(California Penal Code sections 187, 189, 190.2, 192 & 664 PC)

Homicide offenses all involve the unlawful and unjustified killing of a human being.  Depending on your state of mind at the time of the homicide (or attempted homicide), you can be charged with varying degrees of murder or manslaughter.  Accordingly, the range of these crimes goes from a purely accidental killing up to premeditated murder-for-hire plots with potential death-penalty consequences.

Depending on the circumstances, as indicated above, you can be charged with involuntary manslaughter, vehicular manslaughter, voluntary manslaughter, second-degree murder, first-degree murder, or capital murder.

Manslaughter is essentially murder with the presence of one or more explicitly codified mitigating factors, or, alternatively, an accidental killing with at least one aggravating factor (see below).  Manslaughter is rarely charged as an actual count, but is typically offered as what’s called a “lesser included offense” – i.e., a less punitive option – for the jury to decide and vote upon at trial.

Murders (i.e., first and second degree) are strike offenses under California’s “Three Strikes” law (Calif. Penal Code section 667), which provides for certain sentencing enhancements that can as much as double what you would otherwise receive if the crime you were convicted of had not been charged as a strike.

Murder charges can also apply to co-conspirators and accessories who participated in the killing, or who aided and abetted either beforehand or thereafter, but who did not actually take the victim’s life him/herself.

In addition to the penalties discussed below, all homicide-related convictions will subject you to a lifetime ban on owning, using, or possessing firearms, as well as other punitive consequences.

Second-Degree Murder (187 PC)

Second-degree murders concern those homicides where the defendant killed the victim but did so without deliberation or premeditation (and which otherwise would not fall under the descriptions of first-degree and capital murders – see below).  Alternatively, and more generally, second-degree murder will be charged in those unlawful killings where the defendant lacked the “specific intent” to commit murder, but otherwise engaged in some intentional act that resulted in an unlawful killing.  For example, suppose you entered into mutual combat with another patron in a local bar, but you became so enraged that you ended up stabbing him to death with a broken beer bottle.  You would definitely be charged with second-degree murder in this instance.

Finally, you can be charged with second-degree murder if another’s death resulted from you acting in such a manner as to exhibit a conscious disregard for the victim’s welfare.  For example, if you intentionally left your infant in the back of a hot car while you transacted business inside your meth dealer’s house, and the infant died because you forgot about her, you would likely face a second-degree prosecution. 

So, too, if you killed someone while driving heavily intoxicated, despite your long list of DUI convictions and despite you doing so with a suspended license.  In other words, common negligence (i.e., our legal duty as Californians not to expose others to an unreasonable risk of harm) with an ensuing death will not justify a second-degree murder charge, much less prosecution.

Excluding any sentencing enhancements, a second-degree murder conviction will land you in prison for a minimum of fifteen years to life, with the possibility of parole.

First-Degree Murder (187 PC)

A first-degree murder charge involves what is called a “special allegation” – i.e., any fact that indicates premeditation and/or deliberation on the accused’s part.  For example, if your ex-spouse’s apartment-complex CCTV security cameras captured you waiting in her bushes for fifteen minutes before you jumped out and shot her to death, then that video footage would clearly evidence premeditation and deliberation.  As far as a criminal prosecution, the Deputy DA typically only needs to prove that you had the opportunity to deliberate beforehand, regardless of whether or not you actually did so.

Notwithstanding, a murder with special allegations is significantly more difficult for the prosecutor to prove than any of the other homicide crimes because he or she must prove beyond a reasonable doubt that the accused had the specific intent to commit cold-blooded murder (i.e., he or she “harbored an intent to kill”).

Alternatively, however, a first-degree murder charge will stick if, during the commission of what is termed an “inherently dangerous felony” (such as bank robberies, car jackings, home invasions, etc.), either you or one of your cohorts killed a person.  This is commonly known as the “felony-murder rule”.  Until relatively recently (see below), in California there had been a number of first-degree murder cases where the victim was the defendant’s own crime partner, including where the partner was shot to death by police. 

That all changed with the enactment of California Senate Bill 1437 on January 1, 2019 (sponsored by Gov. Jerry Brown), which mandated that first-degree murder charges be limited to those situations where there was a premeditated intent to kill during the commission of an inherently dangerous felony.  (It also meant that thousands of prisoners convicted under the old felony-murder rule could now petition the courts to have their sentences reduced or even commuted.)

A first-degree murder conviction results in a mandatory-minimum sentence of twenty-five years but comes with the possibility of parole once eighty-five percent (twenty-one-and-one-quarter years) of your sentence is completed (again, per California’s Three Strikes Law).

Capital Murder (190.2 PC)

Lying in wait beforehand or executing someone pursuant to a contract-murder arrangement are each considered to be just two of numerous “special circumstances” justifying capital murder charges in California.  (Thus, capital murder is a sub-category of first-degree murder.)  In fact, murdering anyone for the purpose of financial profit can result in a death penalty case.  So, too, will torturing the victim prior to the killing, using an explosive device, or killing someone as part a hate crime.  Being charged with what is technically referred to as “first-degree murder with special circumstances” means that you could ultimately end up on San Quentin’s fabled “Death Row”.

Capital murder charges are supposed to be reserved for only the most heinous murders in the state, although many innocent men have undoubtedly been executed since California first instituted the death penalty in 1851.

Keep in mind that it’s within the prosecutor’s discretion (or, more realistically, that of his top boss, the actual District Attorney) to charge you with capital murder as opposed to first-degree murder – or even second degree, for that matter.

Even if you don’t receive the death penalty, a capital murder conviction comes with a mandatory life sentence without possibility of parole.

Defending Murder Charges

The key to defeating a first-degree murder charge is to convincingly challenge the prosecution’s evidence that you had the opportunity to reflect upon your intent to kill the victim, and then proceeded to kill him or her.  It will be left to the jury to determine precisely how long of an opportunity is required to merit conviction. 

In other words, you lacked what’s known as “malice aforethought”, which breaks down into either: (a) express malice, in which you harbored the intent to kill before taking the victim’s life; or (b) implied malice, wherein you did not intend to kill the victim but acted with such a callous disregard for his or her life as to be equivalent to intent.

For example, if the Deputy District Attorney prosecuting you presents evidence that you killed the victim with a knife you intentionally carried with you into the latter’s house, then you’d better have legitimate counter-evidence that you only did so because you feared for your own safety.  This counter-evidence could come in the form of witness statements, or even a pending assault case wherein the victim previously attacked you.

If our counter-evidence is particularly compelling (and, hopefully, indisputable), we may even want to share it with the Deputy DA early on if he or she appears amenable to mitigating the original charges (from first-degree down to second-degree murder, or from second-degree down to manslaughter). 

Or even if you did intent to kill the victim, perhaps you did so only and immediately after a heated argument, so therefore you did not have an opportunity to coolly reflect on killing him or her.  This is occasionally referred to as “the heat of battle” defense.

Alternatively, you could present evidence – possibly with the help of an expert witness – that at the time of the killing, you were not engaged in an act which had a high probability of resulting in death.

The most complete defense to murder charges (first or second degree) is that the homicide was legally justified.  If you kill someone whom you reasonably believed was going to imminently attack you or a third party, you may even have the absolute defense of self-defense.

Far less common but nevertheless viable defenses to murder charges include involuntary intoxication, where someone, for example, slipped something into your drink at a bar, which later turns out to be liquid LSD.  Later that night, without realizing what you were doing, you drive home but slam into a pedestrian, killing him.  Not only would you be innocent of murder, but any other potential crimes as well.

Finally, killing someone purely by accident is not prosecutable so long as you were acting in a lawful manner at the time, did not have the intent to harm or kill the decedent, and otherwise were acting in a non-criminally-negligent manner.

Sources: Pen. Code § 187, 189 PC & CALCRIM jury instruction 521.

How Ninaz Saffari Prefers to Fight Murder Cases

Although “overcharging” a crime (charging first instead of second degree, or second degree instead of manslaughter) is certainly a common practice among prosecutors, nowhere is it more prevalent than in regards to homicide crimes.  They do so in order to terrify the defendant so much that he or she will accept a terrible plea bargain simply to avoid increased prison exposure. 

Conversely, many weak and ineffectual defense attorneys will increase the pressure on their own client to accept a bad deal simply because the attorney doesn’t want to put in the enormous amount of work required to adequately defend a murder case.  So when we accept a murder case, we do so knowing that we will be devoting a large percentage of our time for the next year or two to fighting the prosecution every step of the way.  But fortunately, the law is on our side…

Without a doubt, the most important element a prosecutor has to prove to a jury to secure a murder conviction is the defendant’s intent (a.k.a. state of mind).  Therefore, our first priority in preparing our client’s defense – assuming there is no question that he or she did, in fact, kill the victim -- is to compile as much evidence as possible that supports our position that our client harbored no such intent beforehand.  This compilation may entail hundreds of hours of intensive, thorough investigation, including from our private investigator. 

For example, if our client had received death threats from the victim in the weeks leading up to the killing, and our client had been growing increasingly terrified of him or her, then we would want to interview every potential witness to statements made by both parties.  If the victim had threatened to shoot our client with, say, a particular pistol, then we would want documentation that proves the victim did, in fact, own that specific firearm (and which would, therefore, bolster our arguments).

Or, in cases where one of the key facts in dispute involves the location of the defendant at the time of the killing, then we would pull data from every conceivable source to establish our client’s innocence.  This would include pings from local, triangulated cell-phone towers; social media postings; texts and instant messages; CCTV footage (both public and private); GPS tracking; credit card or ATM transactions; ride-share trips; and, of course, eyewitness identifications.  We would also bring to the defense team highly respected experts with impeccable credentials and access to cutting-edge technology to interpret this data for a jury.

Or, if the prosecutor is attempting to inaccurately portray our client as, say, a gang member prone to violence, then we would go to extreme lengths to prove that just the opposite is true.  Ideally,  we would be able to call to the stand numerous relatives, friends, and associates of our client to testify as to his peaceful demeanor.  We could also present evidence that our client has no prior crimes of violence on his or her record, that he or she goes to school or works full-time, and, hopefully, evidence that he was not actually a gang member or associate.

Attempted Murder (664 PC)

If you specifically intend to unlawfully kill someone and take at least one significant step towards that goal but are ultimately unsuccessful, then you will be tried for attempted murder.  Even if you change your mind at some point during the incident, so long as you took that first direct step towards committing murder, you can be convicted for the attempt.

This is a strike offense, which will require you to serve all but fifteen percent of your prison sentence if you are convicted.  (In certain extreme cases, your sentence might actually double if you’re charged with a strike offense.)  Depending on the nature of your attempted murder conviction, as with the completed crimes described above, the charge will also be either first or second degree.  The former comes with a possible life sentence.  With the latter, the sentence can range from five, seven, or nine years, excluding any penalty enhancements.  All the ancillary penalties discussed above will also apply to attempted murder convictions.

For example, Riverside County prosecutors alleged that in early December 2019, defendant Paul S. Otto walked onto the property of his former residence to steal a car in Riverside County.  In the process, prosecutors claimed that Otto violently attacked and injured his former landlord after trying to strangle him to death, after the victim, age eighty-three, tried to resist.  Charged with attempted murder (among other felonies), if convicted, Otto will likely receive the maximum fifteen-year sentence as a result of these particular circumstances.  Further, this conviction will fall under our Three Strikes Law and, therefore, force him to serve no less than eighty-five percent of his sentence, even with good behavior.  It is the robbery aspect that invokes this special sentencing enhancement.  So, too, does the fact that Otto had allegedly been convicted of numerous prior violent crimes.

Sources: Pen. Code § 664 PC & CALCRIM jury instruction 600.

Involuntary Manslaughter (192b PC)

If you kill someone in what is ultimately determined to be a justified but nevertheless unlawful manner, then you will face an involuntary manslaughter prosecution.  For example, you beat a man to death after he attacked your wife, but you went too far in defending her.  Or perhaps in that instance, you had voluntarily consumed a great deal of alcohol and so, therefore, were unable to formulate a specific intent to kill. 

Involuntary manslaughter is basically the killing of another person caused by your own criminal negligence. 

Vehicular Manslaughter (192c PC)

A subset of involuntary manslaughter is known as vehicular manslaughter, where you kill someone while driving in a criminally negligent manner.  If you kill someone while driving while intoxicated or under the influence of some illegal substance, but you have no DUI’s on your record, you will be charged under this statute.

Unlike other homicide-related crimes, vehicular manslaughter is a wobbler, meaning that the Deputy DA can charge it either as a felony or misdemeanor, depending on the particulars of the case.

Voluntary Manslaughter (192a PC)

This charge involves the unjustified killing of another person without premeditation, deliberation, or even the intent to kill the victim.  For example, if you were an inmate in a county jail who beat another inmate to death because you mistakenly and unreasonably believed he was going to kill you, then you would likely face a voluntary manslaughter charge.  This is known as “imperfect self-defense”.  Heat-of-passion defenses often come into play in these types of cases.

A conviction for voluntary manslaughter (a felony) can result in prison sentences of three, six, or eleven years, excluding any sentencing enhancements.  Involuntary manslaughter (also a felony) will result in two, three, or four years in state prison.  The same additional consequences for murder convictions will apply to manslaughter, as well.

For example, in late-July 2018, Sunnyvale resident George T. McCartney was alleged by prosecutors to have strangled the victim (co-worker Raynard Hyde) to death in a drunken rage at a public park in Santa Clara.  In early December 2019 (two days before the scheduled preliminary hearing), McCartney pled no contest to one count of voluntary manslaughter.  If convicted, he will almost certainly receive four years, excluding any possible enhancements.

But even voluntary manslaughter convictions can result in what could amount to a life sentence for someone in poor health.  For example, in 2018, former rap-music mogul and alleged crime kingpin Marion “Suge” Knight was sentenced to 28 years in prison after accepting a guilty plea for voluntary manslaughter after he admittedly plowed into the decedent with his truck then drove away from the scene where the movie Straight Outta Compton was being filmed in 2015.  However, the plea also disposed of a robbery case, as well as other charges stemming from the hit-and-run incident, as well as prior alleged crimes. 

Sources: Pen. Code § 192 (a) & (b) PC & CALCRIM jury instruction 570.

A Few of Our Firm’s Past Murder/Attempted Murder Cases:

Second-degree murder/strike, facing life sentence – reduced to manslaughter, three years only

People v. R.M.: Our client had been arrested and charged with second-degree murder – a strike offense – and facing a maximum life sentence after he struck and killed a bicyclist with his vehicle – despite the fact that even though our client had been drinking earlier, his blood-alcohol level was under the legal limit at the time he was tested.  He had a .07, which is just under the .08 BAC required to obtain a DUI conviction.  However, the felony charge resulted from his prior DUI conviction.  With the help of our outstanding accident reconstructionist, we were able to prove to the DA’s Office that the incident was entirely the result of an accident and that our client’s BAC level had nothing to do with it.  As a result, we were able to convince the DA’s Office to give us a plea for felony vehicular manslaughter with a three-year sentence.  With good behavior, he would have been out of prison in as little as twenty-four months.

Vehicular manslaughter – jail & loss of career – deal: reckless driving w/ injury, no jail

People v. K.E.: Our client was arrested for vehicular manslaughter, and was facing not only jail and the loss of a top-level federal security clearance, but deportation as well (she was not an American citizen but had a green card).  We worked with an accident reconstructionist who prepared a detailed report proving that the other driver had been at fault due to excessive speed.  After presenting the report to, and meeting with, the prosecutor, and after informing the judge that we were ready to proceed with trial, the charge was knocked down to reckless driving with injury, no jail, and three hundred hours of community service.  As a result, our client continued to progress in her career and remained legally in the US.