Homicide

Homicide is addressed by the California Penal Code sections 187-199 and varies in severity from “justifiable” homicide to manslaughter to murder. But one can rest assured that where a life is lost, the police and prosecutor’s agencies will use every resource at their disposal to build a case against a potential defendant.

The default category of homicide is second degree murder which is defined as the intentional killing of a human being or a fetus with malice aforethought. It is punishable by 15 years to life in state prison. Murder is aggravated to first degree murder where it is committed with premeditation, or accomplished by certain means, or committed (even unintentionally) during the commission of certain felonies. First degree murder is punishable by 25 years to life, but where certain special circumstances are alleged and proven, it is punishable by life without the possibility of parole or even the death penalty. Murder might be mitigated to voluntary manslaughter where it is done “in the heat of passion”. Voluntary manslaughter is punishable by up to 11 years in state prison.

Involuntary manslaughter occurs where a defendant did not actually intend to kill anyone, rather the action that resulted in a death was done with conscious disregard for human life. If the act in question does not rise to the level of recklessness or criminal negligence then the homicide is excusable. Involuntary manslaughter is punishable by up to 4 years in state prison. Where the recklessness or criminal negligence involves the use of a vehicle, it is considered vehicular manslaughter, which the legislature has designated as a wobbler, meaning that it may be charged as either a misdemeanor or a felony. Where charged as a misdemeanor, vehicular manslaughter is punishable by up to 1 year in county jail and a fine of up to $1,000, but where charged as a felony, a defendant faces up to 10 years in state prison. However, where the homicide involves a defendant who is intoxicated and who has previously suffered a DUI conviction and been given what is known as the “Watson advisement”, he may be charged with second degree murder.

The insanity defense is a defense to all crimes but it is most frequently raised in the context of murder. The insanity defense is what is known as an affirmative defense meaning the defendant has the burden of proving insanity. Still, the defendant need only prove insanity by the most liberal evidentiary standard, “a preponderance of the evidence” and not the “beyond a reasonable doubt” standard the prosecution must overcome in proving guilt of the underlying offense. When a defendant enters an insanity plea, he may plead guilty to the charged crime but not guilty by reason of insanity. In such a case, the court will conduct a sanity trial to determine the issue of sanity alone. In the alternative, a defendant may enter a “dual plea”, pleading not guilty to the underlying offense and not guilty by reason of insanity. In such a case the court will proceed with a bifurcated trial, first determining the issue of guilt or innocence for the underlying offense, and when found guilty in the first phase, next proceeding with the sanity trial. In California, the McNaughten test is the rule used to determine sanity. Under McNaughten, the defendant must prove by a preponderance of the evidence either: 1) He cannot understand the nature of his criminal act, or 2) He cannot distinguish between right and wrong. These alternatives are usually proven by experts like psychiatrists who make a determination that the defendant suffers from schizophrenia or manic depression for example. If a defendant is found or pleads guilty in the first phase of his trial, but prevails in the insanity trial he will be committed to a state mental institution where he will remain until the professionals there determine that he has regained sanity or would benefit from an outpatient program, or where the maximum prison term for the crime convicted of has expired.

If you have been arrested or charged with homicide it is imperative that you contact an experienced criminal defense attorney immediately. The consequences of not acting immediately can be grave.

The information contained on this website represents opinion only and is not intended to, nor should be relied on as legal advice of any kind. Should you wish to consult with an attorney, contact an attorney at the Law Office of Jesse Terrell at (323) 638-4712.
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