California P.C. 187: Murder

In California, murder is defined under Penal Code 187 stating, “Murder is the unlawful killing of human being, or fetus, with malice aforethought.” The component breakdown of murder is much more complex than commonly understood. Particularly a defendant’s state of mind is the critical, and often the disputed issue, in distinguishing between murder versus the lesser offense of manslaughter. Most murder cases contain circumstantial evidence versus direct evidence (e.g., confession) leaving room for a skilled criminal defense attorney to create reasonable doubt in the prosecutor’s case.

Murder is categorized into degrees: first degree murder and second degree murder. Generally, someone is charged with first degree murder if a death resulted in the commission of an inherently dangerous felony or one engaged in a calculated thought process with the specific intentions of killing someone, and actually succeeds in the death of another. Second degree murder is carried out when one engages in extreme recklessness resulting in death, or harbors the intentions to committing great bodily injury resulting the death of another.

Murder is the highest level of crime in the U.S. court system. A murder conviction guarantees a minimum sentence of 15 years to life in prison. Additional years are added depending on a number of factors – e.g., use of a firearm, prior murder conviction, murder of a police officer, multiple murders, etc.

Early Intervention to Preserve Crucial Evidence

Early intervening is not only necessary but critical for the preservation of evidence that could be lost, deleted, or destroyed. There is no statute of limitations for murder in California. Thus, murder charges can be filed days, weeks, months, or even years after the incident. With a long delay guarantees the dissipation and destruction of crucial evidence. For instance, local business or street cameras could capture exculpatory surveillance footage that can be extremely beneficial when defending murder charges. Often times, police officers do not conduct a thorough investigation and therefore crucial evidence is liable to be missed and or destroyed overtime. Additionally, potential witnesses must be contacted while the event or facts are still fresh in their memory – a long delay could jeopardize witnesses from recalling detailed information for a defense at trial.

Types of Murder Charges

Premeditation and Deliberation (P.C. 189) is a form of first degree murder alleging one formed the intentions to kill another coupled with an appreciable period or time to reflect upon the gravity of his or her act. For instance, poisoning someone, constructing and planting a bomb, torture. It should be noted that time to reflect on the intent to kill can be immediate and does not require a prolonged period.

Felony Murder Rule (P.C. 189): one can be charged with first degree murder if a death results during the attempt or commission of an inherently dangerous felony. For instance, armed robbery of a bank and the security officer shoots at a suspect but misses and strikes and kills a bank customer. Some examples of inherently dangerous felonies include:

  • Arson
  • Rape
  • Carjacking
  • Robbery
  • Burglary
  • Mayhem
  • Kidnapping
  • Train Wrecking

Reckless Indifference to Human Life is second degree murder and requires an action beyond gross negligence resulting in death. For example, driving 100 MPH in a school zone intoxicated and killing a child in the cross-walk. Although one did not act with the intentions of harming anyone, their conduct exceeded gross negligence into reckless indifference to human life. A common form of second degree murder is DUI causing death and the defendant was convicted previously of DUI – this is known as a “Watson Murder.”

Intent to Cause Great Bodily Injury Resulting in Death occurs when someone does not harbor the intentions to kill but instead intents to commit substantial harm but results in death. For instance, hitting someone with a baseball bat or stabbing them in the leg but the victim dies as a result.

Attempted Murder occurs when one formulates the specific intentions to kills and makes a substantial step to carrying out their intentions. For instance, shooting someone several times but the victim manages to survive.

Legal Defenses to Murder

  • Alibi: If you were in a difference place at the time the murder occurred, then you have been falsely accused and you are not guilty of murder.
  • Perfect Self-Defense: Often times, individuals commit a homicide because they were acting in self-defense to prevent immediate harm or death. If you were in fear for your life and the acted in reasonable self-defense, you are not guilty of murder.
  • Imperfect Self-Defense: Imperfect self-defense is a defense to murder but the attorney argues for a lesser offense of voluntary manslaughter. Someone acts with imperfect self-defense when one mistakenly or unreasonably believe that harm is imminent against them.
  • Defense of Others: This defense is applicable if one reasonably believes that imminent death of great bodily injury is imminent to occur to another person and acts to prevent harm to another.
  • Intoxication: Intoxication is defense to first degree murder charges negating the calculated / premediated thought process. Moreover, it means that someone was so intoxicated they did not form the intent to kill another for an appreciable amount of time.
  • Similar to intoxication, lacking premeditation means one did not harbor the intent to kill for an appreciable amount of time but rather killed spontaneously.
  • Mistaken Identity: Unfortunately, mistaken identity is a common occurrence and it’s undisputed that witness identification is not completely accurate. Factor’s contributing to mistaken identity include: cross-racial identification or poor lighting.

Expert Witnesses for Murder Charges

Expert witnesses are pertinent components to defending murder charges. For instance, if a person is has been mistakenly identified, appointing an eye-witness memory expert is critical to establish that a number of scientific factors play a vital role in affecting a witnesses memory of the incident. Other common examples include: DNA analysts, crime scene re-constructionist, psychologists, fingerprint analysis, GPS cellular phone expert. The Law Offices of John D. Rogers has access to numerous defense experts able to investigate and testify on behalf of his clients to defend murder accusations.

Punishment for Murder

The minimum sentence for a murder conviction is 15 years to life in prison. However, for any first degree murder conviction, a person faces a mandatory 25 years to life in prison. Depending on the circumstances or factors, one can face life without the possibility of parole or even death.

Defense Investigation

Similarly to appointing expert witnesses to defending murder charges, it’s critical that the defense conducts their own investigation on the prosecutor’s case to examine the validity of the evidence and prepare a defense. The Law Offices of John D. Rogers has access to multiple private investigators to speak with witnesses, conduct video surveillance, run background checks on witnesses, record witness statements, and photograph the crime scene. Murder charges are serious accusations which require nothing short of a full complete defense investigation.


Dan was angry with his wife for sleeping with another man. At dinner, Dan placed rat poisoning in his wife’s wine to be served with dinner. Dan handed the wine to his wife. Just before she took a sip, Dan had a sudden change of mind and grabbed the wine glass and dumped out the rat poisoning. The prosecution will argue that Dan is guilty of attempted murder because he formulated the intent to kill his wife with the rat poisoning. Mixing the wine with the poison and his subsequent act of delivering the wine to his wife will constitute a “substantial step” towards completion of the crime.

Dan came home from work and caught his wife in bed with another man. Dan was so upset that he grabbed a lamp off the shelf and struck his wife’s lover over the head several times. The man died as a result. In this case, Dan would not be guilty of first degree murder because he acted suddenly without any reflection of an intentions to kill for an appreciable amount of time. Additionally, simply striking someone several times with a device not classified as a weapon would unlikely prove Dan harbored the intentions to kill but instead commit substantial bodily harm.

Dan was convicted of DUI. At sentencing the judge admonished Dan, “You are hereby advised that if you drink and drive and you end up killing someone, you can be charged with murder.” Years later, Dan decided to drink and drive. He didn’t see a pedestrian in the cross-walk and accidentally struck them killing them instantly. In this case, Dan would be charged with murder because he was initially advised the dangers of drinking and driving but continued to drink and drive resulting in someone’s death. Such conduct might arguably be consistent with recklessness resulting in death.

Related Offenses

  • Voluntary Manslaughter
  • Involuntary Manslaughter
  • Negligent Homicide
  • Attempted Murder

Contact Us to Schedule a Free Consultation

If you or a loved one has been charged with murder, contact an Newport Beach Criminal Defense Lawyer at the Law Offices of John D. Rogers. Contact us today to schedule a free confidential consultation.

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