Penal Code § 189 PC – Degrees of Murder – California Law

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.

Legal Analysis

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:

1. Killing by using an explosive, a weapon of mass destruction, metal-penetrating ammunition, or poison.
2. Killing after lying in wait.
3. Killing by inflicting torture pursuant to 206 PC.
4. A willful, deliberate, and premeditated killing. Or
5. Felony-murder, which is killing someone – intentionally or not – while committing either of these felonies:
   • arson,
   • robbery,
   • burglary,
   • carjacking,
   • train wrecking,
   • kidnapping,
   • mayhem,
   • 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

In California, first-degree murder carries 25 years to life in State Prison. (Currently, there is a moratorium on the death penalty.) Second-degree murder carries 15 years to life in prison.³

Frequently-asked-questions

How is second-degree murder different from first-degree murder?

In California, first-degree murder comprises

• premeditated killings and
• felony murders (killings that happen while you are committing certain serious felonies).

In contrast, second-degree murder comprises unpremeditated killings that are done with “malice aforethought.” This means that even though you may not have specifically intended for someone to die from your actions, you should have known that a death would be a likely result of your actions.

An example of second-degree murder is showing off your knife skills by throwing a dagger at a person with the intention of it hitting the wall, but it hits and kills the person.

How do I fight murder charges?

Depending on the circumstances of the case, common ways to fight murder charges are to argue that:

• you were acting in self-defense or defense of others, and any reasonable person in your position would have believed your safety or others’ safety was in immediate danger; or
• the incident was an innocent accident; or
• you were falsely accused.

Typical evidence includes eyewitness accounts, video surveillance, and forensic evidence.

How is murder different from manslaughter?

Manslaughter is a less serious homicide charge than murder. Manslaughter comprises killing without malice aforethought, such as:

• voluntary manslaughter, which is intentionally killing someone in the sudden heat of passion after having been provoked or intentionally killing someone in imperfect self-defense, or
• involuntary manslaughter, unintentionally killing someone as a result of your criminal negligence (such as clumsily handling your gun, causing it to go off and kill someone)⁴

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Legal References