First Degree Murder

Again, you can be convicted of first-degree murder even if you don’t personally kill the victim. The prosecutor need only prove the following to convict you as a co-conspirator:

1. you harbored the specific intent to kill the victim;
2. you provided the actual “first-degree killer” aid;
3. you provided him or her encouragement;
4. you provided counseling to him or her;
5. you gave requests, instructions, or commands to the killer to commit the act; and/or
6. you convinced or influenced him or her to do so.
   
   

See California Penal Code section 189(e)(2).

Homicide Crimes – Lesser Included Offenses of First-Degree Murder

If the jury is unable to convict you of first-degree murder, they might still find you guilty of a lesser included charge, which can be – in descending order of severity – Second-Degree Murder (California Penal Code section 187), voluntary manslaughter, or involuntary manslaughter.

Alternatively, if the prosecutor thinks you might prevail at trial or otherwise doesn’t want to expend time and resources prosecuting you for first-degree murder, he or she might offer you one of these lesser included offenses as a plea bargain. See California Penal Code section 192(a)&(b).

See also CALCRIM number 570 (“Voluntary Manslaughter: Heat of Passion – Lesser Included Offense”) and CALCRIM number 580 (“Involuntary Manslaughter: Lesser Included Offense”).

Homicide Crimes — “Attempted First-Degree Murder”

Just as with murder itself, an attempted murder charge is also divided into degrees, although that’s not how the latter crimes are identified in charging documents. Specifically, attempted first-degree murder is typically set forth in a criminal complaint as “deliberate and premeditated attempted murder”. To secure your conviction, the prosecutor need only prove that you had the specific intent to murder the victim and you took a direct step towards completing that goal.

Such a conviction often results in the same sentence as if you had actually completed the attempt – i.e., you would face a maximum of life in prison, though with potential parole.

See California Penal Code section 664(a).

See also CALCRIM number 600 (“Attempted Murder”) and CALCRIM number 601 (“Attempted Murder: Deliberation and Premeditation”).

California Statutes Regarding Homicide Crimes – First-Degree Murder

California Penal Code section 187(a) & California Penal Code section188

These statutes define in general the crime of murder, without specifying the degree, as the unlawful killing of a person or fetus with “malice aforethought”.

These codes also emphasize that such malice (i.e., the specific intent to kill or to commit an inherently dangerous crime) can be implied (i.e., you displayed a wanton disregard for human life – typically proved by circumstantial evidence) or express (i.e., an intent to deliberately kill the victim – proved from your statements or other acts, such as reloading your revolver to complete the killing).

California Penal Code section 189(a)

In addition to any type of intentional killing with premeditation, this statute also identifies which types of killings constitute first-degree murder, including but not limited to the following:

1. using a bomb;
2. knowingly using armor-piercing rounds;
3. poisoning the victim;
4. laying in wait;
5. torturing the victim;
6. during the course of committing, or while attempting to commit the following crimes:

• arson;
• sexual assault;
• during a carjack;
• robbery/burglary;
• kidnap or mutilation of victim;
• a home invasion; or
• drive-by shooting.

Once again, even if you aren’t the actual killer, so long as you actively participated in the underlying inherently-dangerous felony and acted recklessly – i.e., in such a way that resulted in the victim’s death – you can still be convicted of first-degree murder under this statute. Penal Code section 189(e)(3).

California Penal Code section 190

The legal threshold for obtaining a first-degree murder conviction is lowered when it comes to the killing of a police officer. So long as you knew or reasonably should have known the victim was such and acting in that capacity at the time, then you can be convicted.

Convictions and Sentencing Terms for Homicide Crimes – First-Degree Murder

Under Penal Code section 190(a), a first-degree murder conviction will get you a minimum of twenty-five years – not including any sentencing enhancements (see below) – up to life in prison.

Sentencing Enhancements – Homicide Crimes – First-Degree Murder

Special Allegations

If your first-degree murder conviction includes a proven Hate-Crime special allegation, then you’ll do mandatory life without parole (“LWOP”) pursuant to California Penal Code section 190.03(a).

See also CALCRIM number 523 (“First Degree Murder: Hate Crime”).

Three Strikes Law

Under California’s so-called “Three Strikes Law”, which is codified at California Penal Code section 667, if you were previously convicted of any of the enumerated “serious felonies” or “violent felonies”, as defined in California Penal Code section 1192.7, you will receive the following enhancements:

1. five years if this first-degree murder conviction is your first strike offense;
2. double the underlying sentence if this is your second (i.e., minimum sentence will be fifty years); and
3. minimum twenty-five-to-life if this is your third strike (which is obviously superfluous because of the minimum prison term for first-degree murder).

Felony-Murder

Life without parole or even the death penalty could apply if you personally murder someone during an inherently dangerous felony, pursuant to Pen. Code § 189(a), including the following:

• Bank Robbery (California Penal Code section 211);
• Carjacking (California Penal Code section 215);
• Home Invasion (California Penal Code section 459); and
• Rape (California Penal Code section 261).

Before then-Governor Jerry Brown enacted the new felony-murder rule at start of 2019, you could have been prosecuted under this law even if you didn’t personally kill anyone (i.e., your accomplice did) and, incredibly, even if your accomplice was killed by, say, a security guard during your jewelry store heist. See latimes.com.

Capital Murder/Special Circumstances – First-Degree Murder

The state’s death-penalty law is codified at California Penal Code section 190.2, which gives a judge authority to sentence you to LWOP or death for the following first-degree murders (which is far from a complete list):

1. you committed the murder for money or other financial consideration;
2. you were previously convicted of first or second-degree murder;
3. multiple murder victims;
4. using a bomb;
5. you were trying to escape arrest or custody;
6. you killed a police officer acting as such (and you knew or should have known this);
7. you killed a witness to prevent him/her from reporting or testifying about a crime, or in retaliation after the fact for him/her doing so;
8. the victim is a prosecutor, judge, any other law enforcement agent, or an elected official, or he/she was formerly in that position (and that’s why you killed him/her); or
9. you laid in wait.

See also California Penal Code section 190.25.

Defenses to Homicide Crimes – First-Degree Murder Charges

The following defenses will all serve you well in defeating a first-degree murder charge:

1. nothing you did actually resulted in the victim’s death;
2. you did not commit an act which had consequences that were foreseeably dangerous (partial defense – implied malice only);
3. at no point did you act with conscious disregard for the victim’s life (same);
4. the murder was an excusable or justifiable homicide under state law (see, e.g., California Penal Code section 195);
5. self-defense or defense of another;
6. the death was the result of an accident (but not through your own recklessness);
7. the death resulted from a legal/lawful act or by a legal/lawful manner (i.e., you exercised reasonable caution);
8. you had less than the minimum amount of time to constitute deliberation/premeditation – i.e., you lacked malice aforethought (partial defense only – you could still be convicted of a lesser homicide offense);
9. you never intended to kill the victim or otherwise didn’t act in a wantonly reckless manner (same);
10.  the killing otherwise occurred in the heat of the moment (same);
11.  it resulted from your being involuntarily intoxicated or drugged.
12.  you were voluntarily intoxicated or under the influence of narcotics (partial defense).

See the following CALCRIM sections:

• – CALCRIM number 520 (“First or Second Degree Murder With Malice Aforethought”);
• — CALCRIM number 521 (“First Degree Murder”);
• — CALCRIM number 522 (“Provocation: Effect on Degree of Murder”); and
• — CALCRIM number 548 (“Murder: Alternative Theories”).

Example of a Homicide Crime – First-Degree Murder Case

Innocent 18-year-old man spends 25 years in prison after being framed by LAPD homicide detective

In 1994, two groups of young people – some of whom were allegedly gang members – got into an altercation at a gas station near DTLA. Eighteen-year-old Arturo Jiminez was nearby when he heard the gunshots and drove to the station in his SUV to see if anyone needed medical attention. In fact, a fourteen-year-old participant named Hugo Colmenarez had just been shot and killed.

When Jiminez pulled in, some of the individuals involved in the altercation jumped into the open back of his SUV, as well as in his backseat, and yelled at him to drive away. The latter included a young lady who later told LAPD that she had caught a brief glimpse of the shooter, whom she identified as Jiminez. However, another young lady, who had been standing right next to the victim when he was shot, explicitly told a corrupt homicide detective that Jiminez was definitely not the shooter.

Unfortunately, that corrupt detective kept that highly exculpatory evidence out of his investigation report. Even worse, as would be revealed before trial, the sole eyewitness would admit that she had been coerced by this detective into identifying Jiminez as the culprit.

As a result of the multiple felonies committed by this detective (who apparently wasn’t identified in the media) – ranging from subornation of perjury, Dissuading a Witness or Victim from Testifying (California Penal Code section 136.1), and falsifying a police report – in 1995, Jiminez was convicted of First-Degree Murder (Penal Code section 190) and sentenced to life in prison.

(Jiminez’s defense attorney was subsequently disbarred – apparently for failing to use the eyewitness’s recanted testimony, which, again, the lawyer had obtained before trial, in his defense.)

For many years thereafter, the actual shooter repeatedly confessed to various people that he had been the actual killer. This man, who also hasn’t been identified in the media, has since died.

On or about April 9, 2020, after spending the next twenty-five years in prison, Jiminez (now forty-four) was finally paroled to a halfway house.

Four months later, thanks to years of tireless work on his behalf by the Northern California Innocence Project, an LA superior court judge dismissed the conviction with prejudice and immediately set Jiminez free from the halfway house. The judge had cited both the fact that Jiminez had been denied a fair trial by the detective’s crimes and had received ineffective assistance of counsel. See latimes.com.

Homicide Crimes – Example of a Case Involving a Capital Murder/Special-Circumstances Murder Case

Four men are convicted on murder and robbery charges for beating to death a USC student with a bat

On or about July 23, 2014 in the early morning hours, USC grad student Xinran Ji (twenty-four) was strolling back to his on-campus dorm after a study session with classmates. Suddenly, four men approached him and tried to rob him.

One of them, Al Ochoa (eighteen), struck him with a baseball bat before the victim escaped on foot. Accomplice Andy Garcia (nineteen) then grabbed the bat, ran after Ji, and struck him at least several more times with it. All four men then fled (without taking anything from the victim). Ji somehow managed to get home, where he died in his bed later that night.

Thereafter, all four men were arrested by LAPD and charged with first-degree murder and related felonies. Alejandro Guerrero (eighteen at the time of the murder) took his chances at trial and was found guilty of the former charge, as well as numerous First-Degree Robbery-related felonies (California Penal Code section 212.5), in October 2016. Because of the special circumstance involving murder committed during an attempted robbery, he received LWOP.

In August 2017, John Del Carmen (nineteen at the time of the murder) accepted a guilty plea to second-degree murder and, as a result, only received a decade-and-a-half in prison with no enhancements. If this was his first Strike conviction (Penal Code section 667(a)&(b)), he could be released in as little as ten years with good behavior.

That same month, a jury convicted Garcia of all counts, including first-degree murder and various robbery offenses. Jurors unanimously agreed that the killing was a First-Degree Murder with Special Circumstances/Capital Murder (Penal Code section 190.2) because it was committed while he was trying to rob the victim. He, too, received LWOP.

In December 2018, Ochoa was also convicted for the same offenses, and four months later also received LWOP. See da.lacounty.gov.

Homicide Crimes – Example of a First-Degree Murder Case Involving a Celebrity

Snoop Dogg

The night of August 25, 1993, would turn out to be the worst in then-rising rap star Snoop Dogg’s life. According to numerous witnesses who testified at his trial, Snoop (then twenty-one) and his bodyguard McKinley Lee (same) got into an altercation with a local gangbanger named Phil Woldemariam (twenty-five).

This confrontation occurred outside of Snoop’s apartment in Palms where Snoop, Lee, and other friends were hanging out. Someone apparently flashed a gang sign as Woldemariam and several friends drove by.

In response, Woldemariam yelled to Snoop’s group that they were standing in his gang’s ‘hood, then yelled obscenities at them. Snoop then jumped into the driver’s seat of his vehicle with Lee getting into the passenger seat and several other friends hopping into the backseat. Snoop then followed Woldemariam’s vehicle to a local park where the altercation quickly escalated. (Snoop was allegedly affiliated with or a member of a Long Beach Crips set at the time.)

As Snoop’s one and only defense witness would testify, Woldemariam reached into his waistband for a gun at which point Lee pulled out his own and shot him several times, killing him. Several of the prosecution’s witnesses – Woldemariam’s friends – admitted that they had taken Woldemariam’s gun off him and fled with it in an attempt to ensure Snoop and Lee were convicted for an unjustified killing.

As a result of the shooting, warrants were issued for Snoop and Lee’s arrest on First-Degree Murder charges (Pen. Code section 190). Ten days later, Snoop surrendered after presenting an award at a ceremony. Both defendants were released after posting $2.5 million bail.

Snoop’s record-shattering debut album would be released several months later and sell almost five million copies by the time they went to trial. While the media publicity surrounding the shooting and trial undoubtedly improved sales and gave Snoop “street cred”, it also made the next two-and-a-half years of his life while he awaited trial a living nightmare.

On February 20, 1996, the jury found Snoop and Lee not guilty of all counts, including murder and Conspiracy to Commit Murder (California Penal Code section 189(e)). In addition, the jurors hung on the lesser included charge of Voluntary Manslaughter (California Penal Code section 192(a)) against the defendants, as well as the remaining count of conspiracy after the fact against Snoop for allegedly destroying evidence of his driving that night. Prosecutors declined to re-try the men on those charges. See latimes.com.