Under the California felony murder rule, a person can be held liable for murder for attempting, committing, or being a major participant in a felony crime and in so doing either
- directly kills someone,
- aids and abets in first-degree murder with the intent to kill, or
- causes the death of an on-duty police officer.
Felony murder is also referred to as murder in the commission of a felony. The crime can lead to a life sentence in state prison.
- After Nathan commits the felony of grand theft auto, he intentionally hits a witness with the car and drives over him.
- After Kyle helps a friend rob a convenience store, he holds the store owner while the friend repeatedly stabs the owner with a knife.
- Jason lights a car on fire (thereby committing the felony of arson) while he knows a person is sleeping in the back of it.
Luckily, there are several legal defenses available if a person commits a felony murder in California. These include showing that an accused party:
- Did not commit a felony;
- Had no intent to kill; and/or,
- Was not a “major participant” in the felony.
Like non-felony murder in California, there are two degrees of felony murder:
- first degree and
- second degree.
First-degree felony murder may be punished by:
- 25 years to life in California state prison;
- Life in prison without the possibility of parole (LWOP) or,
- The California death penalty.
Note that on March 12, 2019, California Governor Gavin Newsom announced a temporary moratorium on the use of capital punishment in the state.
Second-degree felony murder is punishable by imprisonment in the state prison for 15 years to life.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What was California’s old felony murder law?
- 2. What is the new felony murder rule?
- 3. How can an accused fight felony murder charges?
- 4. What is the sentencing if a person is convicted?
- 5. Related Offenses
1. What was California’s old felony murder law?
The main difference between California’s new felony murder law and the old law relates to the issue of intent.
Under California’s old felony murder law, a person could get convicted of felony murder simply if a victim died during the commission of a felony. This was true even if:
- The defendant did not intend to kill a person;
- The defendant did not know a homicide took place; and,
- The killing was an accident.
Example: Tom kidnaps an elderly woman (violating Penal Code 207 PC, California’s kidnapping law) for ransom. He does not inflict any physical harm or force on her. However, in a state of fear, the woman suffers a heart attack and dies. Under this set of facts, Tom could have been charged with murder under the old felony murder rule – even though he was not the actual killer and had no intent to kill her.
Unlike the old law, the new felony murder law (as discussed below) requires a greater element of an intent to kill by the defendant.
The new felony murder law went into effect on January 1, 2019. The new law is Senate Bill 1437. SB 1437 applies retroactively, meaning some persons convicted under the old version of the felony murder rule will be eligible to petition the court for resentencing to substantially shorter sentences.
2. What is the new felony murder rule?
According to SB 1437, a person commits felony murder – and therefore is liable for murder – when he commits, attempts, or participates in a felony; and, one of the following is true:
- he/she kills a person;
- he/she aides or abets in the commission of murder in the first degree with an intent to kill;
- he/she was a “major participant” in the felony and acted with “reckless indifference to human life;” or,
- because of the defendant’s acts, a peace officer was killed while engaged in the performance of his or her duties.1
2.1. Committed or Attempted a Felony
A conviction of felony murder first requires that a defendant
- committed, or
- attempted to commit, a certain felony.
2.1.1. Committed a Felony
There is an underlying felony charge – or attempt charge – in every charge of felony murder. Further, every felony has certain elements that a prosecutor must prove to convict a defendant of that felony. If these elements are not proven, then there is no commission of a felony.
No proof of an underlying felony means a felony murder charge cannot be brought.
Example: John is charged with carjacking under California Penal Code 215. The elements of this crime are that: (1) John took a car from another person; and, (2) he did so by means of force or fear. At trial, John’s attorney shows that while he took a car from Jennifer, he did so with her permission.
This means John did not take the vehicle by means of force or fear. Thus, he is innocent of the felony of carjacking. If a person was killed in the case, John would also be innocent of felony murder since he is innocent of the felony.2
2.1.2. Attempted a Felony
Attempting a felony occurs when:
- A defendant intended to commit a certain felony; and,
- He/she performed a direct act toward committing that crime.3
If a prosecutor cannot successfully prove both elements of attempt, a defendant is innocent of an attempt charge.
2.2. Participant in a Felony
Senate Bill 1437 applies to persons that
- commit a felony,
- attempt to commit a felony, or
- are a major participant in a felony.4
Under California law, the determination as to whether a defendant is a “major participant” in a felony murder charge depends on the facts of the case.5 A few factors a court might consider include:
- A defendant’s role in planning the crime;
- Whether the defendant supplied any weapons for the commission of the crime; and,
- If the defendant was present at the scene of the murder.6
2.3. Aiding and Abetting
Under the new felony murder law, a person is guilty of felony murder even if he/she does not actually murder someone. However, in this scenario, the person is only guilty of murder if he/she “aided or abetted” in the murder.
The determination of whether or not a person aided or abetted in a murder depends on all of the facts in the case. Further, under SB 1437, a person is only guilty of murder if he/she:
- aided or abetted in murder, and
- aided or abetted with the intent to kill.
2.4. Intent to Kill
Closely associated with the issue of aiding and abetting is the issue of “intent to kill.”
Senate Bill 1437 states that a person that aids and abets in a murder can only be charged with felony murder if he/she acts with the specific intent to kill.8
California law states that a person has an intent to kill when he/she acts with “malice aforethought.” A person also acts with an intent to kill if he/she kills someone and the killing is
- deliberate, or
- committed willfully.
3. How can an accused fight felony murder charges?
A person accused of felony murder can challenge the accusation by raising a legal defense. A good defense can often get the charge reduced or even dismissed. Please note, though, that is critical for an accused to hire an attorney to raise a defense on his or her behalf.
Three common defenses to felony murder accusations are:
- No felony committed,
- No intent to kill, and
- Accused is not a major participant
(Another potential defense is that the police officers committed misconduct, such as coercing a confession.)
3.1. No Felony Committed
Recall that a person can only be charged with felony murder if he/she committed, attempted or participated in an actual felony. Further, a prosecutor must successfully prove every element of the felony for both a felony conviction and a felony murder conviction. This means it is a solid legal defense to felony murder for a defendant to show that he/she was not guilty of the underlying felony charge.
3.2. No Intent to Kill
This is a defense if a person is accused of felony murder under the theory that he/she aided and abetted in a murder. Recall that a person can be guilty of felony murder when he/she aids and abets in a murder, but he/she must also have the intent to kill while doing so.
Intent to kill is shown by the facts of a case and requires that a defendant exhibits malice aforethought. Thus, a defense to felony murder is for an accused to show that while a killing may have occurred, he/she had no specific intent to kill.
3.3. Accused is not a Major Participant
Recall that a person can be charged with felony murder if a killing occurs and the defendant was a “major participant” in the underlying felony. As with intent to kill, the determination as to whether a defendant is a “major participant” is based upon the facts of a case. This means a defense to a felony murder charge is for the defendant to use the facts of his/her case to show that he/she was not a “major participant” in the felony committed.
4. What is the sentencing if a person is convicted?
There are two degrees of felony murder. These are:
- First-degree; and,
Different penalties are imposed for each separate degree.
4.1. First-Degree Felony Murder
First-degree felony murder is when a person is guilty of murdering someone else while in the course of committing a felony listed under Penal Code 189.
The felonies included under PC 189 are:
- Arson, Penal Code 451 PC,
- Rape, Penal Code 261 PC,
- Carjacking, Penal Code 215 PC,
- Robbery, Penal Code 211 PC,
- Burglary, Penal Code 459 PC,
- Mayhem, Penal Code 203 PC,
- Kidnapping, Penal Code 207 PC,
- Train wrecking, Penal Code 219,
- Torture, Penal Code 206 PC,
- Unlawful acts of sodomy, Penal Code 286 PC,
- Lewd acts with a minor, Penal Code 288 PC, and
- Forcible sexual penetration with a foreign object, Penal Code 289.11
A first-degree felony murder conviction can lead to:
- 25 years to a life sentence in California state prison;
- Life in California state prison without the possibility of parole; or,
- The California death penalty.
Note that Los Angeles County prosecutors are no longer seeking the death penalty.12
4.2. Second-Degree Felony Murder
Second-degree felony murder is any felony murder that does not qualify as first-degree felony murder.13
A second-degree felony murder conviction can lead to 15 years to life in California state prison.14
5. Related Offenses
There are three crimes related to the offense of felony murder. These are:
- Arson – Penal Code 451 and 452
- Involuntary Manslaughter – Penal Code 192(b); and,
- Trespassing – Penal Code 602.
5.1. Arson – Penal Code 451 and 452
California’s arson laws (Penal Code 451 and Penal Code 452 PC) pertain to the setting of fire of any building, forest, or property. These acts are a crime if they are done either:
- Willfully and maliciously (this is the crime commonly known as “arson”), or
- Recklessly (this crime is often called “reckless burning” or “reckless arson”).15
A person can also be charged with California arson for setting his or her own property on fire, provided that:
- The property is a building or other real estate,
- The person set fire to his or her personal property for a fraudulent purpose (to commit California insurance fraud, for example), or
- The fire caused injury to another person or to another person’s home, property, or land.16
The punishment for arson charges in California depends on:
- The type of property that was burned,
- Whether or not someone suffered a burn injury, and
- Whether the defendant set the fire willfully or only “recklessly.”17
Depending on the facts of a case, the penalties for arson can include years in state prison and significant fines.
5.2. Involuntary Manslaughter – Penal Code 192(b)
California Penal Code 192(b) PC makes it a crime in California to commit involuntary manslaughter.
Involuntary manslaughter occurs when one person kills another unintentionally, either
- While committing a crime that is not an inherently dangerous felony; or,
- While committing a lawful act that might produce death, without due caution.18
Under Penal Code 192(b), a key feature of California’s involuntary manslaughter law is that it does not require intent to kill another person—this is unlike Penal Code 187 murder, which requires “malice aforethought.”19
Please note that California’s involuntary manslaughter law does not include actions that fit the above definition but involve a car. Those will be charged under California’s vehicular manslaughter laws.20
Involuntary manslaughter is a felony under California law. Possible penalties include:
- Two, three, or four years in jail; and/or,
- A fine of up to $10,000.21
5.3. Trespassing – Penal Code 602
California Penal Code 602 PC prohibits the crime known as criminal trespass. A person commits this crime when he:
- Enters, or remains on, someone else’s property; and,
- Does so without permission or a right to do so.22
In most cases, trespass is a misdemeanor punishable by:
- Up to six months in county jail; and/or,
- A fine of up to $1,000.23
However, certain kinds of trespass in California may lead only to infraction charges, with penalties consisting of only a small fine.24
A person guilty of “aggravated trespass” will face felony charges and could receive a jail sentence of:
- 16 months;
- Two years; or,
- Three years.
“Aggravated trespass” is when a person:
- Threatens to injure someone; and then,
- Enters their home or workplace without permission.25
For additional help…
If you or someone you know has been accused of felony murder pursuant to Senate Bill 1437, we invite you to contact our criminal law firm for a free consultation. We can be reached 24/7.
For similar cases in Nevada, please visit our page on the Nevada felony murder rule. For Colorado law, see our page on the felony murder rule in Colorado.
- California Senate Bill 1437. See also People v. Jones (Cal. Ct. App. 2020) 56 Cal.App.5th 474. People v. Lewis (Cal., 2021, No. S260598) 2021 WL 3137434.
- Please note, however, that depending on the facts of the case, if a person was killed, John could get charged with the offense of murder.
- Penal Code 21a PC.
- California Senate Bill 1437.
- In re Bennett, Cal. App LEXIS 790 (2018). See also People v. Banks, (California Supreme Court, 2015) 61 Cal. 4th 788.
- See People v. Banks.
- California Penal Code 31 PC.
- California Senate Bill 1437.
- People v. Summers, (1993) 147 Cal.App.3d 180.
- California Penal Code 189 PC.
- See same.
- California Penal Code 190 PC; LADA Directive 20-11.
- California Senate Bill 1437.
- California Penal Code 190 PC.
- California Penal Codes 451 and 452 PC.
- See same.
- See same.
- California Penal Code 192(b) PC.
- California Penal Code 187 PC – Murder [contrast with the definition of involuntary manslaughter]. (“(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.”)
- California Penal Code 192(c) PC.
- California Penal Code 193 PC.
- California Penal Code 602 PC.
- See same.
- California Penal Code 602.8 PC.
- California Penal Code 601 PC.