Created by FindLaw's team of legal writers and editors | Last reviewed February 26, 2018
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A prosecutor may charge homicide, which is the unlawful killing of a human being, as either murder or manslaughter. Murder requires proof of "malice aforethought," which refers to the defendant's intent or state of mind.
In a murder case, California law requires the prosecutor to prove that the defendant exhibited express or implied malice. Express malice means that the defendant deliberately chose to commit murder. Implied malice refers to conduct that reflects an "abandoned and malignant heart." This can arise if the defendant meant to create the circumstances that resulted in the killing of another person. When a criminal case lacks malice, the prosecutor will likely need to pursue manslaughter charges instead of murder charges.
Murder in California may be prosecuted in the first degree or second degree. First degree murder is the more serious of the two and includes killings that are:
The legal definition of first degree murder affects the definition of second degree murder as state law defines second degree murder as all other murders that do not qualify as first degree murder.
If the victim does not die within three years and one day after the date when the cause of death allegedly occurred, California state laws include a presumption that the homicide was not a criminal act of murder or manslaughter. The prosecutor must rebut the presumption in order to pursue a second degree murder charge.
For more specific information on California second degree murder laws, see the chart below.
| Statutes | California Penal Code Section 187 (general murder statute) California Penal Code Section 189 (defining first and second degree murder) California Penal Code Section 190 (penalties) California Penal Code Section 194 (the 3 year and 1 day presumption) |
| Possible Penalties | California state laws set the term of imprisonment for second degree murder as 15 years to life in state prison. The term increases to 20 years to life if the defendant killed the victim while shooting a firearm from a motor vehicle. In addition, the term may increase to 25 years to life if the victim of the crime was a peace officer. State laws also allow the court to consider whether the defendant has a prior criminal record. If the defendant has previously served time in prison for murder, the possible sentence for second degree murder may range between 15 years to life in state prison and life imprisonment without the possibility of parole. |
| Defenses | Defenses can include:
See Second Degree Murder Defenses for more details |
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
Murder is one of the most serious charges you could face in the California justice system. A guilty verdict can put you behind bars for a long time, dramatically altering the course of your life. You can be sure that the prosecution is working hard to make its case against you which is why it's critical to have an expert criminal defense attorney on your side.
Contact a qualified attorney.
Get tailored advice and ask your legal questions. Many California attorneys offer free consultations.