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What is murder?

Under Section 187 of the California Penal Code, murder is an unlawful killing of a human being or a fetus with malice aforethought. Malice aforethought is the manifested deliberate intention to unlawfully take away the life of a human being. Murder can be committed in the first degree or in the second degree.

How can malice aforethought be proved?

To prove malice aforethought, there must be evidence of manifestations of the malice such as when a person is angry and screams “I’ll kill you.” However, it may also be proved by give proof of acts that the accused committed that shows deliberation, planning, treachery, or ensuring that the person who was killed could not fight back or escape.

What’s the difference between first degree and second degree murder?

First degree murder refers to murders that are especially heinous because they show intent to kill and deliberate premeditation and planning.

Second degree murder does not have deliberate premeditation and planning although there is intent to kill. Under this classification are those murders where there was provocation, or murder that was committed in the heat of passion or murder committed in self-defense or defense of another.

What are the ways by which first degree murder may be committed?

Under Section 189, murder may be committed by a destructive or explosive device, a weapon of mass destruction, or by using ammunition that was designed to penetrate metal or armor.

Murder may also be committed through poisoning, by torture or when the killing was committed while perpetrating or attempting to perpetrate crimes such as: arson, rape, carjacking, robbery, burglary, mayhem, kidnapping or train wrecking.

The murder may have also been committed while the accused person was committing sodomy, oral copulation or any lewd or lascivious act upon a child who is under 14 years of age.

It may also be committed when a person discharges a firearm from a motor vehicle, aiming it at a person outside the vehicle.

What happens when the person killed was a police officer?

Shooting a police officer, while the person who had shot the police officer knew or should have reasonably known that the victim was a police officer and while the police officer was performing his official duty, this is second degree murder.

An accused person “should have reasonably known” that the person he had killed was a police officer if the police officer identified himself as a police officer, or if the police officer was wearing a uniform or a badge.

There must be proof that the accused person specifically intended to kill the police officer, or the defendant specifically intended to inflict great bodily injury on the police officer. There may also be proof that the person accused used a dangerous or a deadly weapon to inflict great bodily injury on the police officer or to kill him.

What are the penalties for murder?

First degree murder is punished with death or life imprisonment without the possibility of parole or imprisonment for a term of 25 years to life.

Second degree murder may be punished with a prison term of 15 years to life.

What happens when a person accused of murder has had a prior conviction for first or second degree murder?

If the accused has a previous conviction for first or second degree murder, this fact must be alleged by the prosecuting attorney in the information or the accusatory pleading. A prior conviction matters when determining the penalty to be imposed for the second or subsequent murder.

The prosecutor or the accused may present evidence that show factors that may aggravate, mitigate the penalty in the present murder charge. They may also present evidence on the accused’s character, background, history, mental and physical condition.

One example when a person who has been previously convicted of murder can commit another murder is when a convicted felon who is serving a prison term for murder commits a second murder while in prison (killing a fellow inmate or a prison officer).

What happens when the prosecutor seeks the death penalty for a first degree murder?

  1. The prosecutor must provide evidence of guilty beyond reasonable doubt.
  2. The judge shall determine the truth of all special circumstances (such as when the accused had already been previously convicted for murder).
  3. The judge shall determine the penalty to be imposed.
  4. The prosecutor and the defense can present evidence of special circumstances that may be used to determine the penalty to be imposed.

What special circumstances may be considered in determining the penalty to be imposed for a conviction for murder?

  1. The murder was committed for financial gain.
  2. The murder was committed in a place or area where there was a greater risk of death to more human beings (such as when the murder was committed at a school during school hours, when the murder was committed by exploding a bomb in a car in the middle of a street at rush hour).
  3. The murder was committed while avoiding or preventing a lawful arrest or when attempting to flee or escape from lawful custody. This contemplates circumstances such as a prison break.
  4. The murder was committed by exploding a device or bomb in the mail or while mail was being delivered.
  5. The victim was a peace officer or a federal law enforcement officer or agent, or a firefighter who was known to the victim to be a peace officer, federal law enforcement officer or firefighter and while performing their duties.
  6. The victim was a witness to a crime and was intentionally killed to prevent him or her from testifying.
  7. The victim was a judge or former judge and the killing was in retaliation for the performance of the judge or former judge’s duties or to prevent them from performing their duties.
  8. The victim was an elected or appointed official or former official of the federal or state government and the killing was in retaliation for the performance of their duties or to prevent them from performing their duties.
  9. The murder was committed in a manner that was atrocious, cruel or manifesting exceptional depravity. A person shows exceptional depravity when the crime was committed without pity or the killing was committed by unnecessarily torturing the victim.
  10. The victim was intentionally killed because of his or her race, color, religion, nationality, ethnicity or country of origin.
  11. The victim was a juror, and the murder was committed in retaliation for or to prevent the performance of the victim’s duty as juror.
  12. The accused was a member and active participant in a criminal street gang and the murder was committed to further the activities of the gang.
  13. The victim is an operator or driver of a bus, taxicab, streetcar, cable car, trackless trolley or other motor vehicle on land, rails or suspended in the air, and operated for hire, and while they are engaged in the performance of their duties.
  14. The victim is a station agent or ticket agent for an entity providing transportation and is deliberately killed while engaged in the performance of their duties.

Other than the actual killer, who else may be convicted of murder?

All persons who had intent to kill and aids abets, counsels, commands, induces, solicits, requests or assists another in committing murder in the first degree shall also be punished by death or imprisonment for life without the possibility of parole in the same manner as the person who committed the unlawful killing.

All persons who, with reckless indifference to human life and while acting as a major participant in the unlawful killing, aids, abets, counsels, commands, induces, solicits, requests or assists in the commission of the unlawful killing.

What penalty may be imposed if the convicted murderer was under the age of 18 when he or she committed the crime?

Under Section 190.5 of the California Penal Code, when the person convicted for first degree murder was under the age of 18 at the time he or she committed the crime, the penalty of death shall not be imposed.

If the person convicted of murder was over the age of 16 but under the age of 18, the penalty to be imposed may be confinement in state prison for life without the possibility of parole or 25 years to life depending on the discretion of the court and on evidence of special circumstances enumerated above.

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