Under Penal Code 187 PC, California law defines the crime of murder as “the unlawful killing of a human being or fetus with malice aforethought.” This means the killer “with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.”
Murder can be charged as first-degree or second-degree. First-degree murder generally carries a sentence of 25 years to life in state prison. First-degree murder may be charged when the killing:
- Is accomplished by means of a destructive device, weapon of mass destruction, armor-piercing ammunition, poison, lying in wait, or torture; or
- Is done in a way that is willful, deliberate and premeditated; or
- Invokes the California felony-murder rule because the murder occurs during the commission of certain serious felony crimes.
All other forms of murder are second-degree. Second-degree murder generally carries a sentence of 15 years to life in state prison.
In defending a client accused of murder, common legal strategies include asserting that:
- The accused acted in self-defense,
- The accused suffered from insanity,
- The killing was accidental,
- Evidence was obtained by way of an illegal search and seizure,
- The confession was coerced,
- Forensic evidence was tainted,
- The accused is a victim of mistaken identification, or
- The killing amounted to a lesser form of homicide such as voluntary manslaughter, involuntary manslaughter or justifiable homicide.
To help you better understand the law, our California criminal defense attorneys discuss:
- 1. How does California law define murder?
- 2. What are the most common defenses?
- 3. What is the punishment for murder?
- 4. Are there other forms of homicide?
- 5. Can the families of a murder victim file a lawsuit?
Like more information about California homicide law? Please contact us at Shouse Law Group.
PC 187(a) defines murder as:
[T]he unlawful killing of a human being or a fetus with malice aforethought2
This definition may seem straightforward. But some terms require further explanation.
A homicide is killing another person. Whether lawful or unlawful. A homicide, therefore, includes:
- Manslaughter, as well as
- Justifiable killings
Murder is the most aggravated type of homicide. It is always unlawful. What distinguishes murder from manslaughter is malice. Murder requires malice in California.
California homicide law defines malice as:
“The mental state constituting malice aforethought does not presuppose or require any ill will or hatred of the particular victim. When a defendant ‘with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,’ he acts with malice aforethought.”3
Both first- and second-degree murder require malice. Malice may be express or implied.
- The killing resulted from an intentional act;
- The act’s natural consequences are dangerous to human life; and
- The killer had knowledge of the danger to human life. And the killer acted with a conscious disregard for human life.4
There are five roads to a first-degree murder conviction:
- By using a: Destructive device or explosive. Weapons of mass destruction. Ammunition to penetrate metal or armor. Or poison.
- By lying in wait.
- By inflicting torture pursuant to PC 206.
- By a willful, deliberate, and premeditated killing. Or
- Felony-murder. This is directly killing someone while committing certain felonies. (Discussed below)5
Examples of first-degree murder include:
- Going to someone’s house intending to kill that person.
- Waiting for someone to appear. And then killing that person.
- Using a pipe bomb to perpetrate a killing.
Capital murder is first-degree murder punishable by either:
- Capital punishment (the death penalty) in California. Or
- Life in prison. Without the possibility of parole. (LWOP.)
Another term for capital murder is “first-degree murder with special circumstances.”
Capital murder applies to more than 20 different situations. PC 190.2 lists them. These special circumstances elevate first-degree murder to capital murder. Some are:
- Killing for financial gain.
- Killing more than one victim.
- Killing a police officer, firefighter, prosecutor, judge, juror, or elected official.
- Killing a witness to prevent giving testimony.
- Killing because of the victim’s race, color, religion, nationality, or country of origin.
- Drive-by shooting.
- Gang killing (PC 186.22).6
Under PC 187, second-degree murder is also willful. But it is not deliberate and there is no premeditation. Second-degree murder is any murder that does not count as first-degree murder.7 Examples of second-degree murder include:
- Shooting a gun into a crowded room and killing someone. The shooter did not intend to kill. (This is also a violation of PC 246.3 negligently discharging a firearm).
- A person with past DUIs drunk driving again. And then causing an accident that kills someone else.
- Viciously sucker-punching a smaller and inebriated person. The punch causes the person to fall and hit his head. The head injury proves fatal.8
Felony murder is killing while committing a dangerous felony. An example is holding up a cashier and then shooting when the cashier reaches for the phone. Robbery is the felony. Killing the cashier is the murder. It does not matter that the robber did not intend for the cashier to die.
Recently, California’s felony murder rule changed. The old law held that accidental killings are murder if they occur during a felony. The old law also held accomplices liable for felony murder. Even if they did not carry out the killing or intend to kill.
On September 30, 2018, Governor Jerry Brown signed into law a revision. Under SB 1437, people face felony murder charges only if they:
- Were the actual killer. Or
- Had the intent to kill. And they aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer. Or
- Were a major participant in the underlying felony. And they acted with reckless indifference to human life. Or
- The victim was an on-duty law enforcement officer. And the defendant knew – or should have known – this.
Now, negligent and accidental deaths that occur during felonies do not count as felony murder. Unless the victim was an on-duty officer.9
Persons convicted under the old felony murder rule have redress. They can now file a petition for resentencing based on SB 1437.
The felony murder rule applies to first- and second-degree murder:
The first-degree felony-murder rule applies during the commission of:
- Penal Code 451 PC arson,
- Penal Code 211 PC robbery,
- Penal Code 459 PC burglary,
- Penal Code 215 PC carjacking,
- Penal Code 219 PC train wrecking,
- Penal Code 207 PC kidnapping,
- Penal Code 203 PC mayhem,
- Penal Code 206 PC torture, and
- certain California sex crimes, including
The second-degree felony-murder rule attaches to felonies that are:
- Inherently dangerous, and
- Not included under the first-degree felony-murder rule.11
These are felonies that always create a substantial fatal risk. There is no set list of inherently dangerous felonies.12 So courts apply the second-degree felony murder rule case-by-case. The following are second-degree felony-murder rule examples.
Manufacturing methamphetamines – People v. James
Defendant was manufacturing meth in her home-based lab. It caused an explosion which killed three of her children. The court held that making meth carried a substantial fatal risk. It involves mixing flammable substances. So the court convicted her of second-degree felony murder. 13
Willfully or maliciously burning a car – People v. Nichols
Defendant was angry at his wife for cheating. He set fire to her car in the garage. He only intended to scare her. But the fire spread to the house. And it killed their two children. The court held that burning a car carries a substantial fatal risk. It involves gasoline, which is flammable. So the court convicted him of second-degree felony murder.14
Murder has three elements in California. Prosecutors must prove all of them to convict a defendant:
- The defendant caused the of another person (or fetus),
- The defendant acted with malice aforethought, and
- The defendant killed without lawful excuse or justification15
There are many legal defenses to PC 187(a) murder charges depending on the facts of the case. Claiming excusable and justifiable homicide may lead to dismissal or acquittal. The following are some examples.
California’s self-defense laws permit killing in certain scenarios. Killing is justified under California homicide law when people reasonably believe they or others are in imminent danger of:
- Being killed,
- Suffering great bodily injury, or
- Being raped, maimed, robbed, or victims of some other forcible and atrocious crime16
Example: Jack is a frequent wife beater. One day, he picks up a brick. His wife believes he is about to throw it at her. She shoots him. He dies from the bullet wound. As the wife is a battered woman, there is evidence she reasonably believed she was about to suffer imminent death or great bodily injury. And she acted to prevent that from happening. This entitles her to prevail on a theory of self-defense.17
California has an “imperfect self-defense” (Flannel) doctrine. This is where people kill based on an honest but unreasonable belief they face imminent danger. Imperfect self-defense cannot dismiss a murder case. But it can reduce murder to voluntary manslaughter.
Accident is a legal defense to PC 187 murder. This is when the defendant:
- Had no criminal intent to do harm,
- Was not acting negligently, and
- Was otherwise engaged in lawful activity at the time of the killing18
Example: An woman shoots and kills her neighbor. She claims she only intended to scare him away. And that the gun accidentally fired. The court rules she can present the accident defense. 19
California allows defendants to plead “not guilty by reason of insanity.” The legal standard for insanity is the M’Naughten test. Under this test, defendants must prove they killed only because:
- They did not understand the nature of the act, or
- They could not distinguish between right and wrong
Insanity excuses murder. It can get the charge completely dismissed.20
Example: A mother drowns her five children. Clearly, this is murder. But psychiatric testimony about her postpartum psychosis shows she is insane. Her mental illness precluded malice aforethought.21
Police must follow proper Miranda and constitutional protections. And they may never coerce confessions from a suspect.22 Illegal and coercive interrogation methods include:
- Making threats against the suspect or the family,23
- Threatening the suspect with the death penalty,24 or
- Offering more lenient treatment in exchange for a confession.25
There is a remedy when police coerce an involuntary confession. The court will exclude the confession from evidence.26
Example: Detectives tell a murder suspect he can avoid first-degree murder charges. But he would need to confess to un-premeditated murder. The suspect confesses. The court later excludes the statement from evidence. It finds the police coerced the confession through a promise. Which was unlawful.27
Police coercion is illegal. But it is not uncommon. There has been social science research. And it shows coercion has led to widespread prosecution. And convictions of many innocent people.
Courts allow searches and seizures of murder suspects’ property. But there are limits under the Fourth Amendment. Everyone has the right to be free from unreasonable searches and seizures.
Sometimes police cross this line. Then California criminal defense lawyer can petition the court. They ask the judge to exclude the illegally-obtained evidence from the trial. Attorneys do this through a PC 1538.5 motion to suppress evidence.28
If the judge grants the motion and suppresses the evidence, the prosecutor may be unable to proceed. They may then have to dismiss the PC 187 charge.
Example: Police illegally detain and photograph a gang member. Later on, a murder takes place. An eyewitness uses the old photograph to identify the gang member. Police arrest him. But the photo never should have been taken. Eventually, the court excludes the photo and ID from evidence.29
Research shows that mistaken identification is the greatest cause of wrongful convictions. It leads to more convictions of innocent people than all other causes combined.30
Numerous factors detract from an eyewitness’s ability to identify a suspect. Such factors include:
- The stress of the encounter,
- Fixation on a weapon,
- The suspect being a different race,
- The passage of time, and
- Improper suggestion by the police.31
California prosecutors base many cases on questionable eyewitness identification. But there are several measures criminal defense lawyers may take. These can include:
- Demanding a live lineup to see if the eyewitness really can distinguish and identify the defendant.
- Challenging the police procedures in previous photospreads and lineups. And seeking to get the identifications excluded from evidence.
- Calling an “Eyewitness Identification Expert” at trial. The expert can explain to the jury how memory processes work. And the jury would see how common mistakes are.
The key is to demonstrate that the identification is unreliable. And that a reasonable doubt exists as to the identity of the real perpetrator.
The murder sentence in California varies depending on the degree:
- First-degree murder,
- Capital murder, or
- Second-degree murder
Hate crime murder is based on the victim’s:
- Sexual orientation, or
Capital murder is California’s most serious homicide charge. The punishment is:
- The death penalty. This is a choice of: A lethal dose of gas. Or intravenous injection of a lethal substance, or
- Life in prison without the possibility of parole.34
On March 12, 2019, Governor Gavin Newsom announced a temporary moratorium on executions. He cited the risks of executing innocent people. And how minorities are disproportionately affected.35
PC 187 second-degree murder carries 15 years-to-life in state prison.36 But some factors can increase the sentence:
Aggravating circumstance in California murder law
Second-degree murder prison sentence
|The defendant served a prior murder sentence.||Life with no possibility of parole37|
|The defendant shot from a vehicle. And the defendant intended to cause serious injury.||20 years to life|
|The victim is a peace officer.||25 years to life|
|The victim is a peace officer, and the defendant:||Life with no possibility of parole38|
California murder law also subjects defendants to:
- An additional 10, 20 or 25-years to life in prison if the defendant used a firearm during the murder (“in the commission of a felony”),39
- A “strike” pursuant to California’s three strikes law,
- Sentencing enhancements if a gun is used. Or if the offense is gang-related,
- Victim restitution,
- A maximum $10,000 fine, and
- Loss of gun rights. Pursuant to PC 29800 “felon with a firearm” law.40
Also, people must register for life as a tier three sex offender if they are convicted of murder while attempting to commit or committing:
- Lewd acts with a child under 14,
- Oral copulation with a minor, or
- Forcible penetration with a foreign object
Read more about the sex registry and SB 384.
There are many crimes closely related to California’s murder law. Some because they are the felonies that trigger the felony-murder rule. Others because they involve the unlawful killing of another. These are briefly described below.
California’s attempted murder laws apply when a defendant:
- Takes at least one direct (but ineffective) step towards killing another person (or fetus), and
- Intends to kill that person (or fetus).41
The penalty is a life sentence with the possibility of parole.42 The defendant additionally faces victim restitution, substantial fines, and a “strike” pursuant to California’s three-strikes law.
Prosecutors charge people with PC 192(a) voluntary manslaughter for killing another person during a sudden quarrel or in the heat of passion. It is similar to first-degree murder. But the difference is that voluntary manslaughter does not involve malice. The killing is done spontaneously.43
Example: A husband walks in on his wife in bed with another man. Startled and enraged, he kills them right away. He acted in the heat of passion. This could get a murder charge reduced to manslaughter.
Voluntary manslaughter carries three, six, or eleven years in prison.44
PC 192(b) involuntary manslaughter is killing another:
- Without malice,
- Without an intent to kill, but
- With conscious disregard for human life.45
Example: Defendant buys illegal drugs. He gives some to his girlfriend. She overdoses and dies. Defendant did not intend to kill her. But the drugs were dangerous. So arguably, he acted with a conscious disregard of human life. Therefore, he could be liable for involuntary manslaughter.
There is a difference between involuntary manslaughter and killing someone by excusable accident. With involuntary manslaughter, the defendant at the time of the killing is involved in either:
- An unlawful act (not amounting to a felony), or
- A lawful act which involves a high degree of risk of death or great bodily injury. And the defendant fails to act with the proper caution.46
But when the defendant accidentally kills another person, the defendant is not violating any laws or acting recklessly at the time of the killing.
Involuntary manslaughter does not generally apply to acts committed while driving a car. Those are covered by vehicular manslaughter laws.47
Involuntary manslaughter carries two, three, or four years in prison.48
Vehicular manslaughter is driving that kills another person when the defendant:
- Drives in an unlawful way (not amounting to a felony), with or without gross negligence, or
- Drives during the commission of a lawful act which might produce death in an unlawful manner, or
- Knowingly causes the accident for financial gain (which can also be prosecuted under California’s automobile insurance fraud laws).49
Vehicular manslaughter is a wobbler. Prosecutors can charge wobblers as either felonies or misdemeanors. Felony vehicular manslaughter caries two-to-ten years in prison. Misdemeanor vehicular manslaughter carries up to one year in jail.50
Killing someone while DUI
If the defendant has a prior fatal DUI, prosecutors would likely charge either:
- PC 191.5(b) vehicular manslaughter,
- PC 191.5(a) gross vehicular manslaughter while intoxicated law, or
- Second-degree murder under California’s DUI murder laws
Killing while intoxicated is second-degree murder. It is called DUI murder or “Watson” murder. It occurs when:
- Someone causes an accident while intoxicated,
- It kills another person as a result, and
- The circumstances are especially egregious
DUI murder charges are almost always based on a second-degree, implied malice theory. The prosecutor is not alleging the defendant intended to kill anyone. Instead, the defendant intentionally committed a dangerous act. The defendant knew of the danger. And the defendant acted with conscious disregard for human life.
Typically, the D.A. presses DUI murder charges when the defendant has a prior DUI conviction. But not always. Courts have upheld Watson murders even in the absence of a prior DUI in circumstances. Such as:
- A grossly intoxicated driver (with a blood alcohol content of 0.24%) sped away from police at 70 mph and killed someone.
- The defendant killed a family of three while driving up to 87 mph in a side-by-side “speed contest” on a residential street.
- A trucker drove a semi-trailer on a steep highway knowing his brakes were not up to the task.51
When courts convict someone of DUI in California, judges typically read a statement known as a Watson advisement. The advisement states that:
- It is extremely dangerous to human life to drive while under the influence of alcohol and/or drugs, and
- If the defendant has a fatal DUI, California prosecutors may bring murder charges.52
With gang-related killings, prosecutors typically charge:
- PC 187 murder, as well as
- California’s street gang enhancement.
The latter is a special allegation. It requires the state to prove that the murder was committed:
- At the direction of a criminal street gang,
- For the benefit of a criminal street gang, or
- In association with a criminal street gang
Defendants convicted of both murder and the gang enhancement may get an additional sentence of 15 years to life in prison.53
Prosecutors abuse gang enhancements. They like to charge it any time a homicide is remotely gang-related. It increases the potential sentencing. And it allows them to present highly inflammatory evidence. It may coax otherwise ambivalent juries to convict.
PC 401 aiding a suicide is deliberately helping someone commit suicide. Or encouraging or advising someone to commit suicide.54
The line between aiding suicide and murder can be blurry. Aiding suicide is providing people with the means to kill themselves. But killing people at their request is murder.
Assisting a suicide is a felony. It carries up to 3 years in prison.55
Yes. Families of murder or manslaughter victims may sue for damages. Two types of lawsuits are possible:
- A “wrongful death” lawsuit. This compensates the survivors for their losses. And/or
- A “survival” cause of action. This compensates the estate for losses the victim sustained prior to death.
No homicide conviction is necessary to sue. Families can sue even if the defendant gets acquitted at trial. Or if the prosecution never files charges.
For instance, a jury acquitted O.J. Simpson of murder. But the families of his victims won a civil lawsuit. The court ordered Simpson pay $33 million in compensatory and punitive damages.56
What damages can murder victims recover?
Families of murder or manslaughter victims may recover:
- Medical bills,
- Funeral expenses,
- Loss of the victim’s companionship and financial support (“loss of consortium”), and
- Punitive damages.
If defendants get convicted on criminal charges, families can also seek court-ordered victim restitution.
For additional help…
We also represent families of victims seeking restitution or civil damages in a California wrongful death lawsuit or survival action
¿Habla español? Visite nuestro sitio Web en español sobre la ley de asesinato de California.
In Colorado? See our article on murder (CRS 18-3-102 – 103).
In Nevada? See our article on murder (NRS 200.030).
- Our California state criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Penal Code 187 PC.
- People v. Summers (1983) 147 Cal.App.3d 180, 184.
- CALCRIM 520; See also California Penal Code 188 PC.
- California Penal Code 189 PC.
- California Penal Code 190.2 PC et seq. This section (as well as several subsequent related sections) enumerates more than 20 “special circumstances” that subject defendants to execution or life without the possibility of parole, including discharging a firearm from a motor vehicle (otherwise known as a “drive-by” shooting), and murdering another for the benefit of a criminal street gang pursuant to Penal Code 186.22 PC. People v. Perez, 9 Cal. 5th 1 (2020).
- See California Penal Code 189 PC; People v. Palomar, 44 Cal. App. 5th 969, 258 Cal. Rptr. 3d 192 (2020).
- California Penal Code 246.3 PC.
- People v. Cavitt (2004) 33 Cal.4th 187, 197; Jazmine Ulloa, “California sets new limits on who can be charged with felony murder“, LA Times (September 30, 2018).
- California Penal Code 189 PC; People v .Wear, 44 Cal. App. 5th 1007 (2020).
- People v. Granados (1957) 49 Cal.2d 490.
- People v. James (1998) 62 Cal.App.4th 244, 258.
- See same at 270.
- People v. Nichols (1970) 3 Cal.3d 150.
- CALCRIM 520.
- CALCRIM 505.
- Facts inspired by People v. Humphrey (1996) 13 Cal.4th 1073.
- California Penal Codes 26, 195, & 199 PC.
- Facts based on People v. Slater (App. 1 Dist. 1943) 60 Cal.App.2d 358.
- California Penal Code 25; see also People v. Horn (1984) 158 Cal.App.3d 1014, 1032; see also CALCRIM 3450.
- Facts based on State of Texas v. Andrea Yates, 171 S.W.3d 215 (2005).
- People v. Jimenez (1978) 21 Cal.3d 595, 602, 147 Cal.Rptr. 172, 580 P.2d 672.
- People v. Rand (1962) 202 Cal.App.2d 668, 673; In re Shawn D. (1993) 20 Cal.App.4th 200; People v. Trout (1960) 202 Cal.App.2d 668, 674; Lynumm v. Illinois (1963) 372 U.S. 528, 531-32; Rogers v. Richmond, supra 365 U.S. 534, 549.
- People v. Hinds (1984) 154 Cal.App.3d 222, 238; People v. Jiminez (1978) 21 Cal.3d 595, 609-613; People v. McClary (1977) 20 Cal.3d 218, 229; People v. Johnson (1969) 70 Cal.2d 469, 478-79.
- People v. Hill (1967) 66 Cal.2d 536, 549.
- See Rogers v. Richmond (1961) 365 U.S. Supreme Court 534, 541.
- People v. Cahill (1994) 22 Cal.App.4th 296.
- California Penal Code 1538.5 PC.
- Facts based on People v. Rodriguez (1993) 21 Cal.App.4th 232.
- See Gary Wells et al, Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, Law and Human Behavior, Vol. 22, No. 6, 1998.
- See Cutler and Penrod, Mistaken Identification, (1995) Cambridge University Press.
- California Penal Code 190 PC.
- California Penal Code 190.03 PC.
- California Penal Codes 3604 & 190.2 PC.
- Tim Arango, “California Death Penalty Suspended; 737 Inmates Get Stay of Execution“, NYTimes (March 12, 2019).
- California Penal Code 190 PC.
- California Penal Code 190.05 PC.
- See same.
- California Penal Code 12022.53 PC.
- California Penal Codes 667, 1192.7(c), 1203.1, 672, & 29800 PC.
- CALCRIM 600; People v. Mariscal (Cal. App. 2d Dist. Mar. 30, 2020).
- California Penal Code 664 PC.
- California Penal Code 192 PC; see also CALCRIM 570-572.
- California Penal Code 193 PC.
- CALCRIM 580-582.
- CALCRIM 580-582.
- California Penal Code 192(b).
- California Penal Code 193 PC.
- California Penal Code 192(c).
- California Penal Code Section 193 PC.
- People v. Johnigan (2011) 196 Cal.App.4th 1084; People v. Canizalez (2011) 197 Cal.App.4th 832; People v. Moore (2010) 187 Cal.App.4th 937; People v. Superior Court (Costa) (2010) 183 Cal.App.4th 690.
- The Watson admonition which is on all DUI plea Tahl waiver forms states “I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle, and is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged [in California] with murder.”
- Penal Code 186.22 PC.
- Penal Code 401 PC.
- Rufo v. Simpson (2001) 103 Cal. Rptr. 2d 492.