Category: Violent Crimes

Crimes of Violence | No Cuffs

Murder and Malice Aforethought

Posted by Kyle Gaffney on April 17, 2018

Crime shows on television seem to focus only on homicide. After they find the evidence, they prove he killed her, and, bingo, they convict the man of killing his wife. However, in reality, murder charges require more substance to lead to a conviction. Murder constitutes one of the most serious crimes in the United States. In order to convict someone of murder, the prosecution must prove, beyond reasonable doubt, that the individual acted with “malice aforethought.” Malice aforethought describes the individual’s intent and mental state while committing the crime.

Malice aforethought differs from terms like malicious, deliberate, or premeditated. “Malicious” means ill will. “Deliberate” is defined as thoughtfully weighing options. “Premeditated” refers to contemplating an action beforehand, and then proceeding with it.

California Penal Code 187 states that murder involves one person taking another human’s life with malice aforethought. The law further defines malice aforethought as a deliberate intent to kill, or a reckless disregard for human life.

California Penal Code 188 elaborates on malice aforethought as follows:

Such malice may be “express” or “implied.” It is “express” when there is manifest a deliberate intention to take the life of a fellow creature unlawfully. It is “implied” when there is no apparent provocation, or when the circumstances attending the killing show an abandoned and malignant heart.

When it is shown that the killing resulted from an intentional act executed with express or implied malice as defined above, no other mental state need be shown

Malice aforethought concerns the defendant’s mental state, and more specifically, his or her intent. Express malice aforethought is defined as the deliberate killing of another person, while implied malice aforethought describes a situation in which the defendant killed someone while consciously disregarding the risk for human life. Moreover, implied malice aforethought does not imply a deliberate intent to kill.

Examples of express malice would include the following:

Choking someone until the victim loses consciousness and stops breathing
Shooting firearms at point-blank range at another person
Employing a hit man to take another person’s life
Deliberately poisoning another person

Examples of implied malice would include:

Allowing young children to handle loaded firearms without supervision
Driving under the influence after receiving warnings from the court concerning the dangers of drinking while driving, or after prior prosecution for DUI
Allowing dogs that have attacked and injured people in the past to run free in a park
Throwing bricks at cars from a freeway overpass

People accused of murder have an obligation to themselves to fight for their freedom and civil liberties. Finding experienced defense attorneys can help obtain the best outcome. A good lawyer will be able to investigate the situation and uncover information vital to the murder case. Since 1989, over 2,100 people convicted of murder have been exonerated through the dedication of relentless legal counsel. The job of defense attorneys is to stand up for individual rights against an immensely powerful government entity.

Defining Malice Aforethought in Murder

California state prosecutors rely on malice aforethought to prove the deadly intent of the accused while committing a homicide. The prosecution cannot convict a person of murder unless malice aforethought can be proven.

Malice aforethought falls into two categories, express or implied. “Express” refers to a deliberate intent to take human life. “Implied” refers to willfully acting with a conscious disregard for human life.

California Juror Instructions explain malice aforethought as follows:

There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.

The defendant acted with express malice if he or she unlawfully intended to kill.

The defendant acted with implied malice if:

He or she intentionally committed an act;
The natural and probable consequences of the act were dangerous to human life;
He or she knew this act was dangerous to human life at the time he or she acted
AND
He or she deliberately acted with a conscious disregard for human or fetal life.

Malice aforethought does not require hatred or ill will toward the victim. It refers to the mental state of the perpetrator that must be established before the act that causes death is committed. The concept does not require deliberation or the passage of any particular period of time.

It is not necessary for the defendant be aware of the existence of a fetus in order to be guilty of murdering the fetus.

Malice aforethought is considered an integral element of murder charges.

Malice Aforethought and Murder in California

In order to convict someone of a crime, the prosecution must prove, beyond reasonable doubt, certain elements of the crime. California State Juror Instructions 520, Murder in the First and Second Degree, define the necessary elements as follows:

The defendant committed an act that caused the death of another person, or a fetus

AND

When the defendant acted, (he or she) had a state of mind defined as malice aforethought,

AND

He or she killed without lawful excuse or justification.

In order to prosecute someone of a crime, most cases require the prosecution to prove that the person committed the act, and that the person had a specific mental state conducive to criminal behavior. Murder convictions require only that it be proven that the accused unlawfully took another person’s life, and that he or she exhibited malice aforethought.

Malice aforethought does not imply a motive; it only describes the mental state of an individual during the deliberate and unlawful commission of homicide.

Example

San Francisco prosecutors have convicted Toby of theft and assault on multiple occasions, and Toby’s criminal record reflects this. He frequents a specific bar on Thursday nights. One Thursday, he joins a group of friends and acquaintances for a celebration of sorts. Although there is no fight or argument,Toby nonetheless brandishes a pistol and shoots one of the other bar patrons.

Since no one at the bar says anything to the police, the prosecution can only rely on the video evidence from the bar’s surveillance system. The footage clearly shows Toby deliberately shooting the other man without any evidence of self defense.

Toby killed the other bar patron, and did so with an understanding of the consequences of his actions. The prosecution could very well pursue murder charges against Toby for his actions.

Express Malice

Of the two forms of malice aforethought, express malice uses a simpler and more direct standard. Express malice refers to behavior clearly carried out in order to take someone’s life.

California Penal Code 188 defines express malice as an instance when the perpetrators “manifest a deliberate intention to unlawfully take away the life of a fellow creature.”

Example

A disgruntled employee takes an assault rifle to work, and begins to shoot into the main lobby. The employee deliberately intends to kill those he worked with. He has no lawful reason to do so, and is acting with express malice in this instance.

Implied Malice

Implied malice occurs when an individual deliberately acts in a way that causes great risk to human life, and displays a conscious disregard for this risk. Implied malice occurs indirectly or through reference. The perpetrator does not need to intend to kill, but needs to fully understand that his or her actions will result in another person’s death.

California Penal Code 188 defines implied malice as “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

Example

A parent leaves a loaded revolver on the coffee table in the living room. Her child tries to spin the cylinder and ends up shooting and killing herself. The parent understood the dangers associated with firearms, but left the gun out anyway. The parent showed a deliberate disregard for the child’s safety by leaving the gun out while loaded, and could be prosecuted for murder under implied malice.

Malicious Crime

The California legislature defines “malice” differently from “malicious.” While the terms share roots in colloquial language, the criminal laws differentiate between the two terms.

Penal Code 7, Subsection 4 defines the two terms as follows:

The words “malice” or “maliciously” suggest a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.

The terms in Penal Code 7, Subsection 4, refer to malicious criminal acts, such as the crime of mayhem.

Legally, other crimes require ill will or evil intent by the perpetrator. However, the mental requirement in Penal Code 188 does not require ill will. Even if an individual believes that his or her actions benefit someone else, the prosecution can still successfully charge him or her with murder.

In the 1975 case of The People v Harris, the California Supreme Court ruled that:

“The malice essential to constitute [murder] is something distinct from [Penal Code 7].”

Example

Bob and Phyllis married each other 40 years ago. Bob began to develop Chronic myelomonocytic leukemia, an extremely painful terminal cancer of the bones. After a few weeks in the hospital, the doctors acknowledged that there was nothing more they could do for him. The doctors sent him home. After returning from the hospital, Bob had a hospice nurse who cared for him during the day. He suffered daily, and Phyllis could not stand to see him suffering. One night, after the nurse went home, Phyllis gave Bob a fatal dose of morphine. After an hour or so, Bob passed away.

Although Phyllis acted with the best of intentions, she still deliberately killed her husband.

Deliberation and Premeditation

The California state legislature asserts that deliberation and premeditation differ from the mental state of malice aforethought. All murder charges require malice aforethought, but murder charges do not require premeditation or deliberation.

Premeditation and deliberation describe scenarios in which the defendant reflected on and planned the commission of the homicide, with an understanding of the consequences.

Deliberation and premeditation raise the severity of murder charges in California to first-degree murder. California Penal Code 189 states that first-degree murder includes “killing in a way that is willful, deliberate and premeditated.”

The State of California classifies first-degree murder as the highest-level felony in the state. California considers those who reflect on and commit a homicide as deserving of more severe penalties.

Willful, deliberate, and premeditated murder constitutes one of three types of first-degree murder. California State Penal Code 189 defines the others as:

Using a destructive devise in California, lying in wait, or using torture in California
California’s felony murder rule, or Watson Murder, for certain DUI-related homicides

Example

Jan possesses a frightening temper. One day she decides to bring a pistol to work with her. After starting an argument with a coworker, she brandishes the pistol and threatens to kill the coworker. Jan then briefly calms down and lowers the weapon. However, she slips as she starts to place the pistol back in her purse, and a single shot goes straight into the heart of her coworker.

Jan displayed the “express” malice element of murder. Her actions illustrated an intent to take human life. Furthermore, she had reflected on the act beforehand. She had ample time to contemplate how bringing a pistol to work could affect her life, and the lives of her coworkers. However, she proceeded to act in a way that killed her coworker.

Understanding Malice Aforethought in Murder

California only considers homicides as murder if the perpetrator acted with malice aforethought. Murder laws use malice aforethought to describe the killer’s mental state while committing the homicide.

Malice aforethought can take two forms, express malice and implied malice.

Express malice aforethought refers to situations in which the killer deliberately acts in a way to kill another person.

Implied malice aforethought refers to situations in which the killer understands that his or her actions carry an inherent risk to human life, but carries out the risky actions anyway.

Express malice aforethought occurs in cases in which an individual shoots someone at point-blank range, or stabs someone to death.

Implied malice aforethought occurs in situations in which someone rolls a boulder down a hill towards a group of people, or when someone leaves a loaded gun out where a child can reach it.

Malice aforethought is an integral element of murder charges, and determines the severity of the homicide. While the concept may seem rather black and white, the prosecution and the defense must explore it in detail to ensure justice. People accused of murder, or of any homicide-related crime, face the most severe penalties that the State of California can impose. Only through diligent research and investigation can the accused hope to find a positive outcome. Without an experienced defense attorney, the chances of success are drastically reduced.

Vandalism in California

Posted by Kyle Gaffney on April 7, 2018

California State uses Penal Code 594 to describe Vandalism as maliciously damaging, defacing, or destroying property belonging to someone else. The law only applies to property not owned by the vandal.

If a person took a baseball bat to his or her own car, then vandalism would not occur. However, if the car was leased, then the individual would have vandalized the credit company’s property. Typical examples include breaking windows, keying cars, or graffiti. The key components of vandalism revolve around malicious intent. Accidents do not qualify as a crime, even though the individual may still be financially liable for the damage in civil court.

Vandalism’s wobbler status refers to the circumstances surrounding the individual case, and the prior offenses committed by the defendant. These two factors determine whether the prosecution pursues either misdemeanor or felony charges.

While the most extreme penalties for vandalism can include prison time, vandalism convictions may also drastically impede professional development. Employers often view a vandalism conviction on a prospective employee’s criminal record as a legitimate risk, and often move on to other candidates.

Defining Vandalism in California

California Penal Code 594 defines vandalism as follows:

Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: (1) defacing with graffiti or other inscribed material. (2) damaging (3) destroying

This essentially means that the State of California does not allow anyone to harm the property belonging to someone else in any way.

In order to convict an individual of vandalism, the prosecution must prove three elements of the crime beyond a reasonable doubt.

California Criminal Jurors Instructions 2900, Vandalism, explains the elements as follows:

The defendant maliciously defaced with graffiti or with other inscribed material, or damaged, or destroyed real, or personal property

AND

The defendant either did not own the property, or owned the property with someone else

AND

The amount of damage caused by the vandalism was $400 or more.

The elements of vandalism are explained in greater detail below:

Malicious intent

The first element concerns malicious intent behind the defendant’s actions.

Someone acts maliciously when he or she intentionally commits a wrongful act, or acts with the unlawful intent to annoy or injure someone else.

The prosecution must prove the accused individual acted with malice against the property he or she vandalized. If the act was accidental, then the accused is not guilty of vandalism. Furthermore, malice does not necessitate a desire to break the law.

California Penal Code 594 not only prohibits malicious harm to another’s property, but also criminalizes graffiti.

Graffiti and Vandalism

Juror Instructions 2900 further explains graffiti as follows:

Graffiti or other inscribed material includes an unauthorized inscription, word, figure, mark, or design that is written, marked, etched, scratched, drawn, or painted on real or personal property.

Penal Code 594 classifies any unauthorized writing or drawing on any type of property, using any form of marking, as “graffiti” as defined under the term “vandalism.”

“Real” property refers to anything connected to the land, as well as to the land itself and anything attached to it, such as a building, a home, or a yard.

“Personal” property refers to anything else, such as a television inside a home, or a car.

Moreover, the penal code also states that, “defacement with graffiti or other inscribed material does not need to be permanent.”

Ownership of Property

The second element concerns the ownership of the vandalized property. An individual cannot vandalize his or her exclusively-owned property. However, vandalism can be charged with respect to jointly-owned property.

If the alleged vandalism appears on “public” property (such as a park bench), the jury may presume that the defendant did not own the property, and that he or she lacked permission to deface, damage, or destroy this public property. (https://www.nocuffs.com/wp-admin/admin.php?page=wpcf7ic property)

California’s vandalism law also applies to jointly-owned property. A husband or a wife can be convicted of vandalizing his or her own property if the vandalized property belongs to both spouses.

Value of Damaged Property

The final element describes the damage caused as compared to a monetary value.

The cost to repair or replace vandalized property determines if the prosecution will pursue misdemeanor or felony charges. For vandalism resulting in damage under $400, the prosecution may only pursue misdemeanor charges.

However, if the damage costs $400 or more to repair, the crime becomes a “wobbler,” meaning that the prosecution may pursue either misdemeanor or felony charges against the defendant. The prosecutor’s decision in this regard is generally based on the specific circumstances of the case and on the defendant’s criminal history.

Also, if the prosecution can prove that the defendant committed one or more acts of vandalism with the “same intention, impulse and plan,” then the damage from all the acts will be added together. If the total amount of the damage is $400 or more, then the prosecutor may charge the individual with felony vandalism.

Penalties for Vandalism in California

California has created a surprisingly complex punishment system for vandalism under Penal Code 594.

Misdemeanor Vandalism

Misdemeanor vandalism under Penal Code 594 carries the following penalties if the cost to repair the damage is under $400:

Up to 1 year in a county jail
Fines of up to $1,000—OR of up to $5,000 for defendants with a prior vandalism conviction
Informal Probation

If the amount of the damage is $400 or more, the penalties for misdemeanor vandalism under Penal Code 594 include:

Up to 1 year in a county jail
Fines of up to $10,000—OR of up to $50,000 if the amount of the damage was $10,000 or more
Informal probation

Felony Vandalism

If the amount of the damage is $400 or more, the penalties for felony vandalism under Penal Code 594 include:

Either probation, with up to one year of county jail time, or county jail time of from 16 months to 3 years
Fines of up to $10,000—OR of up $50,000 if the amount of the damage was $10,000 or more
Informal Probation

Subsequent Convictions

Under Penal Code 594.7, if the defendant was previously convicted of vandalism on at least two occasions, and was either incarcerated or granted probation in at least one of the cases, then the defendant must serve a jail or prison sentence in the current case.

Potential conditions of informal probation for a vandalism conviction include the following:

A driver’s license suspension of up to two years, or if the defendant has not yet attained one, a one to three year delay in the defendant’s eligibility to obtain a driver’s license
Required counseling
Community service, which may include personally cleaning, repairing, or replacing the damaged property
Becoming the caretaker of the damaged property, or of another property in the community, and ensuring it stays “graffiti free” for up to one year

Defining Graffiti

Other forms of vandalism bring different consequences under California Penal Codes 640.5 and 640.6, such as graffiti with damage less than $250.

If the State-charged vandalism can be defined as defacing property with “graffiti or other inscribed material” (as opposed to the other forms of vandalism described above), and the damage costs less than $250 to repair, then the prosecutor may either pursue a regular misdemeanor vandalism charge, as described in Penal Code 594, or opt to pursue a different charge with less severe penalties, as described in Penal Codes 640.5 and 640.6.

If an individual is charged under Penal Code 640.5 or 640.6, then the potential penalties depend on how many previous California graffiti or vandalism convictions the individual has had.

First convictions become infractions, and the potential infraction penalties include:

A maximum fine of $1,000
Community service

Second convictions become misdemeanors if they were charged under Penal Code 594, or any other California vandalism law, and the graffiti damage cost is less than $250 to repair.

The misdemeanor penalties under Penal Codes 640.5 and 640.6 are less than those specified under Penal Code 594. They include:

Up to 6 months county jail time
Fines of up to $2,000
Community service

Third and subsequent convictions become misdemeanors. If the defendant has two or more convictions under California vandalism law, and was given a jail sentence or probation for at least one of those convictions, and the graffiti damage in the defendant’s current charge is less than $250, the penalties under Penal Code 640.5 or 640.6 include:

Up to 1 year in county jail
Up to $3,000 in fines
Community service

Other Types of Vandalism and Penalties

California has more vandalism laws than just Penal Code 594. The State has written several other penal code sections to prescribe different penalties for vandalism. These vandalism penalties determine the punishment based on the type of vandalism, or on the type of property vandalized. These other penal code penalties differ from standard vandalism, in that standard vandalism uses the cost of the damage to determine the penalties.

Vandalizing Places of Worship – Penal Code 594.3

Under Penal Code 594.3, vandalizing a church, temple, or other place of worship always becomes a wobbler. The cost to repair the damage does not impact the charge.

A charge of misdemeanor vandalism of a place of worship subjects the defendant to the following penalties:

Up to 1 year in a county jail
A maximum fine of $1,000
Informal probation conditions, just as with standard vandalism

A charge of felony vandalism of a place of worship includes the following penalties:

16 months to 3 years in state prison
Fines of up to $10,000
Informal probation conditions, just as with standard vandalism

Vandalism Involving Caustic Chemicals under Penal Code 594.4

California considers the specific act of committing vandalism using “butyric acid, or any other similar noxious or caustic chemical or substance” as a wobbler, regardless of the amount of damage done.

The penalty for misdemeanor vandalism involving chemicals includes jail time of up to six months.

However, the penalties for felony vandalism involving chemicals can include a jail sentence of sixteen months to three years.

A conviction of either of these vandalism charges subjects the individual to fines ranging from $1,000 to $50,000, depending on the amount of damage to the vandalized property.

Vandalism On or Near a Highway or Freeway under Penal Codes 640.7 and 640.8

Penal Code sections 640.7 and 640.8 describe the following penalties for acts of vandalism occurring on or near a highway or freeway:

County jail sentence of up to 6 months for a first conviction, or for conviction of vandalism near a highway, and up to 1 year for a second conviction, or for a first conviction of vandalism near a freeway
Fines of up to $1,000 for conviction of vandalism on or near a highway, and up to $5,000 for conviction of vandalism on or near a freeway
Counseling or Community service

Understanding Vandalism in California

Citizens have the right to defend themselves against criminal allegations. People can educate themselves and work with experienced defense attorneys to ensure the best possible outcome when dealing with criminal charges.

Conor McGregor’s recent acts of criminal mischief in New York City illustrate what California defines as vandalism. He maliciously destroyed property belonging to another entity. He did not own the property, and the damage amounted to well over $400.

The penalties for vandalism in the State of California vary because vandalism can be charged in many different forms. Misdemeanor vandalism involves penalties of one year in county jail and fines of up to $1,000. Felony convictions can result in jail sentences of up to one year and fines of up to $10,000.

Individuals facing vandalism charges greatly benefit from working with skilled and experienced defense attorneys. Navigating the legal landscape successfully requires diligent investigation and deliberate action.

When California Car Crashes Lead to Murder Charges

Posted by John Devendorf on December 1, 2015

Car crashes rank among the scariest events on the road. Anyone who has been in a car accident is familiar with the feeling that comes immediately after the car has come to a stop.

First you check yourself and your passengers to make sure you’re okay. Then you may check your car, and the people in the other car. If everyone is okay, then you’ll think about the major headache to come, with calling the police, reporting the accident to the insurance company, and dealing with a damaged car. However, in some cases, if another person is seriously injured or killed, you may face criminal charges.

Accidental Car Crash

Most car crashes are just that, they’re accidents. Additionally, in most cases, people involved in an accident leave and head home without any criminal charges. However, circumstances change depending on what the driver was doing at the time of the accident. In the case where a person dies, the driver may face manslaughter or even murder charges.

Some California drivers have recently found themselves charged with murder after a car crash, due to:

Drunk Driving
Street Racing
Road Rage

A Few Notable Examples

Brian Jones

Brian Jones, a man in Livermore, California was involved in a car accident killed a 46-year-old woman and her 14-month-old daughter. According to reports, Jones was under the influence of alcohol driving at speeds of 75 to 99 miles per hour through residential streets, when he lost control of his car. The car went off the road, and hit the woman and her daughter, before crashing into the back of an apartment patio area, where two other children were injured.

Jones blew a blood-alcohol level of 0.14 percent, almost double the legal limit of 0.08 percent. He was charged with two counts of murder and two counts of DUI causing injury. Jones decided to plea not guilty, and is being held in jail without bail. Due to his plea, Jones currently faces a potential sentence of life in prison.

Even for drivers who are not under the influence, car crashes and reckless driving can put them in jail facing murder charges. The Fast and Furious movie franchise shows the exciting side of street racing. Sadly, the film does not play up the possibility of real prison time if a person loses their life. A young man in Orange County now knows the dangers of street racing.

Alec Abraham

Alec Abraham, 20-years-old, of Costa Mesa faces charges of a hit-and-run crash. Unfortunately, this crash that killed a 54-year-old woman and her 2-year-old granddaughter. Deputy District Attorney Stephen Cornwell said Abraham ran a red light. He then crashed into a another vehicle where the two victims were killed. Abraham also injured two others. One account claims Abraham even looked into the victim’s car and then left. Reportedly, he asked to borrow a bystander’s cell phone then ran away with the phone. Officers arrested Abraham the next day.

The car crashes may stem from a street race between Abraham and another unidentified driver. Initially, the state charged Abraham with two counts of vehicular manslaughter with gross negligence. However, the state later upgraded the charges to murder counts. According to Cornwell, this upgrade found roots in some new evidence and witness statements.

Car Crashes: Intent or No Intent

In these cases, the state is not trying to show that the drivers held intent to kill. They, however, do wish to prove the drivers’ reckless behavior created a high risk for death of another.

With that said, however, a California woman is likely facing murder charges for causing fatal accident. Allegedly, she intentionally ran over a motorcyclist in what CHP officers are calling a road rage incident.

Darla Renee Jackson allegedly got into some disagreement with a man on a motorcycle. They went back and forth along the I-5 in San Diego, onto the State Route 54 near National City. According to the CHP, Jackson hit the motorcycle from behind, and then ran over the driver, who later died. Jackson now may be facing murder charges.

Ask for Help

If you find yourself on the wrong side of the law and in need of a criminal defense lawyer, call The Kavinoky Law Firm. Our experienced lawyers practice all parts of defense and keep up-to-date on the latest legal proceedings.

1.800.NO.CUFFS

Crimes of Violence

Posted by on May 4, 2012

California, like many states, has numerous laws on the books involving crimes of violence. They run the gamut from stalking to domestic violence, the common assault and battery, hit and run cases that result in injury, as well as the crime of criminal threats. Each crime is made up of distinct elements that must be proven by a prosecutor. If just one element of a given crime cannot be proven, the jury must acquit. Therefore, it is of the utmost importance that you consult with a qualified California Violent Crimes Lawyer to determine exactly where you stand regarding the charges against you.

If you have been arrested on charges related to crimes of violence, it is very important that you seek a professional, experienced defense team. Do not hesitate in seeking a free case evaluation from the Kavinoky Law Firm.

An assault requires an attempt to do violent injury to another person as well as the present ability to cause the violent injury. An assault can only take place when there is the present ability to act. Therefore, squeezing the trigger of a plastic toy gun that is obviously fake will not constitute assault because there is no appearance of a present ability to cause harm. However, if the toy looks real to the victim even though it is fake, an assault can have taken place, because to the victim, it looked as if the attacker had the present ability to cause harm.

Assault crimes in California are very specific. For example, California has laws regarding assault with a fire arm, assault with a weapon other than a fire arm, and laws regarding assaults on specific people such as government officials, policemen, and firefighters too.

A battery is the willful and illegal use of force or violence on another person. Bear in mind however, that a battering only requires the touching of another. The touch does not need to be brutal or severe and marks or scrapes are not necessary either.

Other crimes of violence in California include stalking. It seems that stalking crimes would be particular to California because of all the celebrities that live here, but the truth is, many stalking cases simply involve broken relationships or overly aggressive suitors who have been rejected by the one’s they want. In California, a stalker is known as someone who willfully, maliciously, and repeatedly follows or harasses another person and who makes credible threats against that person with the intent to make that person fear for his or her safety, or for the safety of an immediate family member.

Mayhem is a crime that can be likened to an aggravated battery. Mayhem consists of maliciously harming a person and in so doing, causing the deprivation of a body part, disabling or disfiguring a body part such as cutting person’s tongue or putting out a person’s eye.

Kidnapping is obviously illegal in California too. Kidnapping can occur under a number of different circumstances, and there are different elements that must be considered in each type of kidnapping cases. Common examples of these types of kidnapping involve kidnapping for ransom, kidnapping during a robbery, kidnapping during a carjacking, or the very common kidnapping that is related to child custody matters. These crimes are all slightly different and each has a technical standard that the prosecutor must prove beyond a reasonable doubt. These cases are best defended by experienced and knowledgeable criminal defense lawyers.

Domestic violence is yet another crime that covers many different activities and people. Domestic violence exists whether the victim is a man or a woman and domestic violence exists in cases where people in same sex relationships are the victim of violence too. There are also varying degrees of domestic violence that one may be charged with. It is of the utmost importance to find California Violent Crimes lawyer who can work with the prosecutor to get a punishment that best suits a defendant’s situation. A good criminal defense attorney understands that the harshest punishment is not necessarily the best punishment for the person.

California Homicide Attorney and Murder Defense

Posted by Brianna Wilkins on May 4, 2012

Homicide is broadly defined as the killing of one human being by another. Homicide is a class of crimes that all involve the killing of one person by another, but are distinguished by the circumstances involved in the particular act of killing. If you are accused of any form of homicide in California, it is in your best interest to immediately contact a defense attorney with the experience and knowledge to provide the most vigorous defense possible.

Murder with Special Circumstances is a situation that exists where the death penalty is an option as a punishment for a defendant. There are a number of reasons why the death penalty could attach. Some of the reasons would be multiple murder victims, terrorism, murder to prevent one’s arrest, or the murder of a witness, judge, prosecutor, or police officer.

Murder is a form of homicide committed with malice aforethought. Malice aforethought has various definitions, all of which relate to the state of mind of the person who commits murder. Those definitions are:

intention to cause grievous injury and death resulted;
conduct with a “depraved heart” showing lack of care for human life;
or intent to commit any felony whatsoever;

Murder in the first degree is committed when there is an unlawful killing of a person with malice aforethought and the homicide was premeditated. Premeditation is key to a prosecutor’s case of murder in first degree. Premeditation can exist where there have been months of planning or when a split second decision to kill has been made. All that is required is that a person decides to kill and then they kill. It doesn’t matter how much time does or does not elapse between the decision to kill and the act that kills. A qualified attorney will be required to successfully defend a murder charge.

Murder in the second degree also requires malice aforethought but it does not require premeditation. Therefore, murder in the second degree usually exists where it can be shown that a person did not have the necessary mental state for premeditation but did act intentionally nevertheless. In California there are three theories of second degree murder, and it takes an experienced criminal defense lawyer to know the differences. The first theory is unpremeditated murder with express malice. The second theory of murder in the second degree is the unlawful killing of a human being when the killing resulted from an intentional act, the natural consequences of the act are dangerous to human life, and the act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. The third theory of second degree felony murder is the unlawful killing of a human being, whether intentional, unintentional or accidental during the commission of a crime if the perpetrator had the specific intent to commit that crime.

Homicide can also consist of manslaughter, and manslaughter can be broken down into voluntary manslaughter, involuntary manslaughter, and vehicular manslaughter. A homicide is considered manslaughter when there is a killing of one human being by another but malice is not present.

Voluntary manslaughter is a murder that is generally committed “in the heat of passion” or as “imperfect self-defense.” The judicial definition of voluntary manslaughter is an unlawful killing that is committed without malice but with a conscious disregard for life.

Involuntary manslaughter exists when a person commits an unlawful killing but does not intend to kill and does not act with the conscious disregard for human life. An example of involuntary manslaughter would be if an individual punched somebody in the face just once and that person died. If the punch to the face was not intended to kill, there is no intent to kill, and because the punch was not meant to kill, there was no conscious disregard for human life.

The last category of manslaughter is vehicular manslaughter. Vehicular manslaughter exists when a person has acted with gross negligence and that negligence results in the death of another. An example of vehicular manslaughter is if a person got behind the wheel of a car and drove that car as fast as they could without regard to any traffic signs and slammed into another car killing the driver of the other car.

If you have been arrested on homicide charges, you need an attorney who has experience in defending these charges. Do not hesitate to call today for a free case evaluation from The Kavinoky Law Firm.

Second-Degree Murder

Posted by on May 4, 2012

Second-degree Murder

When a drunk driving case involves a death, serious charges will be filed against the motorist suspected of driving under the influence of alcohol. Punishment in these cases can be very severe. When a person dies in a drunk driving incident, the prosecutor will commonly charge the driver with vehicular homicide, manslaughter, or second-degree murder. A skilled DUI / DWI attorney can vigorously defend the case and can often reach a reasonable plea bargain with the prosecution.

Felony second-degree murder is a rare charge to be brought in cases of driving under the influence of alcohol or driving while intoxicated in California. In second-degree murder cases the prosecution must prove that the driver acted with implied malice or a conscious disregard for human life. This is usually very difficult for a prosecutor to prove.

When a driver has a record of DUI / DWI convictions, the prosecutor will be able to present those prior convictions as evidence that the driver was aware of the dangers involved in driving drunk. When a person pleads Guilty or No Contest to drunk driving charges in California, they must sign an admission or admit on the record that they are aware of the dangers of driving while drunk. This is known as a “Watson warning.” The prosecutor may use the Watson warning to try to illustrate the driver’s intent.

A skilled DUI defense attorney will employ independent experts to investigate the underlying DUI / DWI charges. If the driver was below the legal limit or not under the influence of alcohol at all, the prosecutor may have to drop some of the charges. The experts will investigate what the driver’s blood alcohol content (BAC) would have been at the time of the accident. Quite often, chemical tests are conducted hours after an accident. Due to the delay in conducting the testing, there will be no definitive evidence as to the driver’s exact BAC at the time of the accident. In fact, the driver’s BAC could have increased between the time of the accident and the time of the blood test or breath test.

In second-degree murder cases, the defense is up against both the police and prosecutors, who have the resources to investigate every aspect of the incident and every inch of the scene in order to gather evidence against the defendant. An attorney who focuses on drunk driving criminal defense will employ independent investigators to conduct forensic research and reconstruct the accident to uncover evidence that points to the defendant’s innocence.

An independent investigation by the criminal defense attorney and his or her team of experts is extremely important when presenting a defense to charges of vehicular homicide. The consequences are very harsh in second-degree murder cases. They can carry a sentence of 25 years to life. Because the effort of the prosecution may be relentless, it’s crucial to hire only the best possible legal representation. A California DUI / DWI attorney and the experts on the defense team will evaluate each case to determine the best possible defense in order to minimize any potential punishments.