Penal Code § 189 PC is the California statute that sets forth the degrees of murder.
First-degree murder comprises
- premeditated murder,
- felony murder, and killing by poisoning, torture, or explosives.
Second-degree murder is an unintentional homicide that results from extremely reckless behavior.
The full text of the statute reads as follows:
189 PC. (a) All murder that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or that is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 287, 288, or 289, or former Section 288a, or murder that is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree.
(b) All other kinds of murders are of the second degree.
(c) As used in this section, the following definitions apply:
(1) “Destructive device” has the same meaning as in Section 16460.
(2) “Explosive” has the same meaning as in Section 12000 of the Health and Safety Code.
(3) “Weapon of mass destruction” means any item defined in Section 11417.
(d) To prove the killing was “deliberate and premeditated,” it is not necessary to prove the defendant maturely and meaningfully reflected upon the gravity of the defendant’s act.
(e) A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven:
(1) The person was the actual killer.
(2) The person was not the actual killer, but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree.
(3) The person was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.
(f) Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer’s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer’s duties.
The legal definition of murder is killing with malice aforethought. California Penal Code 189 PC defines first-degree murder as one of these five types of homicide:
- Killing by using an explosive, a weapon of mass destruction, metal-penetrating ammunition, or poison.
- Killing after lying in wait.
- Killing by inflicting torture pursuant to 206 PC.
- A willful, deliberate, and premeditated killing. Or
- Felony-murder, which is killing someone – intentionally or not – while committing either of these felonies:
- train wrecking,
- torture, and
- certain California sex crimes, including rape, unlawful acts of sodomy, unlawful acts of oral copulation, forcible acts of penetration, or lewd acts with a minor1
Second-degree murder is all other types of killing with malice aforethought. There is no premeditation, and the killing is not deliberate. Instead, the defendant acts in an extremely reckless way that any reasonable person would know would likely result in death. A classic example is playing Russian roulette.2
- California Penal Code 189 PC – Degrees of Murder; Liability for Murder. 187 PC. See also People v. Harris (Cal. App. 2d Dist., 2021) 60 Cal. App. 5th 939. People v. Pettigrew (Cal. App. 4th Dist., 2021) 62 Cal. App. 5th 477.
- Penal Code 189 PC.
- Penal Code 190 PC.