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This is a continuation of some of my earlier articles regarding Murder, Homicide, and Manslaughter.  If you or a loved is a suspect or is charged with Murder it is imperative that you get an experienced Attorney to handle your defense.  

I will discuss below first degree Murder.  and briefly some of the defenses to First Degree Murder.  I have handled more than twenty murder cases.  And had at least six first degree murder trials go to verdict.  


First degree murder consist of various types of premeditated killings, and specific circumstances, (use of an explosive device, armor pierccing ammunition, torture, etc.) which are deemed the equivelant of premiditation.  

There are three types of malice aforethought murders which are first degree pursuant to Penal Code section 189.  

a) willful deliberate and premiditated murder (express malice)

b) statutory first degree murders (express or implied malice)

c) Murder perpetrated by discharging a firearm intentionally at another person outside of a vehicle with the intent to inflice death.  (express malice)


There is another categorry of first degree murder which establishes felony murders which are perpetrated during felonies or attempted felonies that are during the commission or attempted commissiono of certain felonies. 

such as arson rape carjacking torture.  penal code section 206 etc.  the felony murder rule dispenses with premiditation and deliberation and malice as elements. 


There are several defenses to First Degree Murder depending upon the circumstances. 

1. False Identification someone else has falsely identifiied you as the person that committed the crime. 

2. Lack of Premiditation.  There is a Jury Instruction  that states that if the person acted under a rash impulse then they did not act with the requisite premiditation and deliberation necessary for First Degree Murder.  

3. Lack of Evidence There could be two reasoanble conclusion drawn frofm the circumstantial evidence.  If the jury can draw two reasonable conclusions from the circumstantial evidence than they must accept the conclusion that points toward not guilty. 

4. Self Defense, many times prosecutors will not believe the self defense claims brought forth by people when they are first arrested; however, after the case has gone on for a while many times we can produce our own investigation which shows that the person that who was killed was the original aggressor.  This can come in many forms and we have had people come forward as well as videos, electronic surveillance etc. which shows the police have the wrong a person in custody that should not be.  Self Defense must be reasonable.  After all of my blogs on homicide I will go over the defenses in much more lenght. 

5. Imperfect Self Defense is when someone actully believes in need to use deadly force but that belief is unreasonable.  This means that even though they honestly belives that he or she needed to use deadly force he was unreasonable in that belief.

As stated above this is not meant to be exhaustive and there are many different defenses to crimes that are specific to Homicide and are particular to Homicide.  Homicide cases are complex and the most serious crimes in the Penal Code.  I have had both experience and success defending people of this serious crimes.  And sometimes the best end result is a plea bargain depending on the complexities of the case and the availiable defense.  

The final decision about whether to go to trial or not is up to the person being defended and is not the final decision of the Attorney.  However, many times agains depending on the evidence we will make strong recommendations as to whether someone should or should not go to trial.  

Homicide trials can be long and unpredictable. 


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Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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Phone: 559.441.1418