First and Second Degree Murder

Attorney Richard M. Oberto has experience litigating high profile cases, taking them to trial, and prevailing. He has the experience a person needs when facing serious charges for First or Second Degree Murder.

The Elements of Proof

California law defines two degrees of Murder: First and Second Degree. Both degrees of Murder require proof of (1) Causation, (2) Malice Aforethought, and (3) an Unlawful Killing. First Degree Murder requires additional proof. It requires proof that the killing was Willful, Premeditated, and Deliberate or proof of facts that the law deems equivalent to a Willful, Premeditated, and Deliberate killing.

“Causation” requires proof that the accused person committed an act that was a “substantial factor” in causing the death in question. A person cannot be held liable for Murder if his act was only a trivial or remote factor in causing the death.

“Malice Aforethought” refers to the guilty state of mind that the prosecution must establish to prove that a person committed Murder. The required mental state can be express or implied. “Express Malice” requires proof that a person intended to commit an unlawful killing of another human being. “Implied Malice” requires proof that a person intentionally committed an act where the “natural and probable consequences” of the act were were dangerous to human life. The person must have done the act deliberately, knowing it was dangerous to human life, and must have acted with conscious disregard for human life.

To prove an “Unlawful Killing,” the prosecution must establish that the accused person acted without legal justification or excuse.

Justifiable and Excusable Homicide

The California legal doctrines of Justifiable and Excusable Homicide define the circumstances where the killing of another human being is not unlawful. The doctrines of Justifiable Homicide address the following scenarios: Self-Defense, Defense of Others, Defense against Home Intruders, Public Officers in the Performance of their Duties, Citizen Arrest, and Civilians Preserving the Peace. The doctrines of Excusable Homicide address the following scenarios: Accident and Accident in the Heat of Passion. Each doctrine of justifiable and excusable homicide is defined by specific legal criteria.

The California doctrines of Justifiable Homicide have three general criteria in common. First, the person who committed the killing must have reasonably believed that he or someone else was in imminent danger of being killed, suffering great bodily injury, or being the victim of a forcible or atrocious crime such as robbery, maiming, or rape. Second, the person must have reasonably believed that the immediate use of deadly force was necessary to defend against the danger. Third, the person must have used no more force than was reasonably necessary.

The law presumes that a person was in reasonable fear of great bodily injury or death in certain cases involving home intruders. The intruder must have entered or been entering the home forcibly and violently and must not have been a member of the person's household or family. The use of lethal force against the intruder must have occurred inside the home.

Under California law, a person who is acting in legally valid Self-Defense, Defense of Others, or Defense against a Home Intruder is not required to retreat. He is entitled to stand his ground, even when he could protect his safety by retreating. He is also entitled to pursue an attacker, as is reasonably necessary, until the danger of death, great bodily injury, or forcible or atrocious crime has passed.

The Lesser Included Offense of Voluntary Manslaughter

A homicide that otherwise would qualify as murder with Malice Aforethought must be reduced in certain circumstances to the lesser crime of Voluntary Manslaughter. Circumstances that require reduction to Voluntary Manslaughter include heat of passion and imperfect self-defense or defense of another. The prosecutor in a murder case has the burden of proving beyond a reasonable doubt that the charge should not be reduced to Voluntary Manslaughter.

Punishment for Murder

The punishments for First and Second Degree Murder are both of the utmost seriousness. The punishment is generally 25 years to life in prison for First Degree Murder and 15 years to life for Second Degree Murder. The punishments in both cases can be much harsher if certain special circumstances or enhancement allegations are found true. The California Penal Code defines a variety of Special Circumstances that elevate the punishment for First or Second Degree Murder to life without the possibility of parole. In some cases, a person accused of First Degree Murder can be subject to death penalty allegations.

Experienced Legal Representation

A person accused of First or Second Degree Murder should ensure he has the very best legal representation. Mr. Oberto has a track record of achieving the best results in high-stakes cases.

Mr. Oberto welcomes people to contact him 24/7 at (559) 221-2557 to request an initial consultation. Se habla Español.

People also may contact Mr. Oberto to request an initial consultation using thecontact form available on this website. Please do not use the contact form to write down sensitive information. Information communicated over the internet, including through this website, may not be considered confidential or privileged.

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