Difference Between Murder and Homicide in California – Is There One?

In California law, homicide is the killing of another human being while murder is an unlawful homicide with malice aforethought.

Therefore, homicide is an umbrella term that includes all situations where someone gets killed. Murder is a type of homicide.

This chart summarizes the differences between murder and homicide:

	Murder	Homicide
It is the killing of another human being	Yes	Yes
It is always a crime	Yes	No
Always requires malice aforethought	Yes	No
There are different degrees	Yes	No, though there are numerous different types of homicide, including murder, manslaughter, and justifiable homicides in self-defense
Always requires an intent to kill the victim	Yes, except for felony murders	No

In this article I delve into how the terms murder and homicide are used in California. Also listen to our informative podcast:

Homicide Meaning

In California, homicide is the overarching legal term for all acts of killing another human being, including murder and manslaughter. Homicides also include non-acts or omissions that lead to the death of another person.¹

Homicides can be:

• premeditated and deliberated,
• intentional,
• the result of recklessness,
• unintentional,
• a result of negligence, or
• justified.

Murder Meaning

In California, murder is the unlawful killing of another person with malice aforethought.² You act with malice aforethought if you behave with either:

• the specific intent to kill the victim, or
• a conscious disregard for life.³

There are two degrees of murder, discussed below.⁴.

First-Degree Murder

In California, first-degree murder is the intentional killing of another person with both malice aforethought and premeditation or deliberation.

You act with premeditation or deliberation if you weigh your options before deciding to kill someone. Evidence that you acted with premeditation or deliberation would be if you:

• came up with a plan to kill the victim,
• created an escape route,
• lied in wait for the victim, or
• went about collecting weapons before the murder.

Some first-degree murder cases can be capital murder, which carries the death penalty. However, there is currently a moratorium on the death penalty in California.⁵

Second-Degree Murder

Second-degree murder is the intentional killing of someone else with malice aforethought, but without premeditation or deliberation. Generally, this is any murder that is not a first-degree murder.⁶

An example of second-degree murder in California is playing Russian Roulette: You may not have intended to kill anyone, but you should have known that killing was a likely result.

Felony Murder

Felony murder is when you kill someone in the commission of a dangerous felony.⁷ Note that felony murder needs neither malice aforethought nor premeditation or deliberation. So long as the death is directly related to the felony, it is a felony murder.⁸

Felony murder can be prosecuted as either first- or second-degree murder in California.

Murder Penalties

Murder convictions are some of the most serious that you can face. The penalties are among the highest that can be imposed on you.

In California, murder convictions carry:

• life in prison without parole or capital punishment (the death penalty) for first-degree murders with special circumstances,
• 25 years to life in prison for all other first-degree murders, and
• 15 years to life in prison for second-degree murder.⁹

Felony murders carry:

• 25 years to life, or the death sentence, for first-degree felony murders, and
• 15 years to life for second-degree felony murders.¹⁰

Manslaughter Charges

In addition to the various types of murder, homicide also includes manslaughter. Manslaughter is the unlawful killing of another human being without malice aforethought.

As discussed below, there are two types of manslaughter in California, depending on whether you intended to kill the victim:

1. voluntary manslaughter, and
2. involuntary manslaughter.

Voluntary Manslaughter

Voluntary manslaughter is the intentional, unlawful killing of someone without malice aforethought. Also called “heat of the moment” manslaughter, it happens when you form the intent to kill in the instant before you act on it.

Because there is no malice aforethought, voluntary manslaughter carries lower penalties for a conviction:  Three to 11 years in California State Prison.¹¹

Involuntary Manslaughter

Involuntary manslaughter is the unintentional, unlawful killing of someone through criminal negligence or a reckless disregard for human life.

A common example of involuntary manslaughter is driving under the influence (DUI) and causing a fatal car crash. This is also known as vehicular manslaughter.

Because there was neither malice aforethought nor intent, the felony penalties are lower for involuntary manslaughter than for other unlawful forms of homicide charges:  Typically carry between two and four years in California State Prison.¹²

Common Defenses

Here at Shouse Law Group, I have represented hundreds of people charged with homicide crimes. In my experience, one of the most effective ways to fight the charge is to claim self-defense.

In California, killing can be a justifiable homicide if you end a person’s life while:

• in the reasonable belief that you were about to suffer a bodily harm,
• in the reasonable belief that the immediate use of force was necessary to defend against that danger, and
• using no more force than was reasonably necessary.¹³

This is a complete defense. If successful, it can lead to an acquittal.

Another way to fight homicide charges is to argue you lacked criminal intent. If the charges require evidence that it was a premeditated killing, evidence showing that it was accidental or happened in the heat of passion can result in a favorable plea bargain or even an acquittal.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Stickiness of Felony Murder: The Morality of a Murder Charge – Mississippi Law Journal
• Evil and the Law of Murder – U.C. Davis Law Review
• How Should We Punish Murder – Marquette Law Review
• Rape, Murder, and Formalism: What Happens if We Define Mistake of Law – University of Colorado Law Review
• The California Supreme Court and the Felony Murder Rule: A Sisyphean Challenge – California Legal History.

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Legal References