Criminal charges for first-degree murder and second-degree murder both require “malice aforethought”, which means you either had the specific intent to kill the victim or that you killed him or her in the absence of provocation.
See California Penal Code section 188 at: https://codes.findlaw.com/ca/penal-code/pen-sect-188.html.
Where the two offenses greatly differ, however, is in both the egregious nature of the killing and the absence/presence of deliberation/premeditation. Specifically, if you are accused of killing someone while committing a particularly heinous crime, or if you killed the victim in cold blood, then you will likely be tried for first-degree murder. All other murders will be charged as second-degree.
See California Penal Code section 189 at: https://codes.findlaw.com/ca/penal-code/pen-sect-189.html.
Homicide Crimes – Lesser Included Offenses of Second-Degree Murder
A second-degree murder conviction will often be offered – either by the prosecutor to you as a plea deal, or by the prosecutor or judge to jurors to give them more conviction options – as a lesser included offense when you’re facing a first-degree murder charge.
Conversely, voluntary and/or involuntary manslaughter might also be offered for the same reasons when you’re being charged with second-degree murder. For example, when legendary music producer Phil Spector was tried for the latter crime (twice – see below), the prosecutor requested that the judge give jurors the option of convicting him of voluntary manslaughter if they acquitted or hung on the second-degree murder count.
See California Penal Code section 192(a)&(b) at: https://codes.findlaw.com/ca/penal-code/pen-sect-192.html.
See also Judicial Council of California Criminal Jury Instructions (“CALCRIM”) number 570 (“Voluntary Manslaughter: Heat of Passion – Lesser Included Offense”) at: https://www.justia.com/criminal/docs/calcrim/500/570/; and CALCRIM number 580 (“Involuntary Manslaughter: Lesser Included Offense”) at: https://www.justia.com/criminal/docs/calcrim/500/580/.
“Attempted Second-Degree Murder”
There are technically two “degrees” of attempted murder just like there are with murder itself.
Specifically, to convict you of attempted murder, the prosecutor must be able to prove at trial that you:
intended to either kill or at least severely harm the victim, or
acted with wanton recklessness towards him or her, thereby endangering his/her life; and
took a direct step towards either killing the victim or committing the reckless act.
However, if the prosecutor can’t prove that your attempt to kill was deliberate or premeditated, then you’ll be convicted of “second-degree attempted murder” (a term of art), which typically results in a prison sentence of half the time the judge would otherwise hand down if you had been convicted of actually murdering the victim (again, in the second degree).
See California Penal Code section 664(a) at: https://codes.findlaw.com/ca/penal-code/pen-sect-664.html.
See also CALCRIM number 600 (“Attempted Murder”) at: https://www.justia.com/criminal/docs/calcrim/500/600/; and CALCRIM number 601 (“Attempted Murder: Deliberation and Premeditation”) at: https://www.justia.com/criminal/docs/calcrim/500/601/.
California Statutes Regarding Homicide Crimes – Second-Degree Murder
California Penal Code section 189
As mentioned above, this Penal Code section explicitly defines what crimes constitute first-degree murder and emphasizes that any other type of murder will be charged as second-degree.
Convictions and Sentencing Terms for Homicide Crimes – Second-Degree Murder
California Penal Code section 190
Under California Penal Code section 190(a), a second-degree murder conviction will get you a minimum of a decade-and-a-half in prison (not including any sentencing enhancements – see below), all the way up to life in prison with potential parole.
However, if the victim was a police officer acting within the scope of his or her law-enforcement duties and you knew (or should’ve known) that he or she was doing so, then your minimum punishment will be a quarter-century in prison, pursuant to Pen. Code § 190(b).
But if you specifically intended to kill him or her, or at least to severely injure him or her, then you’ll automatically get life with no parole (“LWNP”). Pen. Code § 190(c)(1)&(2).
You can also get life if you used a deadly weapon or firearm to kill the victim. Pen. Code § 190(c)(3)&(4). (This begs the question, then, as to why Phil Spector only received nineteen years instead of life – again, see below.)
Finally, a second-degree drive-by murder conviction comes with a minimum of two decades in prison. Pen. Code § 190(d).
California Penal Code section 190.05
If you were previouly convicted of first or second-degree murder, upon a subsequent conviction for second-degree murder, you’ll either get fifteen-to-life or LWNP, depending on the facts of the case.
Sentencing Enhancements – Homicide Crimes – Second-Degree Murder
A “special allegation” – if found true by your jury – will add significant prison time to your prison term for a second-degree murder conviction.
These allegations cover everything from the type of weapon you used (if any), the age of the victim, the purpose of the killing (e.g., to benefit a criminal gang), or even the race, ethnicity, or sexual orientation of the victim. For the latter, see California Penal Code section 190.03(a) at: https://codes.findlaw.com/ca/penal-code/pen-sect-190-03.html.
Three Strikes Law
Second-degree murder is considered a strike offense, which means that if you’ve previously been convicted of another non-murder strike offense, you’ll get an additional five years tacked on to your prison sentence.
If this is your second strike conviction, you’ll get an additional fifteen years (so a minimum of thirty years). Upon a third strike conviction, you’ll get a mandatory twenty-five-to-life term.
See California Penal Code section 667 at: https://codes.findlaw.com/ca/penal-code/pen-sect-667.html; see also California Penal Code section 1192.7: https://codes.findlaw.com/ca/penal-code/pen-sect-1192-7.html.
In addition, even if this is your first strike, second-degree murder is considered to be a “violent felony”, which means you’ll still have to serve at least eighty-five percent of your sentence, even with good behavior. Similarly, if this is your second or third strike, you’ll have to serve at least eighty percent, even with “custody credits” for good behavior.
See California Penal Code section 2933.1 at: https://codes.findlaw.com/ca/penal-code/pen-sect-2933-1.html.
This is an inadvertent killing committed during the execution of an inherently dangerous felony. Such a conviction will automatically get you LWNP, if not the death penalty. Typically, prosecutors will charge you with a felony-murder offense only if the murder itself is charged as first-degree.
However, under the following circumstances, a second-degree murder will also count as a felony-murder offense if:
you did in fact commit the inherently dangerous felony; or
you specifically intended to commit it (but for whatever reason were unsuccessful); and
your act in fact caused the victim’s death.
See CALCRIM number 541A (“Felony Murder: Second Degree—Defendant Allegedly Committed Fatal Act”) at: https://www.justia.com/criminal/docs/calcrim/500/541a/.
In fact, under this felony-murder theory, you can be convicted of second-degree murder even if you didn’t personally kill the victim, and even if the person – your accomplice – only did so accidentally, negligently, or inadvertently.
Specifically, the prosecutor needs to only establish the following to secure your conviction:
you did in fact commit, or tried to commit, conspired to commit, or provided assistance in the commission of the inherently dangerous felony; and
your accomplice did in fact commit (or tried to commit) said felony; and
him or her doing so caused the victim’s death.
See CALCRIM number 541B (“Felony Murder: Second Degree—Coparticipant Allegedly Committed Fatal Act”) at: https://www.justia.com/criminal/docs/calcrim/500/541b/.
See also CALCRIM number 541C (“Felony Murder: Second Degree—Other Acts Allegedly Caused Death”) at: https://www.justia.com/criminal/docs/calcrim/500/541c/.
It’s important to note that the main sentencing difference between a first and second-degree felony-murder is that the latter will not result in a possible death penalty. However, both can result in LWNP.
Defenses to Homicide Crimes – Second-Degree Murder Charges
Unless otherwise noted, the following are complete defenses to a second-degree murder charge:
your actions did not result in the victim dying;
your actions could not reasonably have been seen to be dangerous or deadly to the victim (partial defense – implied malice only);
you never consciously disregarded his or her safety or life (same);
the killing was legally justified or otherwise legal in California (see, e.g., California Penal Code section 195 at: https://codes.findlaw.com/ca/penal-code/pen-sect-195.html);
you reasonably acted to defend yourself or someone else from imminent danger (see, e.g., California Penal Code section 197 at: https://codes.findlaw.com/ca/penal-code/pen-sect-197.html);
you accidentally killed the victim, though not through your wantonness, recklessness, or criminal negligence (Pen. Code § 195);
you killed him or her while committing a legal act in a lawful manner (i.e., you acted reasonably at all relevant times);
you did not have malice aforethought (partial defense only – you could still be convicted of a lesser homicide offense, such as voluntary manslaughter);
you never wanted to harm the victim (same);
(10) the killing was a direct result of your having been involuntarily inebriated or drugged;
(11) you did get drunk or use narcotics of your own free will, which resulted in the killing (partial defense); and/or
(12) you were legally insane at the time of the killing.
See, e.g., CALCRIM number 520 (“First or Second Degree Murder With Malice Aforethought”) at: https://www.justia.com/criminal/docs/calcrim/500/520/; and CALCRIM number 522 (“Provocation: Effect on Degree of Murder”) at: https://www.justia.com/criminal/docs/calcrim/500/522/.
Examples of Homicide Crimes – Second-Degree Murder Cases
Five people convicted of Long Beach man’s death and burning his corpse and residence
In late January 2014, five individuals had recently been partying on a regular basis with Tom Taylor (age sixty) in his Long Beach mobile home. On the night of the 27th, however, Taylor told them he wanted to be alone, sparking a confrontation which resulted in all five people beating him to death.
They then burned his residence in an attempt to get rid of the corpse and the evidence of the murder. Following an investigation by Long Beach PD, all five were arrested within 72 hours of the killing. Consequently, four of the suspects were charged with second-degree murder and one with first-degree.
Twenty months later, on or about October 23, 2015, three of them – Diane Sequen (twenty-three), Joe Zolorza (twenty-one), and Dave Romero (thirty-one) – accepted guilty pleas to a greatly reduced charge of ADW (assault w/ deadly weapon) with an enhancement for causing severe physical injury. As a result, they were all immediately sentenced to eight-year terms in a state penitentiary.
The remaining two defendants took their chances at trial. In mid November 2015 and mid November 2016, Tony Paz (twenty-four) was convicted of second-degree murder, and Jazmin Montañez (thirty-seven) of first-degree, respectively. Montañez received a twenty-five-to-life sentence. Paz received a decade and a half.
Four men plead no contest to charges stemming from fatal home invasion in Downey
In mid January 2016, four men participated in a home invasion that resulted in the victim’s unintentional death. Specifically, on January 17th, two of them – Paul Misikei (twenty) and Sakaopo Folau (eighteen) – forced their way into the Downey residence of Jim Rudometkin (age fifty-nine), then beat and tied him up. The victim suffered a heart attack and died during the botched robbery.
Meanwhile, the third man – Henry Sao (twenty-nine) – entered the home, presumably to help burglarize it. An eyewitness saw the intrusion and called Downey PD. When he heard the sirens, the getaway driver – Mike Harrod (twenty-four) – drove off, leaving behind his confederates, who all fled on foot. Within forty-eight hours, all four men were arrested.
In early October 2019, all four defendants accepted the following nolo contendre pleas: second-degree murder for Misikei and Folau, and first-degree home-invasion-robbery for Sao and Harrod. The latter two received a half-dozen years in a state penal institution, and the former each got fifteen-to-life.
San Pedro man convicted of murder almost three decades after his victim’s body was found in P.V.
In early March 1980, the nude body of Theresa Broudreaux (twenty and pregnant) was found on a beach in an upscale enclave of Palos Verdes. An autopsy revealed that she had died as a result of blunt force trauma to her head.
The killer left DNA evidence on the body which came to light seventy-seven years later. This, in turn, led to San Pedro resident Bob Yniguez (who was twenty-nine at the time of the murder) being apprehended by LASD detectives at the end of September 2017.
Almost exactly two years later, he accepted a nolo contendre plea to a single charge of murder in the second degree. (If he had gone to trial and lost, he almost certainly would have been convicted of murdering the fetus, as well.) One month later, at the end of October 2019, he received a decade-and-a-half up to life behind bars.
Examples of Homicide Crimes – Second-Degree Murder Cases Involving Special Allegations
Temple City man gets 45 years to life for murdering local woman and injuring three others
Shortly after midnight on January 11, 2017, Temple City resident J.R. Perales (forty-five) broke into the El Monte residence of his estranged partner, an unidentified woman, then stabbed her and her son. Fortunately, they both survived.
Perales left and drove straight to the Temple City residence of Diana Alarcon (relationship unknown), where he got into an altercation with her and another man who was present at the home. Perales attacked both of them with a wrench, injuring them. He then stabbed and killed Alarcon, then fled. The injured man called 9-1-1, and shortly thereafter Perales was arrested by El Monte PD and LASD deputies.
Less than nine months later (on August 21st), Perales accepted guilty pleas to second-degree murder and three counts of attempted murder. On November 14th, he received a forty-five-to-life sentence, including enhancements for using a deadly weapon in all four crimes, and for having a prior strike (residential burglary).
Hawthorne drunk driver gets twenty years in prison for killing one man and injuring another
Shortly after midnight at the beginning of August 2015, Hawthorne resident Al Shaw (twenty-eight) got behind the wheel of his vehicle after drinking so much that his BAC was at least twice the legal limit.
He ended up driving the wrong way on a bridge in Long Beach and got into a head-on collision with another vehicle whose occupants – Mike Gonzalez (thirty) and a second unidentified man (twenty-one) – were instantly killed and severely wounded, respectively. Long Beach PD arrested Shaw at the scene.
Less than a year and a half later, in mid January 2017, Shaw was tried and convicted of all felony counts, including second-degree murder, as well as DUI causing injury with a prior DUI conviction within the preceding decade.
As a result, on or about March 7th, Shaw received two decades in a penitentiary, including enhancements for personally causing severe physical harm and having a BAC of at least .15%.
Hollywood resident murders his supposed boyfriend following a financial dispute in Koreatown
This was a murder sensationalized by several minor local media outlets as having been committed by the “gay trash bin killer”. Specifically, nineteen-year-old Merdan Haydarov and Randy Kreeger (forty-nine) were supposedly romantically involved at the time of the latter’s death.
The killing occurred several days before Thanksgiving 2013, when the two men got into an altercation over money at Kreeger’s K-town residence. The dispute turned deadly after Haydarov slashed Kreeger’s throat with some type of blade. Haydarov then chopped up the corpse, stuffed it into a suitcase, and discarded it in a dumpster in Hollywood.
On November 24, 2013, LAPD pulled over and arrested Haydarov while he was driving the decedent’s automobile. It took more than three years for Haydarov to be tried, which occurred in late January 2017.
Because there was no evidence that the killing had been premeditated, the jury “only” convicted him of second-degree murder with the special allegation that he used a knife or similar weapon during the crime. Ten weeks later he was sentenced to sixteen years (including one extra year for the special allegation enhancement).
Homicide Crimes – Example of a Second-Degree Murder Case Involving a Celebrity
Music producer Phil Spector
In early February 2003, on the night they first met at the Sunset Strip’s House of Blues nightclub, its hostess and former actress Lana Clarkson (forty) accepted an invitation by former superstar music producer Phil Spector (sixty-six) to visit his Alhambra estate. It remains unclear exactly why she went to his house but the consequences were tragic.
Specifically, after several hours of drinking at the mansion, Clarkson tried to leave, which triggered Spector’s infamous temper and penchant for gun-waving. He shot her in the mouth at close range with a .38 revolver. Spector’s limo driver heard the shot from the driveway, ran inside, and found Clarkson dead on the floor in a pool of blood.
LAPD quickly arrested Spector, who was charged with second-degree murder. He posted over a million dollars in bail and thereby avoided incarceration for the next six years. In 2007, his first trial ended in a hung jury.
The second trial began in late October 2008 and dragged on for five months, during which five women testified that Spector had pointed guns at them during their own disturbing encounters with him.
Cumulative In an attempt to counter that damning testimony, Spector’s lawyer tried to portray Clarkson as an emotionally unstable and desperate woman on the verge of suicide. Each side also presented dueling forensic experts who all claimed the blood splatters and other physical evidence supported their respective theories of what happened.
Finally, in mid April 2009, after almost a week and a half of deliberations, the jury returned with a verdict: guilty on one count of second-degree murder with a special allegation of discharging a firearm during the commission of a crime.
It was the first murder conviction of a major celebrity in LA in over four decades (with past humiliating losses for the DA’s Office including the Robert Blake and O.J. Simpson trials). Spector was immediately remanded into custody and sentenced six weeks later to almost twenty years in prison, including four years for the enhancement. He will be eligible for parole in 2025.
FYI, between the late 1950s to the early 1970s, Spector had been one of the most successful producers in the world, having worked with everyone from the Beatles to Tina Turner. In 1989, he was inducted into the Rock and Roll Hall of Fame.
The Los Angeles Criminal Attorney Law Firm (LADALF)
As a sixteenth-year veteran trial lawyer, LADALF’s founder Ninaz Saffari has defended clients charged with all manner of homicide offenses, including attempted murder, with typically outstanding results. Indeed, as of this writing (October 28, 2020), she is currently defending four clients in four separate cases:
People v. J.C.: premeditated attempted murder with special allegations of a felony committed for benefit of a criminal street gang and discharging a firearm – Criminal Courts Building in DTLA (maximum life sentence with no parole);
People v. D.B.: first-degree murder charge with special allegations of felony committed for benefit of a criminal street gang and discharging a firearm – Criminal Courts Building in DTLA (maximum life sentence with no parole) – see: https://homicide.latimes.com/post/ian-brown/;
People v. J.M.: first-degree murder for first alleged victim and attempted murder of second alleged victim, both with special allegations of discharging a firearm – Long Beach Courthouse (facing two life sentences with no parole) – see: https://losangeles.cbslocal.com/2017/01/13/man-charged-with-killing-woman-who-was-holding-toddler-shooting-her-husband-in-long-beach/; and
People v. R.N.: capital murder charges for two alleged victims, and premeditated attempted murder charge for third alleged victim – Long Beach Courthouse (two potential death-penalty sentences plus maximum life sentence with parole for third alleged victim) – see: https://www.dailybreeze.com/2019/09/19/man-girl-killed-in-wilmington-shooting-identified-as-police-continue-search-for-suspect/).
In addition, Ninaz’s four previous homicide cases were disposed of as follows:
People v. P.L. and Z.L.: each facing possible second-degree murder charge – Pomona Courthouse (potential minimum-15-year-sentence for each defendant); result: formal diversion for both clients followed by dismissal of all charges; see: https://abc7.com/pomona-toddler-hot-car-death-3-year-old-girl/798979/);
People v. Ryan. M.: second-degree murder charge – LAX Courthouse (facing potential life with parole); result: reduced to non-strike vehicular manslaughter, three years in prison, out in less than 18 months with time served and good behavior;
People v. T.M.: deliberate, premeditated attempted murder – Inglewood Courthouse (facing life with parole); result: charge dismissed at preliminary hearing; and
People v. K.E.: gross vehicular manslaughter – LAX Courthouse (facing ten years in prison, strike offense); result: reduced to misdemeanor reckless driving with injury, no jail, 300 hrs.’ volunteer work.