Penal Code section 187 – First and Second-Degree Murder Laws in California

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Because of the inherently serious nature of a murder charge, it stands to reason that the criminal punishment for first-degree murder is extremely severe under California law.

It also stands to reason that you need a lawyer who knows how to defend murder cases if you have murder charges in California.

Who can you trust to represent you when the stakes are so high?

The State Bar of California’s Board of Legal Specialization has certified Kerry L. Armstrong as a specialist in criminal law—a high distinction that very few attorneys can claim.

In other words, the Law Offices of Kerry L. Armstrong, APLC, wants you to know we have the experience, expertise, and commitment to fight aggressively for you.

What Is the Definition of Murder in California?

California Penal Code section §187 defines murder as the unlawful killing of another with malice aforethought.

To secure a murder conviction under Penal Code section 187, the prosecution has to prove that the accused:

  • Committed an act that caused the death of another person;
  • Acted with malice aforethought; and
  • Killed without legal justification or excuse.

Killing another without malice could be the lesser-included offense of manslaughter

What Does Malice Mean?

Malice or malice aforethought can be express or implied. Express malice means the accused manifested a deliberate intention to unlawfully kill another.  

Implied malice means that there wasn’t a specific intention, reason, or provocation for the accused to kill.

Instead, they killed more out of a more generalized malignant heart and conscious disregard for human life. 

For example, a person who drives a car at 100 miles per hour through a red light and kills someone could be guilty of second-degree murder.

There is no malice aforethought in this example, meaning the driver was not thinking about killing a specific person for a specific reason.

However, the person’s actions present a severe danger to and complete disregard for the lives of others. Killing another person in this situation is deemed murder.

In California, malice doesn’t mean acting with ill will or hatred toward another. Instead, it means forming the intent to kill before committing the act.

No set amount of time that needs to pass for a person to act with malice. 

How Many Years Can You Get for Second-Degree Murder?

Second-degree murder sentences vary depending on the facts of the underlying offense.

According to Penal Code section 190, a person convicted of second-degree murder will be sentenced to state prison for 15 years to life.

However, a person convicted of second-degree murder for shooting a person from a motor vehicle with intent to commit great bodily injury must serve at least 20 years.

A sentence structured this way gives the person a chance to make parole, but parole is never guaranteed. 

A second-degree murder conviction would carry a 25-year-to-life sentence if the victim was a peace officer murdered in the line of duty.

The sentence increases to life without parole if the defendant shot and killed the officer or specifically intended to kill the officer. 

What Is a First-Degree Murder Charge in California?

California law defines murder as second-degree. The crime becomes a more serious first-degree murder charge if the prosecutor proves that: 

  • The accused acted with deliberate premeditation; or 
  • Committed another act that substitutes for the deliberate premeditation requirement.

The additional element of deliberate premeditation is the difference between first and second-degree murder. 

Deliberate premeditation refers to the mental process involved in deciding to kill someone.

The process of weighing the factors involved and planning the murder before completing the act can amount to deliberate premeditation.

The law does not require a set time to elapse between planning and killing for the jury to find the accused acted with deliberate premeditation.

It is the reflection on the act that matters rather than the amount of time.

Other Types of First-Degree Murder

California law treats other killings as though they were premeditated murders. The method of killing is a substitute for proving deliberate premeditation.

Alternate theories of first-degree murder include:

  • Torture;
  • Lying in wait;
  • Using a destructive device or explosive;
  • Poisoning;
  • Shooting someone with armor-piercing ammunition; or
  • Firing a weapon from a motor vehicle (drive-by shooting).

A murder motivated by hatred of a member of a protected class is also first-degree murder. 

Felony Murder Rule

Also, you might have heard of the “felony murder rule.” Felony murder happens when the victim dies during the commission of an inherently dangerous felony.

The most common example is armed robbery. A person who shoots and kills someone in an armed robbery attempt faces first-degree murder even if the shooter never intended to kill anyone. 

The only intent required for felony murder is the intent to commit the underlying crime. So in this example, the intent to commit the robbery is enough.

If someone dies as a result of the intended armed robbery, you would likely be charged with felony murder. 

What Is the Difference Between Manslaughter vs. First-Degree Murder?

Provocation or heat of passion can reduce first-degree murder to voluntary manslaughter.

A common example of voluntary manslaughter is a person coming home to find their spouse in bed with another person.

A killing that happens in those circumstances—i.e., in the heat of passion—could be manslaughter because of the existence of reasonable provocation.

What Is the First-Degree Murder Sentence in California?

The possible punishment varies. The government could seek the death penalty if there are special circumstances present.

If not, then the prosecutor could ask for life in prison without the possibility of parole or 25-years-to-life in prison. 

Contact an Award-Winning Attorney Today to Start Your Defense

Murder cases are a high-stakes chess match. You need someone to defend you who will stand toe-to-toe with a prosecutor who may feel impassioned to avenge someone’s death.

Criminal defense attorney Kerry L. Armstrong and his team have the experience and knowledge to give you the best chance to win a favorable result.

Call the Law Offices of Kerry L. Armstrong, APLC, today at 619-639-4873.

Author Photo

Kerry L. Armstrong


Attorney Kerry Armstrong opened up his law firm in June 2007. Mr. Armstrong attended Thomas Jefferson School of Law, San Diego, California, and received his B.S. from Middle Tennessee State University. Kerry L. Armstrong became certified by the State Bar of California’s Board of Legal Specialization for criminal law in August 2020, making him one of the few criminal defense attorneys with a criminal law legal specialization certificate in San Diego County.  Between 2014 – 2019, Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys.

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