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Again I will be taking some time off from my regularly scheduled blogs as to DUI defense and writing today on a subject of defenses to Homicide cases. Having tried more than 5 first degree homicide cases and having handled close to a hundred more I know the ins and outs of the homicide defense system.

One of the first things you must ascertain in a Homicide case is  a very clearly defined defense to the Homicide i.e. was it self defense? defense of others?

This must be very clear from the begginning of the case for both your client, the prosecution and prospective jurors. 

 

WHAT I WILL BE DISCUSSING TODAY IS A CASE WHERE IMPERFECT SELF DEFENSE WAS THE DEFENSE

WHAT IS IMPERFECT SELF DEFENSE?

Imperfect self defense  is a defense to either a first or second degree murder charge.

the bottom line is that the defendant will usually be admitting to having committed a killing; however the degree of the homicide is aguably not first or second degree murder.

In order for somoene to be convicted of second degree murder for example there must be malice.

there must be either an intent to kill or doing an act inherently dangerous to human life with the psychological element, acting with disregard to that danger.

 

IMPERFECT SELF DEFENSE

If someone acted in Imperfect self defense, than they did not act with malice.   

 

1. what imperfect self defense is is the honest but unreasonable belief in the need to use deadly force.

this differs from self defense on one key factor.  Self Defense,  which could lead to a full aquital, the person had an honest belief in the need to use deadly force, and that belief was reasonable. 

 

In imperfect self defense if the jury believes the defense the affect would be a conviction for mansaughter and usuallya 6 to 12 year sentence. 

 

So back to the case study. 

We had a client that honestly believed she needed to use deadly force against a  person that was in her home and would not leave. 

We were able to bring in a psychologist that explained how our client may have had a honest but enhanced feeling that she needed to use deadly force based upon her past trauma.  This was used to explain how her past trauma made her honestly believe that she needed to use deadly force.  Now we did not argue and did not need to argue that the belief was reasonable.  In fact, we stated that her belief in the need to use deadly force was completely unreasonable.

The result is that the jurors have to decide based upon all the factors available to them if they believed that the person had an honest belief in the need to use deadly force.

Again that belief does not have to be reasonable like the belief has to be for self defense as a defense.

The result could be very big for a client.

For example, if a person is tried for first degree murder than if convicted they face 25 to life in prison, if convicted of second degree murder than the person faces 15 to life in prison.  This is of course, before any enhancements are included to the sentence. 

If you are convicted of Manslaughter you have an out date meaning that you will not be given an indetermianent sentence, for example, 25 to life. instead you will be given a sentence such as 6 to 12 years again with any enhancements.   This could definitely be a good thing. indeterminent sentences are to be avoided because you never know an exact date when you can be expected to parole.

Again give us a call if you have any questions. 5594411418.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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Fresno, CA 93704
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