in prison.
Sentence for Special Circumstances Murder: Murder with special circumstances per PC 187(a) & 190.2, is either a life in prison without the possibility of parole sentence (LWOP) or a death sentence. Whether or not the defendant is sentenced to death is a determination that is made by the jury.
Common defenses to murder and attempted murder include, Self Defense (The right to use deadly force to repel an attacker that is using deadly force against the defendant), Insufficient Evidence, mistake of fact, insanity, illegal search and seizure of evidence, intoxication, defense of others, alibi defense, and more.
If you are charged with murder or attempted murder under PC 187(a) or 664/187(a), contact our criminal defense attorneys without delay for a free consultation. Murder charges are usually prosecuted by very experienced prosecutors and experienced homicide detectives. You need experienced and successful criminal defense attorneys to fight these high-level criminal charges. Our attorneys are available seven days a week, to answer all of your questions. Call today!
Quick Legal Reference
Code: PC 187(a) (CalCrim No. 520)
Wobbler: No. PC 187(a) is not a wobbler. This means that PC 187(a) is only charged as a felony.
Incarceration: PC 187(a) prison sentence: 1st degree murder (25 years to life); 2nd degree murder (15 years to life).
Probation: Probation may be available in PC 187(a) cases (assuming that other crimes or enhancements that might bar a probation sentence are not present). Whether or not a probation sentence is offered by the District Attorney, or granted by the court, depends on several factors, including the defendant's criminal history and the facts of the case.
PC 1170(h)): No. PC 187(a) is not subject to PC 1170(h) sentencing. This means that any incarceration ordered after a conviction, that is not part of a probation sentence, must be served in state prison (as opposed to a county jail), and the prison sentence may not be split or suspended.
Strike: PC 187(a) is a strike offense per California's Three Strikes law because this crime is considered a Serious offense (PC 1192.7), and a Violent offense (PC 667.5(c). Strike offenses are subject to reduced good time credits in jail or prison and other penalty enhancements upon subsequent criminal convictions.
Credits: 0% good conduct credits available.
CIMT: PC 187(a) is a crime involving moral turpitude, which means that an arrest or conviction could lead to the following:
Professional Licensing problems
Impeachment on credibility
Firearms: PC 187(a) convictions prohibit a defendant from owning or possessing a firearm.
Bail: $1,000,000 (San Bernardino County)
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Death Penalty Crimes (Abbrev.)
PC 190.2(a): The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true:
(1) The murder was intentional and carried out for financial gain.
(2) The defendant was convicted previously of murder in the first or second degree. For the purpose of this paragraph, an offense committed in another jurisdiction, which if committed in California would be punishable as first or second-degree murder, shall be deemed murder in the first or second degree.
(3) The defendant, in this proceeding, has been convicted of more than one offense of murder in the first or second degree.
(4) The murder was committed by means of a destructive device, bomb, or explosive planted, hidden, or concealed in any place, area, dwelling, building, or structure, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.
(6) The murder was committed by means of a destructive device, bomb, or explosive that the defendant mailed or delivered, attempted to mail or deliver, or caused to be mailed or delivered, and the defendant knew, or reasonably should have known, that his or her act or acts would create a great risk of death to one or more human beings.
(7) The victim was a peace officer, as defined…’in section 830.1-830.37' (Abbrev.), who, while engaged in the course of the performance of his or her duties, was intentionally killed, 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; ... (Abbrev.).
(8) The victim was a federal law enforcement officer or agent who, while engaged in the course of the performance of his or her duties, was intentionally killed, and the defendant knew, or reasonably should have known, that the victim was a federal law enforcement officer or agent engaged in the performance of his or her duties; ... (Abbrev.).
(10) The victim was a witness to a crime who was intentionally killed for the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and the killing was not committed during the commission or attempted commission, of the crime to which he or she was a witness... (PC 190.2(1) Abbrev.).
(11) The victim was a prosecutor or assistant prosecutor or a former prosecutor or assistant prosecutor of any local or state prosecutor’s office in this or any other state, or of a federal prosecutor’s office, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.
(12) The victim was a judge or former judge of any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.
(13) The victim was an elected or appointed official or former official of the federal government, or of any local or state government of this or any other state, and the killing was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.
(15) The defendant intentionally killed the victim by means of lying in wait.
(16) The victim was intentionally killed because of his or her race, color, religion, nationality, or country of origin.
(17) The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies: ...Robbery, Kidnapping, Rape, Sodomy, PC 288(a), Oral Copulation, Residential Burglary, Arson, Train Wrecking, Mayhem, Sexual Penetration, Carjacking (PC 190.2(17) Abbrev. & Summarized).
(18) The murder was intentional and involved the infliction of torture.
(19) The defendant intentionally killed the victim by the administration of poison.
(20) The victim was a juror in any court of record in the local, state, or federal system in this or any other state, and the murder was intentionally carried out in retaliation for, or to prevent the performance of, the victim’s official duties.
(22) The defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang…(PC 190.2(22) Abbrev.)