Murder under California Penal Code section 187(a) is defined as the “unlawful killing of a human being or a fetus with malice aforethought.”  To prove that you are guilty of murder, the prosecution has to establish beyond a reasonable doubt the following: a) that you committed an act that resulted in the death of another person (or a fetus) b) that you committed the act with malice aforethought and c) that you committed the act with no reasonable justification.

There are two forms of malice: express or implied.  Malice is express where there exists a specific intent to kill. Malice is implied when the killing is done with no considerable provocation, or when the circumstances surrounding the killing demonstrate an abandoned or malignant heart. Implied malice therefore exists when the killing was the result of an intentional act the consequences of which pose a high danger to human life, or when the act was intentionally and deliberately performed with conscious disregard for human life.  In California, malice is a requisite element of both first degree and second-degree murder.

First Degree Murder

Under California law, a criminal defendant can be convicted of first degree murder if he or she:

  • Committed the murder by lying in wait (e.g., waiting for someone to return to his or her car in order to kill that individual) or by use of a destructive device or explosive;
  • Killed in a way that was unlawful, deliberated, and premeditated; or
  • Committed a specified enumerated felony that resulted in death.

One faces 25-years-to-life in the California State Prison if convicted of first-degree murder under Penal Code Section 187.  One faces life without the possibility of parole in state prison if convicted of murder based on a  “hate crime,” a killing committed on account of the victim’s religion, race, sexual orientation, disability, or nationality.  A life sentence without the possibility of parole means that the convicted individual will spend his or her life in prison and will never be eligible for early release on parole.

Second Degree Murder

Under California Penal Code 187, second-degree murder is 1) an intentional killing that is not premeditated or planned or committed in a reasonable “heat of passion” or 2) a killing caused by the offender’s reckless conduct and egregious lack of concern for human life. Examples of second-degree murder include but are not limited to:

  • Shooting at a large group of people and killing someone, even if Killer had no intent to kill any person in the group.
  • Killing someone while driving recklessly under a controlled substance.

One generally faces 15 years-to-life in State prison if convicted of second-degree murder under California Penal Code Section 187. This sentence can increase to:

  • 20-years-to-life if, with the intent to kill victim or to cause victim serious bodily injury, defendant shot a firearm out of a vehicle
  • 25-years-to-life if victim is a peace officer
  • Life without the possibility of parole if victim is a peace officer AND defendant specifically intended to kill the officer OR inflict serious bodily injury on the officer OR killed the officer using a deadly weapon or firearm.

The Felony Murder Rule

Felony murder is a killing that takes place in the commission of a dangerous felon.  To prosecute you under the felony murder rule, the prosecutor need not show that you committed the killing in furtherance of the underlying felony. Any death that is a logical consequence of the felony triggers the felony murder rule, regardless of whether the killing was intentional, accidental, or negligent.  The prosecutor need only show the following: a) you intended to commit the underlying felony b) you  either committed or attempted to commit the underlying felony and c) there was a connection—and not a mere coincidence—between the time and place of the killing and the underlying felony.

California’s First- Degree Felony

In California, any killing that takes place in the commission of a set of felonies is categorized as first degree murder, regardless of whether the killing was intentional or accidental. These felonies include:

California’s Second- Degree Felony

In California, a killing that takes place in the commission of an “inherently dangerous felony” (not specifically included in the first degree felony murder) rule subjects the killer and his or her accomplice to second-degree murder liability.  Examples of felonies that California Courts have found to be inherently dangerous include manufacturing methamphetamines, willfully and maliciously burning a car, and possessing a bomb in a residential area.

Deaths covered by the California Felony Murder Rule

In general, liability under the felony-murder rule only applies to actions committed by the defendant or his or her accomplice.  The rule does not apply if, during the commission of the felony, a victim, the police, or another third party intervenes and kills another person. However, if killing by a third party is the result of the defendant and any accomplices’ reckless disregard for human safety, then the defendant and his or her accomplice can still be liable for murder under an alternative theory of implied malice.

Attempted Murder

California’s attempted murder laws apply when you:

  • Take a substantial (but ineffective step) toward killing another, and
  • You intended to kill that person.

If convicted of attempted murder under Penal Code Section 187, you face life sentence without the possibility of parole.  You also face victim restitution, substantial fines, and a “strike” under California’s three-strike law.