Murder Law in California - Penal Code 187 PC 

Early in my criminal defense career, I decided to try some of the most severe cases to have as much experience as possible and be the criminal defense attorney around. 

Many murder cases are prosecuted in Los Angeles County and the San Fernando Valley because of the vast population.  There's a lot of action, and many of these murders are prosecuted either in the Van Nuys court or the San Fernando court. California Penal Code 187 defines the crime of murder.

If it's a high-profile murder or severe enough, they will send the case to downtown Los Angeles for the prosecution at the central hub court, 210 West Temple. I've handled hundreds of murder cases over the last 25 years and have a pretty good idea of how they're prosecuted.  I think the first look is to see whether they can get a murder conviction (CALCRIM 520), and if they feel they can, they will file the case as either first or second-degree murder, depending on whether it was planned and what the facts and circumstances are surrounding the case.

This was almost 25 years ago, and I tried a lot of murder cases both from a trial standpoint and a negotiation point of view. Once the prosecutors file a murder charge against someone, I noticed that they usually would not back off the charge, and I tried many murder cases to a jury. This gave me the experience I sought and has honed me into the trial attorney I am today.

In my opinion, murder cases under California Penal Code 187 are the ones that require the best criminal defense attorneys who are ready to pull out all of the stops for their clients. The prosecutors will usually assign their best attorneys to these cases and spare no expense in their prosecution. Unfortunately, this also means they play to win, and a defense attorney who wants to challenge them better be up to the task, or they and their client will get steamrolled.

I believe in getting right to the point in these cases and not mixing words when it comes to the defense of my clients. You will find that juries appreciate it when you lead with your best argument, ask many questions, and look like you are doing something.

I only challenge the witnesses with something essential to do with the case. If the witness is a meaningless witness that does not damage my client's position, then I rarely will waste the jury's attention on the witness so that I can ask many meaningless questions. When I ask questions, I want the jury to say, “Oh, here we go, some action that we can pay attention to.” Then, by the end of the trial, they will know I am serious about representing my client, getting right to the point, and not messing around.

What Do Prosecutors Have To Prove in a Murder Case?  

I often see murder cases over filed and tell the prosecutors that they should not have charged my client with murder under the circumstances of the particular case. Sometimes I will show them the issues with their patient; other times, I will not if I believe they will never get rid of the murder charge and use the information I give them to try and fix their case.

Believe it or not, this happens all of the time. I show them that a witness has lied or embellished their story and instead consider it to resolve the case; they talk to the witness and try and help them fix their story. It has taken me many years to perfect when to speak to them, what to say, and when to keep my mouth shut and destroy their witness and case.

Murder is the most severe crime, and most people convicted of murder will never be released from prison. Therefore, you must hire an attorney with extensive experience dealing with murder charges. We have a combined 75 years of experience and have the skill, knowledge, and tactic far exceed other criminal defense attorneys.

Murder cases are difficult to defend because the system treats them with high resources by assigning the best detectives and prosecutors. Because life has been lost in a murder case, public policy demands that the prosecutors do everything they can to convict the person facing the murder charges. They have plenty of resources available to get the job done, and very few defense attorneys can match them…that is where we come in.

First-degree murder is when an intentional death results due to malice aforethought, premeditation, and deliberation and can result in:

  • Life imprisonment or the death penalty
  • No possibility of parole

Second-degree murder is a homicide that is intentional, without malice, premeditation, or deliberation and takes place in the heat of passion, and can result in:

  • Life imprisonment
  • Possibility of parole after 15 years served

Suppose you are being charged with murder to any degree. In that case, the fact of the matter is that retaining an aggressive, experienced criminal defense attorney is crucial to the outcome of your case. We have not only handled murder cases but have gotten clients reduced and even dismissed due to our persuasive and aggressive defense strategy. Your constitutional rights are fundamental to us! We will do everything we can to get you the most favorable results. 

Voluntary Manslaughter or Assault with a Deadly Weapon

I see many of these murder cases being prosecuted, so they probably shouldn't be.  For example, people often really shouldn't be charged with murder, and it's more of a voluntary manslaughter situation or assault with a deadly weapon situation.  It shouldn't be prosecuted as a murder case. But the prosecutors — once they slap that murder charge on somebody, put a lot of pressure on that person because now the person is potentially looking at a back-end of life imprisonment.

For second-degree murder, it could be 15 to life imprisonment.  For first-degree murder, it can be 25 to life, and if somebody used a weapon, that could add another 25 years potentially on the back of somebody's sentence. So, with those numbers being thrown around, the prosecutors in these cases are in a strong negotiating position because the person is looking at so much time in custody.

One of Ronald Hedding's Case Results

Our client was charged with first-degree murder and several other serious crimes. He admitted to the police that he fired the weapon (that was recovered, test-fired…and determined by an expert to be the weapon used in the killing).

After an approximately week-long trial, the jury found our client not guilty of murder and all other charges. Before the problem, because of the overwhelming evidence, the defense offered to plead guilty to second-degree murder, which would have carried a sentence of 15 years to life, and the head prosecutor refused. This case exemplifies what a skilled defense attorney can do to an unprepared / outmatched prosecutor's case.

Penal Code 187 – Murder

The charge of Murder is defined in California as “The unlawful killing of a human being or fetus with malice aforethought” (CA Penal Code 187). Malice aforethought means that the one committing the act intended to kill their actions naturally would lead to death, and they acted with conscious disregard for human life. In California, we have adopted three different degrees of murder, which affect anyone found guilty.

1ST DEGREE MURDER

A person can be convicted of 1st-degree murder if they perform any of the following three acts:

  1. Committed murder using poison, explosives, armor-piercing ammunition, torture, or waiting for a person.
  2. Murdering willfully, pre-meditated, and deliberately.
  3. Murdering while in the commission of felony arson, robbery, burglary, carjacking, train wrecking, kidnapping, mayhem, torture, rape, sodomy, forcible penetration, OR lewd acts with a minor.

2ND DEGREE MURDER

A person can be found for second-degree murder for any murder that is not deliberate or premeditated. This degree can be applied through the commission of a felony where someone dies. However, it only covers felonies that cannot be committed without creating a substantial risk of death or harm to another.

CAPITAL MURDER

Capital Murder is a form of first-degree murder that is performed with any of the following enhancements:

  1. Murdering a Police officer, Firefighter, Juror, Judge, Prosecutor, or elected official
  2. Murder by a drive-by
  3. Multiple murder
  4. Murder for race, color, religion, etc.
  5. Murder for financial gain.

Capital murder is punished more heavily than standard first-degree murder. Those found for this charge will be sentenced either to death or state prison for life without the possibility of parole.

California Jury Instruction 520 Murder or Homicide – Penal Code Section 187

California jury instruction 520 covers the crime of murder in Los Angeles.  So if you or a loved one is charged with murder in Los Angeles, you want to know what the jury's instruction is related to that because that will control whether or not the person is found innocent or guilty.

Before the case is even heard, the Judge will usually review with the jury what the jury instruction is related to murder in a case pending in one of the Los Angeles County courts. Then, of course, that instruction is read to them before they deliberate.

Having done over 200 trials in Los Angeles County and defended many homicide/murder cases, I've dealt with these jury instructions. I go over them with my client, especially if my client is going to testify, because what the client says in some of the elements is crucial for the jury in determining whether they are innocent or guilty of the crime.  You have to know what the prosecutors have to prove to convict you of a murder charge before you can set out to defend it.

Committing the Act Causing Death

So, when it comes to the elements of a murder charge, a judge will say to a jury the defendant is charged with whatever counts with murder in violation of Penal Code Section 187. To prove if the defendant is guilty of this crime, the people, the government, or the prosecutors must prove (1) that the defendant committed an act that caused the death.

So, when you look at this first element, you have to ask yourself – whatever the defendant did that resulted in the death?  Sometimes I've seen people go in, fire a weapon at somebody they miss, and somebody fires back, and somebody ends up getting killed that doesn't have anything to do with what's going on.

So, this starts to get a little bit confusing as to whether or not the defendant is responsible for that.  If you go in and try to commit a felony, and you end up with somebody else who gets killed, that's foreseeable under the felony/murder rule.

You're going to be held responsible for the murder.  So, this starts to get complicated.  It sounds straightforward, but sometimes people cause their death.  Occasionally other people are responsible for it.

There are all sorts of scenarios when it comes to this first element, and the best way to handle it is to sit down with a seasoned criminal defense attorney who has done these trials before.  I've sat in many a jury trial and argued these jury instructions – not just in front of a jury, but to the judge to try to change the jury instructions sometimes to fit the case better.  So, this is a crucial thing.

State of Mind  – Malice of Forethought

Regarding the second element, the prosecutors must show that they had a state of mind called malice of forethought when the defendant acted.  This gets tricky because that means you have to intend to kill somebody.  You have to be thinking, I want this person killed.

Sometimes people think that they are trying to defend themselves.  Sometimes whatever the person did is a justifiable or excusable homicide or murder.  So, the act has to go with the state of mind.

So, the state of mind has to be that you were thinking – you had malice in forethought, meaning you were thinking of killing the person.  You planned and executed the plan, and this element of murder would be met.  But there are all sorts of scenarios.  I've also seen this element argued – that the person didn't have any malice or forethought or problems with the person – wasn't trying to kill the person.

So, this is something you have to sit down with a seasoned criminal defense attorney again.  Go over it, sit down, and think about it before deciding whether to go to a jury trial on a murder case in LA County.

Killed Without Justification

The next element that must be proved is that the person involved was killed without lawful excuse or justification.  And that gets a little tricky again because if you're defending yourself against someone trying to kill you and using deadly force to protect yourself, you could be held not guilty. After all, you have self-defense.

If you're defending another, that would be another justifiable homicide.  So, there are circumstances where somebody gets killed, and the reality is that the person charged with the murder is not guilty because they have an excuse.

They have a justification under the law, and again, so many different factors go into whether you have an excuse, a reason, or a defense.  Again, that's when you have to sit down with your criminal defense attorney – someone who has been down this road before, had success, knows how to fight these cases at a jury trial level, has handled many murder cases, and knows how to go up against some of these seasoned prosecutors. They are going to be dealing with the murder case.

Deliberate Act – No Regard for Human Life

The next element is that the person must deliberately act with conscious disregard for human life.  This is where that malice of forethought comes in.  You have to be working in a hazardous manner.  Sometimes, people have a good argument – I didn't intend to kill the person.

I wasn't trying to kill the person, but it happened.  If you're doing some dangerous activity that could kill another person. Then the person ends up dying, and it was foreseeable that the person could die because of your dangerous activity, like throwing knives and firing weapons recklessly out in the street.

These could be natural and probable consequences that death could occur if you do that. Therefore, the jury determines that you did act with conscience disregard, which could suffice for the malice of forethought.

Sometimes there's express malice – someone gets mad, pulls out a gun, fires, and tries to kill somebody.  Other times, it's a little bit more technical than that.  Finally, it's implied malice when you look at what the person did.  It was foreseeable that what they did would cause death, and it ended up causing death.

Real Murder Case Example in Norwalk, CA

I had a case once where a client was being charged with the violent crime of murder in a challenging jurisdiction, Norwalk, and they're tough to deal with on issues. They had evidence because they had my client, who admitted that he had fired a weapon, and they were able to find that weapon was the one that killed the victim.

That was one where we were trying to resolve the case because of that vital evidence. But the prosecutors were unreasonable and refused to look at some of the bad stuff about their case.

They were bringing in a witness against my client, who arguably, was a shooter in the crime. However, once that evidence crossed the jury's path, and there was other evidence regarding gunshot residue, the jury ended up finding my client not guilty, and the witness that they used against my client — he probably was a much higher candidate to be the person that shot the victim in the case.

The prosecutors — once they decide, and the police, that somebody is guilty, stop looking at everybody else. They stop investigating most of the time. Once they feel okay, we've got enough evidence on this case; we're moving to the next case. Wait a minute. There's other stuff going on in this case. So, it's up to the defense attorney, especially in murder cases, where everything is on the line. If you go to trial and lose, typically, you'll end up in prison for life.

So, from the defense standpoint as well, if you've got good mitigating evidence and you feel like it's not worth it to take the case to trial because of the potential to lose, then that mitigating proof has to be presented to the prosecutor and say, wait for a minute prosecutor, you may lose this murder case.

Jury Pool in San Fernando Valley, CA

These San Fernando Valley juries, especially in the San Fernando Court and the Van Nuys Court – that's pretty good jury pool for the defense. Those guys have an open mind. They'll listen to the reason, so they're not quite as conservative as some of the outer-lying courthouses in Los Angeles County. That's an art unto itself – which is presenting mitigating evidence in a murder case to the prosecutors – because a prosecutor who's not trustworthy and isn't out to seek justice but is out to get your client.

A lot of times, what they'll do is when you present them with that good mitigating evidence in a murder case – they're going to try to fix the problems instead of looking at and saying, you know what, he's got the point here.

Seeking a Lesser Charge in Murder Cases

Maybe I should consider giving a lower charge of voluntary manslaughter or some other charge where the individual has a chance to get out of custody. So, I have to evaluate as a criminal defense attorney. Should I give them that evidence because some of it is very powerful and can be used in a trial, and you don't want to give that to the prosecutors because they will try to fix the problems with their case?

You don't want them to be able to do that. But, on the other hand, you want to spring it on them at trial because that often destroys the credibility of some of their witnesses and can hurt their case very badly. So, that's a fine line. I make those decisions based on just having done this for twenty-five years. I know a lot of the prosecutors. I know some of the judges. So, sometimes I'll get the judges involved in the negotiations.

But, if you have a case or a loved one of yours has a murder case, you've got to get to one of the few attorneys who understand how to defend these cases, knows the political landscape of the District Attorney's office, and how to negotiate with those guys, and knows a point when you say, we're not going to deal with these guys. We're going to trial.

Making that decision is an earnest conversation with the client, and that's very serious. You have to look at the evidence and put our experience to work and into play in deciding which cases you will try and which topics you should negotiate.

Negotiation with the Prosecutor for Reduced Charges

That's why it's so important to get an attorney like me who's been down this road before, had success, knows the value of a case, knows how to win a chance, and knows when to negotiate a case.

Best Strategy for Murder Cases Prosecuted in California

That's crucial when you're in the decision-making process — to have that wisdom to know exactly how to handle the case — what to do, who to speak to, when to fight the case, when not to fight the case.

I have to do that when people retain me for a murder case. I have to sit down with the family.  I have to sit down with the person being charged, and we have to make some hard decisions about whether this is the type of case we can win at a jury trial or the kind of case we have to negotiate with the prosecutors.

Believe it or not, sometimes, that decision in a murder case is made for us.  The prosecutors say we're not offering anything.  If your client wants to plead, he can take 15 to life. Otherwise, we take the case to trial.  In that case, you have no choice but to defend the case.

Deciding with the Client How They Want to Proceed

So, the first decision I'm trying to make when I sit down with my client and the family to discuss a murder case is how we will proceed.  Are we going to try to fight the case?  Are we going to try to resolve the issue? Is it wise to have an eye on resolving the matter but damage the case at the preliminary hearing? 

These are the types of conversations we're having.  I've got to have all the evidence from the prosecutors.  I have to review that.  I have to speak to the prosecutors to see what their position is. Then I'll sit down with my client and say, here's what the prosecutor says.  Here's what the evidence looks like.  You tell me what's going on from your perspective, and I will combine that with my experience.

I've handled murder cases in California for the last 26 years, having worked for the DA's office, a Superior Court judge, and a criminal defense attorney since 1994; I can decide for a client. I can help the client make the right decision regarding these types of cases, and trust me; it's crucial what types of moves and decisions you make because it will alter the rest of your life if you're being charged with murder.

Contact a Murder Defense Lawyer

And that's an intense discussion with the client about what they have to have in this case, and where I break the tie in every single case is, I say listen, if you did not do this crime – you're not guilty of it — we are going to trial. So we will fight because no one under my watch will take a guilty plea if they're not guilty in the case.

If, on the other hand, you did something you shouldn't have done, then we need to explore at least the avenue of trying to work out a case. And you can explore. You can talk to the prosecutors about a murder case – about resolving it.

Then you can figure we're not going to take that deal, it's too high, and they can't use any of those negotiations against you. That's all protected. Any settlement discussions are protected. They can never use it against a defendant. So, if you've got a murder case or a loved one has a murder case, give me a call at the Hedding Law Firm. We'll sit down. We'll talk about it. We'll talk over the phone and see if it's something I can help you with.

So, as you can see, there are some complex and severe concerns about murder cases.  These cases are not simple, and the prosecutors don't have an easy time either. Still, if you want to have any chance of getting a complete defense in a criminal case that involves murder/homicide, you've got guards like a self-defense excuse or other things that make more sense to the facts of your case; you've got to sit down with somebody who has been doing this for a long time and can design a plan to give you the best chance to fight and win your murder case.

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