California Death Penalty & LWOP Crimes: Law, Sentence & Defense. CA PC 190.2 List of Capital Crimes Explained by CA Criminal Defense Lawyers.
- Criminal Defense Lawyers
- 6 hours ago
- 5 min read
The following is a brief overview of California’s death penalty and life without parole (LWOP), including related laws and procedures. For brevity, some legal references are abbreviated.
For further information, please contact our California criminal defense lawyers for a free consultation.
In California, a death penalty crime, also called a “capital crime,” is a first-degree murder that is committed under a special circumstance that makes the first-degree murder deserving of the ultimate punishment (i.e., death or life in prison without parole).
Note: Information and definitions related to the crime of murder, including defenses to murder allegations, may be found at California penal code 187(a) PC.
Special Circumstance: The special circumstances that elevate a first-degree murder to death penalty or LWOP crime, are found at penal code 190.2
Note: A defendant facing a death penalty crime may be sentenced to LWOP or death, at a “penalty phase” that follows the defendant’s conviction of both the underlying first-degree murder and the “special circumstance” that accompanied the first-degree murder.
List of Death Penalty or LWOP Crimes
Per PC 190.2(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found to be true:
Intentional murder for financial gain (PC 190.2(a)(1)).
Murder conviction with prior murder conviction (PC 190.2(a)(2))
Multiple murders on same occasion (PC 190.2(a)(3))
Murder by hidden explosive (PC 190.2(a)(4))
Murder to escape lawful arrest or lawful custody (PC 190.2(a)(5))
Murder by bomb through mail or delivery (PC 190.2(a)(6))
Murder of law enforcement officer (PC 190.2(a)(7))
Murder of federal law enforcement officer (PC 190.2(a)(8))
Murder of firefighter engaged in duty (PC 190.2(a)(9))
Murder witness to prevent testimony [or retaliate] (PC 190.2(a)(10))
Murder prosecutor to avoid prosecution [or retaliate] (PC 190.2(a)(11))
Murder judge to prevent duty [or retaliate] (PC 190.2(a)(12))
Murder elected official to prevent duty [or retaliate] (PC 190.2(a)(13))
Murder by torture (PC 190.2(a)(14))
Murder by lying in wait (PC 190.2(a)(15))
Treason (PC 37)
Murder for hate crime (PC 190.2(a)(16))
Murder during any of the following crimes:
Robbery (PC 211 or 212.5)
Kidnapping (PC 207, 209)
Kidnap to Carjack (PC 209.5)
Rape (PC 261)
Sodomy (PC 286)
Lewd Act on Child (PC 288(a))
Oral Copulation (PC 287)
Burglary (PC 459 & 460)
Arson (PC 451(b))
Train Wrecking (PC 219)
Mayhem (PC 203)
Rape by Instrument (PC 289)
Carjacking (PC 215)
Murder by torture (PC 190.2(a)(18))
Murder by poison (PC 190.2(a)(19))
Murder juror to prevent duty [or retaliate] (PC 190.2(a)(20))
Murder by drive-by shooting (PC 190.2(a)(21))
Murder to further criminal street gang activity (PC 190.2(a)(22))
Burden of Proof: The special circumstance must be plead and proved beyond a reasonable doubt. If the special circumstance is not proved beyond a reasonable doubt, by unanimous jury verdict, then the maximum sentence for the defendant is twenty-five (25) years to life in a California state prison.
Penalty Phase: If the jury finds the special circumstance alleged is true, then the jury must decide, at a separate penalty phase hearing, whether the defendant should be sentenced to death, or LWOP.
With some limitations, both prosecutors and defense attorneys can offer aggravating or mitigating factors to help the jury decide on the appropriate penalty.
Per PC 190.3 ‘In determining the penalty, the trier of fact must consider any of the following factors, if relevant,’
The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence (PC 190.3(b)).
The presence or absence of any prior felony conviction (PC 190.3(c)).
Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance (PC 190.3(d)).
Whether or not the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act (PC 190.3(e)).
Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct (PC 190.3(f)).
Whether or not defendant acted under extreme duress or under the substantial domination of another person (PC 190.3(g)).
Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired due to mental disease or defect, or the effects of intoxication (PC 190.3(h)).
The age of the defendant at the time of the crime (PC 190.3(i)).
Whether the defendant was an accomplice to the offense and his participation... was relatively minor (PC 190.3(j)).
Any other circumstance which extenuates the gravity of the crime... (PC 190.3(k)).
Minors not Eligible: A person under the age of eighteen (18) is not eligible for capital punishment in California (PC 190.5). However, if the defendant is a minor who was at least sixteen (16) years of age at the time of murder with special circumstances, then the defendant may be sentenced to LWOP.
Aider, Abettor & Solicitor: A defendant who aids, abets, solicits, induces, commands, counsels, or assist a person to murder another person, and any special circumstance listed in PC 190.2(a) is found to be true regarding the murder, then the defendant is punishable by death or LWOP (PC 190.2(c) Abbrev.)). For more information, see Aider & Abettor Penalties.
Overturing Death Sentence: If the defendant is sentenced to death, he or she will have his or her criminal conviction automatically appealed to the California Supreme Court. The defendant will have an attorney appointed to him or her at no charge for the process of appeal.
Several types and levels of criminal appeals are available to the defendant after a criminal conviction for any death penalty case (or LWOP case), including a Habeus Corpus Petition. For more information, see the Appeal of Criminal Conviction in CA.
LWOP Commutation: An LWOP sentence may be commuted by governor's commutation or pardon. This is true even when the defendant is convicted of a first-degree murder with special circumstance, but the penalty of death was reduced to LWOP at the penalty phase.
Clemency: The governor of California may stop the death penalty from being implemented. This is different than a moratorium on the death penalty (i.e., ceasing state-sanctioned execution by governor’s authority).
In other words, even if a future California governor returns to state-sanction executions (moratorium lifted by governor’s authority), the governor may stop a particular execution from being implemented.
Note: CA governor Gavin Newsom has placed a moratorium on the execution of a death sentence. The defendant may still be found guilty of a death penalty eligible crime, but his or her death sentence will not be carried out under the current moratorium.
To learn more about California death penalty laws and penal code 190.2, contact our criminal defense lawyers today for free consultation. Our deeply experienced criminal defense lawyers have successfully defended hundreds of felony charges, including violent and serious felony offenses. Call today!
909-913-3138
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