California Second Degree Murder Laws

Under California criminal law, homicide is the unlawful killing of a human being by another human being. Prosecutors can charge defendants with either murder or manslaughter. The difference between the two is the defendant’s intent, or state of mind.

California has two degrees of murder charges:

• First-degree murder is willful, deliberate murder or murder committed under specific circumstances outlined in California Penal Code Section 189
• Second-degree murder encompasses all other killings that demonstrate malice aforethought

Manslaughter is any killing that lacks the element of malice.

Second-degree murder can result in a prison sentence of fifteen years to life imprisonment, depending on the circumstances of the crime.

California Murder Charges

In California, criminal charges for first- and second-degree murder require a showing of malice aforethought (Penal Code §187). Malice is a form of intent.

There are two basic types of malice:

• Actual or “express malice,” meaning the defendant intended to kill the victim
• Implied malice, where the defendant acts with a “conscious disregard for human life”

Second-degree murder (California penal code section 187/189) is any homicide committed intentionally but without deliberation or special circumstances. These cases generally involve implied malice.

California also recognizes felony murder, in which a death occurs during the commission of another dangerous felony (such as robbery, carjacking, or burglary). Felony murder can be a first- or second-degree murder charge, depending on the underlying felony.

First-Degree vs. Second-Degree Murder

California law charges any murder that is not first-degree murder as second-degree murder.

First-degree murder is a homicide in which the unlawful killing of a human being is:

• An intentional and premeditated killing
• Without justification such as self-defense
• Committed during one of the enumerated felonies in PEN § 189

“Premeditation” does not necessarily mean days or weeks of planning. California courts have held that premeditation can occur in a brief period, but it does require more than a mere momentary thought.

In second-degree murder, the defendant either intends to kill the victim or intends to cause great bodily injury such that death is a probable result.

For example, let’s say a defendant comes home and catches their spouse cheating on them. As the spouse’s lover attempts to run out of the house, the defendant pushes them down the stairs. They may not have intended to kill the victim, but they knew serious harm would result. This could lead to a conviction of second-degree murder.

Now let’s change the facts a bit. The defendant finds out their spouse is cheating. A few days later, the defendant finds the lover’s house, waits for them to come home, and kills them. This would likely lead to a conviction for first-degree murder.

Lesser Included Offenses

In many cases, all of the elements of a lesser criminal charge are included in the definition of a more severe offense. These are known as “lesser included offenses.” This means that prosecutors can give a jury the option to convict on different charges, depending on how they interpret the facts of the case.

For example, a second-degree murder case might include any of the following lesser included offenses:

• Voluntary manslaughter: Voluntary manslaughter charges stem from “heat of passion” crimes. Heat of passion crimes are intentional acts where the element of malice is negated by provocation. A conviction is punishable by three, six, or 11 years in state prison.
• Involuntary manslaughter: A death resulting from a lesser crime or misdemeanor, or a lawful act committed in an unlawful manner. Involuntary manslaughter is punishable by two, three, or four years’ imprisonment.
• Vehicular manslaughter: Driving in a reckless manner resulting in death and gross vehicular manslaughter (reckless driving while intoxicated) are punishable by between 18 months in jail and up to ten years in prison.

In practice, this means that even if a jury does not find a defendant guilty of second-degree murder, the facts of the case may still result in a criminal conviction.

Let’s use our example from earlier: The defendant doesn’t make a plan for revenge, but later sees the person who was having an affair with their spouse in a bar and punches them. The spouse’s lover falls against the bar, hits their head, and dies.

Prosecutors would probably bring an involuntary manslaughter charge because there was no intent to kill, but a death resulted anyway. However, it could also be an example of second-degree murder if prosecutors can show implied malice.

Penalties

California still has the death penalty on the books for first-degree murder charges with special circumstances. However, the state has not executed anyone since 2006. In 2019, Governor Gavin Newsom officially suspended executions in the state. But, district attorneys may pursue the death penalty in certain capital murder cases.

Second-degree murder cases are not eligible for the death penalty. Depending on the circumstances of the case, a second-degree murder conviction can result in:

• Fifteen years to life imprisonment
• 20 years to life if the crime was a drive-by shooting resulting in a death
• 25 years to life if the victim was a law enforcement or peace officer

Courts may consider aggravating circumstances during sentencing, including:

• A prior criminal record
• Use of a deadly weapon
• A previous sentence for murder or manslaughter in another state, or other serious crimes

For example, a person with a previous murder conviction can face life in prison without the possibility of parole if they are later convicted of second-degree murder.

Hate crimes and gang-related homicides are also usually subject to more severe sentences.

California law assumes that if a victim of a violent crime survives for more than three years and one day after the criminal act, it was not criminal homicide. But it is a rebuttable presumption. This means that if prosecutors can present enough evidence to support it, the defendant may face second-degree murder charges.

Defenses

A defendant can raise two types of defenses to homicide in California.

An affirmative defense means the defendant admits to committing the crime, but they have a lawful justification or excuse.

Affirmative defenses include:

• A killing committed by a police officer in the course of their duties (PEN § 196)
• Self-defense or to prevent the killing of another person (PEN § 197)
• In defense of one’s home (known as the “castle doctrine”) (PEN § 198.5)

Other defense strategies attempt to negate one of the elements of murder or show reasonable doubt. The defendant proves their claim after the prosecution makes the primary case. For example, a defendant can argue they did not intend to cause death or bodily harm.

A defendant’s criminal defense lawyer might also argue police misconduct. Improper conduct by police, such as an illegal search, can lead to some evidence being thrown out.

If you’re facing any homicide charges in California, you need legal advice from an experienced California criminal defense attorney right away. Although most charges do not receive the death penalty, you could face significant prison time without a skilled legal defense.