What Is the Difference Between Manslaughter and Murder in California?

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If you are facing criminal charges for causing the death of another, you need to know the difference between manslaughter and murder. Homicide is the killing of a human being, and in California, that killing is categorized as either murder or manslaughter. The murder vs. manslaughter distinction can mean the difference between spending the rest of your life in prison or spending far less time in prison with the possibility of parole. 


The essential element of murder is malicious intent. To prove murder, the prosecutor must show that you intended to kill the victim. This intention can be shown by presenting evidence that you wanted the victim dead, made a plan to kill them, and then executed that plan. In California, murder is further broken down into first- or second-degree murder. 

First-Degree Murder

This is the highest degree of murder and, as such, requires proof of intention and premeditation. In legal terms, the killing must include “malice aforethought.” This means that you had malicious intent and thought about or planned the killing before carrying it out. Other things that can ratchet your homicide charges up to the first degree include:

  • Using explosives or other destructive devices;
  • Using poison;
  • Using ammunition designed to penetrate armor;
  • Torturing your victim before killing them; or
  • Committing another felony that results in the death of the victim.

The last item refers to California’s felony-murder rule. This rule states that if you kill someone while committing another felony—whether you intended the killing or not—you can be charged with first-degree murder. For example, if you unexpectedly shoot the cashier while robbing a store, you can be charged with first-degree murder. It does not matter that you did not intend to kill the cashier when you entered the store. 

Second-Degree Murder

Second-degree murder is an umbrella term that includes any intentional killing that does not fall under first-degree murder. Premeditation is not a requirement.  The elements of second-degree murder are that the defendant intentionally committed an act (or failed to act), the natural and probable consequences of the act (or failure to act) were dangerous to human life, at the time the defendant acted (or failed to act), the defendant knew their act (or failure to act) was dangerous to human life, and the defendant deliberately acted (or failed to act) with conscious disregard for human life.  


When trying to grasp the difference between manslaughter vs. murder, it is helpful to focus on intent. Manslaughter requires no malicious intent and has two subcategories: voluntary and involuntary manslaughter.

Voluntary manslaughter often happens in “the heat of the moment.” A classic example is a man coming home to find his wife in bed with his best friend. In the heat of the moment, the husband erupts into a fury, grabs his gun, and shoots his best friend. Since he never premeditated, planned, or even thought about killing anyone until confronted with a traumatic situation, he would likely be charged with manslaughter instead of murder.

Another example of voluntary manslaughter is when the defendant honestly believed that killing someone in self-defense was just and proper, but under an objective, “reasonable person” standard, the killing was not just and proper for some reason.  For instance, two men become involved in a bar fight.  The aggressor then pulls out a small pocketknife while standing ten feet away and brandishes it.  The defendant, scared of what might happen, then pulls out a gun and kills the aggressor.  A jury might then return a verdict of voluntary manslaughter under an “imperfect defense” theory.   

Involuntary manslaughter happens when you do something negligent and death results. Killing someone while drunk driving is one example of involuntary manslaughter.

We Can Help

A homicide charge is one of the most frightening things that can happen to a person. If you find yourself in this situation, you need a caring, compassionate lawyer. The attorneys at The Law Offices of Kerry L. Armstrong, APLC, do not back down from tough cases, and we won’t rest until we have done everything we can to get you out from under the burden of a homicide charge. So call us today or contact us online for your free initial consultation.

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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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