The Different Degrees of Murder in California

As we hear news reports of murder trials, such as those involving the deaths of Trayvon Martin, Michael Jackson, and the tourist at the Venice Beach walkway, there seems never to be an informed explanation of the different degrees of murder which the prosecution alleged — or did not allege but should have. I hope this article promotes a better understanding of what options prosecutors have in bringing murder charges against a homicide suspect.   If you ever follow murder trials in the media, you’ll find this discussion very interesting.

Starting with the least serious murder charge of all, is a Negligent Homicide.  In fact, in all my time as a district attorney, I never once recall hearing a negligent homicide referred to as a ‘murder.’   It is commonly charged in automobile fatalities, in which someone drove with simple negligence, such as by running a red light, and caused a death.  This is a misdemeanor, and sentences for negligent homicides, in Los Angeles County, usually imposed lengthy community service but no jail.

Vehicular Manslaughter is one step up.  Instead of simple negligence, the defendant’s acts were grossly negligent.  Think of teenagers drag racing, and a driver loses control with a resulting death. Vehicular Manslaughter is called a ‘wobbler’ because it can be either a low-grade felony (with determinate sentencing of 16 months, 2 years or 3), or it can be alleged as a misdemeanor with a maximum sentence of one year jail (which is the sentencing definition of a misdemeanor).

Involuntary Manslaughter is a homicide which occurs during the commission of a misdemeanor (not a more serious felony) or as the result of an act which ignored a high risk of death or great bodily injury.  Examples include firing a gun into the air on New Year’s Eve (the misdemeanor is firing a gun within City limits) and having the bullet land in another person’s head.  Another example is encouraging someone to use illegal drugs with a resulting overdose death.  Although it is a low-grade felony, it is not considered a violent crime.  This is an important distinction which allows the release of the inmate after 50% of his sentence being served, instead of the 85% for violent felonies.  Involuntary Manslaughter is the crime of which Michael Jackson’s physician, Conrad Murray, was convicted.

Voluntary Manslaughter is an intentional act resulting in a homicide, but without malice aforethought, premeditation and deliberation.  This means that the suspect intended to commit an act which was likely to result in a death, or committed an act which was in reckless disregard for life, but he did not have a sufficient time to consider the ramifications of his actions.  You’ve heard the phrase murder in the heat of passion applied to more vividly relate this crime, but the penalty is still quite severe – 3, 6 or 11 years in prison.

You may be asking at this point, what determines the range of sentence actually imposed by the judge.  Various considerations involving aggravating and mitigating circumstances, past criminal record and many more are evaluated by the judge when imposing one of the three sentences for each and every felony.  This is called Determinate Sentencing, and some true lawyering comes into play here quite often, because defendants often acknowledge their guilt, but still hope for fair treatment.

Driving Under the Influence Related Homicides are murder charges which can be brought against DUI drivers, where the driving is of simple negligence, gross negligence, or with a presumption of malice where prior DUI convictions are shown.  Where malice is presumed due to prior DUI convictions, a Second Degree Murder can be charged.

Second Degree Murder is an intentional homicide with malice aforethought, but without premeditation and deliberation.  This means that the suspect intended to kill, but did not have a sufficient time to consider the ramifications of his actions.   The sentence for Second Degree Murder is 15 years to life in prison.

An example may be the suspect in the recent automobile death inflicted upon the Italian bride and the rest of the crowd injured at the Venice Beach walkway.  This crime could also be alleged as a First Degree Murder, with the principle proof of premeditation and deliberation being the video tape which captured the defendant pacing back and forth, as though in deep thought, before getting into his car and driving it into the crowd.  In this case, malice would be proved by his vehicle acceleration and  deliberate zigzag steering to drive his car into people.

First Degree Murder is an intentional homicide with malice aforethought, premeditation and deliberation.  The concept of ‘malice aforethought’ is not strictly defined.  In time, it can be mere seconds.  Classic proofs sometimes include planning, statements, or financial motives.  Although the sentence is 25 years to life in prison, few persons convicted of First Degree Murder are ever paroled.

Sometimes, malice is implied by law.  For example, The Felony Murder Rule makes any commission stemming from the commission of a felony a First Degree Murder.  An example of the Felony Murder Rule is a liquor store robbery, in which anyone gets killed, even another robber shot by the store clerk.

A Capital Offense is any First Degree Murder with a Special Circumstance for which the prosecution is seeking the death penalty.  Statistically, very few murder prosecutions seek the death penalty, with the exception of those of the State of Texas.  In the Office of the Los Angeles County District Attorney is a discrete Death Penalty Committee consisting of the most experienced prosecutors that decides which cases will ask for a death sentence.  Since 1976, California has actually executed only 13 of its death row inmates, while during the same time period Texas has executed over 500.  Conversely, California has a high death row population, likely to die of old age rather than execution, yet still entitled to various rights and privileges because of their status, such as unlimited phone calls and library access.  All the California male death row inmates, over 700 of them, are at San Quentin State Prison.  They will remain there indefinitely, while State prison officials attempt to comply with a federal court order that executions be administered by a physician who can safeguard against failures in administering death by lethal injection.  No physician would consent to perform this gruesome function, which in effect created a moratorium on California death penalties until an alternative solution can be found and verified.

Since 1976 when the death penalty was reenacted in California, the overall cost of the death penalty in this State has been 4 billion dollars.  Since then, 13 California inmates have actually been executed.

There are 20 enumerated Special Circumstances which constitute grounds for requesting a death sentence, as well as a basis for First Degree Murder.  These include killing a cop, prosecutor or judge, drive-by shootings, killings by a gang member, multiple killing, the use of poison, a bomb, or lying in wait, and killing for financial gain.  Even if one such circumstance is present, the jury must recommend the death penalty, or the defendant will instead be sentenced to life in prison without possibility of parole, known as LWOP.

I hope this has been informative reading and contributes to your understanding of our criminal justice system.