Charged With Murder In California?

Under the California Penal Code, murder is defined as “the unlawful killing of a human being, or a fetus, with malice aforethought.” This is one of the gravest crimes you can be accused of. If you’ve been charged with murder, you are in very deep water and you need an experienced criminal defense attorney to defend you and make sure your rights are protected.


The prosecution has to prove that you are guilty beyond a reasonable doubt. This is actually a very high bar to meet and requires the prosecution to prove that the evidence is clear and persuasive that the defendant committed the crime, with no room for a reasonable person to disagree.

For murder, the prosecution must prove the following elements:

  1. The defendant caused the killing of another person;
  2. The defendant acted with malice aforethought; AND
  3. There was no excuse or justification for the murder

For the second element, malice can be express or implied. Express malice means that the defendant specifically intended to kill the victim. For implied malice, the defendant must have been doing something dangerous that they knew was likely to kill someone.

Degrees Of Murder

Murder is divided into first and second degree. First-degree murder is comprised of the following:

  • Murder committed with a destructive device or explosive, weapon of mass destruction, or ammunition designed to go through metal or armor
  • Poison
  • Lying in wait
  • Torture
  • Any other killing that was willful, deliberate and premeditated
  • Killing perpetrated in preparation of or attempt to perpetrate the following:
    • Rape
    • Arson
    • Burglary
    • Robbery
    • Mayhem
    • Kidnapping
    • Train wrecking
    • Killing that occurred from discharging firearm during a drive-by shooting

All other murders are considered second-degree murders.

The state of California also has what is called “special circumstances.” If a first-degree murder falls under a “special circumstances” category, then the death penalty can be imposed. The following are considered special circumstances:

  1. The murder was intentional and for financial gain
  2. The defendant was convicted of more than one murder
  3. The murder weapon was a destructive device, bomb, or explosion
  4. The murder occurred during an escape from law enforcement
  5. The victim was a peace officer
  6. The victim was a federal law enforcement officer killed during duty or because of their duty
  7. The victim was a firefighter
  8. The victim was witness to a crime and was killed to prevent their testimony
  9. The victim was a prosecutor
  10. The victim was a judge
  11. The victim was a current or former official of federal, local, or state government in an elected or appointed position
  12. The murder was particularly atrocious or cruel
  13. The defendant lay in wait to kill the victim
  14. The victim was killed because of their race, color, religion, nationality, or country of origin
  15. The murder involved torture
  16. The victim was killed by a poison
  17. The victim was a juror
  18. The murder was a drive-by shooting
  19. The murder was a gang shooting
  20. The murder was committed while the defendant was engaged in or was an accomplice to the commission, attempted commission, or flight after commission of any of the following felonies:
    • Robbery
    • Kidnapping
    • Rape
    • Sodomy
    • Performance of lewd or lascivious acts upon child under 14 years old
    • Oral copulation with someone under 18 years old
    • Burglary
    • Arson
    • Train wrecking
    • Mayhem
    • Carjacking

However, in 2019, California Governor Gavin Newsom issued a moratorium on death penalty cases. Thus, for now, the death penalty cannot be carried out in California.


  • First-Degree Murder: Punishment for first-degree murder can be the death penalty, imprisonment without the possibility of parole, or imprisonment for 25 years to life. For a murder that is considered a hate crime, prison for life without the possibility of parole is the mandated punishment.
  • Second-Degree Murder: Punishment for second-degree murder is 15 years in prison.

Murder Charge Defenses To Help You Win

Murder is the most serious crime. Only a skilled criminal defense attorney stands between you and significant prison time. A lawyer can determine what defenses may apply to your case. Some common defenses to murder include the following:

  • Self-Defense: The law recognizes the right to protect yourself. Thus, it is a defense to murder if you were protecting your own life. But this defense must be reasonable and proportionate to the situation.

Suppose A was fighting with B and B drew his gun on A. If A throws a knife at B and kills him, A probably has a good self-defense claim. If A was fighting with B and B threw a vase at A, A throwing a knife at B is not a viable act of self-defense because B was not endangering A’s life.

  • Defense Of Others: The law recognizes the right to protect others. If someone was threatening the life of a third party, you have the right to defend them just as you would yourself. However, again, that defense has to be reasonable in the situation.

For example, suppose a man was robbing a house and the owner comes downstairs and sees him. Scared and fearful of getting caught, the man charges at the owner with a knife to kill him. The owner’s wife grabs their gun. She shoots the man to save her husband. This would be a viable claim of defending someone else.

  • Innocence: While it may seem an obvious defense, you may be able to argue that you were not the person who killed the victim.

California Criminal Defense Attorney

If you are facing murder charges in California, your future has never been in greater jeopardy then it is now. There is no criminal prosecution more serious than murder. Fortunately, you do not have to deal with this situation on your own. The law says that you have the right to hire a lawyer to represent you against these allegations. And you will want an experienced attorney in your corner to defend you and safeguard your rights. Don’t risk your future. Instead, get in touch with the criminal defense lawyers at My Rights Law – Criminal & DUI Attorneys by calling (888) 702-8882 or by contacting us online now.