CA Penal Code 187


Murder, CA Penal Code 187, is defined as “the unlawful killing of a human being or a fetus with malice aforethought”. Malice aforethought can be defined simply as, you meant to kill the victim. Malice pertains to when:

  • The killing was an intentional act
  • The action performed has natural consequences that are known to be dangerous to human life
  • The action was performed deliberately and with conscious disregard for human life

There are three severities of murder in California: First-degree murder, second-degree murder and Capital murder.

First-degree Murder

You can be convicted of first-degree murder for performing any of the three actions by:

  1. Committing a murder while
    1. Using a destructive device or explosive, a weapon of mass destruction, poison, or metal piercing ammunition
    2. Torturing someone or waiting for a person
  2. Murdering someone willfully, deliberately, and with premeditation
  3. Felony-murder rule comes into effect if you killed someone while performing either of the following:
    1. Arson, CA Penal Code 451
    2. Robbery, CA Penal Code 211
    3. Burglary, CA Penal Code 459
    4. Carjacking, CA Penal Code 215
    5. Train Wrecking, CA Penal Code 219
    6. Kidnapping, CA Penal Code 207
    7. Mayhem, CA Penal Code 203
    8. Torture, CA Penal Code 206
    9. Rape, CA Penal Code 261
    10. Unlawful Acts of Sodomy, CA Penal Code 288a
    11. Forcible Acts of Penetration, CA Penal Code 289
    12. Lewd Acts with a Minor, CA Penal Code 288

If you are found guilty of any of the offenses listed above and a person died as a result of you committing the crime then you will be tried under the felony-murder rule.

Second-degree Murder

Second-degree murder applies to any murder that was willful but not deliberate or premeditated. Second-degree murder cases also are covered under the felony-murder rule and are assessed on a case-to-case basis. The California law makers made it possible to be charged with a murder conviction if you commit a felony that is inherently dangerous and somebody as a result.

There is not a list like that for the first-degree felony-murder rule but it covers any felony that cannot be committed without creating substantial risk that someone will killed.

Capital Murder

Capital murder is the most heavily punished type of murder in California and is known as first-degree murder with special circumstances. If found guilty of capital murder you will either be sentenced to death or a state prison sentence for life without the possibility of parole. You can be charged with capital murder if you performed any of the following including, but not limited to:

  1. Murdering another for financial gain
  2. Murdering a police officer, firefighter, prosecutor, judge, juror, or elected official
  3. Murdering another because of their race, color, religion, etc.
  4. Murdering another by drive-by
  5. Murdering more than one victim

Murder Sentencing

The sentencing for each type of murder can vary substantially depending on a defendant’s criminal record and the details of the case. Here we will list the typical sentences for each crime.

If convicted of first-degree murder you will be sentenced to 25 years-to-life in state prison. This means that you must serve at least 25 years before being eligible for early release on parole. However, if it can be proven by the prosecutor that you committed the murder because of the victim’s race, religion, gender, etc. then you will be sentenced to life in prison without the possibility of parole, meaning you will spend the rest of your life in state prison.

If convicted of capital murder you will be sentenced to either life in prison without the possibility of parole or the death penalty.

If convicted of second-degree murder you will be sentenced to 15 years-to-life in state prison. Meaning you will spend a mandatory 15 years in prison before being eligible for early release on parole. Additionally, if the murder victim was a police officer or was killed during a drive-by shooting then the charges increase dramatically.

If during the murder you used a firearm then you will be serve an additional 10, 20, or 25-years to life state prison sentence. You will also receive a strike on your record, pay up to $10,000 in fines, pay victim restitution and will lose your right to own or possess a firearm.

Prosecuting Murder

In order for a prosecutor to convict you of murder, regardless of the degree, he/she must prove the three elements of the crime:

  1. That you committed an act that resulted in the death of a fetus, or another
  2. That the act was committed with malice aforethought
  3. That the killing was without lawful excuse or jurisdiction

If the prosecutor cannot definitively prove that you murdered someone in accordance with the three elements of the crime then you will not be found guilty.

Defending Murder

There are several strategies that an effective criminal defense attorney can implement to have a case dropped or the charges reduced. The first defense that an attorney will explore is making sure the murder was not committed as an act of self-defense. The state protects people from being punished if they kill another person while protecting themselves, but only if violence is the sole way to avoid:

  • Being killed
  • Suffering great bodily injury
  • Being raped, maimed, robbed or some other atrocious crime

If you commit a murder because you truly feared that someone was going to take your life then you are protected by the state’s self-defense laws. This defense only works though if there were not any options to escape and your only way to stay alive or avoid great bodily injury is to kill your attacker.

The second approach your criminal defense attorney will take is to prove that the murder was an accident. If, at the time of the murder, you:

  1. You did not intend to harm anyone
  2. You were not acting negligently
  3. You were not doing anything illegal that would likely result in a person’s death

If the murder was performed while you were acting in any of the three ways mentioned above then proving the incident was an accident is a valid California legal defense.

The next approach is to plead not guilty by reason of insanity. If your attorney can prove that you:

  1. Didn’t understand what you were doing while committing the murder, or
  2. You couldn’t distinguish between right and wrong

Then a viable option is to plead not guilty by reason of insanity. The insanity plea is governed by the M’Naghten test and states, “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law” [2]. This defense strategy can be hard to prove is a defendant does not have a record of mental disability.

Your criminal defense attorney will also make sure the prosecutor’s evidence against you was properly seized in accordance to California’s search and seizure laws. If the police went beyond their power to search your person and property and illegally obtained evidence then your criminal defense attorney will try to have that evidence excluded from the trial. By having the prosecutor’s evidence excluded from trial, your criminal defense attorney will severely weaken their case and better your chances to have your charges reduced or dismissed.

An effective criminal defense attorney can also prove your innocence by proving that you’ve been wrongfully identified. In murder cases weapons are often used and people subsequently become fixated on the weapon and not the person holding the weapon, leading to a number of mistaken identity cases. The goal of your criminal defense attorney is to prove that there is reasonable doubt in the identity of the murderer. If your attorney can show to the court that the prosecutor’s witnesses have doubt about who committed the crime then the outcome will likely be favorable for the defendant.


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