Charged with murder under PC 187? Life in prison or death penalty possible. Our lawyers fight for your freedom. Call 24/7.
If you or a loved one is facing murder charges1, your world has been turned upside down. We get it. Being charged with murder under PC 187 is about as serious as it gets in our legal system. We’re talking about the possibility of spending the rest of your life in prison. Or worse, the death penalty.
Good people can, and do, get charged with murder more often than many think. A fight that escalated beyond what anyone anticipated. A tragic accident that prosecutors are treating as something intentional. Self-defense that the DA’s office won’t accept as what it is. A false accusation from someone with their own agenda, whether an ex, a co-defendant looking to shift blame, or someone who just got it wrong.
The reality is, being charged with murder doesn’t mean you’re guilty of murder. 2.
The fear, the uncertainty, and the overwhelming stress of not knowing what comes next are totally understandable, as is to be expected. Control what you can control. That often starts with knowing your rights and hiring the best, locally experienced, criminal defense lawyers possible.
At David P. Shapiro Criminal Defense Attorneys, we’ve defended clients charged with homicide throughout San Diego County, from the Central Courthouse downtown to El Cajon, Chula Vista, and Vista. We’ve taken murder cases from the initial investigation all the way through the jury verdict. We’ve achieved not guilty verdicts in cases others said were unwinnable.
The bottom line is this: these cases are defensible, and you need an experienced San Diego criminal defense attorney who knows how to fight them the right way, each step of the way.
The prosecution is already building their case right now, assuming they haven’t already built it already. You need a team in your corner immediately. Not next week. Not when it’s convenient. Today. The stakes are far too high to “wait and see.”
Quick Reference: PC 187 Murder
| Classification | Felony (always) |
| First-Degree Murder | 25 years to life in state prison (assuming no weapon) |
| Second-Degree Murder | 15 years to life in state prison (assuming no weapon) |
| Special Circumstances | Life without the possibility of parole or death penalty |
| Strike Offense | Yes – Serious and violent felony |
| Additional | No statute of limitations; limited (if any) custody credits |
What Is Murder Under California Law?
So what exactly is murder under California law? Well, Penal Code Section 187 defines it as “the unlawful killing of a human being, or a fetus, with malice aforethought.”3 Now that’s the legal language. Let’s break down what that actually means.
There are two critical concepts here that determine whether a killing rises to the level of murder:
“Unlawful” means the killing was not legally justified. Self-defense, for example, is a lawful killing. If you reasonably believed you were in imminent danger of being killed or suffering great bodily injury, and you used proportional force to protect yourself, that killing is not murder. Even though someone died.
See that huge distinction, there?
The law recognizes some homicides as legally justified.
“Malice aforethought” is the mental state that separates murder from other types of homicide like manslaughter. This is often the most contested element in these cases. Malice can be either express or implied:
Express malice exists when you specifically intended to kill another person. You meant to do it.
Implied malice is more nuanced. It exists when you intentionally committed an act, you knew that act was dangerous to human life, and you deliberately acted with conscious disregard for that danger.4 You didn’t necessarily intend to kill anyone, but your actions were so dangerous and you were so aware of that danger that the law treats it as murder5.
Why does this matter for your defense? Because if the prosecution cannot prove malice, they cannot convict you of murder, even if someone died as a result of your actions. That’s a critical point. Every element creates a potential avenue for defense.
What Must the Prosecution Prove?
Here’s what the prosecution is up against. To convict you of murder under PC 187, they must prove ALL of the following elements beyond a reasonable doubt:6
1. You committed an act that caused the death of another person.
The prosecution has to establish that your actions (or in some cases, your failure to act when you had a legal duty) actually caused the death of another person. This includes both the direct cause and what’s called “proximate cause,” meaning the death was a natural and probable consequence of your actions.
Sometimes this element is straightforward. Other times, there are questions about whether your actions really caused the death or whether other factors intervened.
2. When you acted, you had a state of mind called “malice aforethought.”
This is typically where the battle is fought. The prosecution must prove either express malice (that you intended to kill) or implied malice.
For implied malice, they need to show: (a) you intentionally committed an act; (b) the natural consequences of that act were dangerous to human life; (c) at the time, you knew the act was dangerous to human life; and (d) you deliberately acted with conscious disregard for human life.
That’s a lot of elements within one element, right? Each of those sub-elements is something we can, and will, challenge if the facts support a position to do so.
3. You killed without lawful justification or excuse.
If you acted in legitimate self-defense or defense of another person, the killing was lawful. Not murder. Maybe not even manslaughter. The prosecution has to disprove self-defense beyond a reasonable doubt if we raise it.
The bottom line: if the prosecution cannot prove any one of these elements beyond a reasonable doubt, you cannot be convicted of murder. Proof beyond a reasonable doubt is the highest standard in our legal system, and every element is a potential avenue for defense.
Types of Murder Charges in California
Not all murder charges are created equal. California law distinguishes between different types of murder, and that classification dramatically affects what you’re facing in terms of potential penalties. Let’s walk through the differences.
First-Degree Murder
First-degree murder is the most serious murder charge you can face. Under Penal Code Section 189, a killing qualifies as first-degree murder if it was:7
Willful, deliberate, and premeditated, meaning you decided to kill and thought about it beforehand. Now here’s the thing: “premeditation” doesn’t require weeks of planning. Courts have found premeditation based on very brief periods of reflection. But there has to be some deliberation, some weighing of the decision, even if only for a few seconds.
Committed by poison, lying in wait, or torture, methods that inherently show deliberation and planning.
Committed using a destructive device, explosive, or armor-piercing ammunition, weapons that show premeditation through their acquisition and deployment.
Felony murder, a death that occurred during the commission of certain inherently dangerous felonies, including arson, rape, carjacking, robbery, burglary, mayhem, or kidnapping. Even if you didn’t intend to kill anyone, if someone dies during one of these felonies, you’re looking at first-degree murder.
Penalty: 25 years to life in state prison.8 If there are “special circumstances” (multiple victims, murder for financial gain, lying in wait, torture, and others) you’re facing life without the possibility of parole or potentially the death penalty. Absent “special circumstances,” your sentence could be far greater than 25 years to life if a weapon was used and/or if you suffered previous “serious” or “violent” felony convictions.
Second-Degree Murder
Second-degree murder, for all intents and purposes, encompasses all other murders that don’t meet the criteria for first-degree. This typically includes intentional killings that were not premeditated (i.e. heat of the moment situations where you intended to kill but didn’t plan it out).
It also includes killings committed with implied malice, where you acted with conscious disregard for human life but didn’t specifically intend to kill.
Imagine a situation where someone gets into a bar fight and strikes the other person in a way that causes fatal injuries. They didn’t walk in planning to kill anyone, but their actions were deadly. That’s a common second-degree murder scenario.
Penalty: 15 years to life in state prison. Enhanced penalties apply in certain circumstances: if a weapon was used, 25 years to life if the victim was a peace officer killed in the line of duty, or 20 years to life for a drive-by shooting.9
Watson Murder (DUI Second-Degree Murder)
Here’s one that surprises a lot of people. If you’ve previously been convicted of DUI and received what’s called a “Watson advisement” (that’s a warning about the dangers of driving under the influence), a subsequent DUI that kills someone can be charged as second-degree murder.
Why? Because that prior warning is treated as evidence that you knew your conduct was dangerous to human life. That establishes implied malice. See how quickly a DUI can turn into an indeterminate life sentence!?!?
Felony Murder and SB 1437 Reform
California’s felony murder rule has historically been extremely broad. If someone died during the commission of certain dangerous felonies, all participants could be charged with first-degree murder, even if the death was accidental and even if they didn’t personally cause it.
However, Senate Bill 1437 in 2018 significantly reformed this rule. Now, accomplices who did not actually kill, did not intend to kill, and did not act with reckless indifference to human life may be able to petition for resentencing. Many men and women across the state have been coming home as a result of SB 1437 after having served decades in prison.
Penalties and Consequences
Let’s be real about something: murder carries some of the harshest penalties in California law. Understanding exactly what you’re facing helps you appreciate why an experienced criminal defense lawyer isn’t optional. It’s essential.
Prison Sentences (Assuming No Other Sentencing Enhancements)
| First-Degree Murder | 25 years to life |
| First-Degree with Special Circumstances | Life without parole, or death |
| Second-Degree Murder | 15 years to life |
| Second-Degree (peace officer victim) | 25 years to life |
| Second-Degree (drive-by shooting) | 20 years to life |
Sentencing Enhancements
Now here’s where it gets even more serious. Murder sentences can be dramatically increased by enhancements that are served consecutively. That means they’re added on top of the base murder sentence:10
Firearm use (PC 12022.53 “10-20-Life”): Personally using a firearm adds 10 years. Personally discharging a firearm adds 20 years. Causing great bodily injury or death with a firearm adds 25 years to life. So you can see how these things snowball into really big sentences.
Gang enhancement (PC 186.22): If the murder was committed for the benefit of a criminal street gang, that can add 15 years to life.
Strike Offense
Murder is classified as both a “serious” and “violent” felony under California’s Three Strikes Law.11 What does that mean practically?
A murder conviction counts as a “strike” on your record. If you already have a prior strike, any subsequent felony sentence is presumptively to be doubled. A third strike can result in 25 years to life.
And you must be prepared to serve, per law, at least 85% of your sentence before becoming eligible for parole. There’s no early release like with many other offenses.
No Statute of Limitations
Unlike most crimes, murder has no statute of limitations in California. You can be charged with murder decades after the alleged killing occurred.
Time does not make this go away.
Cold cases are regularly reopened as new evidence emerges, as witnesses come forward, or as DNA and forensic technology advances.
Defense Strategies for Murder Charges in San Diego, CA
Here’s the critical point: murder charges are defensible, to varying degrees of course. The question is identifying the right defense strategy based on the specific facts of your case and then delivering on the strategy with preparation, professionalism, and precision.
Many lawyers, based on inexperience, indifference, and/or outright incompetence, will just try to negotiate a plea right out of the gate. The reality is, these cases require a thorough investigation and strategic analysis before you know what your best options are.
Let’s walk through the approaches we consider when building a defense:
Self-Defense or Defense of Others
California law recognizes your right to defend yourself or others from imminent harm. If you reasonably believed you or someone else faced immediate danger of being killed or suffering great bodily injury, and you used only the force necessary to defend against that danger, the killing was lawful. Importantly, California follows what’s called the “Castle Doctrine.” You have no duty to retreat from your own home before using deadly force against an intruder. Your home is your castle, and you’re entitled to defend it.
Now, even if your belief in the need for self-defense was honest but unreasonable (what we call “imperfect self-defense”), that can reduce murder to voluntary manslaughter. That’s the difference between potentially 25 years to life and 3, 6, or 11 years in prison; a huge difference.
Lack of Malice: Reduction to Manslaughter
If we can establish that you acted without malice aforethought, the charge should be reduced from murder to manslaughter. This can happen in several scenarios:
Heat of passion: You killed in the heat of passion after being provoked in a way that would cause a reasonable person to act rashly. This negates the mental state required for malice and reduces the charge to voluntary manslaughter.
Imperfect self-defense: You honestly but unreasonably believed you needed to use deadly force.
Accident: The death was the result of an accident during otherwise lawful conduct, which could result in involuntary manslaughter charges, or potentially no criminal liability at all, depending on the circumstances.
The difference matters enormously: voluntary manslaughter carries 3, 6, or 11 years in prison. Compare that to 15 years to life or 25 years to life for murder.
False Accusation and Mistaken Identity
People are, have been, and unfortunately will continue to be wrongfully accused of murder. Eyewitness identification, especially cross-racial identification, is notoriously unreliable. Decades of research confirm this.
Witnesses lie for many reasons: to protect the real killer, to pursue a personal vendetta, to shift suspicion away from themselves, or simply because they genuinely believe something that isn’t true.
We scrutinize every piece of identification evidence: eyewitness accounts, surveillance footage, forensic evidence, cell phone location records. We investigate alibis. We examine whether witnesses have motives to lie. In some cases, the strongest defense is proving you simply weren’t the person who committed the act.
Insufficient Evidence
The prosecution bears the burden of proving every element of murder beyond a reasonable doubt. That’s the highest standard in our legal system. And for good reason. Juries should not be convicting people of the most serious crimes, or any crimes for that matter, based on speculation or probability.
We challenge weak forensic evidence, unreliable witnesses, gaps in the prosecution’s timeline, and circumstantial evidence that could support other reasonable conclusions.
Constitutional Violations
Evidence obtained in violation of your constitutional rights may be suppressed. That means the jury never sees it.
We examine whether police conducted an illegal search or seizure, whether your Miranda rights were violated during questioning, whether your right to counsel was denied, and whether due process was violated at any stage of the investigation or prosecution.
Suppressing key evidence can fundamentally change the strength of the prosecution’s case. Sometimes a case that looked overwhelming becomes much more manageable once illegally obtained evidence is excluded.
Mental State Defenses
In limited circumstances, mental state defenses may apply. Under California’s M’Naghten rule, if you were incapable of understanding the nature of your act or distinguishing right from wrong at the time of the killing, you may be found not guilty by reason of insanity.
While not a complete defense, evidence of mental impairment can also be relevant to whether you formed the specific intent required for first-degree murder.
Challenging Premeditation
Even if the prosecution can prove you caused a death with malice, we may be able to challenge the premeditation element required for first-degree murder.
Reducing a first-degree murder charge to second-degree murder means the difference between 25 years to life and 15 years to life. That’s 10 years of your life before becoming parole eligible.
Facing Murder Charges in San Diego?
When your life is on the line – and with murder charges, that’s exactly what we’re talking about – you need attorneys who have actually defended murder cases. Not lawyers who will be learning on your case. Not lawyers who will push you to take a plea in the first week because they don’t know how to handle these cases at the highest levels.
Our firm has defended clients charged with homicide throughout San Diego County, from investigation through jury verdict. We’ve achieved not guilty verdicts in cases others said were unwinnable. Murder defense requires investigation, expert witnesses, forensic analysis, and intensive preparation. Murder investigations move fast. So do we.
Every day you delay gives the prosecution more time to build their case. The stakes are too high to wait.
Call us 24/7 for a consultation. We’ll review your case, explain your options, and start building your defense immediately. In order to protect your freedom and your future, you must know your rights.
References
- 1. Read the stuff blood. Check it out. (Cal., 2223)↑
- 2. THIS IS A TEST (ZILLA TEAM 123134)↑
- 3. Penal Code, § 187, subd. (a)↑
- 4. See CALCRIM No. 520 (First or Second Degree Murder With Malice Aforethought).↑
- 5. See CALCRIM No. 520 (First or Second Degree Murder With Malice Aforethought).↑
- 6. See CALCRIM No. 520 (First or Second Degree Murder With Malice Aforethought).↑
- 7. Penal Code, § 189 (Degrees of murder; felony-murder rule).↑
- 8. Penal Code, § 190 (Punishment for murder).↑
- 9. Penal Code, § 190 (Punishment for murder).↑
- 10. Penal Code, § 12022.53 (Enhancement for personal use of firearm during commission of specified felonies).↑
- 11. Penal Code, § 667.5, subd. (c) (Definition of violent felony); Penal Code, § 1192.7, subd. (c) (Definition of serious felony).↑