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In continuing with my series of blogs related to the crime of Homicide I will be discusssing the crime of Second Degree Murder.  I will briefly discusss the defenses to second degree murder; however, I will be doing a more extensive discussion of the defenses in a different blog post. 

Penal code section 189 states: All Murders which are not first degree murders are second degree murders. 


Second Degree Murder is  the unlawful killing of a human being without the additional elements necessary for first degree murder.  Such as deliberation and premediitation or one of the statutory provions for first degree murder such as torture, etc.  







First intentional killing with no premeditation or deliberation.  

Malice is express when there is a deliberate intention to take away a life. 

once intent if proven malice is established. 


Malice is implied when no significant provocation occurs or when the circumstances attending the killing show an abondoned and malignent heart.  

You can think of this as a two part analysis.

1. Did the person do an act inherently dangerous to human life ( the physical act)

2. And the person acted with knowlege of the of its danger and acted with conscious disregard for that danger. 

The conduct committed by the person must be sufficiently dangerous to human life.  


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. 


This is a continuation on some of my earlier articles on the law of Homicide.  If you or a loved one are charged with Homicide  you should call right away so that we can start to help you as soon as possible.  


First Degree Murder with special circumstances as defined in Penal Code section 190.2 subdivision (a)(1)

2. First Degree Murder with a prior murder of either first or second degree.  Penal Code 190.2 a 2

3. Multiplle murder, at least one of which is of the first degree, in the instant proceeding (Penal Code sectin 190.2 subd. a3. 

one of which is of the first degree, in the instant proceeding. 

If the trials are severed and the defendant is convicted of a second degree murder in the first trial and a first degree murder the special circumstances applies, and the person is subject to the death penalty.  if the defendant is convicted of First Degree Murder in the first trial and second degree murder in the second trial then they are not subject to the death penalty. 

there are also some other death penalty eligible murders such as murder by explosive device, such as a murder of a police officer in the performance of there duties.


There are also several other murders which fall under this type of eligibility for the death penalty.  I will be continuing this series of articles as to other types of murder and death penalty eligible cases. 

I will be doing a series of articles on the law of Homicide.  I will continue with the law of manslaughter and the absence of Malice defenses.  If you or a loved on has been arrested for any Homicide related case you should get an experienced Homicide Attorney.  I have tried more than a dozen Homicide cases including five first degree Murder cases.  This is not a crime where your local dui guy can handle give us a call. 559-441-1418.

Penal Code section 187 defines Murder is the unlawful killing of a human being by another or a fetus with malic of forethought. 


Capital Murder, First Degree Murder, and Second Degree Murder.  



PC 189 All murder which is perpetrated by means of a destructive device or explosive , a weapon of mass destruction, knowing use of ammunition designed primarliy to penetrate metal or armor, poison , lying in wait, torture, or by any other kind of willful deliberate and premiditated killing or which is committed in the perpetration of, or an attempt to perpetrate, arson, rape, carjacking, robberry,kidnapping, train robbery, carjacking and several other crimes.


Second degree Murder, is the unlawful killing of a human being with Malice of forethought.  but without the additional elements, such as willfullness deliberation and premeditation.  that would support a conviction of first degree murder. 

the  unalawful killing of a human being by another is the most serious crime in the penal code and has no statute of limitations.  The law is complex and very interesting.  we will discuss the defenses to these homicide crimes in later articles we will go through the homicide law and then the defenses and I will even discuss some of the many homicide cases that I have personally handled.  Some of which have garnered local, state, and even interanational press, due to the complexities of the cases and there newsworthiness. 

You can look at some of the press interviews regarding these cases on the in the news portion of the website.  There you will see how difficult and complex these cases can be.  You are in the right spot we can get your family member through this process, and have the wealth of experience from having been down this road and handled homicide and atttempted homicide cases in four different counties and having achieved aquitalls in willful premiditated first degree attempted murder case and first degree murder cases.   

The reason I do this job is to get families through the worst experiences of there lives with these type of charges and help them to the best of my abilities.   As stated above, I will go through the entire law of Homicide and Murder and then go through some of the defenses.  

Before I go further in that if you or a loved one are being investigated for Murder it is imperative that you get cases specific advice as soon as possible. Even if you feel that self defense is readily available as a defense you must speak with an Attorney as soon as possible before speaking with Law Enforcement.  If you speak with Law Enforcement first you must realize they are not your counsel they may not have your best interest in mind. They are not paid to be your counsel or Attorney they are paid to investigate crimes.  This includes if you are a witness to a Murder or a Homicide you should immediately seek experienced legal counsel to represent your interest. 

So if you have any questions after reading this article do not hesitate to give us a call at 559 441 1418. 

When the new year rang in California's recreational pot laws have taken affect.  California has broad new legalization of Marijuana for recreational use under new laws that take affect on the new year.  Remember California was the first state to legalize medicinal Marijurana use and the law was criticized for being under inclusive and abused at the same time.  The move came almost two decades after the State was the first to legalize medicinal Marijuana.  

California joins the state of Colorado and the District of Columbia in legalizing the recreational use of Marijuana.  


There has not been a change in the status of Marijuana at the federal level.  In fact, the Federal government still clasifies Marijuana as a drug on the same level of PCP, LSD, and heroin. 

there will be an affect on the Calfornia economy as the tax revenue from the sales of Marijuana will probably exceed 1 Billion although those estimates have been disputed. 



You must be 21 years or older and must buy from a licenses authorized dispensary.  in an earlier blog I went over some of those exact laws and limitations on this in my article on prop 64 and the changes and penalites etc.  

In some cities there will be confusion because you will not be able to find dispensaries open that are licensed and up and running.  That is because the licensing process for those buinses which can be difficult even for an experienced Attorney  to navigate are so onerous that locals cannot meet the requirements by the January 1 legalization date. local regulation will not be approved in time for the Jan 1 date.  This includes in larger cities such as Los Angeles and San Francisco. 


In Fresno has banned the sale of recreational pot and it is unclear how they will handle people that decide to ignore this law. (I would not and am not advocate anyone ignore laws) I have seen people do this to face steep penalties and cost.  Also the source of the Marijuana must be legal again creating regulatory problems that must be cleared up and only time will tell how these problems are dealt with. 

If you have any question do not hesitate to call 559 441-1418. 


If you have been arrested or involved in a Domestic Violence situation it is imperative that you get legal advice as soon as possible.  Many times you will be arrested or questione and believe that you do not need the advice of an Attorney this is not true.  Domestic Violence cases are more involved than they appear. 

There is a misconception that if the alleged victim of domestic violence does not testify that somehow the case will be dismissed.  This may or may not be true and it depends upon the factual circumstances of the cases before the court.  

For example if there are independent witnesses to the alleged domestic violence incident, those witnesses can be called into court, and testify as to what they have witnessed.  

Also, any statements that the person alleged to have committed the domestic assault makes to law enforcement can be used agains the person that made the statement.  

Medical Records can be used to show there was an actuall injury and there could also be expert testimony.  

Has there been previous incidences of alleged domestic violence? if there has been previous incidences of domestic violence under some circumstances those can be 

As you can see it is very difficult to know exactly when a domestic violence case will be dismissed and depends on the factors listed above. 


If you have been arrested for domestic violence or a related charge.  You should call us immediately at 559441-1418.   When you are arrested for domestic violence you should know that even if it is a misdemeanor arrest the repurcutions could be big, including restraining orders, turning over guns, and you must be present at your court appearances even for a misdemeanor domestic violence case.  Usually, you can hire an Attorney to make all court appearances for you in a domestic violence case.  However, if you have been charged with domestic violence you must be personally present for your court appearances, at least the first court appearance.  Usually you will be served with a protective order at that appearance. 

As you can see you definitely need experienced legal counsel to help you through what could be a very difficult process.  


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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