Last Updated on August 28, 2024
Have you ever wondered why some people get the death penalty for murder while others do not? The answer comes down to the specific details that make a crime a “capital murder” versus a typical first-degree murder. That’s because while capital punishment is still entirely legal, it is only applicable in a handful of murder cases involving specific special circumstances detailed in California Penal Code 190.2 (PC). “If you or a loved one has been accused of murder, always call a skilled defense attorney, like myself, immediately. Otherwise, you could say something that could open you up to capital murder charges,” warns attorney Peter M. Liss. “As your lawyer, it’s my job to help you avoid saying anything that could later harm your case.”
What is Capital Murder?
In California, the killing of another person will result in either murder or manslaughter charges, depending on whether or not the killing was intentional. If the killing was intentional, the charges will be filed as either first- or second-degree murder under Penal Code 187 (PC). When the killing was deliberate or pre-meditated, it is considered first-degree murder. Otherwise, it will be filed as second-degree murder.
First-degree murder is typically punishable by 25 years to life in prison. However, there are some limited circumstances wherein the law allows for these crimes to be considered “capital murder,” meaning they are punishable by life imprisonment without parole or the death penalty. These special circumstances must be spelled out under the law because the state legislature decided long ago that a jury should not be able to choose a death sentence for just any murder conviction. Instead, it can only be issued in cases involving one or more unique circumstances that make the crime particularly heinous.
When Can You Get the Death Penalty in California?
Under 190.2 (PC), capital punishment is only allowed under the law in very limited cases, all of which involve first-degree murder. Even if the prosecutor files the crime as a capital murder charge and the jury determines the suspect is guilty of the murder, for the defendant to be convicted of capital murder, the jury must then unanimously agree the crime is punishable by death.
The special circumstances where murder is punishable by the death penalty are when:
- The murder took place during the commission of a specific type of felony, including crimes such as robbery, rape, kidnapping, and arson.
- The defendant has a prior conviction for murder on their record —note that manslaughter or vehicular homicide charges are not applicable here.
- The defendant is facing multiple murder charges in the same trial and is found guilty of more than one first-degree murder charge.
- The murder is committed for financial gain; for example, it was a contract murder or done to access an inheritance.
- The victim was killed in the suspect’s attempt to prevent or escape a legal arrest. This clause only applies in a case that involved a lawful arrest or to escape lawful custody, so a victim being illegally held cannot face capital murder charges unless other circumstances apply.
- If the victim was performing their duties as a public safety officer, including law enforcement officers, firefighters, paramedics, and more.
- The victim is a judge, juror, prosecutor, or government official killed to prevent him or her from performing their official duties or in retaliation for doing their official duties.
- The victim was the witness of a crime. Notably, the law only applies this circumstance in cases where someone has already been named as a witness in a crime being prosecuted, not in cases where someone is killed during the commission of the crime they witnessed. Retaliation for a witness’s testimony in a past criminal proceeding would apply.
- The suspect was “lying in wait” to commit the murder, meaning they purposely hid from the victim, waited for an opportunity, made a surprise attack, had a position of advantage, and had the intent to kill the victim by surprise. “Because the penal code covering this section of the law is very specific, and all of these situations must apply for the suspect to be guilty, I believe this is one of the easiest circumstances to challenge in court,” notes Liss.
- The murderer chose the victim based on their race, nationality, religion, or country of origin. While this means the attack was a hate crime, not all characteristics protected by hate crime statutes apply, including sex, sexual orientation, and disability.
- The murder was intentionally committed for the benefit of a criminal organization, meaning it was a gang crime.
- The murder involved a drive-by shooting that was done with the intent to kill someone.
- The murder involved some form of torture, and the killer must have intended to kill, to have intended to inflict extreme physical pain while the victim was still alive, and to have done something that would inflict extreme physical pain. The victim does not actually need to have felt pain, but the defendant must have intended to inflict it.
- The murderer used a bomb or other explosive device that they knew, or should have known, was likely to cause the death of another person.
- Poison was the method of murder. The defendant did not need to have the intent to kill the victim using the poison for this circumstance to apply. “This is one of the more challenging types of capital murder charges to fight, because the prosecution typically has strong evidence in murder-by-poison cases, and this part of the statute is very straightforward,” notes Liss.
Is Capital Punishment Legal in CA?
To say that the current state of California’s death sentence both complicated and highly political is a drastic understatement. The last state execution was in 2006, and in 2019, Gavin Newsom issued a moratorium on the death penalty and closed the state’s two death chambers.
However, these efforts could be undone by the state’s next governor, as outlawing capital punishment requires a public vote. In 2016, the public narrowly voted to retain the death penalty, but as the public seems to be increasingly against capital punishment, it’s possible it will be outlawed within the next decade.
Even without capital punishment, a conviction under 190.2 (PC) will still result in enhanced penalties. Whereas first-degree murder can carry a life sentence with parole, those convicted under the capital murder law can be sentenced to life imprisonment without parole even if they are not put to death. “A skilled criminal defense attorney can often help a defendant, even one that is undeniably guilty, avoid a capital murder conviction, so their client can still eventually be paroled,” says attorney Liss. “I have helped clients achieve these results and have successfully fought murder charges on multiple occasions.”
Fighting the Charges in a Capital Murder Case
The financial burden of defending a capital case is immense, so always discuss the case with a lawyer who will realistically assess the case and the costs. “I always guarantee my clients receive top-quality representation at affordable rates, but the number of hours an attorney puts into a death penalty case means these offenses are costly to fight,” notes Liss. “Capital cases typically require two or more lawyers, many experts, and exhaustive investigation.”
If a conviction is made in a special circumstance murder, there will be a separate trial called the “penalty phase.” Preparation for the penalty phase is as important and sometimes more critical than the guilt phase of the trial.
Even cases resolved by plea bargain require an experienced defense attorney, as Liss notes, “all murder case negotiations with the District Attorney have to be approved at the highest level of the office [the District Attorney themselves]. I have had those meetings so understand the nuances of these high stakes negotiations.”
These are cases where the public defender is often best suited to handle the case given their resources as a public agency and lawyers who have experience handling death penalty cases on its staff. “Having tried a death penalty case while serving as a public defender, I understand the pros and cons of private representation on these cases,” says Liss. “While not everyone will qualify for a public defender, my prior experience as a public defender who has handled death penalty cases is immeasurably beneficial to my clients.”
Remember that in cases like these, choosing the right capital murder lawyer in San Diego is quite literally a matter of life and death. “If you have been charged with any crime, especially something as serious as a capital murder, please contact my offices as soon as possible to schedule a free initial consultation,” says Liss. You can contact his Vista or San Diego offices by calling (760) 643-4050 or (858) 486-3024 today.
