Criminal Defense Attorneys        909-913-3138

      24hrs - 7days  Free Consultations   DUI Crimes              Se Habla Español
 
 

Murder & Attempted Murder Defense

Penal Codes 187(a) & 664/187(a)

Murder is defined as the unlawful killing of a another human being with malice aforethought and without legal justification. The laws on murder are found at California Penal Code section 187(a). 

Attempted murder is defined as taking a substantial step towards the the unlawful killing of another person (without legal justification) and with the specific intent to kill the other person. 

Murder can 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 what is actually considered murder in California 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, there is an explanation of the differences between the degrees of murder, such as murder in the first degree versus murder in the second degree, manslaughter, and involuntary manslaughter. We have also included a review of some of the common defenses to murder charges, including self-defense, intoxication, stand your ground law, and insanity. Finally, we included the punishments for different murder offenses, manslaughter, and involuntary manslaughter..  

Defining Terms in the Law of Murder

In PC 187(a), the term unlawful killing implies that some killings are lawful in California, such as killings sanctioned by the state of California for death penalty crimes, or a killing that occurs in the course of a police officer's duty, or a killing that occurs in self-defense.

In PC 187(a), the term another human being means that murder is not found where animals are killed or where a person kills himself by way of suicide. There are laws against attempted suicide in California but they are not charged as attempted murder. However, according to PC 187(a), 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 iimplies that that some killings are not considered to be murder because there exists a legal justification such as killings that occur in self-defense. Self defense is also a lawful killing as stated above.

In PC 187(a), 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. Malice Aforethought does not mean premeditation or planned. If a murder is premeditated and planned that may indicate a particular mental state known as intent to kill and malice aforethought may be found where there is intent to kill, but the phrase malice aforethought itself does mean premeditated murder or a planned murder.

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)).

1. Intent to kill

This state of mind is the easiest to understand. Simply stated: if the defendant intended to kill another person, and he or she kills another person while so intending to do so, then malice aforethought is present.

Note: 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 statement that he or she intended to kill the victim, that the defendant actually intended to kill the victim.

In fact, when a gun is used in a murder there is a presumption that the defendant intended to kill the victim. This does not mean that the defendant intended to commit murder because all of the other elements of murder would still have to be found, i.e. unlawful, without legal justification, etc. But the intent to kill may be presumed where a gun is used to kill another person under the Deadly Weapon Doctrine. 

The doctrine of transferred intent

When the defendant intends to kill another person but accidentally 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. 

2. 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. This is known as the Great Bodily Injury Rule (GBI) (PC 187(a)).

For example: If the defendant intended to stab another person without intending to murder 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.

This makes sense of course; a defendant cannot not intend to commit GBI against another person without reasonably thinking that committing great bodily injury against another person might lead to death. 

3. Reckless Endangerment (Malignant Heart)

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.

4. 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 commission of an inherently dangerous felony which was committed by the defendant. This is known as the Felony Murder Rule (PC 187(a)).

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 doctrine 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)).

For example, if a defendant commits a robbery at a liquor store, and during the robbery the police arrive and attempt to capture the defendant, but the defendant flees the scene, the robbery is considered to be ongoing, even during the flight from police. Therefore, if anybody is killed while the defendant is fleeing from the police after a robbery then the killing will be considered to have occurred during the commission of the inherently dangerous felony. However, if the defendant reaches a place of temporary safety after his flight from police, but thereafter somebody is killed while trying to capture the defendant at a later time, then the killing will not be considered to have occurred in the commission of the inherently dangerous felony because the defendant had reached a temporary place of safety after the commission of the robbery and after he fled from police.

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 - PC 187(a)

Under 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 (see above at felony-murder rule). 

To find for first degree murder the prosecutor must prove one of two things: either the killing occurred during the course of an inherently dangerous felony (felony murder), or, that the killing occurred after premeditation and deliberation.

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.

For example, if the defendant becomes engaged in a bar fight, and he leaves the bar to retrieve a gun from his or her vehicle with the intent to kill the other person, then the defendant can be charged with first degree murder when he shoots and kills the other person; this is because the formation of intent to kill, and the deliberation of killing, can take place over a very short period of time.    

Second Degree Murder - PC 187(a)

Second degree murder is murder that is not first degree murder. As silly as this definition sounds its 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 for first degree murder, then by default, the murder is considered to be murder in the second degree.

Examples of murder in the second degree under include murder by way of great bodily injury (see above for GBI definition), murder by drunk driving after a prior conviction of drunk driving, AKA "Watson Murder" (See Below), and Reckless Endangerment Murder or Malignant Heart Murder.

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, as opposed to vehicular manslaughter. A killing of another person while driving intoxicated with a prior DUI conviction is now known as a Watson Murder.

Special Circumstances Murder - PC 187(a)

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 beyond mere preparation of the crime.

For example: If a defendant stabs another person with the intent to kill the person 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.

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 the defendant may face up to nine (9) years in prison.

Voluntary Manslaughter - PC 192(a)

Voluntary manslaughter is actually a murder (with intent to kill) that is reduced in terms of severity and sentencing due to some extenuating circumstance of the defendant. Manslaughter is not usually charged as a crime. Instead, a criminal defense attorney who is defending his or her client will generally argue that the defendant should not be convicted of murder but rather the lesser crime of manslaughter. 

To reduce a murder charge to manslaughter the defense will generally attempt to prove the murder took place during one of the following circumstances: 1) that the defendant killed during a heat of passion 2) that the defendant killed the victim while engaged in mutual combat that was started by the defendant, or 3) that the defendant truly, but unreasonably, believed, that he needed to act in self-defense (also known as imperfect self-defense).

This article is dedicated to the crime of murder so voluntary manslaughter is not covered in detail here. However, if you would like more information on California voluntary manslaughter law please visit California manslaughter law & defense.

Involuntary Manslaughter - PC 192(b)

Involuntary manslaughter occurs where a defendant does not intend to murder anyone but nevertheless a person is killed as a result of the defendant's gross negligent conduct. If the defendant is found to be subjectively reckless, which is a higher degree of culpability than gross negligence, and that subjective recklessness leads to death, then the defendant is likely to be charged with malignant heart murder (see above) as opposed to involuntary manslaughter.

For example: Speeding in a grossly negligent manner on the freeway which leads to another person's death can be charged as involuntary manslaughter. Also, mutual combat without the use of deadly weapons that leads to death is usually charged as involuntary manslaughter.

This article is dedicated to the crime of murder so involuntary manslaughter is not covered in detail here. However, if you would like more information on California involuntary manslaughter law please visit California involuntary manslaughter law & defense.

Punishment for first degree murder - PC 187(a) 

The sentence for murder under California PC 187 is either probation, or twenty-five years to life. Probation (no jail sentence) is only granted in very unusual cases. This means that the defendant is not eligible for parole until twenty-five years has passed (no time off for good behavior). First degree murder is considered a strike in California under 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 (see above under first degree murder for more details), or fifteen years to life in prison. Murder in the second degree is considered a strike in California under California's Three Strike 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.

Sentence for Special Circumstances Murder

Murder with special circumstances under 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.

Sentence for Voluntary Manslaughter (PC 192(a)

The sentence for voluntary manslaughter is either probation (see above under first degree murder for more details on probation), or three, six, or eleven years in prison (PC 192(a)).

Defenses to Murder & Attempted Murder

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 - The evidence produced by the prosecutor is insufficient to prove the defendant committed murder. For example, the prosecution can prove that the killing was intentional as opposed to accidental.

Technical Defense - A finding that certain evidence can not be used against the defendant because of the wrongful conduct of law enforcement in its collection of evidence, such as coerced confessions, or collecting evidence in violation of defendant's right against unreasonable searches and seizures without probable cause.

Insanity - A finding that the defendant committed the crime of murder while he or she could not appreciate the wrongfulness of his or her conduct because of a defect of the mind.

Other murder and attempted murder defenses include: intoxication, mistake of fact, defense of others, double jeopardy, 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 24hrs a day, 7days a week, to answer all of your questions. Call today!

909.913.3138

Criminal Defense Attorneys

909.913.3138

Murder & Attempted Murder: PC 187(a) & 664/187(a)

Free Consultations 24hrs / 7days

Se habla espanol / Abogados de defensa criminal

Murder & Attempted Murder Defense: PC 187 & 664/187

  • Accessory
  • Arson
  • Assault
  • Attempted Murder
  • Battery
  • Burglary
  • Conspiracy
  • Criminal Threats
  • Domestic Violence
  • Drunk in Public
  • DUI
  • DUI with Death
  • DUI with Injury
  • Evading Police
  • False Personation
  • Forgery
  • Hit and Run
  • Indecent Exposure
  • Kidnapping
  • Lewd Acts
  • Manslaughter
  • Mayhem
  • Murder
  • Perjury
  • Rape
  • Robbery
  • Stalking
  • Torture
  • Vehicle Theft
  • Welfare Fraud

Criminal Defense Attorneys, Serving

San Bernardino County

San Bernardino, Highland, Hesperia, Yucaipa, Ontario, Fontana, Rialto, Colton, Rancho Cucamonga, Redlands, Chino, Upland, Montclair, Victorville, Apple Valley

Riverside County

Riverside, Moreno Valley, Eastvale, Norco, Palm Springs, Jurupa Valley, Hemet, Perris, Banning, Beaumont, Corona

Los Angeles County

Los Angeles (LA), Pomona, West Covina, San Dimas, Glendora, Claremont, LaVerne, City of Industry

Criminal Defense Attorneys

909.913.3138

Murder & Attempted Murder: 187(a) & 664/187(a)

Free Consultations 24hrs / 7days

Se habla espanol / Abogados de defensa criminal

Crimes Commonly Charged with Murder (PC 187(a))

  • Attempted Murder PC 664/187(a)
  • Assault with a Deadly Weapon PC 245
  • Criminal Threats PC 422
  • Torture PC 206
  • Mayhem PC 203 & 205
  • Kidnapping PC 207 & 209(b)(1)
  • Brandishing a Firearm PC 417
  • Voluntary Manslaughter PC 192(a)
  • Involuntary Manslaughter PC 192(b)
  • Vehicular Manslaughter with DUI 191.5
  • Vehicular Manslaughter w/out DUI PC 192(c)
  • First & Second Degree Murder PC 187(a)

Criminal Defense Attorneys

909.913.3138

Murder & Attempted Murder: 187(a) & 664/187(a)

Free Consultations 24hrs / 7days

Se habla espanol / Abogados de defensa criminal

Criminal Defense Attorneys

909.913.3138

Murder & Attempted Murder: 187(a) & 664/187(a)

Free Consultations 24hrs / 7days

Se habla espanol / Abogados de defensa criminal

Criminal Defense Attorneys

909.913.3138

Murder & Attempted Murder: 187(a) & 664/187(a)

Free Consultations 24hrs / 7days

Se habla espanol / Abogados de defensa criminal


California Murder Laws & Defense PC 187(a) & Attempted Murder PC 664/187(a)

 
 
 
 
 
 

Law Office of Christopher Dorado 1030 Nevada Street. Suite 105 Redlands, CA. 92374