Under California homicide laws, second-degree murder is the unlawful killing of a human being that is done without deliberation and premeditation, but with malice aforethought (or with an intent to commit an act). Per Penal Code 189 PC, California law also defines the offense as any taking of a human life that is not first-degree murder.
Examples of acts that constitute second-degree murder include:
- shooting a gun into a crowded room and killing someone, where the shooter did not intend to kill. (This is also a violation of PC 246.3 PC, negligently discharging a firearm).
- a person with multiple DUIs on their record driving drunk and causing an accident that kills someone else.
- viciously sucker-punching a smaller and inebriated person when the punch causes the person to suffer a fatal head injury.
In contrast to second-degree murder, Penal Code 189 is the California statute that sets forth when a person can be charged with first-degree murder. According to this law, a prosecutor can charge first-degree murder when a person kills another by:
- using a destructive device or explosive, a weapon of mass destruction, or poison,
- by lying in wait,
- by inflicting torture pursuant to Penal Code 206 PC,
- by a willful, deliberate, and premeditated killing, or
- committing felony-murder.
Note that in comparing second-degree murder and manslaughter, it is not necessary for a defendant to act with malice aforethought to be guilty of manslaughter. It is, though, for second-degree murder.
Our California criminal defense attorneys will explain the following in this article:
- 1. What is murder under California law?
- 2. How does second-degree murder differ from first-degree murder?
- 3. How does second-degree murder differ from manslaughter?
- 4. What is the sentencing for second-degree murder?
1. What is murder under California law?
A prosecutor must prove the following to successfully convict a defendant in California in murder cases:
- the defendant committed an act that caused the death of another person (or a fetus),
- the defendant committed that act with a state of mind called “malice aforethought,” and
- the accused killed without any lawful excuse or justification (for instance, self-defense).
There are two kinds of malice aforethought under California’s criminal laws – express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder.
A defendant acts with “express malice” if he/she unlawfully intends to kill.
A defendant acts with “implied malice” if the defendant:
- intentionally committed the act,
- the natural and probable consequences of the act were dangerous to human life,
- at the time the accused acted, the defendant knew his/her act was dangerous to human life, and
- the defendant deliberately acted with conscious disregard for human life.
Note that malice aforethought does not require hatred or ill will toward the victim. It must also be formed before the act that causes death gets committed.
2. How does second-degree murder differ from first-degree murder?
Under California law, a prosecutor can charge murder as either:
- first-degree murder, or
- second-degree murder.
First-degree murder is the more serious of the two crimes and can lead to:
- life in state prison without the possibility of parole, or
- the death penalty.
California Penal Code Section 189 lists five ways when a person can be charged with first-degree murder. These include when a defendant kills by:
- using a specific deadly weapon, like a destructive device or explosive, a weapon of mass destruction, or poison,
- lying in wait,
- inflicting torture pursuant to PC 206,
- a willful, deliberate, and premeditated killing, or
- committing a felony-murder (or directly killing someone while committing a dangerous felony).
PC 189 specifically states that all other forms of murder are second-degree-murder.
Unlike first-degree murder, second-degree murder is not deliberate and premeditated.
An example of first-degree murder is a person going to someone’s house intending to kill that person.
An example of second-degree murder is when a person punches someone in the face (with no intent to kill) and the dies anyway (possibly by a fatal head injury).
3. How does second-degree murder differ from manslaughter?
The main difference between second-degree murder and manslaughter charges is that it is not necessary for a defendant to act with malice aforethought to be guilty of manslaughter. It is, though, for second-degree murder.
In other words, the latter requires a defendant to act with some type of intent. While a manslaughter case involves a death, the accused does the killing without an intentional act.
Note that, under California law, there are two types of manslaughter:
- voluntary manslaughter, and
- involuntary manslaughter.
Under Penal Code 192 PC, California law defines “voluntary manslaughter” as the killing of another human being:
- during a sudden quarrel,
- in the heat of passion, or
- based on an honest but unreasonable belief in the need to defend oneself.
Under Penal Code 192b PC, California law defines “involuntary manslaughter” as the unintentional killing of another person, done while committing either:
- a crime that is not an inherently dangerous felony, or
- a lawful act that might produce death.
4. What is the sentencing for second-degree murder?
PC 187 second-degree murder carries a penalty of 15 years-to-life in state prison.
But note that some aggravating factors or special circumstances may work to increase a sentence.
For example, a defendant may face:
- a life-time term in prison with no possibility of parole if he/she had a prior murder conviction on his/her criminal record,
- 25 years to life in prison if the murder victim was a peace officer, and
- life in prison with no possibility of parole if the victim was a peace officer and the defendant intended to kill the police officer or use great bodily injury on the officer.
For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide legal advice you can trust and free consultations.
We represent clients throughout California, including those in Los Angeles, San Diego, and Los Angeles County.
 CALCRIM No. 520 – First- or Second-Degree Murder With Malice Aforethought. Judicial Council of California Criminal Jury Instructions (2020 edition). See also California Penal Code 187 PC.
 CALCRIM No. 520 – First- or Second-Degree Murder With Malice Aforethought.
 California Penal Code 189a PC.
 California Penal Code 189b PC.
 California Penal Code 192 PC.
 California Penal Code 192b PC.
 California Penal Code 190 PC.
 California Penal Code 190.05 PC.
 See same.