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VERDICT NEARS FOR WHITE OFFICER ACCUSED OF SHOOTING UNARMED BLACK MAN; OAKLAND PREPARES FOR POSSIBLE RIOTS – CALIFORNIA PENAL CODE SECTION 189, PENAL CODE SECTION 192(A), (B)

On July 2, 2010, the city of Oakland, California, prepares itself for possible rioting as the trial of a white police officer accused of murdering an unarmed black man draws to a close.

On January 1, 2009, Bay Area Rapid Transit police officer Johannes Mehserle, 28, shot Oscar Grant after passengers accused Grant and others of fighting on a train. Mehserle claimed that he had meant to subdue Grant with a Taser, but accidentally drew and fired his handgun instead, killing Grant.

Mehserle may be convicted of second degree murder, voluntary or involuntary manslaughter, or could be found not guilty. (California Penal Code sections 189, 192(a), (b).)

Closing arguments concluded July 2, 2010. The jury began deliberating that afternoon.

The trial has gained significant public interest. The city of Oakland posted a message on its website from Oakland’s mayor and police chief stating that though they “understand that the community is grieving,” they “are dedicated to safe expressions of emotions during this difficult time” and “will not tolerate destruction or violence” in response to the trial verdict.

Under California Penal Code sections 187 and 189, the unlawful killing of another human being with malice aforethought and absent other circumstances is second degree murder. It is punishable by a 15 year to life in state prison. (California Penal Code section 190.)

Under California Penal Code section 192(a), voluntary manslaughter is the unlawful killing of another human being while in the heat of passion. It is punishable be 3, 6, or 11 years in state prison. (California Penal Code section 193(a).)

Under California Penal Code section 192(b), involuntary manslaughter is the unlawful killing of another human being while committing a misdemeanor or while performing a lawful act in a negligent way. It is punishable by 2, 3, or 4 years in state prison. (California Penal Code section 193(b).)

Under the mistake of fact defense, a person may have committed the criminal act, but because the factual circumstances were not as he believed, he did not have the requisite intent to complete the crime. (California Penal Code section 26.) If a person’s mistake of fact is reasonable, then even if he committed the criminal act, he will be found not guilty. If a person’s mistake of fact is unreasonable, then he may be found not guilty or liable for a lesser crime, depending on the crime and the requisite intent. Mistake of fact is not a defense to some crimes, such as unlawful sexual intercourse with a minor. (California Penal Code section 261.5.)

If the criminal act is murder, as is the case with Mehserle, if the jury finds that he was mistaken in fact regarding his firearm and the mistake was unreasonable, he may still be found guilty of involuntary manslaughter.

If you or someone you know has been accused of a homicide such as murder, you need an experienced criminal defense attorney who will review the facts and the law with you to get the best possible result. At Wallin & Klarich, we have over 30 years experience defending a variety of criminal matters, including murder and manslaughter. Call us today at (888) 280-6839 or visit us at our website at www.wklaw.com. We will be there when you call.

About Wallin & Klarich

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Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.