2005 California Penal Code Sections 187-199 CHAPTER 1. HOMICIDE

PENAL CODE
SECTION 187-199

187.  (a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.
   (b) This section shall not apply to any person who commits an act
that results in the death of a fetus if any of the following apply:
   (1) The act complied with the Therapeutic Abortion Act, Article 2
(commencing with Section 123400) of Chapter 2 of Part 2 of Division
106 of the Health and Safety Code.
   (2) The act was committed by a holder of a physician's and surgeon'
s certificate, as defined in the Business and Professions Code, in a
case where, to a medical certainty, the result of childbirth would be
death of the mother of the fetus or where her death from childbirth,
although not medically certain, would be substantially certain or
more likely than not.
   (3) The act was solicited, aided, abetted, or consented to by the
mother of the fetus.
   (c) Subdivision (b) shall not be construed to prohibit the
prosecution of any person under any other provision of law.
188.  Such malice may be express or implied.  It is express when
there is manifested a deliberate intention unlawfully to take away
the life of a fellow creature.  It is implied, when no considerable
provocation appears, or when the circumstances attending the killing
show an abandoned and malignant heart.
   When it is shown that the killing resulted from the intentional
doing of an act with express or implied malice as defined above, no
other mental state need be shown to establish the mental state of
malice aforethought.  Neither an awareness of the obligation to act
within the general body of laws regulating society nor acting despite
such awareness is included within the definition of malice.
189.  All murder which is perpetrated by means of a destructive
device or explosive, a weapon of mass destruction, knowing use of
ammunition designed primarily to penetrate metal or armor, poison,
lying in wait, torture, or by any other kind of willful, deliberate,
and premeditated killing, or which is committed in the perpetration
of, or attempt to perpetrate, arson, rape, carjacking, robbery,
burglary, mayhem, kidnapping, train wrecking, or any act punishable
under Section 206, 286, 288, 288a, or 289, or any murder which is
perpetrated by means of discharging a firearm from a motor vehicle,
intentionally at another person outside of the vehicle with the
intent to inflict death, is murder of the first degree.  All other
kinds of murders are of the second degree.
   As used in this section, "destructive device" means any
destructive device as defined in Section 12301, and "explosive" means
any explosive as defined in Section 12000 of the Health and Safety
Code.
   As used in this section, "weapon of mass destruction" means any
item defined in Section 11417.
   To prove the killing was "deliberate and premeditated," it shall
not be necessary to prove the defendant maturely and meaningfully
reflected upon the gravity of his or her act.
189.5.  (a) Upon a trial for murder, the commission of the homicide
by the defendant being proved, the burden of proving circumstances of
mitigation, or that justify or excuse it, devolves upon the
defendant, unless the proof on the part of the prosecution tends to
show that the crime committed only amounts to manslaughter, or that
the defendant was justifiable or excusable.
   (b) Nothing in this section shall apply to or affect any
proceeding under Section 190.3 or 190.4.
190.  (a) Every person guilty of murder in the first degree shall 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.  The penalty to be applied shall be
determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and
190.5.
   Except as provided in subdivision (b), (c), or (d), every person
guilty of murder in the second degree shall be punished by
imprisonment in the state prison for a term of 15 years to life.
   (b) Except as provided in subdivision (c), every person guilty of
murder in the second degree shall be punished by imprisonment in the
state prison for a term of 25 years to life if the victim was a peace
officer, as defined in subdivision (a) of Section 830.1, subdivision
(a), (b), or (c) of Section 830.2, subdivision (a) of Section
830.33, or Section 830.5, who was killed while engaged in the
performance of his or her duties, and the defendant knew, or
reasonably should have known, that the victim was a peace officer
engaged in the performance of his or her duties.
   (c) Every person guilty of murder in the second degree shall be
punished by imprisonment in the state prison for a term of life
without the possibility of parole if the victim was a peace officer,
as defined in subdivision (a) of Section 830.1, subdivision (a), (b),
or (c) of Section 830.2, subdivision (a) of Section 830.33, or
Section 830.5, who was killed while engaged in the performance of his
or her duties, and the defendant knew, or reasonably should have
known, that the victim was a peace officer engaged in the performance
of his or her duties, and any of the following facts has been
charged and found true:
   (1) The defendant specifically intended to kill the peace officer.
   (2) The defendant specifically intended to inflict great bodily
injury, as defined in Section 12022.7, on a peace officer.
   (3) The defendant personally used a dangerous or deadly weapon in
the commission of the offense, in violation of subdivision (b) of
Section 12022.
   (4) The defendant personally used a firearm in the commission of
the offense, in violation of Section 12022.5.
   (d) Every person guilty of murder in the second degree shall be
punished by imprisonment in the state prison for a term of 20 years
to life if the killing was perpetrated by means of shooting a firearm
from a motor vehicle, intentionally at another person outside of the
vehicle with the intent to inflict great bodily injury.
   (e) Article 2.5 (commencing with Section 2930) of Chapter 7 of
Title 1 of Part 3 shall not apply to reduce any minimum term of a
sentence imposed pursuant to this section.  A person sentenced
pursuant to this section shall not be released on parole prior to
serving the minimum term of confinement prescribed by this section.
190.03.  (a) A person who commits first-degree murder that is a hate
crime shall be punished by imprisonment in the state prison for life
without the possibility of parole.
   (b) The term authorized by subdivision (a) shall not apply unless
the allegation is charged in the accusatory pleading and admitted by
the defendant or found true by the trier of fact.  The court shall
not strike the allegation, except in the interest of justice, in
which case the court shall state its reasons in writing for striking
the allegation.
   (c) For the purpose of this section, "hate crime" has the same
meaning as in Section 422.55.
   (d) Nothing in this section shall be construed to prevent
punishment instead pursuant to any other provision of law that
imposes a greater or more severe punishment.
190.05.  (a) The penalty for a defendant found guilty of murder in
the second degree, who has served a prior prison term for murder in
the first or second degree, shall be confinement in the state prison
for a term of life without the possibility of parole or confinement
in the state prison for a term of 15 years to life.  For purposes of
this section, a prior prison term for murder of the first or second
degree is that time period in which a defendant has spent actually
incarcerated for his or her offense prior to release on parole.
   (b) A prior prison term for murder for purposes of this section
includes either of the following:
   (1) A prison term served in any state prison or federal penal
institution, including confinement in a hospital or other institution
or facility credited as service of prison time in the jurisdiction
of confinement, as punishment for the commission of an offense which
includes all of the elements of murder in the first or second degree
as defined under California law.
   (2) Incarceration at a facility operated by the Youth Authority
for murder of the first or second degree when the person was subject
to the custody, control, and discipline of the Director of
Corrections.
   (c) The fact of a prior prison term for murder in the first or
second degree shall be alleged in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by trial by the
court sitting without a jury.
   (d) In case of a reasonable doubt as to whether the defendant
served a prior prison term for murder in the first or second degree,
the defendant is entitled to a finding that the allegation is not
true.
   (e) If the trier of fact finds that the defendant has served a
prior prison term for murder in the first or second degree, there
shall be a separate penalty hearing before the same trier of fact,
except as provided in subdivision (f).
   (f) If the defendant was convicted by the court sitting without a
jury, the trier of fact at the penalty hearing shall be a jury unless
a jury is waived by the defendant and the people, in which case the
trier of fact shall be the court.  If the defendant was convicted by
a plea of guilty or nolo contendere, the trier of fact shall be a
jury unless a jury is waived by the defendant and the people.
   If the trier of fact is a jury and has been unable to reach a
unanimous verdict as to what the penalty shall be, the court shall
dismiss the jury and shall order a new jury impaneled to try the
issue as to what the penalty shall be.  If the new jury is unable to
reach a unanimous verdict as to what the penalty shall be, the court
in its discretion shall either order a new jury or impose a
punishment of confinement in the state prison for a term of 15 years
to life.
   (g) Evidence presented at any prior phase of the trial, including
any proceeding under a plea of not guilty by reason of insanity
pursuant to Section 1026, shall be considered at any subsequent phase
of the trial, if the trier of fact of the prior phase is the same
trier of fact at the subsequent phase.
   (h) In the proceeding on the question of penalty, evidence may be
presented by both the people and the defendant as to any matter
relevant to aggravation, mitigation, and sentence, including, but not
limited to, the nature and circumstances of the present offense, any
prior felony conviction or convictions whether or not such
conviction or convictions involved a crime of violence, the presence
or absence of other criminal activity by the defendant which involved
the use or attempted use of force or violence or which involved the
express or implied threat to use force or violence, and the defendant'
s character, background, history, mental condition, and physical
condition.
   However, no evidence shall be admitted regarding other criminal
activity by the defendant which did not involve the use or attempted
use of force or violence or which did not involve the express or
implied threat to use force or violence.  As used in this section,
criminal activity does not require a conviction.
   However, in no event shall evidence of prior criminal activity be
admitted for an offense for which the defendant was prosecuted and
acquitted.  The restriction on the use of this evidence is intended
to apply only to proceedings pursuant to this section and is not
intended to affect statutory or decisional law allowing such evidence
to be used in any other proceedings.
   Except for evidence in proof of the offense or the prior prison
term for murder of the first or second degree which subjects a
defendant to the punishment of life without the possibility of
parole, no evidence may be presented by the prosecution in
aggravation unless notice of the evidence to be introduced has been
given to the defendant within a reasonable period of time as
determined by the court, prior to trial.  Evidence may be introduced
without such notice in rebuttal to evidence introduced by the
defendant in mitigation.
   In determining the penalty, the trier of fact shall take into
account any of the following factors if relevant:
   (1) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of the prior
prison term for murder.
   (2) 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.
   (3) The presence or absence of any prior felony conviction.
   (4) Whether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance.
   (5) Whether or not the victim was a participant in the defendant's
homicidal conduct or consented to the homicidal act.
   (6) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification
or extenuation for his or her conduct.
   (7) Whether or not the defendant acted under extreme duress or
under the substantial domination of another person.
   (8) Whether or not at the time of the offense the ability of the
defendant to appreciate the criminality of his or her conduct or to
conform his or her conduct to the requirements of law was impaired as
a result of mental disease or defect, or the effects of
intoxication.
   (9) The age of the defendant at the time of the crime.
   (10) Whether or not the defendant was an accomplice to the offense
and his or her participation in the commission of the offense was
relatively minor.
   (11) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.
   After having heard and received all of the evidence, and after
having heard and considered the arguments of counsel, the trier of
fact shall consider, take into account, and be guided by the
aggravating and mitigating circumstances referred to in this section,
and shall impose a sentence of life without the possibility of
parole if the trier of fact concludes that the aggravating
circumstances outweigh the mitigating circumstances.  If the trier of
fact determines that the mitigating circumstances outweigh the
aggravating circumstances, the trier of fact shall impose a sentence
of confinement in the state prison for 15 years to life.
   (i) Nothing in this section shall be construed to prohibit the
charging of finding of any special circumstance pursuant to Sections
190.1, 190.2, 190.3, 190.4, and 190.5.
190.1.  A case in which the death penalty may be imposed pursuant to
this chapter shall be tried in separate phases as follows:
   (a) The question of the defendant's guilt shall be first
determined.  If the trier of fact finds the defendant guilty of first
degree murder, it shall at the same time determine the truth of all
special circumstances charged as enumerated in Section 190.2 except
for a special circumstance charged pursuant to paragraph (2) of
subdivision (a) of Section 190.2 where it is alleged that the
defendant had been convicted in a prior proceeding of the offense of
murder in the first or second degree.
   (b) If the defendant is found guilty of first degree murder and
one of the special circumstances is charged pursuant to paragraph (2)
of subdivision (a) of Section 190.2 which charges that the defendant
had been convicted in a prior proceeding of the offense of murder of
the first or second degree, there shall thereupon be further
proceedings on the question of the truth of such special
circumstance.
   (c) If the defendant is found guilty of first degree murder and
one or more special circumstances as enumerated in Section 190.2 has
been charged and found to be true, his sanity on any plea of not
guilty by reason of insanity under Section 1026 shall be determined
as provided in Section 190.4.  If he is found to be sane, there shall
thereupon be further proceedings on the question of the penalty to
be imposed.  Such proceedings shall be conducted in accordance with
the provisions of Section 190.3 and 190.4.
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 under Section
190.4 to be true:
   (1) The murder was intentional and carried out for financial gain.
   (2) The defendant was convicted previously of murder in the first
or second degree.  For the purpose of this paragraph, an offense
committed in another jurisdiction, which if committed in California
would be punishable as first or second degree murder, shall be deemed
murder in the first or second degree.
   (3) The defendant, in this proceeding, has been convicted of more
than one offense of murder in the first or second degree.
   (4) The murder was committed by means of a destructive device,
bomb, or explosive planted, hidden, or concealed in any place, area,
dwelling, building, or structure, and the defendant knew, or
reasonably should have known, that his or her act or acts would
create a great risk of death to one or more human beings.
   (5) The murder was committed for the purpose of avoiding or
preventing a lawful arrest, or perfecting or attempting to perfect,
an escape from lawful custody.
   (6) The murder was committed by means of a destructive device,
bomb, or explosive that the defendant mailed or delivered, attempted
to mail or deliver, or caused to be mailed or delivered, and the
defendant knew, or reasonably should have known, that his or her act
or acts would create a great risk of death to one or more human
beings.
   (7) The victim was a peace officer, as defined in Section 830.1,
830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37,
830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who, while engaged
in the course of the performance of his or her duties, was
intentionally killed, and the defendant knew, or reasonably should
have known, that the victim was a peace officer engaged in the
performance of his or her duties; or the victim was a peace officer,
as defined in the above-enumerated sections, or a former peace
officer under any of those sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
   (8) The victim was a federal law enforcement officer or agent who,
while engaged in the course of the performance of his or her duties,
was intentionally killed, and the defendant knew, or reasonably
should have known, that the victim was a federal law enforcement
officer or agent engaged in the performance of his or her duties; or
the victim was a federal law enforcement officer or agent, and was
intentionally killed in retaliation for the performance of his or her
official duties.
   (9) The victim was a firefighter, as defined in Section 245.1,
who, while engaged in the course of the performance of his or her
duties, was intentionally killed, and the defendant knew, or
reasonably should have known, that the victim was a firefighter
engaged in the performance of his or her duties.
   (10) The victim was a witness to a crime who was intentionally
killed for the purpose of preventing his or her testimony in any
criminal or juvenile proceeding, and the killing was not committed
during the commission or attempted commission, of the crime to which
he or she was a witness; or the victim was a witness to a crime and
was intentionally killed in retaliation for his or her testimony in
any criminal or juvenile proceeding.  As used in this paragraph,
"juvenile proceeding" means a proceeding brought pursuant to Section
602 or 707 of the Welfare and Institutions Code.
   (11) The victim was a prosecutor or assistant prosecutor or a
former prosecutor or assistant prosecutor of any local or state
prosecutor's office in this or any other state, or of a federal
prosecutor's office, and the murder was intentionally carried out in
retaliation for, or to prevent the performance of, the victim's
official duties.
   (12) The victim was a judge or former judge of any court of record
in the local, state, or federal system in this or any other state,
and the murder was intentionally carried out in retaliation for, or
to prevent the performance of, the victim's official duties.
   (13) The victim was an elected or appointed official or former
official of the federal government, or of any local or state
government of this or any other state, and the killing was
intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
   (14) The murder was especially heinous, atrocious, or cruel,
manifesting exceptional depravity.  As used in this section, the
phrase "especially heinous, atrocious, or cruel, manifesting
exceptional depravity" means a conscienceless or pitiless crime that
is unnecessarily torturous to the victim.
   (15) The defendant intentionally killed the victim by means of
lying in wait.
   (16) The victim was intentionally killed because of his or her
race, color, religion, nationality, or country of origin.
   (17) The murder was committed while the defendant was engaged in,
or was an accomplice in, the commission of, attempted commission of,
or the immediate flight after committing, or attempting to commit,
the following felonies:
   (A) Robbery in violation of Section 211 or 212.5.
   (B) Kidnapping in violation of Section 207, 209, or 209.5.
   (C) Rape in violation of Section 261.
   (D) Sodomy in violation of Section 286.
   (E) The performance of a lewd or lascivious act upon the person of
a child under the age of 14 years in violation of Section 288.
   (F) Oral copulation in violation of Section 288a.
   (G) Burglary in the first or second degree in violation of Section
460.
   (H) Arson in violation of subdivision (b) of Section 451.
   (I) Train wrecking in violation of Section 219.
   (J) Mayhem in violation of Section 203.
   (K) Rape by instrument in violation of Section 289.
   (L) Carjacking, as defined in Section 215.
   (M) To prove the special circumstances of kidnapping in
subparagraph (B), or arson in subparagraph (H), if there is specific
intent to kill, it is only required that there be proof of the
elements of those felonies.  If so established, those two special
circumstances are proven even if the felony of kidnapping or arson is
committed primarily or solely for the purpose of facilitating the
murder.
   (18) The murder was intentional and involved the infliction of
torture.
   (19) The defendant intentionally killed the victim by the
administration of poison.
   (20) The victim was a juror in any court of record in the local,
state, or federal system in this or any other state, and the murder
was intentionally carried out in retaliation for, or to prevent the
performance of, the victim's official duties.
   (21) The murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle, intentionally at another
person or persons outside the vehicle with the intent to inflict
death.  For purposes of this paragraph, "motor vehicle" means any
vehicle as defined in Section 415 of the Vehicle Code.
   (22) The defendant intentionally killed the victim while the
defendant was an active participant in a criminal street gang, as
defined in subdivision (f) of Section 186.22, and the murder was
carried out to further the activities of the criminal street gang.
   (b) Unless an intent to kill is specifically required under
subdivision (a) for a special circumstance enumerated therein, an
actual killer, as to whom the special circumstance has been found to
be true under Section 190.4, need not have had any intent to kill at
the time of the commission of the offense which is the basis of the
special circumstance in order to suffer death or confinement in the
state prison for life without the possibility of parole.
   (c) Every person, not the actual killer, who, with the intent to
kill, aids, abets, counsels, commands, induces, solicits, requests,
or assists any actor in the commission of murder in the first degree
shall be punished by death or imprisonment in the state prison for
life without the possibility of parole if one or more of the special
circumstances enumerated in subdivision (a) has been found to be true
under Section 190.4.
   (d) Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a major
participant, aids, abets, counsels, commands, induces, solicits,
requests, or assists in the commission of a felony enumerated in
paragraph (17) of subdivision (a) which results in the death of some
person or persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment in the
state prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.
   The penalty shall be determined as provided in this section and
Sections 190.1, 190.3, 190.4, and 190.5.
190.25.  (a) The penalty for a defendant found guilty of murder in
the first degree shall be confinement in state prison for a term of
life without the possibility of parole in any case in which any of
the following special circumstances has been charged and specially
found under Section 190.4, to be true:  the victim was the operator
or driver of a bus, taxicab, streetcar, cable car, trackless trolley,
or other motor vehicle operated on land, including a vehicle
operated on stationary rails or on a track or rail suspended in the
air, used for the transportation of persons for hire, or the victim
was a station agent or ticket agent for the entity providing such
transportation, who, while engaged in the course of the performance
of his or her duties was intentionally killed, and such defendant
knew or reasonably should have known that such victim was the
operator or driver of a bus, taxicab, streetcar, cable car, trackless
trolley, or other motor vehicle operated on land, including a
vehicle operated on stationary rails or on a track or rail suspended
in the air, used for the transportation of persons for hire, or was a
station agent or ticket agent for the entity providing such
transportation, engaged in the performance of his or her duties.
   (b) Every person whether or not the actual killer found guilty of
intentionally aiding, abetting, counseling, commanding, inducing,
soliciting, requesting, or assisting any actor in the commission of
murder in the first degree shall suffer confinement in state prison
for a term of life without the possibility of parole, in any case in
which one or more of the special circumstances enumerated in
subdivision (a) of this section has been charged and specially found
under Section 190.4 to be true.
   (c) Nothing in this section shall be construed to prohibit the
charging or finding of any special circumstance pursuant to Sections
190.1, 190.2, 190.3, 190.4, and 190.5.
190.3.  If the defendant has been found guilty of murder in the
first degree, and a special circumstance has been charged and found
to be true, or if the defendant may be subject to the death penalty
after having been found guilty of violating subdivision (a) of
Section 1672 of the Military and Veterans Code or Sections 37, 128,
219, or 4500 of this code, the trier of fact shall determine whether
the penalty shall be death or confinement in state prison for a term
of life without the possibility of parole.  In the proceedings on the
question of penalty, evidence may be presented by both the people
and the defendant as to any matter relevant to aggravation,
mitigation, and sentence including, but not limited to, the nature
and circumstances of the present offense, any prior felony conviction
or convictions whether or not such conviction or convictions
involved a crime of violence, the presence or absence of other
criminal activity by the defendant which involved the use or
attempted use of force or violence or which involved the express or
implied threat to use force or violence, and the defendant's
character, background, history, mental condition and physical
condition.
   However, no evidence shall be admitted regarding other criminal
activity by the defendant which did not involve the use or attempted
use of force or violence or which did not involve the express or
implied threat to use force or violence.  As used in this section,
criminal activity does not require a conviction.
   However, in no event shall evidence of prior criminal activity be
admitted for an offense for which the defendant was prosecuted and
acquitted.  The restriction on the use of this evidence is intended
to apply only to proceedings pursuant to this section and is not
intended to affect statutory or decisional law allowing such evidence
to be used in any other proceedings.
   Except for evidence in proof of the offense or special
circumstances which subject a defendant to the death penalty, no
evidence may be presented by the prosecution in aggravation unless
notice of the evidence to be introduced has been given to the
defendant within a reasonable period of time as determined by the
court, prior to trial.  Evidence may be introduced without such
notice in rebuttal to evidence introduced by the defendant in
mitigation.
   The trier of fact shall be instructed that a sentence of
confinement to state prison for a term of life without the
possibility of parole may in future after sentence is imposed, be
commuted or modified to a sentence that includes the possibility of
parole by the Governor of the State of California.
   In determining the penalty, the trier of fact shall take into
account any of the following factors if relevant:
   (a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any special
circumstances found to be true pursuant to Section 190.1.
   (b) 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.
   (c) The presence or absence of any prior felony conviction.
   (d) Whether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance.
   (e) Whether or not the victim was a participant in the defendant's
homicidal conduct or consented to the homicidal act.
   (f) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification
or extenuation for his conduct.
   (g) Whether or not defendant acted under extreme duress or under
the substantial domination of another person.
   (h) 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 as a result of
mental disease or defect, or the affects of intoxication.
   (i) The age of the defendant at the time of the crime.
   (j) Whether or not the defendant was an accomplice to the offense
and his participation in the commission of the offense was relatively
minor.
   (k) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.
   After having heard and received all of the evidence, and after
having heard and considered the arguments of counsel, the trier of
fact shall consider, take into account and be guided by the
aggravating and mitigating circumstances referred to in this section,
and shall impose a sentence of death if the trier of fact concludes
that the aggravating circumstances outweigh the mitigating
circumstances.  If the trier of fact determines that the mitigating
circumstances outweigh the aggravating circumstances the trier of
fact shall impose a sentence of confinement in state prison for a
term of life without the possibility of parole.
190.4.  (a) Whenever special circumstances as enumerated in Section
190.2 are alleged and the trier of fact finds the defendant guilty of
first degree murder, the trier of fact shall also make a special
finding on the truth of each alleged special circumstance.  The
determination of the truth of any or all of the special circumstances
shall be made by the trier of fact on the evidence presented at the
trial or at the hearing held pursuant to Subdivision (b) of Section
190.1.
   In case of a reasonable doubt as to whether a special circumstance
is true, the defendant is entitled to a finding that is not true.
The trier of fact shall make a special finding that each special
circumstance charged is either true or not true.  Whenever a special
circumstance requires proof of the commission or attempted commission
of a crime, such crime shall be charged and proved pursuant to the
general law applying to the trial and conviction of the crime.
   If the defendant was convicted by the court sitting without a
jury, the trier of fact shall be a jury unless a jury is waived by
the defendant and by the people, in which case the trier of fact
shall be the court.  If the defendant was convicted by a plea of
guilty, the trier of fact shall be a jury unless a jury is waived by
the defendant and by the people.
   If the trier of fact finds that any one or more of the special
circumstances enumerated in Section 190.2 as charged is true, there
shall be a separate penalty hearing, and neither the finding that any
of the remaining special circumstances charged is not true, nor if
the trier of fact is a jury, the inability of the jury to agree on
the issue of the truth or untruth of any of the remaining special
circumstances charged, shall prevent the holding of a separate
penalty hearing.
   In any case in which the defendant has been found guilty by a
jury, and the jury has been unable to reach an unanimous verdict that
one or more of the special circumstances charged are true, and does
not reach a unanimous verdict that all the special circumstances
charged are not true, the court shall dismiss the jury and shall
order a new jury impaneled to try the issues, but the issue of guilt
shall not be tried by such jury, nor shall such jury retry the issue
of the truth of any of the special circumstances which were found by
an unanimous verdict of the previous jury to be untrue.  If such new
jury is unable to reach the unanimous verdict that one or more of the
special circumstances it is trying are true, the court shall dismiss
the jury and in the court's discretion shall either order a new jury
impaneled to try the issues the previous jury was unable to reach
the unanimous verdict on, or impose a punishment of confinement in
state prison for a term of 25 years.
   (b) If defendant was convicted by the court sitting without a jury
the trier of fact at the penalty hearing shall be a jury unless a
jury is waived by the defendant and the people, in which case the
trier of fact shall be the court.  If the defendant was convicted by
a plea of guilty, the trier of fact shall be a jury unless a jury is
waived by the defendant and the people.
   If the trier of fact is a jury and has been unable to reach a
unanimous verdict as to what the penalty shall be, the court shall
dismiss the jury and shall order a new jury impaneled to try the
issue as to what the penalty shall be.  If such new jury is unable to
reach a unanimous verdict as to what the penalty shall be, the court
in its discretion shall either order a new jury or impose a
punishment of confinement in state prison for a term of life without
the possibility of parole.
   (c) If the trier of fact which convicted the defendant of a crime
for which he may be subject to the death penalty was a jury, the same
jury shall consider any plea of not guilty by reason of insanity
pursuant to Section 1026, the truth of any special circumstances
which may be alleged, and the penalty to be applied, unless for good
cause shown the court discharges that jury in which case a new jury
shall be drawn.  The court shall state facts in support of the
finding of good cause upon the record and cause them to be entered
into the minutes.
   (d) In any case in which the defendant may be subject to the death
penalty, evidence presented at any prior phase of the trial,
including any proceeding under a plea of not guilty by reason of
insanity pursuant to Section 1026 shall be considered an any
subsequent phase of the trial, if the trier of fact of the prior
phase is the same trier of fact at the subsequent phase.
   (e) In every case in which the trier of fact has returned a
verdict or finding imposing the death penalty, the defendant shall be
deemed to have made an application for modification of such verdict
or finding pursuant to Subdivision 7 of Section 11.  In ruling on the
application, the judge shall review the evidence, consider, take
into account, and be guided by the aggravating and mitigating
circumstances referred to in Section 190.3, and shall make a
determination as to whether the jury's findings and verdicts that the
aggravating circumstances outweigh the mitigating circumstances are
contrary to law or the evidence presented.  The judge shall state on
the record the reasons for his findings.
   The judge shall set forth the reasons for his ruling on the
application and direct that they be entered on the Clerk's minutes.
The denial of the modification of the death penalty verdict pursuant
to subdivision (7) of Section 1181 shall be reviewed on the defendant'
s automatic appeal pursuant to subdivision (b) of Section 1239.  The
granting of the application shall be reviewed on the People's appeal
pursuant to paragraph (6).
190.41.  Notwithstanding Section 190.4 or any other provision of
law, the corpus delicti of a felony-based special circumstance
enumerated in paragraph (17) of subdivision (a) of Section 190.2 need
not be proved independently of a defendant's extrajudicial
statement.
190.5.  (a) Notwithstanding any other provision of law, the death
penalty shall not be imposed upon any person who is under the age of
18 at the time of the commission of the crime.  The burden of proof
as to the age of such person shall be upon the defendant.
   (b) The penalty for a defendant found guilty of murder in the
first degree, in any case in which one or more special circumstances
enumerated in Section 190.2 or 190.25 has been found to be true under
Section 190.4, who was 16 years of age or older and under the age of
18 years at the time of the commission of the crime, shall be
confinement in the state prison for life without the possibility of
parole or, at the discretion of the court, 25 years to life.
   (c) The trier of fact shall determine the existence of any special
circumstance pursuant to the procedure set forth in Section 190.4.
190.6.  (a) The Legislature finds that the sentence in all capital
cases should be imposed expeditiously.
   (b) Therefore, in all cases in which a sentence of death has been
imposed on or after January 1, 1997, the opening appellate brief in
the appeal to the State Supreme Court shall be filed no later than
seven months after the certification of the record for completeness
under subdivision (d) of Section 190.8 or receipt by the appellant's
counsel of the completed record, whichever is later, except for good
cause.  However, in those cases where the trial transcript exceeds
10,000 pages, the briefing shall be completed within the time limits
and pursuant to the procedures set by the rules of court adopted by
the Judicial Council.
   (c) In all cases in which a sentence of death has been imposed on
or after January 1, 1997, it is the Legislature's goal that the
appeal be decided and an opinion reaching the merits be filed within
210 days of the completion of the briefing.  However, where the
appeal and a petition for writ of habeas corpus is heard at the same
time, the petition should be decided and an opinion reaching the
merits should be filed within 210 days of the completion of the
briefing for the petition.
   (d) The failure of the parties or the Supreme Court to meet or
comply with the time limit provided by this section shall not be a
ground for granting relief from a judgment of conviction or sentence
of death.
190.7.  (a) The "entire record" referred to in Section 190.6
includes, but is not limited to, the following:
   (1) The normal and additional record prescribed in the rules
adopted by the Judicial Council pertaining to an appeal taken by the
defendant from a judgment of conviction.
   (2) A copy of any other paper or record on file or lodged with the
superior or municipal court and a transcript of any other oral
proceeding reported in the superior or municipal court pertaining to
the trial of the cause.
   (b) Notwithstanding this section, the Judicial Council may adopt
rules, not inconsistent with the purpose of Section 190.6,
specifically pertaining to the content, preparation and certification
of the record on appeal when a judgment of death has been
pronounced.
190.8.  (a) In any case in which a death sentence has been imposed,
the record on appeal shall be expeditiously certified in two stages,
the first for completeness and the second for accuracy, as provided
by this section.  The trial court may use all reasonable means to
ensure compliance with all applicable statutes and rules of court
pertaining to record certification in capital appeals, including, but
not limited to, the imposition of sanctions.
   (b) Within 30 days of the imposition of the death sentence, the
clerk of the superior court shall provide to trial counsel copies of
the clerk's transcript and shall deliver the transcript as provided
by the court reporter.  Trial counsel shall promptly notify the court
if he or she has not received the transcript within 30 days.
   (c) During the course of a trial in which the death penalty is
being sought, trial counsel shall alert the court's attention to any
errors in the transcripts incidentally discovered by counsel while
reviewing them in the ordinary course of trial preparation.  The
court shall periodically request that trial counsel provide a list of
errors in the trial transcript during the course of trial and may
hold hearings in connection therewith.
   Corrections to the record shall not be required to include
immaterial typographical errors that cannot conceivably cause
confusion.
   (d) The trial court shall certify the record for completeness and
for incorporation of all corrections, as provided by subdivision (c),
no later than 90 days after entry of the imposition of the death
sentence unless good cause is shown.  However, this time period may
be extended for proceedings in which the trial transcript exceeds
10,000 pages in accordance with the timetable set forth in, or for
good cause pursuant to the procedures set forth in, the rules of
court adopted by the Judicial Council.
   (e) Following the imposition of the death sentence and prior to
the deadline set forth in subdivision (d), the trial court shall hold
one or more hearings for trial counsel to address the completeness
of the record and any outstanding errors that have come to their
attention and to certify that they have reviewed all docket sheets to
ensure that the record contains transcripts for any proceedings,
hearings, or discussions that are required to be reported and that
have occurred in the course of the case in any court, as well as all
documents required by this code and the rules adopted by the Judicial
Council.
   (f) The clerk of the trial court shall deliver a copy of the
record on appeal to appellate counsel when the clerk receives notice
of counsel's appointment or retention, or when the record is
certified for completeness under subdivision (d), whichever is later.
   (g) The trial court shall certify the record for accuracy no later
than 120 days after the record has been delivered to appellate
counsel.  However, this time may be extended pursuant to the
timetable and procedures set forth in the rules of court adopted by
the Judicial Council.  The trial court may hold one or more status
conferences for purposes of timely certification of the record for
accuracy, as set forth in the rules of court adopted by the Judicial
Council.
   (h) The Supreme Court shall identify in writing to the Judicial
Council any case that has not met the time limit for certification of
the record for completeness under subdivision (d) or for accuracy
under subdivision (g), and shall identify those cases, and its
reasons, for which it has granted an extension of time.  The Judicial
Council shall include this information in its annual report to the
Legislature.
   (i) As used in this section, "trial counsel" means both the
prosecution and the defense counsel in the trial in which the
sentence of death has been imposed.
   (j) This section shall be implemented pursuant to rules of court
adopted by the Judicial Council.
   (k) This section shall only apply to those proceedings in which a
sentence of death has been imposed following a trial that was
commenced on or after January 1, 1997.
190.9.  (a) (1) In any case in which a death sentence may be
imposed, all proceedings conducted in the superior court, including
all conferences and proceedings, whether in open court, in conference
in the courtroom, or in chambers, shall be conducted on the record
with a court reporter present.  The court reporter shall prepare and
certify a daily transcript of all proceedings commencing with the
preliminary hearing. Proceedings prior to the preliminary hearing
shall be reported but need not be transcribed until the court
receives notice as prescribed in paragraph (2).
   (2) Upon receiving notification from the prosecution that the
death penalty is being sought, the clerk shall order the
transcription and preparation of the record of all proceedings prior
to and including the preliminary hearing in the manner prescribed by
the Judicial Council in the rules of court.  The record of all
proceedings prior to and including the preliminary hearing shall be
certified by the court no later than 120 days following notification
unless the time is extended pursuant to rules of court adopted by the
Judicial Council.  Upon certification, the record of all proceedings
is incorporated into the superior court record.
   (b) (1) The court shall assign a court reporter who uses
computer-aided transcription equipment to report all proceedings
under this section.
   (2) Failure to comply with the requirements of this section
relating to the assignment of court reporters who use computer-aided
transcription equipment is not a ground for reversal.
   (c) Any computer-readable transcript produced by court reporters
pursuant to this section shall conform to the requirements of Section
271 of the Code of Civil Procedure.
191.  The rules of the common law, distinguishing the killing of a
master by his servant, and of a husband by his wife, as petit
treason, are abolished, and these offenses are homicides, punishable
in the manner prescribed by this Chapter.
191.5.  (a) Gross vehicular manslaughter while intoxicated is the
unlawful killing of a human being without malice aforethought, in the
driving of a vehicle, where the driving was in violation of Section
23140, 23152, or 23153 of the Vehicle Code, and the killing was
either the proximate result of the commission of an unlawful act, not
amounting to a felony, and with gross negligence, or the proximate
result of the commission of a lawful act which might produce death,
in an unlawful manner, and with gross negligence.
   (b) Gross vehicular manslaughter while intoxicated also includes
operating a vessel in violation of subdivision (b), (c), (d), (e), or
(f) of Section 655 of the Harbors and Navigation Code, and in the
commission of an unlawful act, not amounting to felony, and with
gross negligence; or operating a vessel in violation of subdivision
(b), (c), (d), (e), or (f) of Section 655 of the Harbors and
Navigation Code, and in the commission of a lawful act which might
produce death, in an unlawful manner, and with gross negligence.
   (c) Except as provided in subdivision (d), gross vehicular
manslaughter while intoxicated is punishable by imprisonment in the
state prison for 4, 6, or 10 years.
   (d) Any person convicted of violating this section who has one or
more prior convictions of this section or of paragraph (1) or (3) of
subdivision (c) of Section 192, subdivision (a) or (c) of Section
192.5 of this code, or of violating Section 23152 punishable under
Sections 23540, 23542, 23546, 23548, 23550, or 23552 of, or convicted
of Section 23153 of, the Vehicle Code, shall be punished by
imprisonment in the state prison for a term of 15 years to life.
Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of
Part 3 shall apply to reduce the term imposed pursuant to this
subdivision.
   (e) This section shall not be construed as prohibiting or
precluding a charge of murder under Section 188 upon facts exhibiting
wantonness and a conscious disregard for life to support a finding
of implied malice, or upon facts showing malice consistent with the
holding of the California Supreme Court in People v. Watson, 30 Cal.
3d 290.
   (f) This section shall not be construed as making any homicide in
the driving of a vehicle or the operation of a vessel punishable
which is not a proximate result of the commission of an unlawful act,
not amounting to felony, or of the commission of a lawful act which
might produce death, in an unlawful manner.
   (g) For the penalties in subdivision (d) to apply, the existence
of any fact required under subdivision (d) shall be alleged in the
information or indictment and either admitted by the defendant in
open court or found to be true by the trier of fact.
192.  Manslaughter is the unlawful killing of a human being without
malice.  It is of three kinds:
   (a) Voluntary--upon a sudden quarrel or heat of passion.
   (b) Involuntary--in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and
circumspection.  This subdivision shall not apply to acts committed
in the driving of a vehicle.
   (c) Vehicular--
   (1) Except as provided in Section 191.5, driving a vehicle in the
commission of an unlawful act, not amounting to felony, and with
gross negligence; or driving a vehicle in the commission of a lawful
act which might produce death, in an unlawful manner, and with gross
negligence.
   (2) Except as provided in paragraph (3), driving a vehicle in the
commission of an unlawful act, not amounting to felony, but without
gross negligence; or driving a vehicle in the commission of a lawful
act which might produce death, in an unlawful manner, but without
gross negligence.
   (3) Driving a vehicle in violation of Section 23140, 23152, or
23153 of the Vehicle Code and in the commission of an unlawful act,
not amounting to felony, but without gross negligence; or driving a
vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle
Code and in the commission of a lawful act which might produce
death, in an unlawful manner, but without gross negligence.
   (4) Driving a vehicle in connection with a violation of paragraph
(3) of subdivision (a) of Section 550, where the vehicular collision
or vehicular accident was knowingly caused for financial gain and
proximately resulted in the death of any person.  This provision
shall not be construed to prevent prosecution of a defendant for the
crime of murder.
   This section shall not be construed as making any homicide in the
driving of a vehicle punishable which is not a proximate result of
the commission of an unlawful act, not amounting to felony, or of the
commission of a lawful act which might produce death, in an unlawful
manner.
   "Gross negligence," as used in this section, shall not be
construed as prohibiting or precluding a charge of murder under
Section 188 upon facts exhibiting wantonness and a conscious
disregard for life to support a finding of implied malice, or upon
facts showing malice, consistent with the holding of the California
Supreme Court in People v.  Watson, 30 Cal. 3d 290.
192.5.  Vehicular manslaughter pursuant to subdivision (c) of
Section 192 includes:
   (a) Except as provided in subdivision (b) of Section 191.5,
operating a vessel in the commission of an unlawful act, not
amounting to felony, and with gross  negligence; or operating a
vessel in the commission of a lawful act which might produce death,
in an unlawful manner, and with gross negligence.
   (b) Except as provided in subdivision (c), operating a vessel in
the commission of an unlawful act, not amounting to felony, but
without gross negligence; or operating a vessel in the commission of
a lawful act which might produce death, in an unlawful manner, but
without gross negligence.
   (c) Operating a vessel in violation of subdivision (b), (c), (d),
(e), or (f) of Section 655 of the Harbors and Navigation Code, and in
the commission of an unlawful act, not amounting to felony, but
without gross negligence; or operating a vessel in violation of
subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors
and Navigation Code, and in the commission of a lawful act which
might produce death, in an unlawful manner, but without gross
negligence.
   (d) This section shall become operative on January 1, 1992.
193.  (a) Voluntary manslaughter is punishable by imprisonment in
the state prison for three, six, or eleven years.
   (b) Involuntary manslaughter is punishable by imprisonment in the
state prison for two, three, or four years.
   (c) Vehicular manslaughter is punishable as follows:
   (1) A violation of paragraph (1) of subdivision (c) of Section 192
is punishable either by imprisonment in the county jail for not more
than one year or by imprisonment in the state prison for two, four,
or six years.
   (2) A violation of paragraph (2) of subdivision (c) of Section 192
is punishable by imprisonment in the county jail for not more than
one year.
   (3) A violation of paragraph (3) of subdivision (c) of Section 192
is punishable either by imprisonment in the county jail for not more
than one year or by imprisonment in the state prison for 16 months
or two or four years.
   (4) A violation of paragraph (4) of subdivision (c) of Section 192
is punishable by imprisonment in the state prison for 4, 6, or 10
years.
193.5.  Manslaughter committed during the operation of a vessel is
punishable as follows:
   (a) A violation of subdivision (a) of Section 192.5 is punishable
either by imprisonment in the county jail for not more than one year
or by imprisonment in the state prison for two, four, or six years.
   (b) A violation of subdivision (b) of Section 192.5 is punishable
by imprisonment in the county jail for not more than one year.
   (c) A violation of subdivision (c) of Section 192.5 is punishable
either by imprisonment in the county jail for not more than one year
or by imprisonment in the state prison for 16 months or two or four
years.
193.7.  Any person convicted of a violation of paragraph (3) of
subdivision (c) of Section 192 which occurred within seven years of
two or more separate violations of Section 23103, as specified in
Section 23103.5, of, or Section 23152 or 23153 of, the Vehicle Code,
or any combination thereof, which resulted in convictions, shall be
designated as an habitual traffic offender subject to paragraph (3)
of subdivision (e) of Section 14601.3 of the Vehicle Code, for a
period of three years, subsequent to the conviction.  The person
shall be advised of this designation pursuant to subdivision (b) of
Section 13350 of the Vehicle Code.
193.8.  (a) It is unlawful for any adult who is the registered owner
of a motor vehicle or in possession of a motor vehicle to relinquish
possession of the vehicle to a minor for the purpose of driving if
the following conditions exist:
   (1) The adult owner or person in possession of the vehicle knew or
reasonably should have known that the minor was intoxicated at the
time possession was relinquished.
   (2) A petition was sustained or the minor was convicted of a
violation of Section 23103 as specified in Section 23103.5, 23140,
23152, or 23153 of the Vehicle Code or a violation of Section 191.5
or paragraph (3) of subdivision (c) of Section 192.
   (3) The minor does not otherwise have a lawful right to possession
of the vehicle.
   (b) The offense described in subdivision (a) shall not apply to
commercial bailments, motor vehicle leases, or parking arrangements,
whether or not for compensation, provided by hotels, motels, or food
facilities for customers, guests, or other invitees thereof.  For
purposes of this subdivision, hotel and motel shall have the same
meaning as in subdivision (b) of Section 25503.16 of the Business and
Professions Code and food facility shall have the same meaning as in
Section 113785 of the Health and Safety Code.
   (c) If any adult is convicted of the offense described in
subdivision (a), that person shall be punished by a fine not
exceeding one thousand dollars ($1,000), or by imprisonment in a
county jail not exceeding six months, or by both the fine and
imprisonment.  Any adult convicted of the offense described in
subdivision (a) shall not be subject to driver's license suspension
or revocation or attendance at a licensed alcohol or drug education
and counseling program for persons who drive under the influence.
194.  To make the killing either murder or manslaughter, it is not
requisite that the party die within three years and a day after the
stroke received or the cause of death administered.  If death occurs
beyond the time of three years and a day, there shall be a rebuttable
presumption that the killing was not criminal.  The prosecution
shall bear the burden of overcoming this presumption.  In the
computation of time, the whole of the day on which the act was done
shall be reckoned the first.
195.  Homicide is excusable in the following cases:
   1. When committed by accident and misfortune, or in doing any
other lawful act by lawful means, with usual and ordinary caution,
and without any unlawful intent.
   2. When committed by accident and misfortune, in the heat of
passion, upon any sudden and sufficient provocation, or upon a sudden
combat, when no undue advantage is taken, nor any dangerous weapon
used, and when the killing is not done in a cruel or unusual manner.
196.  Homicide is justifiable when committed by public officers and
those acting by their command in their aid and assistance, either--
   1. In obedience to any judgment of a competent Court; or,
   2. When necessarily committed in overcoming actual resistance to
the execution of some legal process, or in the discharge of any other
legal duty; or,
   3. When necessarily committed in retaking felons who have been
rescued or have escaped, or when necessarily committed in arresting
persons charged with felony, and who are fleeing from justice or
resisting such arrest.
197.  Homicide is also justifiable when committed by any person in
any of the following cases:
   1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
   2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
   3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
   4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.
198.  A bare fear of the commission of any of the offenses mentioned
in subdivisions 2 and 3 of Section 197, to prevent which homicide
may be lawfully committed, is not sufficient to justify it.  But the
circumstances must be sufficient to excite the fears of a reasonable
person, and the party killing must have acted under the influence of
such fears alone.
198.5.  Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.
   As used in this section, great bodily injury means a significant
or substantial physical injury.
199.  The homicide appearing to be justifiable or excusable, the
person indicted must, upon his trial, be fully acquitted and
discharged.



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