LEGAL DEFINITION

Under PC 189, any murder that occurs while committing – or attempting to commit – arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, and other serious crimes such as torture, is a murder of the first degree, if any of the following three conditions apply:

1. The person(s) who commits the murder was the actual killer.
2. The person was not the actual killer but had the intent to kill, and he or she advised, aided, suggested, requested, or assisted the actual killer in the commission of premeditated murder.
3. The person was a major participant in one of the felonies listed above and acted with reckless indifference to human life.

However, if the murder victim was a police officer, he or she was killed in the line of duty, and you knew or reasonably should have known that the victim was a peace officer on duty, you may be charged with first-degree murder even if you didn’t have the intent to kill or you didn’t have a major role in the commission of the felony.

In order to convict you of first-degree murder under the Felony-Murder Rule, the prosecution must prove:

1. that you committed or attempted to commit, one of the serious crimes listed above, such as robbery, and
2. that you either killed someone while committing the serious crime, you had the intent to kill somebody, and advised, requested, or assisted the actual killer in committing the murder, or you were a major participant in committing or attempting to commit the crime, and you acted with reckless indifference to human life.

However, if the murder victim was a police officer on duty, and you knew or you should have known that the victim was a police officer on duty, you may be charged with first-degree murder even if you didn’t have the intent to kill or you didn’t have a major role in committing the serious crime.

The Old Rule

The felony-murder rule changed – for the better – on January 1^st, 2019.  Under the previous rule, if you or an accomplice of yours killed a person while committing or attempting to commit a serious crime, you could be charged with first-degree murder even if you didn’t have the intent to kill or you had a minor role in committing the crime.  The old rule still applies only if the murder victim is a police officer on duty, and you knew or should have reasonably known that the murder victim was a police officer on duty.

WHAT DOES IT MEAN?

Under the felony-murder rule of PC 189, if you commit or attempt to commit a serious crime such as a robbery, and you or an accomplice of yours murder someone, you may be charged with first-degree murder if you murder the victim, or if you had the intent to kill the victim and you requested or suggested that the actual killer murder the victim, or if you were a major participant in committing – or attempting to commit – the serious crime and acted recklessly.

However, if the person that you or accomplice murdered is a police officer on duty, and you knew or should have known that he or she was a police officer on duty, you may be charged with first-degree murder even if you didn’t have the intent to kill or you had only a marginal role in committing the serious crime.

The Old Rule

Under the old rule, if you or an accomplice of yours murdered someone while committing or attempting to commit a serious crime, you could be charged with first-degree murder whether or not you had the intent to kill and regardless of your role in committing the crime.

Example # 1

You, Johnny, and Larry agree to rob a liquor store the Friday of Labor Day weekend.  Larry will drive the get-away car, whereas you and Johnny will get inside the liquor store to take the money: you will take care of the cash register, and Johnny will keep the staff and/or the other customers in check.  Larry steals the get-away car, you provide three loaded guns, and Johnny “cases” the store and provides the face masks that you guys will wear during the robbery.  On Friday night the three of you get to the store, and while Larry stays in the car with the engine running, you and Johnny walk inside the store.  While you hold the store clerk at gunpoint and wait for him to place the cash in the purse you handed to him, Johnny holds the other customers at gunpoint and takes their respective wallets.  The store owner sees the robbery through the closed-circuit TV, takes his gun, gets out of the store from a side door, and takes cover behind a car parked between the store exit and the get-away car.  As you and Johnny step out of the store and walk quickly toward the car, the store owner points his gun at the two of you, yells “Stop!”, fires a shot in your direction, and you and Johnny return fire.  Larry concerned that the police may arrive soon, gets out of the get-away car, walks up to the store owner, and shoots him in the back, killing him instantly.  You, Johnny, and Larry return to the car and drive away.

Can the prosecution charge you and Johnny with the first-degree murder of the store owner killed by Larry? Yes, because:

1. You, Johnny, and Larry agreed to rob the liquor store and you all contributed to preparing the robbery.
2. You and Johnny actually robbed the liquor store (Please note, though, that it would have been sufficient that you and Johnny attempted to rob the liquor store).
3. By returning fire in the parking lot when the store owner shot at you and Johnny, you and Johnny displayed intent to kill or, at the very least, recklessness indifference for other people’s life.

Example # 2

You and Johnny agree to rob a liquor store the Friday of Labor Day weekend, and you ask your cousin Larry if he “wants in”.  Larry says that for $300 he is willing to help you and Johnny out by driving the getaway car, but he adds “I don’t want to get involved in the actual robbery”.  You get two loaded guns, and Johnny cases the store and gets the face masks for the robbery.  On the night of the robbery, Larry drives you and Johnny at the location in his own car, and parks the car – engine running – in the alley behind the store.  While you hold the store clerk at gunpoint and wait for him to place the cash in the purse you handed to him, Johnny holds the other customers at gunpoint and demands that they hand over their respective wallets.  However, one of the customers of the liquor store, already “buzzed” after having celebrated a friend’s promotion at work, tells Johnny that he is a “punk”, and refuses to give Johnny his wallet.  Johnny loses his cool and shoots the customer in the head.  Larry hears the gunshot, panics, and drives away.

Let’s assume now that the customer who was shot was a police officer wearing a police uniform.  The officer had stopped by the store to use the restroom and buy a Red Bull, and neither you nor Johnny saw the police car because the officer and his partner were driving an unmarked police vehicle.  As the officer turns the corner from the area where the restrooms are, he sees you holding the cashier at gunpoint.  The officer zeroes in on you and doesn’t notice Johnny, who is standing a few feet away, manning the door.  As the officer is about to pull his gun from the holster, Johnny shoots him dead.  Larry hears the gunshot and drives away.

Can the prosecution charge you and Larry with the first-degree murder of the buzzed store customer?  What about the first-degree murder of the police officer in uniform?

First-degree murder of the buzzed store customer

You could be charged with first-degree murder of the customer because you had a major role in the robbery, and your conduct (holding the store clerk at gunpoint, with a loaded gun, while your accomplice held at gunpoint and robbed the store customers) could be found to display recklessness toward human life.  Larry, however, would not be charged with first-degree murder, as it appears that he had a minor role in the crime, and he didn’t even want to be involved in the actual act of robbing the liquor store.

First-degree murder of the police officer

Both Larry and you could be charged with first-degree murder of the police officer for the simple fact that Larry and you participated in a serious crime in which Johnny killed an on-duty police officer, regardless of the extent of your involvement.

PENALTIES

Under PC 190, a person guilty of murder in the first degree can be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.  A conviction for first-degree murder under the PC 189 felony-murder rule would necessarily mean that you would be convicted of the felony associated with the murder (e.g. robbery).  Finally, in all scenarios in which you committed the felony with other individuals, you would be charged and convicted also of conspiracy.

DEFENSES

1. Insufficient Evidence.  The most common defense used in criminal defense is that there simply isn’t enough evidence to convict you of the charge.  In the case of a first-degree murder charge under the felony-murder charge, you can show that you didn’t commit the felony (e.g. robbery) the charge refers to.  Or you can show that you didn’t have the intent to kill, or that you actually try to convince the actual killer not to kill the victim, or that you had a minor role in the commission or attempted commission of the felony.
2. Violation of Your Rights.  In the case of serious crimes for which felony murder charges are filed, the police may have gathered evidence in violation of your 4^th Amendment or 5^th Amendment.  For example, the police may have seized the gun used in the murder without having first secured a search warrant.  Or perhaps the police interrogated you about the incident without first reading you the Miranda warning.

CONCLUSION

Facing a first-degree murder charge under California’s PC 189 felony-murder rule is an extremely serious matter, one that can lead to life imprisonment if convicted. In such critical circumstances, the expertise and approach of your legal defense are of paramount importance.

At Inland Empire Criminal Defense, our team comprises highly skilled attorneys specializing in cases involving murder allegations and ‘super-strike’ offenses. We are well-versed in the complexities these serious charges entail and bring extensive experience in mounting strong, effective defenses for our clients.

Our firm is dedicated to providing you with the robust legal representation you need during this difficult time. We understand the gravity of your situation and are committed to guiding you through every step of the legal process with the utmost professionalism and care.

For expert legal assistance and a defense you can rely on, contact Inland Empire Criminal Defense at 909-939-7126. Conveniently located in Ontario, we are here to offer you the support and guidance you need to navigate this challenging journey.