General Principles of Homicide Law

Homicide is defined in the California Penal Code as the intentional killing of another human being with malice and without justification, excuse or mitigation. An Orange County homicide defense lawyer can help you fight this type of charge.

The key factor to remember in discussing homicides is that the law of homicide exists to fix moral culpability. All punishments for homicide flow from the fixing of moral culpability. 

Types of homicides:

  1. Lawful homicides:

    1. Justifiable (Penal Code sections 196 and 197): in obedience of lawful court order; when necessarily committed by government officer in overcoming actual resistance to exercise of legal duty or in arresting or retaking felon; defense of others; self defense.

      (1) A convicted felon has a right of self defense, even if it means using a gun.

    2. Excusable (Penal Code section 195): accident or misfortune, etc.

    3. The defendant has the burden of raising the issue of excuse or justification. (Pen. Code § 189.5.) The burden is only to raise the issue; after that the prosecution has the burden of proving its absence beyond a reasonable doubt. Thus, the defendant must raise the issue but does not bear any burden of proof or persuasion. (A homicide defense attorney in Orange County can help you try to raise these issues if appropriate in your case.)

    4. Duress is not available as a defense to any murder (even those not punishable by death, contrary to the specific language of Pen. Code §26), nor can it act to reduce a murder to manslaughter.
  2. Unlawful or criminal homicides: Murder and Manslaughter

    Types of murder:

    (1) Capital murder: first degree murder with special circumstances as defined in Penal Code section 190.2.

         (a) No capital murder without a first degree murder.

            i) No special circumstances (LWOP) where there is no first degree murder.

            ii) Conspiracy to commit murder is not a capital offense.

         (b) Special circumstances are the way in which the California death penalty law complies with federal constitutional requirement that classes subject to the death penalty be narrowed. (A homicide defense lawyer in Orange County can carefully explain how this concept works.)

         (c) Special circumstances are separate criminal offenses (but not crimes) which must be pled and proven beyond a reasonable doubt; they are not mere "aggravators."

         (d) Special circumstances:

            i) Financial gain;

            ii) First degree murder with a prior murder of either first or second degree;

            iii) Multiple murder, at least one of which is of the first degree, in the instant proceeding;

            iv) Murder by bomb or explosive device planted or concealed in a building;

            v) Murder to prevent arrest or perfect escape from custody;

            vi) Bomb or explosive device mailed or delivered to victim;

            vii) Witness killing;

            viii) Racially motivated killing;

    Felony-based murder: killing committed while engaged or as an accomplice to the commission or attempted commission or the flight from the commission or attempted commission of the following crimes;

        a) robbery,

        b) carjacking,

        c) kidnapping,

        d) rape

        e) sodomy,

        f) child molestation,

        g) oral copulation,

        h) burglary (of the first or second degree),

        i) arson,

        j) mayhem,

        k) rape by foreign object,

        l) train wrecking.

    (2) Murder punishments:

         (a) Capital murder (First degree with special circumstances):

              i) Adult - Death or LWOP

                a) No death for someone under 18 at the time of the commission of the murder.

                b) Burden of proof as to age is on the defendant.

              ii) In the case of a minor (age 16 or 17), LWOP or 25 to life in the discretion of the court.

         (b) Other first degree:

              i) 25 years to life, except:

                a) “Special circumstance” of murder of transportation personnel is alleged and proved, in which case punishment is LWOP;

                b) “Hate crime” pled and proved, in which case punishment is LWOP.

                  i) If multiple motives, “hate crime” must be “substantial factor” in bringing about the crime.;

         (c) Second degree:

              i) 15 years to life, (Pen. Code §190, subd. (a)), unless:

                a) Defendant has a prior murder in which case may be LWOP.

                    i) See, Pen. Code § 190.05, for law and procedures for “mini-penalty phase.”

                b) Second degree murder of police officer engaged in the performance of his/her duties and the defendant knew or should have known that the officer was in the performance of his or her duties carries 25 years-to-life. (Pen. Code §190, subd. (b).)

                c) Second degree murder of police officer engaged in the performance of his/her duties and the defendant knew or should have known that the officer was in the performance of his or her duties carries LWOP if one of the following facts is pled and proven, (Pen. Code §190, subd. (c)):

                    i) Defendant specifically intended to kill the victim; or,

                    ii) Defendant specifically intended to inflict great bodily injury as defined by Pen. Code §12022.7 on the peace officer; or,

                    iii) The defendant personally uses a dangerous or deadly weapon in violation of Pen. Code §12022; or,

                    iv) The defendant personally uses a firearm in violation of Pen. Code §12022.5.

                    v) This sentence is constitutional. (People v. Rhodes (2005) 126 Cal.App.4th 1374.)

                 d) 20 years to life if a drive-by shooting with intent to commit great bodily injury on any person. (Pen. Code §190, subd. (c).)

        (d) Custody credit restrictions on all murders, (Pen. Code §190, subd. (e)):

                i) No good-time/work-time;

                ii) Must serve the full minimum of term-to-years sentence before being eligible for parole.

         (e) Firearms use enhancement:

                i) Pen. Code §12022.53 applies to murders. (People v. Valencia (2002) 82 Cal.App.4th 139.)

                ii) Pen. Code §12022.53 enhancements may be imposed consecutive to LWOP sentences. (People v. McMahon (2005) ___ Cal.App.4th ___ [2005 WL 1532389]; People v. Chiu (2003) 113 Cal.App.4th 1260

An Orange County homicide defense attorney may play a critical role in trying to avert or mitigate the consequences of a homicide charge.
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