Homicide (Murder and Manslaughter)

A homicide offense is charged when an unlawful killing occurs. As you are probably aware, homicide charges are the most serious under the law. If you or a loved one is suspected of a murder in Los Angeles or anywhere in California, do NOT make any statements to the police or answer any questions until you contact a qualified criminal defense attorney to discuss your case and possible defenses. For a confidential consultation, call Los Angeles criminal defense lawyer Jerod Gunsberg at (323) 633-3423.

There is a wide range of crimes you can be charged with for a homicide, depending on the circumstances of the case. For example, manslaughter is a less serious charge than murder and carries a lower punishment. Often, the defense in a homicide case focuses on arguing that your case falls under one of the less serious charges. Which category of homicide crime you are charged under, or convicted of, makes a big difference in the outcome of your case. The punishment for first degree murder, for example, can be the death penalty, life without the possibility of parole, or 25 years to life in state prison. By contrast, the statutory punishment for voluntary manslaughter is 3, 6, or 11 years in state prison and probation can be granted instead of state prison time.


Murder is the most serious homicide charge. It applies when the prosecutor can prove the following:

  • You did something that caused another person’s death.
  • You killed without lawful excuse or justification (see “Justifications and Excuses” below).
  • You acted with “malice aforethought”, meaning that you unlawfully intended to kill, or that you intentionally did something that was dangerous to human life, you knew that it was dangerous to human life, and you acted with conscious disregard for human life.

Murder also applies when the person who is killed is a fetus, even if you were not aware of the existence of the fetus.

You may have a defense if there is a question regarding whether the act you committed caused the person’s death. Similarly, if you did not act with malice aforethought because you did not realize that the act you committed was dangerous to human life, this would be a defense to the charge of murder.

There are two types of murder charges: first degree murder and second degree murder.

First Degree Murder

First degree murder is more serious. In order to be convicted of first degree murder, the prosecutor must prove one of the following:

1. Willful, Intentional, & Premeditated – If you acted willfully, meaning that you intended to kill, deliberately, meaning that you weighed out the pros and cons and decided to kill, and with premeditation, meaning that you decided to kill before you completed the act that caused the other person’s death, this constitutes first degree murder.


2. Torture – A murder committed by torture is also defined as first degree murder, as long as the torture was the cause of death. Torture is defined as intentionally inflicting extreme and prolonged pain upon someone while that person is alive for the purpose of revenge, extortion, persuasion, or other sadistic purposes, provided that the acts causing the person’s death involved a high probability of death.


3. Lying in Wait – A murder committed by someone who is lying in wait is also first degree murder. This occurs when someone hides from the person killed, waits and watches for an opportunity, and makes a surprise attack on the person who is killed.


4. Murders that are caused by a destructive or explosive device, penetrating ammunition designed to penetrate metal, shooting a firearm from a vehicle, or poison are also first degree murder.

Provocation may reduce first degree murder to second degree murder, a less serious charge. For example, if you were provoked into committing the act that caused the killing, your attorney may be able to convince the judge, jury, or prosecutor to reduce the charge to second degree murder.

Second Degree Murder

A defendant is guilty of second degree murder if the prosecutor proves that the defendant committed murder but does not prove that the defendant committed first degree murder, as discussed in the previous section.

Felony Murder

You may also be found guilty of first or second degree murder if you commit a specific felony and someone dies in the course of the crime, even if you did not intend to kill the person. You can be found guilty of murder if your co participant in the felony kills someone.

The following felonies may support a charge of first degree murder under the felony murder doctrine: arson, rape, carjacking, robbery, burglary, kidnapping, mayhem, train wrecking, sodomy, lewd or lascivious acts on a child, oral copulation, and sexual penetration.

Any felony that is “inherently dangerous to human life” can support a charge of second degree felony murder. Some examples include attempted escape from prison by force or violence, furnishing a poisonous substance, manufacturing methamphetamine, and shooting a firearm in a grossly negligent manner. However, if the underlying felony was assaultive in nature, it does not fall under the felony murder rules. Courts have ruled that many felonies are NOT inherently dangerous and therefore cannot support a conviction of second degree felony murder. Be sure to consult with an attorney to see if the underlying felony offense was properly charged. It is a defense to felony murder if the underlying felony was not inherently dangerous.

Duress is a defense to felony murder – if you were threatened or forced into participating in committing the felony offense, be sure to tell your attorney so that this defense can be presented in court.


There are two different types of manslaughter charges: Voluntary and Involuntary.

Voluntary Manslaughter

Voluntary manslaughter is generally defined as an intentional, unlawful killing. Someone may also be convicted of voluntary manslaughter for intentionally committing an act that resulted in someone else’s death when the natural consequences of that act were dangerous to human life, the defendant knew the act was dangerous to human life, and the defendant acted with conscious disregard for human life.

Heat of Passion: A murder charge is reduced to voluntary manslaughter when a defendant kills someone in the heat of passion, or because of a sudden quarrel. This occurs when a defendant acts under the influence of intense emotion that obscures his or her judgment, provided that the provocation would affect an average person in a similar way.

Imperfect Self Defense: In order to be found not guilty because of self defense, the defendant’s belief in the need to use deadly force must have been reasonable. However, a murder charge can be reduced to voluntary manslaughter if a defendant acted in “imperfect self defense”—meaning that he or she acted to defend himself, or another person, but his or her belief in the need to use deadly force was not reasonable.

Involuntary Manslaughter

The charge of involuntary manslaughter is proven when someone commits an unlawful killing without intending to kill, and without acting in conscious disregard for human life. This occurs when someone acts with criminal negligence, or commits a crime that poses a high risk to human life or had a high risk of resulting in great bodily injury to someone.

The crime of involuntary manslaughter also occurs when someone who has a legal duty to care for someone fails to perform that duty in a criminally negligent fashion, resulting in death. For example, if a parent fails to properly care for a child and the child dies, this may be considered involuntary manslaughter if the parent’s actions rise to the level of criminal negligence. Talk to you attorney to discuss what criminal negligence means in the context of your particular case.


Homicides that occur in the course of vehicle collisions can be charged under several Penal Code sections, depending on the circumstances of the collision, whether the driver was under the influence at the time, and whether the driver acted with gross negligence or ordinary negligence. The severity of the punishment varies depending on the seriousness of the allegations.

If you were not driving in a negligent way but a death occurs as a result of an accident, this is not a crime. If you are charged with vehicular manslaughter but were not driving negligently, this is a defense.


The following are a list of possible defenses to homicide crimes. Each of these justifications involve complicated legal issues, and you should consult with your attorney regarding your specific case to determine if any of these apply.

Self Defense: If you believed that you were in immediate danger of being killed, injured, or victimized in a forcible crime, you may lawfully use self defense to defend against that danger. If you used no more force than was necessary under the circumstances, this may be a defense to homicide.

Defense of Another: If you used reasonable force to defend someone else who was in imminent danger of being killed, injured, or victimized in a forcible crime, this may be a justification for homicide, depending on the circumstances.

Defending Within Home: It may be a defense to homicide charges if you killed or attempted to kill someone in order to defend yourself or someone else within your home if the victim of the homicide tried to commit a forcible crime or violently tried to enter your home to commit violence against someone inside.

Public Officer: If a public officer such as a peace officer commits a homicide while performing their duties, and the officer had probable cause to believe the victim posed a threat of serious physical harm, the homicide may be justifiable.

Accident: If a homicide occurs as a result of an accident, it is not unlawful if the defendant did not mean to break the law, as long as the defendant was acting in a way that a reasonably careful person would act when the accident occurred.

Heat of Passion: Under specific conditions, a homicide committed while someone acted in the heat of passion may be excused under the law.

If you or a loved one is a suspect in a homicide case, do NOT talk to the police. Instead, call Los Angeles criminal defense lawyer Jerod Gunsberg at (323) 633-3423 for a confidential consultation or get in touch via the secure contact form on this page. Help is available 24 hours a day, 7 days a week.

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