Have you ever wondered why some people get the death penalty for murder while others do not? The answer comes down to the specifics of the crime. That’s because in California, while capital punishment is still fully legal, it is only applicable in a handful of murder cases involving specific special circumstances detailed in California Penal Code 190.2 (PC).
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 and/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. In some limited circumstances though, California allows for these crimes to be punishable by the death penalty. This is because the state legislature decided long ago that a jury should not be able to choose a death sentence for any murder conviction, instead it can only be issued in cases involving one or more special circumstance that makes the crime particularly heinous.
When Can You Get the Death Penalty in California?
Under PC 190.2, 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, the jury must also unanimously agree that 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 felony. This includes a specific number of crimes such as robbery, rape, kidnapping and arson.
- The defendant has a prior conviction for murder on his record. It’s important to recognize that the law includes only actual first- and second-degree murder charges, not manslaughter or vehicular homicide charges.
- 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 the purposes of financial gain. This includes contract murders, murders for the purposes of inheriting life insurance or an inheritance and more.
- The victim was killed in the suspect’s attempt to prevent or escape arrest.This only applies in a case that involved a lawful arrest or to escape lawful custody. In other words, if you were being illegally held, this is an automatic defense to this crime.
- If the victim was performing his or her duties as a public safety officer, which can include any law enforcement officer, a firefighter, paramedic and more.
- The victim is a judge, juror, prosecutor or government official killed to prevent him or her from performing his or her official duties or in retaliation for doing his or her official duties.
- The victim was the witness of a crime. It’s important to recognize that 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 he or she witnessed. That being said, retaliation for a witness’ testimony in a past criminal proceeding would apply.
- The suspect was “lying in wait” to commit the murder, meaning he 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. The penal code covering this section of the law is very specific and all of these specific situations must apply in order for the suspect to be guilty.
- The murderer chose the victim based on his or her race, nationality, religion or country of origin. While this means the attack was a hate crime, it’s worth noting that not all characteristics protected by hate crimes apply, including sex, sexual orientation and disability.
- The murder was a gang crime. For this circumstance to apply, the murder must have been intentional and the suspect must have been a working to benefit the gang.
- The murder involved a drive-by shooting intending to kill someone.
- The murder involved some form of torture. This requires the suspect to 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. It’s worth noting that the act does not actually require the victim to feel pain, but that the defendant intended to do so.
- The murderer used a bomb or other explosive device that he knew or should have known was likely to cause the death of another person.
- Poison was the method of murder. Interestingly the defendant did not actually have intended to kill the victim using the poison in order for this circumstance to apply.
But is Capital Punishment Actually Used in CA?
To say that the current state of California’s death sentence both complicated and highly political is a drastic understatement. The last person to be executed was all the way in 2006 and Gavin Newsom has not only issued a moratorium on the death penalty and closed the state’s two death chambers. That being said, these efforts could be undone by the state’s next governor as actually outlawing capital punishment will require 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.
It is worth mentioning that even without capital punishment, a conviction under PC 190.2 still will result in enhanced penalties. In fact, whereas first-degree murder can carry a life sentence, parole is still permitted for those convicted in these cases. On the other hand, if you are convicted under the capital murder law, you can still be sentenced to life imprisonment without parole even if you are not put to death. In many cases, a criminal defense attorney can help a defendant be charged with first-degree murder rather than capital murder charges so he can still hope to be released on parole at some point in the future.
Fighting the Charges in a Capital Murder Case
The financial burden of defending a capital case is immense, so it is important to discuss the case with a lawyer who will realistically assess the case and the costs. Capital cases 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.
These are cases where the public defender is often best suited to handle the case given the resources they have 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, attorney Peter Liss understands the pros and cons of private representation on these cases. This can be particularly beneficial as not everyone will actually qualify for a public defender, but the experience provided from a previous public defender who has handled a death penalty case can be critical in these cases.
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, but particularly if you are facing something as serious as a capital murder charge, please contact Peter M. Liss as soon as possible to schedule a free initial consultation in his Vista or San Diego office. Call (760) 643-4050 or (858) 486-3024 today.
