Murder | Resources

To prove that you are guilty of murder, the prosecutor must show that:

  1. You committed an act that caused the death of another person or a fetus;
  2. At the time you acted, you had the state of mind known as “malice aforethought.”
  3. That you committed the act without lawful privilege, excuse or justification.

What is “malice aforethought? 

“Malice” is a term of art in criminal law which does not match the layperson or dictionary definition.  In other words, it does not refer to ill will, hatred or malevolence towards the victim.  One can harbor none of those emotions and still be convicted of murder because he acted with the necessary mental intent.

This intent is known as “malice aforethought,” which is bifurcated into “express” and “implied.”

Express malice is the unlawful intention to kill.  But someone can be guilty of murder if they act with implied malice, that is, the defendant intentionally committed an act, the natural and probable consequences of which endangered (and were known to him to endanger) human life, and he acted with a conscious disregard to human or fetal life.  Therefore, you do not need to intend to kill the victim.  You need only have committed an act that imperiled someone’s life, i.e., dropping a cinder block from a freeway overpass, shooting into an occupied residence, inflicting severe bodily harm, etc.

What is “first degree” murder?

The prosecutor will charge you with first degree murder if:

  1. you killed someone during the commission of a specified felony (i.e., an “inherently dangerous” felony such as burglary, arson, rape, robbery, kidnaping, or mayhem)
  2. you killed someone with willfulness, deliberation and premeditation, or
  3. you killed someone by laying in wait, infliction of torture or the through the use of a destructive device or explosive (or other lethal agent specified in the Penal Code or Health and Safety Code)

There are special circumstances or aggravating factors that can elevate the crime to capital murder (punishable by death or life without the possibility of parole). These factors include the killing of a police officer or other specified public official, multiple murder, killing motivated by racial or religious bias, murder for the benefit of a criminal street gang, among others.

What is “second degree” murder?

Any murder that does not fall into the category of “first degree” murder is second degree-murder.  Typically, these murders involve homicides which occur as a result of the “abandoned and malignant heart” of the defendant, in other words, homicides that involve an inordinately high degree of recklessness and carelessness.  For example, if you have been convicted of DUI and subsequently kill someone in an accident while you driving under the influence of alcohol or drugs, you may be charged wit this crime.  Other examples involve shooting a firearm into a dwelling, throwing a cement block from a freeway overpass, or any other act which you should have known would endanger human life and you disregarded that risk by committing it anyway.

What defenses can your lawyers advance in my case?  

Robert Ernenwein, an experienced Los Angeles criminal defense lawyer, is skilled at thoroughly reviewing the evidence such as police reports, witness statements and any available forensic and other evidence.  In murder cases, we employ the use of an investigator to interview witnesses who may have witnessed the alleged incident.  Our review of discovery and witness interviews may yield evidence that shows your innocence or which diminishes or weakens the prosecution’s case against you.  Depending on the facts and circumstances of your case, we may use any of the following defenses on your behalf.

If you harbored the reasonable belief that your life or limb were in danger, in other words, that you were about to be killed, sustain great bodily injury (i.e., beaten, raped, robbed, or suffer some other violent attack), and you defended yourself with deadly force, we can argue that self-defense.  The same concept applies if you believe that a third party was about to suffer lethal force, as well.  This is known as “defense of others.”  Granted, there are qualifications to his.

The force used must be commensurate with the force you or the third party were in danger of sustaining.  You cannot react to a threat of non-lethal force with a lethal response (i.e., using a gun in response to a threat of an unarmed attack).

Also, you cannot use lethal force to defend against a legally privileged attack, such as the threat of lawful force by a police officer.

A successful argument of self-defense or defense-of-others will allow us to secure your acquittal at trial or a pretrial dismissal of your charges through conference with the prosecutor.

If you used force which was not measured to the threatened attack, but you still harbored an honest and good faith belief that you were about to sustain lethal force, we may be able to argue “imperfect self-defense.”  Although this may not entirely absolve you of the homicide, it will give us an opportunity to secure a substantial reduction of the crime (i.e., from murder to voluntary manslaughter).

You may have heard that the “insanity defense has been abolished.” This is not entirely true.  Under the so-called M’Naghten Rule, we may be able to argue that the defendant only killed the victim because he did not understand the nature of his act or could not distinguish between right or wrong.  This often happens in instances arising out of postpartum depression or other serious mental disease that figuratively renders the defendant’s mind “hostage” to impulses reflective of said mental illness.

We will also look into whether the charges arise out of a confession or other admission or inculpatory statement.  If the confession was the product of coercion on the part of the police (for example, if the police made threats against you or your family) we can motion the court to exclude the inculpatory statement.  If the police had you in custody at the time and were interrogating you about a murder, and you made a confession without having been read your rights, we can motion the court to exclude that confession based on a violation of your Fifth Amendment right against self-incrimination.

You may also be the victim of mistaken identity.  Oftentimes, a suggestive or prejudicial photo or in-person line-up can cause the witness to erroneously single you out as opposed to the actual perpetrator, leading the police to suspect you of the murder.  We can challenge the police methods that led to your identification and demand a live line-up to verify whether the witness can actually identify you as the suspect.

There may also be circumstances in mitigation.  If you or a loved were actually involved in a homicide but the killing arose “in the heat of passion,” we can argue that the murder charges must be dismissed and that the case should be reduced to a voluntary manslaughter.  For example, if you witnessed your spouse in the midst of intercourse with another individual and you concurrently or very shortly thereafter committed the homicide, we can argue that you were passions were inflamed and that you did not have sufficient time to cool off and react more calmly to the situation.

There is a host of issues we can evaluate based on our analysis of the police reports, witness statements and other evidence both on file and during our investigation.  Based on our findings, we may be able to successfully thwart a criminal prosecution in court or achieve acquittal at trial.

Robert Ernenwein, an expert and experienced Los Angeles criminal defense lawyer, has over 30 years of experience defending persons accused of Murder. Mr. Ernenwein is a former Los Angeles Deputy District Attorneys and is Certified as a Criminal Law Specialist by the California State Bar Board of Legal Specialization. He has been named as a “Super Lawyer” by Los Angeles Magazine and has appeared as a legal analyst on multiple cable news programs, including Fox News. The experience and capabilities Robert Ernenwein will bring to your Murder are unmatched.

Call us immediately at 310-375-5858 for your free consultation.