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Homicide is the act of killing of another human being. Murder is when the homicide is intentional. Some people use the two terms interchangeably. If one is charged with murder, it is alleged that there has been a killing of another person – a homicide.


Under California Penal Code section 187, murder is defined as the unlawful killing of a human being, or a fetus, with malice aforethought.

First-Degree Murder 

In California, murder may be charged in the first or second degree. First degree Murder is an aggravated version of murder because it usually involves planning or the specific intent to kill with malice aforethought. Sophisticated killings and murders involving clear planning and premeditation are usually charged as a first-degree murder, whereas murders caused by recklessness or killings in the course of a less serious felony such as shoplifting or battery may be charged as second-degree murder. If the killing is accomplished by sophisticated planning, lying in wait, using poison, torture, or mayhem, the charge will be a fist-degree murder. If special circumstances exist in a first-degree-murder case, defendant will be charged with capital murder or murder with special circumstances. Examples are murdering a government official, murders related to gang violence or hate crimes, or killing a trial witness. First degree murder requires malice aforethought. Malice may be shown by premeditation, use of poison or lying in wait.


If the killing occurs during the commission of another felony, defendant could be charged with murder. This is commonly referred to as felony-murder. For example, murder can be charged if the killing occurs during the commission of robbery, rape, kidnapping or arson. Here, the prosecution doesn’t have to prove “intent to kill”. It’s enough that the defendant participated in the underlying felony. The defendant doesn’t even have to be the one who did the killing. If two people decide to rob someone and something goes wrong and one of the guys decides to shoot and kill somone, both men will be charged with murder, even if one of them had no intent or plan to kill anyone.


If the murder was not planned and not based on malice aforethought, defendant will be charged with second-degree-murder. DUI resulting in the death of a person could potentially be charged as second-degree-murder. This is because the driver didn’t intend to kill anyone but his reckless conduct resulted in the death of the victim. Another example is when there is a fist fight and someone gets killed as a result. The attacker just wanted to fight but ended up severely hurting someone resulting in his death.  This will be charged as second-degree-murder. Here, the degree of punishment may be dependent upon the mindset of the person who committed the act resulting in death.

Penalties for Murder

In California first-degree murder is punishable by death penalty or life in prison without the possibility of parole. Under California Law if one is found guilty of first-degree murder with special circumstances, he or she may be sentenced to death. Second degree murder may carry a life sentence depending on the criminal record of the defendant.

Involuntary Manslaughter

An accidental killing may be prosecuted as murder if the act causing the death was done with reckless disregard for the safety of others. A drunk driver who causes a traffic accident resulting in death can be prosecuted for voluntary manslaughter, involuntary manslaughter, or murder depending of the facts and circumstances of the case. Involuntary manslaughter with ordinary negligence may be charged as a misdemeanor and has a one-year maximum penalty. If the death was caused by gross negligence, defendant will be charged with felony involuntary manslaughter and the prison term will be 2, 4 or 6 years. If the killing occurred while driving with gross negligence, one could be charged with gross vehicular manslaughter and receive up to 4 years in prison.

Attempted Murder

If the defendant indented to kill but the victim ended up not dying, attempted murder charges will be filed. For instance, if defendant shot a pistol at the victim multiple times but missed everytime, although nothing happended to the victim, defendant will be charged with attempted murder.  Also, if the defendant only intended to injure the victim and as a result the victim suffered life-threatening injuries, attempted murder will be the correct charge to file. For example if the defendant had a knife and cut the victim in the face and the victim ended up losing a lot of blood requireing intensive care, defendant could be charged with attempted murder. The result of an attempt charge is that the potential sentence or prison term will be halved. For instance, if the sentence for murder would have been 12 years, he will only get 6 years.

Defenses to Murder

Numerous defenses are available to a murder charge. An experienced attorney must carefully examine the case to find out what particular defense must be alleged and argued.


One common defense is “alibi”. Here, defendant claims that he or she was not present at the crime location at the time and place the killings are said to have taken place. n alibi defense requires detailed examination of all reports and schedules and time lines. The time of the killing must be established using experts and sometimes autopsy. A forensic expert and an experienced investigator must also be hired to check the circumstances of the homicide and cross-check all events and study the possibility of defendant’s presence at the crime location when it occurred.

Witness statements must be obtained from defendant’s and victim’s employer and/or co-workers, family members, and friends to corroborate defendant’s alibi defense. This includes only some of the investigation and preparation that needs to be done to present an alibi defense in a murder case. An alibi defense is case specific and requires the study of the totality of the circumstances by an experienced attorney in the area of murder defense.

Other Defenses

Other defenses to a murder charge include “lack of mental capacity” or “insanity”, “misfortunate accident”, and “self-defense”. Another common defense to murder is self-defense. Here, the defendant claims he was forced to kill to save his own life. California requires that self-defense do not exceed the scope of force reasonably necessary to defend off the actual threat of death. Another mitigating factor used in defense of Murder is “lack of the intent to kill”. Generally, defendant raises the issue that the death was caused as a result of an accident or an act of ordinary negligence. Other mitigating defenses may be raised such as diminished capacity or killing in the heat of passion. This will seek to show that the defendant acted in the heat of passion because he was unable to reasonably control his own actions under the sensitive circumstances.

Criminal prosecution can affect your health, freedom, employment, and social life. You need help and you need the best criminal defense you can get. At the Law Offices of Tony M. Seyfi, with the state-of-the-art computerized legal research tools and forensic techniques, we will focus on identifying the defenses you may have and will develop numerous challenges to any crime possible.

Our goal is victory for our clients and to keep them from going to jail, and we are confident of our defense strategies. If you would like to discuss your case

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