While second-degree murder is less serious than first-degree murder in California, it is nevertheless very serious. The other serious homicide charges are first-degree murder, voluntary manslaughter, and involuntary manslaughter. Although a second-degree murder charge is not eligible for the death penalty, the minimum punishment is 15 years to life in prison. Enhancements because of gun use, prior strikes, and prison terms can add many more years before parole eligibility. If you are facing a murder charge, contact our experience Oakland criminal defense attorney, Ernesto Castillo to fight for your innocence.
Malice aforethought occurs when the person did an act with the intent to kill a person, and did in fact kill a person. However, if there was premeditation and deliberation before the killing, or certain other circumstances, like shooting from a vehicle, the charge will be first-degree murder. (Pen. Code, § 189.)
Malice also occurs when the natural consequence of the act was dangerous to human life, the person knew the act was dangerous, and the person disregarded that danger by doing the act. An example of this type of "implied" malice is placing a child in a room with easily accessible explosives that the child accidentally sets off. Even if there was no intention to harm the child, the person can still be found guilty of second-degree murder.
The district attorney normally tries to prove an intent to kill by showing that the defendant had a motive to kill the person (like an unsettled debt), or that the cause of death shows an obvious intent to kill (like shooting someone with a shotgun at close range). If a defendant can show that the act that caused the death was an accident, like a gun accidently going off, or if the defendant's intent was not to harm the victim, like firing a warning shot or being involved in an ordinary fist fight, the district attorney will have a more difficult time proving second-degree murder.
The district attorney normally tries to prove "implied" malice by presenting evidence that an average person would know that the defendant's conduct was very risky, could have caused the death of the victim, and the defendant ignored that risk. A scenario that helps explain "implied" malice is when an adult leaves a child in a house with several vicious dogs, who eventually attack and kill the child.
This type of situation recently occurred in Contra Costa County. If the dogs had previously attacked other children in the neighborhood, and the defendant knew that, the district attorney has a good case. If the defendant did not know about the prior attacks on children, and the dogs were well-behaved, then the defendant has a good case.
While there are many possible defenses to a second-degree murder charge - mistaken identity, self-defense, and insanity – an additional defense to the charge is that the district attorney does not have the evidence to prove malice.
Without malice, the defendant will only be guilty of a lesser offense. Many of the lesser offenses will not have a life sentence term, like assault with a deadly weapon under Penal Code Section 245, which has a minimum prison sentence of two years and can also be charged as a misdemeanor.
Due to the high number of homicide cases in Alameda County and Contra Costa County, the district attorneys are skilled in prosecuting homicides. Contact our firm to speak with an Oakland criminal defense attorney with experience handling high profile murder cases who will fight for your innocence of second-degree murder.