Legal Question in Criminal Law in California

I am very sorry for your loss.

In order for murder charges to be filed, there must exist "malice aforethought" - essentially, the intent to kill.

In vehicular murder cases, that is usually shown through the car being used as a weapon or through a second degree murder theory - that the person knew of the danger of his conduct to human life and a conscious disregard for that danger, proceeding anyway.

A new development in vehicular murder cases is to charge second degree murder when a person with a prior conviction for DUI goes out and commits another DUI resulting in death. They prove that "conscious disregard" by showing they went through classes where they were told that drinking and driving are dangerous and that people can die as a result. If they choose to drink and drive, knowing the danger, it shows that indifference to life that can result in murder charges. In fact, it's built into the Vehicle Code now where a defendant who is sentenced on DUI charges is told, both in writing and verbally, about the possible DUI/murder consequences for a repeat offense.

I don't know if alcohol was a factor in your cousin's death or if the offender had any priors that might give rise to this theory of murder. The DA has to be convinced that there is sufficient proof of that "malice" to charge murder.

Please don't take my answers as definitive either way - every case is unique. I can't imagine the DA would take offense at your questions and be willing to discuss with the family their filing decision that led to the charges the did file.

Good luck and again, my condolences.

You can do, ask or try anything you like, but the prosecutor has no obligation to do what you want. Their decision is made on expedient grounds; what can they prove and convict on. The victims family can also sue the perpetrator, if there is a reasonable basis to believe they would ever collect any money from him.