Murder | Degrees

To Prove That You Are Guilty Of Murder, The Prosecutor Must Show That:

  1. You committed an act that caused the death of another person or a fetus.
  2. At the time you acted, you had the state of mind known as "malice aforethought."
  3. You committed the act without lawful privilege, excuse or justification.

What Is Malice Aforethought?

"Malice" is a term of art in criminal law that does not match the layperson or dictionary definition. In other words, it does not refer to ill will, hatred or malevolence toward the victim. One can harbor none of those emotions and still be convicted of murder because they acted with the necessary mental intent.

This intent is known as "malice aforethought," which is bifurcated into "express" and "implied."

Express malice is the unlawful intention to kill. But someone can be guilty of murder if they act with implied malice, that is, the defendant intentionally committed an act, the natural and probable consequences of which endangered (and were known to the defendant to endanger) human life, and the defendant acted with a conscious disregard to human or fetal life. Therefore, you do not need to intend to kill the victim. You need only have committed an act that imperiled someone's life, i.e., dropping a cinder block from a freeway overpass, shooting into an occupied residence, inflicting severe bodily harm, etc.

What Is First-Degree Murder?

The prosecutor will charge you with first-degree murder if:

  • You killed someone during the commission of a specified felony (i.e., an "inherently dangerous" felony such as burglary, arson, rape, robbery, kidnapping or mayhem).

  • You killed someone with willfulness, deliberation and premeditation.

  • You killed someone by laying in wait, by infliction of torture or through the use of a destructive device or explosive (or other lethal agent specified in the Penal Code or Health and Safety Code)

There are special circumstances or aggravating factors that can elevate the crime to capital murder (punishable by death or life without the possibility of parole). These factors include the killing of a police officer or other specified public official, multiple murder, killing motivated by racial or religious bias and murder for the benefit of a criminal street gang, among others.

What Is Second-Degree Murder?

Any murder that does not fall into the category of first-degree murder is second-degree murder. Typically, these murders involve homicides that occur as a result of the "abandoned and malignant heart" of the defendant; in other words, homicides that involve an inordinately high degree of recklessness and carelessness. For example, if you have been convicted of DUI and subsequently kill someone in an accident while you are driving under the influence of alcohol or drugs, you may be charged with this crime. Other examples involve shooting a firearm into a dwelling, throwing a cement block from a freeway overpass or any other act that you should have known would endanger human life and you disregarded that risk by committing it anyway.

Murder – Defenses In California

Ernenwein & Johnson, experienced Los Angeles criminal defense lawyers, are skilled at thoroughly reviewing police reports, witness statements and any available forensic and other evidence. In murder cases, we use an investigator to interview witnesses. Our review of discovery and witness interviews may yield evidence that shows your innocence or diminishes or weakens the prosecution's case against you. Depending on the facts and circumstances of your case, we may use any of the following defenses on your behalf.

No. 1 Mistaken Identity Argument

In some murder cases, a mistaken identity defense can be used. The criminal defense attorney would argue that the wrong individual was charged for the murder. To prove that the wrong person was in fact charged, the defense lawyer can offer an alibi. In addition — or if an alibi is not available — the attorney can provide evidence that proves that the defendant was somewhere else at the time of the killing, that another person killed the individual, that eyewitness testimony is flawed, that forensic evidence is flawed in some manner, etc.

Often, a suggestive or prejudicial photo or in-person lineup can cause a witness to erroneously single you out as opposed to the actual perpetrator, leading the police to suspect you of the murder. We can challenge the police methods that led to your identification and demand a live lineup to verify whether the witness can actually identify you as the suspect.

No. 2 Self-Defense Argument

In other murder cases, a criminal defense lawyer may use a self-defense argument. To prove this argument, however, the defense lawyer must show that the defendant used a timely and reasonable amount of force as defense. In other words, the force used by the defendant was proportional to the perceived threat.

The force used must be commensurate with the force you or a third party was in danger of sustaining. You cannot react to a threat of nonlethal force with a lethal response (i.e., using a gun in response to a threat of an unarmed attack). Also, you cannot use lethal force to defend against a legally privileged attack, such as the threat of lawful force by a police officer.

A successful argument asserting self-defense or defense of others will allow us to secure your acquittal at trial or a pretrial dismissal of your charges through conference with the prosecutor.

If you used force that was not measured to the threatened attack, but you still harbored an honest and good faith belief that you were about to sustain lethal force, we may be able to argue "imperfect self-defense." Although this may not entirely absolve you of the homicide, it will give us an opportunity to secure a substantial reduction of the crime (i.e., from murder to voluntary manslaughter).

No. 3 Defense Of Others Argument

Another defense that can be used in murder cases is the "defense of others" argument. Once again, the criminal defense lawyer must prove that the force used by the defendant was timely and proportional to the perceived threat.

No. 4 Mental Health Issues

You may have heard that the insanity defense has been abolished. This is not entirely true. Under the so-called M'Naghten Rule, we may be able to argue that the defendant killed the victim only because they did not understand the nature of the act or could not distinguish between right and wrong. This often happens in instances arising out of postpartum depression or other serious mental disease that figuratively renders the defendant's mind "hostage" to impulses reflective of the mental illness.

No. 5 Inadmissible Statements

We will also look into whether the charges arise out of a confession or other admission or inculpatory statement. If the confession was the product of coercion (for example, if the police made threats against you or your family) we can motion the court to exclude the inculpatory statement. If the police had you in custody at the time and were interrogating you about a murder, and you made a confession without having been read your rights, we can motion the court to exclude that confession based on a violation of your Fifth Amendment right against self-incrimination.

No. 6 Mitigation

There may also be circumstances in mitigation. If you or a loved one was actually involved in a homicide, but the killing arose "in the heat of passion," we can argue that the murder charges must be dismissed and that the case should be reduced to voluntary manslaughter. For example, if you witnessed your spouse in the midst of intercourse with another individual and you concurrently or very shortly thereafter committed the homicide, we can argue that your passions were inflamed and that you did not have sufficient time to cool off and react more calmly to the situation.

There are a host of issues we can evaluate based on our analysis of the police reports, witness statements and other evidence both on file and uncovered during our investigation. Based on our findings, we may be able to thwart a criminal prosecution in court or achieve acquittal at trial.

The team at Ernenwein & Johnson includes aggressive, compassionate and experienced Los Angeles criminal defense lawyers with over 40 years of combined experience defending those accused of murder.

Stephanie and Robert are both former Los Angeles Deputy District Attorneys and Robert is Certified as a Criminal Law Specialist by the California State Bar Board of Legal Specialization. The experience and capabilities they will bring to your murder case are tremendous.

Call us immediately at 424-552-3901 for your free consultation.