In California, homicide or murder is outlined as the illegal taking of the life of another individual or unborn baby and is classified into two major categories. First-degree murder is the most serious of all the homicides because it might result in life imprisonment. Although the charge is a serious one, it is not without potential legal defenses. So, if you have been charged with first-degree murder, don’t lose hope because the Los Angeles Criminal Attorney is here to provide unsurpassed legal guidance and protect your rights and freedom.

Overview of California First-Degree Murder

Under PC 187, homicide might be charged as murder or manslaughter. In murder charges, the prosecutor must prove malice aforethought, which refers to your state of mind or intent during the commission of the crime. The prosecutor does this by demonstrating that you, as the defendant, acted with precise or implied spite. In this case, express malice suggests you had the intent to kill someone. In contrast, implied malice occurs when you act with wanton disregard for the safety of other people or with a recklessness that involves a high probability that someone will lose his or her life.

As per California PC 189, the intentional and willful taking of the life of a human being or fetus is known as first-degree murder. Further, California adheres to the felony murder law. According to the statute, murder in the first degree occurs if someone is killed even inadvertently during the commission of violent crimes like robbery, rape, kidnapping, or arson. It is reserved for felony offenses that involve premeditation, intent to end life, and planning. During the prosecution of these cases, California statutes have developed a list of exceptional circumstances that must be met. If these particular situations are absent in the case, the prosecution is forced to press second-degree murder charges.

Killing that qualifies as 1st-degree murder involves special circumstances like:

  • Premeditation and deliberation

  • Use of explosive devices, poison, or bombs.

  • Lying in wait or torturing the victim

  • Commission or attempt to commit specific felony offenses

It’s worth noting that if after the alleged cause of death, the victim survives for thirty-six months after the date of the incident, the law presumes that you have not engaged in the illegal act of homicide or manslaughter. However, once the person passes on, the prosecutor might invalidate the presumption and bring murder in 1st-degree charges against you.

Elements of 1st-Degree Murder

California has two significant classes of murder, as indicated earlier. These classes are 1st and 2nd-degree murders. When registering 1st-degree murder charges against you, the prosecutor must prove specific elements. These are:

  1. You Killed in a Fashion that was Unlawful, Willful, Deliberated, or Premeditated

After registering first-degree murder charges against you, the prosecutor must prove that you engaged in the act willfully or with intent to take or end the life of a human being or fetus. The intention doesn’t have to occur to the actual victim. If you planned to take a life, but instead of killing the exact person you kill the wrong person or a random individual, the court will still consider you had the intent to end a life which amounts to first-degree murder. Additionally, if your actions at the time of causing death demonstrated a depraved indifference to human life, you could end up with a conviction for first-degree murder.

When establishing if the murder was deliberated or premeditated, the prosecutor will rely on the circumstances of the case. He or she doesn’t need to show that you had enough time to contemplate or plan the murder. Instead, they need to demonstrate that you had enough time to form the conscious intent to end life and then act on it, after enough time for a sober or ordinary person under similar circumstances to doubt your actions. Although deliberation or premeditation can occur quickly, the prosecutor must demonstrate it didn’t happen at the time when you ended life. The plot must not happen at the time of ending life under this class of murder.

Similarly, the prosecuting attorney must demonstrate that your actions were motivated by malice aforethought. This means you acted with triviality to human life or had an evil purpose.

  1. Accomplished the Murder by Lying in Wait

When proving the element of lying in wait under first-degree murder in California, the prosecutor must understand your conduct and how it could cause trauma or harm to the victim in case he or she survives or the descendants of the victim if you succeeded in ending life. Under this element, the prosecutor must demonstrate that you waited while watching the victim for the perfect opportunity to injure them to the point of death. The prosecutor will have to show that you hid or concealed yourself at the time of lying in wait to take the victim while unaware and cause lethal harm whose result is death.

Remember that passion is not what usually drives perpetrators who accomplish murder by lying in wait. However, there might exist a thrill of attacking unwary or unaware victims. The prosecutor also has to show under this element that the victim behaved in a specific fashion or had particular attributes that you, as the defendant, targeted.

Note that lying in wait is a form of premeditation. Therefore, if you committed first-degree murder relying on a plan that involves lying in wait, you could still end up with a conviction. However, premeditation doesn’t have to involve the use of a weapon.

If the murder occurred during an incident of domestic violence, the prosecutor would need to show that you waited for the victim, planned how to take their life, or continued with domestic abuse that killed the victim gradually. It’s worth noting that if the death in a domestic violence case occurred after an altercation or aggression that resulted in you ending the life of the victim, you wouldn’t be convicted for first-degree murder. The death must occur after planning or lying in wait for a sentence to occur.

  1. You Ended a Life during the Commission of a Felony

The Senate Bill 1437 makes it clear that you will end up with a conviction for first-degree murder if you committed, attempted to commit, or engaged in a felony with plans to end life, aid, or abet the commission of first-degree murder. PC 189 sets forth the felonies where you will be charged with 1st-degree murder if a person dies during the commission of the felony.

In case you ended the life of another human being or fetus while committing felonies like:

  • Arson

  • Carjacking

  • Burglary

  • Robbery

  • Torture

  • Mayhem

  • Kidnapping

  • Forcible sexual penetration with a foreign object

  • Unlawful acts of sodomy or

  • Lewd acts with a minor

The prosecution will quickly prove that you are guilty of murder in the first degree.

Other elements the prosecution needs to prove under these charges include:

  • You accomplished to take another person’s life using explosives or destructive devices

  • You ended life by way of torture

  • You killed a child using unreasonable force

If the prosecuting attorney proves all the above elements, you will be subject to first-degree murder penalties.

Potential Penalties for First-Degree Murder

In California, if the jury convinces the court that the above elements are present in your case, you will be subject to the following penalties upon sentencing:

  • State prison incarceration for a period not less than twenty-five years

  • A life sentence without the likelihood of parole

  • Death

Although, when convicted of murder in the first degree, you might be sentenced to death, currently, this capital punishment is on suspension.

Keep in mind that you will get life incarceration without parole or death sentence if you murder under particular special circumstances. When deciding if to impose this sentence, the court puts into account the following things:

  • Whether you committed murder in the first degree while committing a felony

  • While preventing a legal arrest

  • Using an ED or bomb

  • When you intend to end the life of another person for financial gains

A life sentence without parole, on the other hand, will be imposed if you engage in the 1st-degree murder of peace officer or public official, judicial official, or prosecutor.

Common Defenses for First Degree Murder

Several defenses can be applied by your criminal defense attorney to contest the charges of first-degree murder. You could begin by arguing that you didn’t commit the alleged murder, and instead, you are wrongly accused. Another assertion that could help contest the charges is demonstrating that you ended a life, but your actions were justifiable. Discussed below are possible legal defenses for first-degree murder:

Mistaken Identification

It’s not rare for people accused of a violent crime to end up with a wrongful conviction, whereas they are innocent. Various studies show that incorrect identification is the leading cause of innocent people ending up with a sentence than all other causes. Several factors can distract the ability of a witness to identify the suspect clearly. These include:

  • The passage of time

  • Fixation on a weapon

  • Racial difference

  • Level of stress during the encounter

  • Inappropriate suggestions by the police

Many first-degree murder charges are based on questionable eyewitnesses. For this reason, your Los Angeles Criminal Attorney could argue that the prosecution has charged the wrong person. However, the assertion must be supported with evidence. If the witness appears not to be 100 percent sure of the suspect, your attorney could request to see if the witness is in a position to identify and distinguish the suspect. The attorney could also challenge the procedures used by law enforcers in previous lineups and seek to have the identification eliminated from the evidence.

Similarly, during the trial, you could request an eyewitness identification expert. The expert will breakdown the memory process and how it works to the jury then give them reasons to see how common mistakes of identification are. You may also present other evidence that places another suspect at the scene.

The main focus of your attorney should be to show that the identification process is unreliable. This helps the jury buy the story by the defense, or makes them begin to doubt the identity of the actual perpetrator of the crime, the charges are likely to be dropped.

The Killing was Accidental

In the event you were acting negligently, had no intentions to harm the victim, or otherwise participated in a lawful activity killing a person, you will avoid the penalties of first-degree murder. The accidental ending of a life can only result in penalties for voluntary and involuntary manslaughter. However, some unintentional killings like parental discipline to a kid that results in loss of life or use of illegal physical force causing death can be charged as first-degree murder. Also, if the accidental killing took place during the commission of a felony crime, you might end up with a sentence for 1st or 2nd-degree murder.

Failure to Establish the Elements of the Crime

First-degree murder is a specific crime with unique elements. All these elements must be proved beyond reasonable certainty by the prosecutor. These elements the prosecution must prove are:

  • Using an ED or weapon of mass destruction to take life

  • Inflicting torture

  • Premeditation, deliberation, and intent to kill

  • Felony-murder

  • Accomplishing death by lying in wait

These are some of the common ways you can end up with a sentence for first-degree murder. Remember that the prosecution carries the burden of proof. And if they can’t demonstrate that there was deliberation, will or premeditation to kill, then it means you are innocent of first-degree murder. Although you can argue that the prosecution didn’t have enough evidence to prove specific elements clearly, you are not allowed to do so as a defendant because it is the burden of the prosecutor to prove these elements.


It’s also possible for your attorney to use different strategies to demonstrate to the jury that you ending the life of the victim was justifiable.

You should understand that not all murders or homicides are criminal offenses, let alone murder in the first degree. One of the most justifiable killings is one that occurs in self-defense. If you claim that you ended the life of the victim while defending yourself, you must prove that under the circumstances, you made use of lawful and reasonable deadly force to resist unlawful physical force by the victim.

When using self-defense to justify your killing, you cannot be the person who started or triggered the confrontation. Again, the degree of deadly force used to resist harm from the victim must be equivalent to the threat perceived, and the risk of lethal force by the victim must have made an ordinary person in your shoes to fear for their life or safety.

Your reaction to the imminent danger of being killed or maimed must occur instantly and not when the threat had passed. Furthermore, you must show that you tried to retreat or avoid the danger before resorting to use of lethal force.

For instance, in the case where you ended the life of a mugger who was attempting to steal from you, you must demonstrate that before shooting the person or using the deadly force that led to the death, you used pepper spray at first to disable the mugger and flee for safety. However, when that failed to work, you used lethal force like taking out the pistol and shooting the person. In such an incident, self-defense will work.

If you were proportionately and reasonably protecting others, then murder could be justifiable. For this defense to suffice your case, you must show the jury that you had a reasonable belief that someone else was in the impending menace of being raped, maimed, killed, or suffer significant physical injury. And that is when you intervened using proportionate deadly force to resist the threat.

If you are law enforcement or a public officer performing official duties when you end the life of another human being, the homicide is justified. However, the killing must have occurred during the execution of official duties, devoid of any illegal intent, recklessness, or negligence. Ending a life this way is not homicide, nor does it qualify to be first-degree murder, which means you will be acquitted.

California protects public officials and those acting under their command to end life as long as the killing happens in the line of duty, and no excessive force is used.


California allows suspects of first-degree murder to take a not guilty plea on the basis of insanity. The M'Naghten test is the authorized standard test for insanity. As per the test, you should demonstrate that you ended the life of the victim because you didn’t comprehend the nature of your conduct, or failed to differentiate between wrong and right. If you have a disorder that affects your impulse control, the court will rule that you are insane, which excuses first-degree murder resulting in dismissal of the charges.

Find a Los Angeles Criminal Defense Attorney Near Me

The most severe violent crime that you can be charged with is first-degree murder. The penalties are severe and include life imprisonment. Fortunately, with a proficient criminal defense attorney, it is possible to use the right defense strategies to fight the charges. Contact the Los Angeles Criminal Attorney today at 424-333-0943 to discuss your case and devise the proper defenses to defend against the charges if you are faced with these allegations.