Capital Punishment (Death Penalty) in California

On March 13, 2019, Governor Gavin Newsom issued an executive order placing a moratorium on executions in California. As long as the moratorium remains in effect, the state cannot carry out executions.

However, the death penalty itself remains legal under California law, and prosecutors may still seek death sentences in eligible cases.

California reserves the death penalty primarily for first-degree murder with one or more special circumstances under Penal Code 190.2 PC. Defendants convicted of these crimes may face either death or life in prison without the possibility of parole (LWOP).

Although California continues to impose death sentences in some cases, no execution has been carried out in the state since 2006. In addition, California has largely dismantled the traditional death-row housing system, transferring many condemned inmates to other state prisons.

In this article, our experienced Los Angeles criminal defense attorneys address the following key topics regarding capital punishment in California.

• 1. Capital Crimes
• 2. Aggravating & Mitigating Factors
• 3. Challenging a Death Sentence
• 4. History & Current Law
• Frequently Asked Questions
• Additional Resources

1. Capital Crimes

The most common California crime that can carry the death penalty is first-degree murder with one or more special circumstances under Penal Code 190.2 PC. This is also called “special circumstances murder.”

First-degree murder with one or more special circumstances may be punishable by either death or life without the possibility of parole. Examples include:

• Having a prior murder conviction or more than one murder conviction,
• Murder by use of a bomb or poison,
• Murder of a law enforcement officer, firefighter, witness, judge, prosecutor, or jury member,
• Murder involving torture,
• Murder for financial gain,
• Murder in connection with gang activity, and
• Murder in connection with another serious felony.

There are other, less common crimes that can be punished with the death penalty in California. These are:

1. Treason (going to war against the state, or supporting others who do),
2. Committing perjury in order to cause the execution of someone who is innocent,
3. Sabotaging a train with the result that someone is killed,
4. Assaulting someone with a deadly weapon and killing them while serving a life sentence in state prison, and
5. Intentionally interfering with preparations for the U.S. to go to war, with the result that someone is killed.

Note that no one may be sentenced to death for a crime they committed before they were 18 or if the court determines the defendant has an intellectual disability that began before the age of 18. Even if the defendant was over 18, their youth may still be considered as a mitigating factor during the penalty phase.¹

2. Aggravating & Mitigating Factors

If a jury decides that a defendant committed special circumstances murder, or one of the other capital crimes we listed above, that does not mean that they will automatically receive the death penalty.

The punishment for these crimes is either the death penalty or life in prison without the possibility of parole. This will be decided by the jury after the defendant has been found guilty in a separate “penalty phase” of the trial.

The jury weighs factors that work against the defendant (“aggravating factors”) along with factors that help the defendant’s case (“mitigating factors“):

• If, after considering all aggravating and mitigating circumstances, the jury concludes that death is the appropriate punishment, it may impose a death sentence.
• If the jury concludes that death is not the appropriate punishment, it must impose a sentence of life without the possibility of parole.

Aggravating Factors

California Penal Code 190.3 PC sets out a list of the statutory aggravating factors that the jury may consider in order to help determine if a defendant should get the death penalty. The potential aggravating factors are as follows:

1) The Nature and Circumstances of the Capital Crime

The jury may consider the “circumstances of the crime” for which the defendant may be sentenced to death. This is a pretty broad subject that can include a huge variety of considerations.

It includes what is often called “victim impact evidence” or evidence that illustrates the specific harm caused by the defendant (to the person they killed or to the victim’s family members).

Another “circumstance of the crime” that is a common aggravating factor is behavior by the defendant at the time they committed the crime that seems to show that they did not feel remorse.

2) Other Violent Criminal Activity

The jury may also consider as an aggravating factor any other criminal activity the defendant has committed which involved violence or the threat of violence.

The jury can consider evidence of violent criminal activity even if the defendant was never actually convicted of it. However, the prosecution cannot introduce any evidence of violent criminal activity if the defendant was accused of that activity but later was found to be innocent.

3) Prior Felony Convictions

The jury is allowed to consider any earlier felony convictions of the defendant as an aggravating factor. This can include convictions for any California felony charge, whether it involves violence or not.

Exception

There is one situation in which the prosecution in a capital punishment case may introduce other evidence against the defendant outside of this list of acceptable aggravating factors: The prosecutor can introduce other aggravating evidence if they are responding to any evidence of mitigating factors that the defendant has introduced.

Example: In the penalty phase of Aaron’s capital murder trial, Aaron argues that he is a good citizen who does not deserve the death penalty and points to a number of jobs he has held. The prosecution then introduces evidence that Aaron has actually been unemployed for a long time.

Normally, Aaron’s unemployment would not be an acceptable aggravating factor. But it’s okay for the prosecution to discuss it in this case, because Aaron opened the door to this topic by arguing that he had been gainfully employed.

Mitigating Factors

In a death penalty trial, the jury considers both aggravating and mitigating circumstances in deciding whether death or life without parole is the appropriate punishment. While the prosecution can only introduce aggravating factors of the sort that are listed in Penal Code 190.3 PC, the defendant can introduce evidence on almost any subject to show that they should not receive capital punishment.

Some of the most important mitigating factors are:

• The defendant was extremely mentally or emotionally disturbed when they committed the crime (such as PTSD).
• The defendant reasonably believed that they were justified in committing the crime.
• The defendant was pressured by someone else into committing the crime.
• The defendant was convicted only of aiding and abetting the crime and played a relatively minor role in it.
• The defendant’s age when they committed the crime.

There are only a few subjects that California courts do not allow defendants in capital punishment cases to use as mitigating factors. Some of these are:

• Evidence about how the death penalty is carried out, what a life sentence without parole would be like, and whether the death penalty actually effectively deters crime.
• The idea that the jury should show “mercy” to the defendant faced with possible capital punishment.
• Potential stigma to the defendant’s family resulting from him/her receiving the death penalty.²

3. Challenging a Death Sentence

Even if a defendant is sentenced to the death penalty in California, all is not lost. The law takes capital punishment very seriously and provides the following four ways for a defendant to challenge their sentence.

1) Application to Overturn the Verdict

Whenever a jury decides to impose capital punishment, the defendant is automatically treated as having filed an application to overturn the jury’s decision. This is a motion for a new trial. The defendant and their lawyer do not need to actually file anything for this to occur.

In a death penalty case, an application for a new trial requires the judge in the case to review all the evidence. The judge will independently review the evidence and consider whether the jury’s penalty verdict is supported by the law and the evidence presented at trial.

If the judge concludes that the verdict is contrary to the law or the evidence presented in the case, they can reduce the sentence to life without parole or even order a new trial.

2) Automatic State Appeal

All death penalty sentences in California are also automatically appealed to the California Supreme Court.

All death judgments are automatically reviewed by the California Supreme Court. Capital appeals are highly specialized proceedings that often take many years because of the size of the record and the complexity of the legal issues involved.

If the California Supreme Court decides against the defendant, they can then appeal to the United States Supreme Court (called a “petition for certiorari”). This is not an automatic appeal, and the United States Supreme Court is not required to actually accept and hear the appeal.

3) Habeas Corpus Petitions

A habeas corpus petition is a way defendants can challenge their sentence by arguing that something went very wrong with their trial. Issues that can be raised in a habeas corpus petition include arguments that:

• the law under which they were convicted is unconstitutional,
• their lawyer at trial was incompetent,
• the prosecutor committed prosecutorial misconduct at their trial, and
• new evidence has been discovered that would completely undermine the case against them.

In capital cases, the defendant is supposed to file a petition for writ of habeas corpus with the California Supreme Court while their appeal to the California Supreme Court is ongoing. The California Supreme Court may choose to hold a hearing on the petition, or they may choose not to. The California Supreme Court may grant relief, deny relief, or order additional proceedings. In practice, capital habeas petitions often remain pending for years.

If the California Supreme Court denies the petition for writ of habeas corpus, this too can be appealed to the United States Supreme Court (though this rarely gets results).

If the California Supreme Court denies the habeas corpus petition of a prisoner sentenced to death, they can file another petition for writ of habeas corpus in the federal courts. This petition will begin in the United States District Court in the region where the prisoner is held, and then will move up to the United States Court of Appeals for the Ninth Circuit.

The law makes it difficult for a habeas petition in federal court to succeed, but not all federal petitions fail.

California generally does not carry out executions while direct review and applicable post-conviction proceedings remain pending.

4) Executive Clemency

The last resort for prisoners sentenced to death in California is “executive clemency.” This means that these prisoners have a right to apply to the California Governor, who has the power to stop a death sentence from being carried out.

As part of the clemency process, interested parties may submit information and arguments supporting or opposing clemency, and the prisoner may present their case with the assistance of counsel.

Executive clemency in capital cases is extremely rare. However, governors retain broad constitutional authority to grant reprieves, commutations, and pardons subject to applicable constitutional limitations.³

4. History and Current Law

Capital punishment has existed in California pretty much as long as California has been a state. At first, the California death penalty was carried out by hanging; but in 1937 the state switched to lethal gas as its method of execution.

The death penalty was almost abolished in California in 1972 when the California Supreme Court declared that capital punishment was cruel and unusual punishment – and therefore violated the state constitution. A year later, the United States Supreme Court said the same thing about the death penalty as it was being carried out in most U.S. states at that time.

For much of the 1970s, there was a tug-of-war over capital punishment in California between California voters, who wanted to bring the death penalty back, and the courts, which continued to find it unconstitutional. The United States Supreme Court finally held that capital punishment was permissible as long as both of the following conditions are met:

1. Juries do not have total discretion to decide who would receive the death penalty, and
2. The law does not make the death penalty mandatory for any crimes (that is, juries have the freedom to decide not to execute someone based on the particular circumstances of their background and crime).

By 1978, the California legislature and voters had finalized a version of the current capital punishment law. It gave juries clear guidance on when the death penalty was appropriate. It also gave juries the option of sentencing a defendant to life in California state prison without parole instead of death for any capital crime.

All of this controversy over the death penalty meant that the state of California did not execute anyone between 1967 and 1992. Since then, 13 people have been executed in the state. Many more died on death row from natural causes or suicide.

In 1994, a federal court decided that execution by lethal gas was cruel and unusual punishment because of how likely it was that the executed person would feel pain. So, since then, all California executions have been carried out by a lethal injection protocol.

In 2006, a federal court halted California executions after finding significant constitutional concerns with the state’s lethal injection procedures. Years of litigation followed, and California has not carried out an execution since 2006.

Following this ruling, executions in California were placed on hold while the state attempted to fix the flaws in its system. In 2012, and again in 2016, California voters voted on ballot initiatives to abolish the death penalty altogether. Although these initiatives failed to pass, significant executive actions have since brought the practice to a halt.

As of March 2019, Governor Gavin Newsom instituted a moratorium on the imposition of capital punishment in California. Furthermore, the execution chamber at San Quentin State Prison has been dismantled per Governor Newsom’s executive order.

California has largely dismantled its traditional death-row housing system. Through the Condemned Inmate Transfer Program (CITP), many condemned inmates have been transferred from segregated death-row housing into other California prison facilities, though their death sentences remain in effect.

As of 2026, the death penalty remains legal in California, but executions remain suspended under Governor Newsom’s 2019 moratorium.

California courts continue to address issues involving special-circumstance murder, capital sentencing, and post-conviction review. In People v. Jasso (2025), the California Supreme Court reviewed a death judgment arising from a robbery-murder special-circumstance conviction and reaffirmed the extensive appellate review applied in capital cases. The decision illustrates that California’s capital punishment system remains active even though executions themselves are currently suspended.

Defendants facing potential death sentences should consult experienced counsel because capital punishment law continues to evolve.⁴

Frequently Asked Questions

California still has the death penalty, but executions are currently suspended under Governor Newsom’s 2019 moratorium. The FAQs below answer common questions about capital punishment in California.

Is the death penalty still legal in California?

Yes. California still authorizes the death penalty for certain crimes, primarily first-degree murder with special circumstances under Penal Code 190.2 PC. However, California is not currently carrying out executions because Governor Gavin Newsom’s 2019 moratorium remains in effect.

Has California abolished the death penalty?

No. California has not abolished the death penalty. Although executions are suspended under the Governor’s moratorium, the state’s death penalty statutes remain in force, prosecutors may still seek death sentences, and juries may still impose them.

What crimes qualify for the death penalty?

The crime most commonly punishable by death in California is first-degree murder with one or more special circumstances. California law also authorizes the death penalty for a few other rare crimes, including treason, perjury that causes the execution of an innocent person, certain train-wrecking offenses that result in death, and certain assaults by life prisoners that result in death.

What is special-circumstances murder?

Special-circumstances murder is first-degree murder accompanied by one or more aggravating circumstances listed in Penal Code 190.2 PC. Examples include murder during a robbery, rape, burglary, or kidnapping; murder of a police officer or witness; murder for financial gain; multiple murders; and murder involving torture or a bomb. A special-circumstance finding makes a defendant eligible for either the death penalty or life without parole.

What is the difference between death and life without parole?

A death sentence authorizes the state to execute the defendant, while a sentence of life without the possibility of parole (LWOP) means the defendant will spend the rest of his or her life in prison and cannot be released on parole. In California today, inmates sentenced to death remain incarcerated because executions are suspended under the current moratorium.

Can California resume executions?

Potentially, yes. The current moratorium was imposed by executive order rather than by legislation. A future governor could rescind the moratorium and permit executions to resume unless California’s death penalty laws are repealed by the Legislature or voters.

Can juveniles receive the death penalty?

No. The death penalty cannot be imposed on anyone who was under 18 years old at the time of the crime. This prohibition applies regardless of the seriousness of the offense.

Can intellectually disabled defendants receive the death penalty?

No. Both California law and the United States Constitution prohibit the execution of defendants with intellectual disability. If a court determines that a defendant has an intellectual disability as defined by law, the death penalty cannot be imposed.

How many people are currently on California’s death row?

California no longer houses most condemned inmates on a traditional death row. As of 2026, more than 500 inmates remain under California death sentences, though many have been transferred to other prison facilities through the Condemned Inmate Transfer Program.

Additional Resources

• Death Penalty Information Center – Comprehensive resource covering death penalty laws, statistics, pending litigation, executions, exonerations, and state-by-state developments.
• California Department of Corrections and Rehabilitation – Official overview of California’s death penalty system, condemned inmates, and execution procedures.
• California Penal Code – Provisions governing capital punishment, including Penal Code sections 190 through 190.5.
• California Supreme Court – Judicial body that automatically reviews all California death sentences on direct appeal.
• Death Penalty U.S. Supreme Court Cases – Provided by Oyez.org.

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