Generally, homicide is the killing of one human being by another. Murder, both first and second degree and those with special circumstances, voluntary manslaughter, and involuntary manslaughter are common types of homicide cases. Cases in which a person has died in an automobile accident under certain circumstances may result in a vehicular manslaughter prosecution, or possibly a murder charge.
In California, murder is defined at Penal Code section 187, subdivision (a) as “the unlawful killing of a human being, or a fetus¸ with malice aforethought.” “Malice” is defined at section 188. Malice may be either express of implied. “It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”
Section 189 addresses the “degrees” of murder.
All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.
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To prove the killing was “deliberate and premeditated,” it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.
Penal Code section 192 defines voluntary, involuntary and vehicular manslaughter, and section 191.5 defines gross vehicular manslaughter while intoxicated. Manslaughter is the “unlawful killing of a human being without malice.” Voluntary manslaughter is defined in section 192, subdivision (a) as a homicide committed “upon a sudden quarrel or heat of passion.” Involuntary manslaughter is defined in subdivision (b) as a homicide “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply acts committed in the driving of a vehicle.”
Vehicular manslaughter is defined as follows in paragraphs (1), (2) and (3) of subdivision (c) as:
Except as provided in subdivision (a) of section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to a felony, and with gross negligence, or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.
Driving a vehicle in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.
Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550 [causing or participating in an auto accident to present a false claim], where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision does not prevent prosecution of a defendant for the crime of murder.
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Penal Code section 191.5 defines and provides punishment for gross vehicular manslaughter while intoxicated. The definitional subdivisions, (a) and (b), provide:
Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.
Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where he driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code , and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.
Also, murder under section 188 may be charged by a prosecutor who reasonably believes that the facts of a drunk driving accident involving homicide show wantonness and a conscious disregard for life supporting a finding of implied malice, or facts showing malice consistent with the California Supreme Court's holding in People v. Watson (1981) 30 Cal.3d 290.
The punishments for the different types of homicide vary greatly. First degree murder generally is punishable by an indeterminate term of 25 years to life in state prison. Second degree murder generally is punishable by an indeterminate term of 15 years to life in state prison. The presence of certain circumstances (as opposed to the legal term “special circumstances”) may elevate the punishment of first or second degree murder. (Penal Code section 190.)
Voluntary manslaughter is punishable by imprisonment in the state prison for either 3, 6, or 11 years, while involuntary manslaughter carries a possible 2, 3, or 4 years term of imprisonment pursuant to subdivision (h) of section 1170. Vehicular manslaughter under section 192, subdivision (c)(1) is punishable by imprisonment in the county jail for up to one year or by imprisonment in the state prison for 2, 4 , or 6 years. Section 192, subdivision (c)(2) is punishable by imprisonment in the county jail for not more than one year. Section 192, subdivision (c)(3) is punishable in state prison for 4, 6, or 10 years.
Gross vehicular manslaughter in violation of section 191.5, subdivision (a) is punishable in state prison for 4, 6, or 10 years, unless the defendant has certain qualifying prior convictions that increase the penalty to 15 years to life in state prison. A violation of section 191.5, subdivision (b) may result in either imprisonment in the county jail for not more than one year, or pursuant to subdivision (h) of section 1170 for 16 months, 2 years, or 4 years.
Generally, the court may grant probation to defendants in manslaughter cases where the facts tend to support a grant of probation, but not in murder cases.
The punishment for attempted murder, as for attempts to commit crimes generally, is set forth in Penal Code section 664. A person convicted of attempted willful, deliberate, and premeditated murder is to be punished by imprisonment for life with the possibility of parole. However, absent those findings, the punishment for any other attempted murder in which the punishment for the completed crime is life imprisonment or death, is five, seven, or nine years in state prison. The punishment for attempted murder of certain governmental officers, peace officers, or their immediate family, either in retaliation or to prevent them from performing their duties is fifteen years to life in prison. (Penal Code section 217.1.)
Homicides may also be justifiable or excusable. Homicide may be excusable in the case of certain accidents in which a person dies, and the other person was acting lawfully, was exercising ordinary caution, and had no unlawful intent. (Penal Code section 195.) Homicide may be justifiable, as in the case of reasonable self-defense or defense of others. (Penal Code section 197.)
A person who kills another in the sincere, but objectively unreasonable belief that deadly force was necessary to prevent harm, may be found guilty of voluntary manslaughter rather than murder. This is called unreasonable self-defense. A homicide that would otherwise be murder, if committed in the “heat of passion”, is voluntary manslaughter.
An insanity defense may be asserted in cases in which counsel believes the facts support the conclusion that when the defendant committed the crime he or she had a mental disease or defect, and because of the mental disease or defect, he or she did not know or understand the nature and quality of his or her act or did not know or understand that his or her act was morally or legally wrong. Drug or alcohol use may often play into this defense, but special considerations apply which will not be discussed here.
I have had notable success in representing folks charged with murder, including dismissals, victories at the preliminary hearing stage and at trial, and I have negotiated many plea bargains in which a defendant charged with murder pled to the lesser crime of manslaughter.
Special circumstances and the Death Penalty
As of today, California is one of the states that still provide a death penalty for certain “special circumstances” cases. These same special circumstances, if found true, also require a term of life in prison without the possibility of parole in cases in which the District Attorney is not seeking the death penalty or the jury does not return a “death” verdict. An extensive review of special circumstances and the death penalty is beyond the scope of this summary. Interested folks should review Penal Code sections 190.1 through and including 190.9, as well as the sections that pertain to murder generally, for the statutory scheme that applies in special circumstances cases. The California and federal decisional law relating to the death penalty also is extensive and complex, and imposes extraordinary responsibility on counsel who chooses to represent people in death penalty cases.
As an attorney with extensive experience in representing people charged with murder, I have handled special circumstances cases of both kinds – where a District Attorney was seeking death, as well as those in which the District Attorney was not seeking the death penalty. Whether or not the Death Penalty survives in California in the future, special circumstances cases will remain. If you are seeking counsel with experience in these the most serious of crimes, please do not hesitate, but call me now.