Penal Code § 187 PC – Murder – California Law & Penalties

Penal Code 187 PC is the California statute that prohibits murder. Specifically, murder is

“the unlawful killing of a human being or fetus with malice aforethought.”

First-degree murder comprises all premeditated killings as well as most kinds of felony murder, where someone dies during the commission of a serious crime such as robbery, carjacking, or rape. First-degree murder is punishable by 25 years to life in prison.

Meanwhile, second-degree murder is a murder that involves no premeditation. A conviction carries 15 years to life.

In this article, our California criminal defense attorneys discuss the following murder topics:

• 1. Elements
• 2. Defenses
• 3. Punishments
• 4. Other Homicide Crimes
• 5. Can the families of murder victims sue?
• Additional Reading

1. Elements

For someone to be convicted of murder in California, prosecutors must prove the following three elements of the jury instructions beyond a reasonable doubt:

1. The defendant caused the death of another person (or fetus),
2. The defendant acted with malice aforethought, and
3. The defendant killed without lawful excuse or justification.¹

Murder is the most aggravated type of homicide in California. What distinguishes murder from manslaughter is that murder requires malice:²

“The mental state constituting malice aforethought does not presuppose or require any ill will or hatred of the particular victim.  When a defendant ‘with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,’ he acts with malice aforethought.”³

Both first- and second-degree murder require either express or implied malice. Express malice means intending to kill the victim; meanwhile, malice is implied when:

1. The killing resulted from an intentional act;
2. The act’s natural consequences are dangerous to human life; and
3. The killer knew of the danger to human life, and the killer acted with a conscious disregard for human life.⁴

First-Degree Murder

There are five roads to a first-degree murder conviction in California:

1. By using a destructive device or explosive, a weapon of mass destruction, ammunition to penetrate metal or armor, or poison,
2. By lying in wait,
3. By inflicting torture pursuant to PC 206,
4. By a willful, deliberate, and premeditated killing, or
5. Felony-murder, which is directly killing someone while committing certain felonies (discussed below).⁵

Examples of first-degree murder include:

• Going to someone’s house intending to kill that person.
• Waiting for someone to appear, and then killing that person.
• Using a pipe bomb to perpetrate a killing.

Capital Murder

Capital murder – also called “first-degree murder with special circumstances“- is first-degree murder punishable by either:

1. Capital punishment (the death penalty) or
2. Life in prison without the possibility of parole (“LWOP”).

Capital murder applies to more than 20 different situations that PC 190.2 lists. These special circumstances elevate first-degree murder to capital murder. Some are:

• Killing for financial gain,
• Killing more than one victim,
• Killing a police officer, firefighter, prosecutor, judge, juror, or elected official,
• Killing a witness to prevent giving testimony,
• Killing because of the victim’s race, color, religion, nationality, or country of origin,
• Drive-by shooting, or
• Gang killing.⁶

Second-Degree Murder

Second-degree murder is also willful, but it is not deliberate, and there is no premeditation. Second-degree murder is any murder that does not count as first-degree murder.⁷ Examples of second-degree murder include:

• Shooting a gun into a crowded room and killing someone when the shooter did not intend to kill.
• A person with past DUIs drunk driving again and causing an accident that kills someone else.
• Viciously sucker-punching a smaller and inebriated person, causing the victim to fall and sustain a fatal head injury.⁸

The Felony Murder Rule

Felony murder is killing while committing a dangerous felony. The felony murder rule applies to first- and second-degree murder:

An example is holding up a cashier and then shooting when the cashier reaches for the phone: Robbery is the felony, and killing the cashier is the murder. It does not matter that the robber did not intend for the cashier to die.

People face felony murder charges only if they:

• Were the actual killer; or
• Had the intent to kill, and they aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer; or
• Were a major participant in the underlying felony, and they acted with reckless indifference to human life; or
• The victim was an on-duty law enforcement officer, and the defendant knew – or should have known – this.

Negligent and accidental deaths that occur during felonies do not count as felony murder unless the victim was an on-duty officer.⁹

First-Degree Felony Murder

Under the felony murder rule, defendants face first-degree murder charges for killing during the commission of either:

• Arson,
• Robbery,
• Burglary,
• Carjacking,
• Train wrecking,
• Kidnapping,
• Mayhem,
• Torture, or
• Certain California sex crimes, including
  • Rape,
  • Unlawful acts of sodomy,
  • Unlawful acts of oral copulation,
  • Forcible acts of penetration, or
  • Lewd acts with a minor.¹⁰

Second-Degree Felony Murder

Under the felony murder rule, defendants face second-degree murder charges for killing during the commission of inherently dangerous felonies not included under the first-degree felony murder rule (listed above).¹¹

Since there is no set list of inherently dangerous felonies,¹² courts apply the second-degree felony murder rule case-by-case. The following are second-degree felony murder examples.

Manufacturing methamphetamines – People v. James

Defendant was manufacturing meth in her home-based lab. It caused an explosion which killed three of her children. The court held that making meth carried a substantial fatal risk since it involves mixing flammable substances. Therefore, the court convicted her of second-degree felony murder.¹³

Willfully or maliciously burning a car – People v. Nichols

Defendant was angry at his wife for cheating, so he set fire to her car in the garage. He only intended to scare her, but the fire spread to the house and killed their two children. The court held that burning a car carries a substantial fatal risk since it involves gasoline, which is flammable. Therefore, the court convicted him of second-degree felony murder.¹⁴

2. Defenses

Here at Shouse Law Group, we have a long track record of getting murder charges reduced or dismissed in California. In our experience, the following six defense strategies have proven very effective with prosecutors, judges, and juries.

1) The Defendant Acted in Lawful Self-Defense or Defense of Others

One of the most common defenses to murder charges is self-defense.¹⁵ In California, killing is justified when people reasonably believe they or others are in imminent danger of:

• Being killed,
• Suffering great bodily injury, or
• Being raped, maimed, robbed, or victims of some other forcible and atrocious crime.¹⁶

Example: Jack is a frequent wife beater. One day, he picks up a brick, and his wife believes he is about to throw it at her. She shoots him, causing him to die from the bullet wound. Since the wife is a battered woman, there is evidence she reasonably believed she was about to suffer imminent death or great bodily injury, and she acted to prevent that from happening. This entitles her to prevail on a theory of self-defense.¹⁷

An “imperfect self-defense” (also called the “Flannel doctrine”) applies where people kill based on an honest but unreasonable belief they face imminent danger. Imperfect self-defense cannot dismiss a murder case, but it can reduce murder to voluntary manslaughter.

2) The Killing Was an Accident

Accident is a defense to PC 187 charges when the defendant:

1. Had no criminal intent to do harm,
2. Was not acting negligently, and
3. Was otherwise engaged in a lawful activity at the time of the killing.¹⁸

Example: A woman shoots and kills her neighbor. She claims she only intended to scare him away, and that the gun accidentally fired. The court rules she can present the defense that it was an accidental killing.¹⁹

3) The Defendant Was Insane

California allows defendants to plead “not guilty by reason of insanity.” The standard for insanity is the M’Naughten test: Under this test, defendants must prove they killed only because:

1. They did not understand the nature of the act, or
2. They could not distinguish between right and wrong.

Insanity excuses murder and can get the charge completely dismissed.²⁰

Example: A mother drowns her five children. Clearly, this is murder, but psychiatric testimony about her postpartum psychosis shows she is insane. Her mental illness precluded malice aforethought.²¹

4) The Police Coerced a Confession

Police must follow proper Miranda and constitutional protections and may never coerce a suspect’s confessions.²² Illegal and coercive interrogation methods include:

• Making threats against the suspect or the family,²³
• Threatening the suspect with the death penalty,²⁴ or
• Offering more lenient treatment in exchange for a confession.²⁵

When the police coerce an involuntary confession, the court will exclude the confession from evidence.²⁶

Example: Detectives tell a murder suspect he can avoid first-degree murder charges, but he would need to confess to unpremeditated murder. The suspect confesses. The court later excludes the statement from evidence because it finds the police coerced the confession through a promise, which was unlawful.²⁷

Police coercion is illegal, but it is not uncommon. There has been social science research that shows coercion has led to widespread prosecution and convictions of many innocent people.

5) The Police Committed an Illegal Search and Seizure

Courts allow searches and seizures of murder suspects’ property, but there are limits under the Fourth Amendment. Everyone has the right to be free from unreasonable searches and seizures.

When police cross this line, the defense lawyer can ask the judge to exclude the illegally obtained evidence from the trial. Attorneys do this through a PC 1538.5 motion.²⁸

If the judge grants the motion and suppresses the evidence, the prosecutor may then have to dismiss the PC 187 charge for lack of proof.

Example: Police illegally detain and photograph a gang member. Later on, a murder takes place. An eyewitness uses the old photograph to identify the gang member, and police arrest him. Though since the photo never should have been taken, the court eventually excludes the photo and ID from evidence.²⁹

Note that even if the search itself was lawful, it may be possible to argue that the forensic evidence was tainted or that evidence was planted to frame the defendant.

6) The Defendant Was a Victim of Mistaken Identification

Research shows that mistaken identification is the greatest cause of wrongful convictions. It leads to more convictions of innocent people than all other causes combined.³⁰

Numerous factors detract from an eyewitness’s ability to identify a suspect:

• The stress of the encounter,
• Fixation on a weapon,
• Intoxication,
• The suspect is a different race,
• The passage of time, and
• Improper suggestion by the police.³¹

California prosecutors base many cases on questionable eyewitness identification. However, there are several measures criminal defense lawyers may take:

• Demanding a live lineup to see if the eyewitness really can distinguish and identify the defendant.
• Challenging the police procedures in previous photo spreads and lineups, and seeking to get the identifications excluded from evidence.
• Calling an “Eyewitness Identification Expert” at trial. The expert can explain to the jury how memory processes work, and the jury would see how common mistakes are.

The key is to demonstrate that the identification is unreliable and that a reasonable doubt exists as to the identity of the real perpetrator.

3. Punishments

First-Degree Murder

First-degree murder carries 25 years to life in state prison.³² If it was a hate crime, the penalty is life without the possibility of parole (LWOP).³³

Hate crime murder is based on the victim’s:

• Race,
• Religion,
• Gender,
• Disability,
• Sexual orientation, or
• Nationality.

Capital Murder

Capital murder is California’s most serious homicide charge. The punishment is:

1. The death penalty through a lethal dose of gas or intravenous injection of a lethal substance or
2. Life in prison without the possibility of parole.³⁴ 

On March 12, 2019, Governor Gavin Newsom announced a temporary moratorium on executions. He cited the risks of executing innocent people and how minorities are disproportionately affected. Los Angeles County prosecutors are no longer seeking the death penalty.³⁵

Second-Degree Murder

Second-degree murder carries 15 years to life in state prison,³⁶ but some factors can increase the sentence, as the following table shows:

Aggravating Circumstance	Second-Degree Murder Prison Sentence in California
The defendant served a prior murder sentence.	Life with no possibility of parole37
The defendant shot from a vehicle, and they intended to cause serious injury.	20 years to life
The victim is a peace officer.	25 years to life
The victim is a peace officer, and the defendant: Intended to kill the officer, or Intended to inflict great bodily injury on the officer, or Killed using a deadly weapon or firearm.	Life with no possibility of parole38

Additional Penalties

A murder conviction in California also subjects defendants to:

• An additional 10, 20 or 25 years to life in prison if the defendant used a firearm during the murder (“in the commission of a felony”),³⁹
• A “strike” pursuant to California’s three-strikes law,
• Sentencing enhancements if a gun is used or if the offense is gang-related,
• Victim restitution,
• A maximum $10,000 fine, and
• Loss of gun rights pursuant to the “felon with a firearm law.”⁴⁰

Also, people must register for life as a tier three sex offender if they are convicted of murder while attempting to commit or committing:

• Rape,
• Sodomy,
• Lewd acts with a child under 14,
• Oral copulation with a minor, or
• Forcible penetration with a foreign object.

Learn more about the sex registry.

4. Other Homicide Crimes

Attempted Murder

California’s attempted murder laws apply when a defendant:

1. Takes at least one direct (but ineffective) step towards killing another person (or fetus) and
2. Intends to kill that person (or fetus).⁴¹

The penalty is a life sentence with the possibility of parole.⁴² The defendant also faces victim restitution, substantial fines, and a “strike” pursuant to California’s three-strikes law.

Voluntary Manslaughter

Prosecutors charge people with voluntary manslaughter for killing another person during a sudden quarrel or in the heat of the moment.

It is similar to first-degree murder, but the difference is that voluntary manslaughter does not involve malice. Instead, the killing is done spontaneously.⁴³

Example:  A husband walks in on his wife in bed with another man. Startled and enraged, he kills them right away in the heat of passion. This could get a murder charge reduced to manslaughter.

Voluntary manslaughter carries three, six, or 11 years in prison.⁴⁴

Involuntary Manslaughter

Involuntary manslaughter is killing another:

1. Without malice,
2. Without an intent to kill, but
3. With conscious disregard for human life.⁴⁵

Example: Defendant buys illegal drugs which he gives to his girlfriend. She overdoses and dies. Defendant did not intend to kill her, but since the drugs were dangerous, he arguably acted with a conscious disregard of human life. Therefore, he could be liable for involuntary manslaughter.

To be convicted of involuntary manslaughter, the defendant at the time of the killing must be involved in either:

1. An unlawful act (not amounting to a felony) or
2. A lawful act that involves a high degree of risk of death or great bodily injury, and the defendant fails to act with the proper caution.⁴⁶

This is different from an excusable, accidental killing where the defendant is not violating any laws or acting recklessly at the time of the killing. Involuntary manslaughter also does not generally apply to acts committed while driving a car: Those are covered by vehicular manslaughter laws.⁴⁷

Involuntary manslaughter carries two, three, or four years in prison.⁴⁸

The following chart compares and contrasts the California crimes of murder, voluntary manslaughter, and involuntary manslaughter.

CALIFORNIA LAW	Murder	Voluntary Manslaughter	Involuntary Manslaughter
Malice aforethought	Yes	No	No
Intent to kill	Yes	Yes	No
Premeditation	Yes (1st degree) / No (2nd degree)	No	No
Provocation or heat of passion	No	Yes	No
Criminal negligence	No	No	Yes
Sentencing	15 years to life (2nd degree) / 25 years to life (1st degree)	3, 6, or 11 years	2, 3, or 4 years
Possible defenses	Self-defense, defense of others, insanity, accident	Self-defense, defense of others, insanity, accident	Self-defense, defense of others, insanity, accident

Vehicular Manslaughter

Vehicular manslaughter is driving that kills another person when the defendant:

1. Drives in an unlawful way (not amounting to a felony), with or without gross negligence, or
2. Drives during the commission of a lawful act that might produce death in an unlawful manner, or
3. Knowingly causes the accident for financial gain (which can also be prosecuted as automobile insurance fraud).⁴⁹

Vehicular manslaughter is a wobbler, which prosecutors can charge as either felonies or misdemeanors. Felony vehicular manslaughter carries two-to-10 years in prison, while misdemeanor vehicular manslaughter carries up to one year in jail.⁵⁰

If the defendant is under the influence of alcohol at the time of the killing, prosecutors would likely charge (depending on the case):

• Vehicular manslaughter while intoxicated – the least serious fatal DUI charge, or
• Gross vehicular manslaughter while intoxicated – a more serious crime than vehicular manslaughter because the defendant must act with gross negligence rather than ordinary negligence, or
• DUI murder – the most serious fatal DUI charge, and it is prosecuted as second-degree murder (discussed below).

DUI Murder / Watson Murder

A fatal DUI can be second-degree murder in California. It is called DUI murder or “Watson” murder and occurs when:

1. Someone causes an accident while intoxicated,
2. It kills another person as a result, and
3. The circumstances are especially egregious.

DUI murder charges are almost always based on a second-degree, implied malice theory. The prosecutor is not alleging the defendant intended to kill anyone. Instead, the defendant:

• Intentionally committed a dangerous act,
• Knew of the danger, and
• Acted with conscious disregard for human life.

Typically, the D.A. presses DUI murder charges when the defendant has a prior DUI conviction, but not always. Courts have upheld Watson murders even in the absence of a prior DUI in circumstances, such as:

• A grossly intoxicated driver (with a blood alcohol content of 0.24%) sped away from police at 70 mph and killed someone.
• The defendant killed a family of three while driving up to 87 mph in a side-by-side “speed contest” on a residential street.
• A trucker drove a semi-trailer on a steep highway knowing his brakes were not up to the task.⁵¹

When defendants are convicted of DUI in California, judges typically read them a “Watson advisement” that states:

1. It is extremely dangerous to human life to drive while under the influence of alcohol and/or drugs, and
2. If the defendant has a fatal DUI, California prosecutors may bring murder charges.⁵²

The following chart compares California’s three “DUI causing death” crimes.

CALIFORNIA “DUI WITH DEATH” CRIMES	Vehicular Manslaughter While Intoxicated	Gross Vehicular Manslaughter While Intoxicated	DUI Murder/Watson Murder
Statute	PC 191.5(b)	PC 191.b(a)	PC 187
Elements of the crime	Causing a fatal DUI crash while driving intoxicated and with ordinary negligence	Causing a fatal DUI crash while driving intoxicated and with gross negligence	A repeat DUI offender warned about the dangers of impaired driving causing a fatal DUI crash.
Maximum prison	4 years	10 years	Life
Probation possible?	Yes	Yes	No

Murder with Gang Enhancements

With gang-related killings, prosecutors typically charge:

1. PC 187 murder, as well as
2. California’s street gang enhancement.

The latter is a special allegation that requires the state to prove that the murder was committed:

• At the direction of a criminal street gang,
• For the benefit of a criminal street gang, or
• In association with a criminal street gang

Defendants convicted of both murder and the gang enhancement may get an additional sentence of 15 years to life in prison.⁵³

Prosecutors abuse gang enhancements by charging it any time a homicide is remotely gang-related. It increases the potential sentencing and allows prosecutors to present highly inflammatory evidence that may coax otherwise ambivalent juries to convict.

Aiding a Suicide

PC 401 aiding suicide is deliberately:

• Helping someone commit suicide or
• Encouraging or advising someone to commit suicide.⁵⁴

The line between aiding suicide and murder can be blurry. Aiding suicide is providing people with the means to kill themselves, but killing people at their request is murder.

Assisting suicide is a felony carrying up to three years in prison.⁵⁵

5. Can the families of murder victims sue?

Yes. Families of murder or manslaughter victims may sue for damages through two types of lawsuits:

1. A “wrongful death” lawsuit, which compensates survivors for their losses; and
2. A “survival” cause of action, which compensates the victim’s estate for losses sustained prior to death.

No homicide conviction is necessary to sue. Families can sue even if:

• The defendant gets acquitted at trial, or
• The prosecution never files charges.

For instance, a jury acquitted O.J. Simpson of murder. However, the families of his victims won a civil lawsuit where the court ordered Simpson to pay $33 million in compensatory and punitive damages.⁵⁶

Possible Damages

Families of murder or manslaughter victims may recover:

• Medical bills,
• Funeral expenses,
• Loss of the victim’s companionship and financial support (including “loss of consortium”), and
• Punitive damages.

If defendants get convicted on criminal charges, families can also seek court-ordered victim restitution.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• The Stickiness of Felony Murder: The Morality of a Murder Charge – Mississippi Law Journal
• Evil and the Law of Murder – U.C. Davis Law Review
• How Should We Punish Murder – Marquette Law Review
• Rape, Murder, and Formalism: What Happens if We Define Mistake of Law – University of Colorado Law Review
• The California Supreme Court and the Felony Murder Rule: A Sisyphean Challenge – California Legal History.

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