Five examples of when a person can be charged with first-degree murder under California law include when the party kills someone
- by using a weapon of mass destruction;
- by lying in wait;
- by inflicting torture;
- by a willful, deliberate, and premeditated killing; or
- by committing a felony murder.
Penalties for First-Degree Murder
First-degree murder is a felony offense in California. The crime is punishable by:
- death,
- imprisonment in the state prison for life without the possibility of parole, or
- imprisonment in the state prison for a term of 25 years to life.[ii]
“Capital murder” is first-degree murder punishable by either:
- capital punishment (that is the death penalty), or
- life in prison without the possibility of parole (often referred to as “LWOP”).
Another term for capital murder is “first-degree murder with special circumstances.”
Definition of Murder
A prosecutor must prove the following to convict a defendant in a California murder case successfully:
- 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).[iii]
There are two kinds of malice aforethought under California’s criminal laws – express malice and implied malice.
A defendant acts with “express malice” if he/she unlawfully intends to kill.
A defendant acts with “implied malice” if the defendant:
- intentionally committed an 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.[iv]
First vs Second-Degree Murder
There are two degrees of murder under California law. These are:
- first-degree murder, and
- second-degree murder.
The first step to convicting a defendant of murder in California is for a prosecutor to prove the following elements as listed above.
Once this is done, Penal Code 189a PC says that a person commits first-degree murder if the party commits any of the five types of murder listed above (for example, murder by poisoning someone or lying in wait.).
Penal Code 189b, though, says that “all other kinds of murders are of the second degree.”
In addition, a large difference between the offenses is that while both degrees require a prosecutor to show that an accused acted with malice aforethought, the prosecutor does not have to show for second-degree murder that an accused acted with:
- premeditation, or
- deliberation.
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.
- 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.
PC 187 second-degree murder carries a penalty of 15 years to life in state prison.[v]
But note that some aggravating factors or special circumstances may work to increase a sentence.
For example, a defendant may face:
- a lifetime term in prison with no possibility of parole if he/she had a prior murder conviction on his/her criminal record,[vi]
- 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.[vii]
Legal Citations:
[i]California Senate Bill 1437 SB.
[ii] California Penal Code 190a PC.
[iii] CALCRIM No. 520 – First- or Second-Degree Murder with Malice Aforethought. Judicial Council of California Criminal Jury Instructions (2020 edition).
[iv] See same.
[v] California Penal Code 190 PC.
[vi] California Penal Code 190.05 PC.
[vii] See same.
