Difference Between First Degree, Second Degree Murder, and Manslaughter in California

November 19, 2021 by Chistian Bredefeld in California  Criminal Defense  
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What Defines Murder in California?

PC 187 defines first degree murder, second degree murder and third degree murder, aka manslaughter, as follows:

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

PC 188 defines ‘Malice’ as the following:

1. Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature.

2. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

Although brief in its definition, it can be pretty tricky to understand the nuances of these statutes and the various criminal sentences that follow if convicted of the crime of murder.

And while the statutes may or may not seem relatively simple in their definitions, there are several different types of “murder” recognized in California. First, murder is generally classified as a state crime, meaning it is prosecuted in state court instead of federal court. This is true for California.

There are some instances when murder can be prosecuted as a federal crime; for example, if someone violates a federal law or the murder occurs on federal land, it could be prosecuted as a federal murder case. An example of this type of crime would be the unlawful killing of a federal judge.  

The key terms to understand from this definition are “unlawful killing” and “malice aforethought.” These terms are so important to understand because not all “killings” are unlawful; thus, some “killings” do not result in prosecutions or criminal convictions. 

Basically, a homicide is committed when someone is killed. However, some homicides are not considered murder. For example, as discussed further below, some homicides are justified; therefore, either the prosecution can bring no charges, or no criminal convictions will be given. Murder, which is a crime, requires the killing to be unlawful and committed with malice aforethought.  

We will discuss this more fully below. Briefly, malice aforethought is a technical and legal term for an intentional killing of another that was unlawful and done with a general disregard for human life. 

California recognizes the following types of murder charges:

  • First Degree Murder and
  • Second Degree Murder. These two types of murder charges require malice. (Malice in this situation can be express or implied).
  • In addition, depending on the circumstances, you can be charged with “Manslaughter,” which is similar to what other states would define as “Third Degree Murder.” However, California does not recognize Third Degree Murder. Manslaughter charges in California consist of Voluntary Manslaughter, Involuntary Manslaughter, and Vehicular Manslaughter.

Below we will discuss the elements of First Degree Murder, Second Degree Murder, and what facts and circumstances constitute charges of Manslaughter. We will also outline their various potential criminal sentences and the many defenses to these severe charges.  

1) What Is First Degree Murder?

First Degree murder requires the intentional and unlawful killing of another with malice aforethought. Malice is required for a conviction and can be expressed or implied. Express means that the individual actually intended to kill the person on purpose. Malice can be expressed or implied. 

PC 188 defines Malice as the following:

  1. Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow-creature.
  2. Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

Malice does not necessarily mean that the person had any hatred or ill-will toward their victim or victims. The person’s actions simply need to demonstrate a complete and wanton disregard for human life. They essentially commit acts that involve a high degree of probability that the result of their actions will be the death of another.  


To be convicted of First Degree Murder in California, the unlawful killing must have been committed in one or more of the following ways:

  1. Killing by use of a destructive device or explosive, a weapon of mass destruction, ammunition to penetrate metal or armor, or poison;
  2. Lying in wait to commit the killing;
  3. Killing through inflicting torture pursuant to PC 206
  4. Killing that is willful, deliberate, and premeditated; and
  5. The killing occurs during the course of committing a felony (which is legally called “Felony Murder.”)


Let’s look at a few examples of First Degree Murder.

  1. Let’s assume that Amy and Rick are a married couple and Rick discovers that for the last 10 months, Amy has been having an affair with another man. If Rick knows that Amy is at home having lunch, and he goes to their house with the intent to kill her, and he shoots her in the head and she dies, he has committed First Degree murder. He intended to kill her and he did by shooting her.
  2. In the same example above using Amy and Rick, let’s assume Rick does not go to her house to kill her. Instead, he knows she will be walking in a park on her lunch break from work. He waits behind a tree for two hours knowing at some point she will walk by him undetected because he is hiding behind the tree (“lying in wait). When she walks by, he sneaks up on her and shoots her and she dies. This is First Degree murder.
  3. If someone uses a pipe bomb in order to kill someone intentionally, this is First Degree Murder.

2) What is Felony First Degree Murder?

Felony murder is a legal term for killing someone while you are in the process of committing a dangerous felony, such as burglary. 

The law on this has recently changed. 

Before 2018, you could be guilty of this even if you did not intend to kill the person while committing the dangerous felony. For example, if you intended to burglarize someone’s home and accidentally killed them in the process, you would be found guilty of Felony Murder. However, this was changed by Governor Jerry Brown on September 30, 2018, when he revised the old law.  

The revision occurred through Senate Bill 1437, which states that a person can face Felony Murder charges only if the following happened:

  1. The person has to be the actual killer; or
  2. The killer actually had an intent to kill. And, the other person or persons involved aided, abetted counseled, commanded, induced, solicited, requested, or assisted the actual killer; or
  3. The person was a significant participant in the felony being committed; in addition, the killer must act with a reckless indifference to human life; or
  4. The victim was an on-duty law enforcement officer, and the killer knew or should have known this to be the case.

In essence, you have to intend to kill the person while the felony is being committed; it cannot be an accident to be considered a Felony Murder. The exception is only for on-duty law enforcement officers who are killed during the felony. It should be noted that anyone convicted of this crime before 2018 can seek a different sentence based on Senate Bill 1437 if they file a petition for re-sentencing.

Felonies that Apply

To be convicted of First-Degree Murder, the killing needs to occur during the commission of dangerous felonies such as:

  1. Arson;
  2. Robbery;
  3. Burglary;
  4. Carjacking;
  5. Train wrecking;
  6. Kidnapping;
  7. Mayhem;
  8. Torture;

Also certain sex crimes such as:

  1. Rape;
  2. Unlawful acts of sodomy;
  3. Unlawful acts of oral copulation;
  4. Forcible acts of penetration;
  5. Lewd acts with a minor.

First-Degree Murder Sentencing

There are various sentences imposed for being found of First Degree murder. Typically, these carry the harshest penalties. 

Generally, depending on the facts and circumstances of the particular situation, the sentence is 25 years to life in state prison.

If the crime and killing occurred as a result of a “Hate Crime,” the sentence is life without the possibility of parole. In California, Hate Crimes that result in murder happen when the killing is based on a person’s: (1) race, (2) religion, (3) gender, (4) disability, (5) sexual orientation, or (6) nationality.

In addition to the above potential sentences, there are “mitigating” and “aggravating” factors. Mitigating facts tend to lessen the sentence, such as a time being a “first-time” offense. Aggravating factors cause the penalty to be more severe. 

Aggravating factors can include the following:

  1. The convicted killer has previously committed one or more multiple murders;
  2. The victim was a police officer, juror, judge, witness
  3. The victim was killed while another violent crime was occurring, such as sodomy or rape.

Capital Murder Sentencing

Capital Murder is still considered “First Degree” murder, as discussed above. However, this is a type of sentencing for First Degree murder, and it is severe.

Capital Murder can apply to many scenarios, more than 20 different situations, governed by PC 190.2. These are the type of “special circumstances” or aggravating factors, that elevates First Degree murder to a Capital Murder sentence. 

Here are a few examples:

  1. Killing for financial gain;
  2. Killing several victims, not just one;
  3. Killing a police officer, prosecutor, firefighter judge, juror, an elected official;
  4. Gang-related killings;
  5. Drive-by shootings;
  6. Hate crimes as defined above, (for example, race or religion)
  7. Killing a witness with the goal of preventing their testimony.

The sentence is as follows:

1. The death penalty (death by a lethal dose of gas or an intravenous injection of a lethal substance). 

However, there is now a temporary moratorium on the death penalty executions when Governor Gavin Newsom changed this sentence on March 12, 2019.  

2. Life in prison without the possibility of parole.

3) What Is Second Degree Murder?

Essentially, Second Degree Murder requires malice or an intention to kill. (In this regard, it is similar to First Degree Murder). However, Second Degree murder does not require that the killing be committed with premeditation or deliberation. For example, these are what many know to be “heat of the moment” type killings.

In California, these killings are ones that are not Felony First Degree Murder, or killings that result from Manslaughter.


  1. Malice;
  2. Intent.


Let’s say someone is having a party at their house, and there are about 20 people at the party. 

  1. Charlie, one of the guests at the party, just bought a gun and wants to show it off and “joke around” by scaring people. If he recklessly shoots the weapon at this party without any intent to kill, but someone is killed in the process, this is Second Degree Murder.
  2. If a person weighing 200 pounds violently punches someone in the face who is much smaller (for example, 120 pounds), and the victim is drunk, falls and hits his head on a glass table, and dies, the defendant may have committed Second Degree Murder.

4) What is Second Degree Felony Murder?

This is similar to First Degree Felony Murder in that a felony is involved while the killing occurs. However, there is no definitive list of these types of felonies, as there are in First Degree.  


  1. The felony is inherently dangerous;
  2. The felony is not included under the First Degree Felony Murder.

Since there is no enumerated set list, the courts go on a case-by-case basis to apply the Second Degree Felony Murder Rule.


Courts have held that some types of Second Degree Felony Murder consist of willfully or maliciously buying a car that results in death. In addition, courts have held a killing that occurs through manufacturing methamphetamines counts as Second Degree Felony Murder.

Second Degree Sentencing

This is typically a lesser sentence than First Degree Murder charges. Generally, these sentences carry 15 years to life in state prison. However, like First Degree Murder, “aggravating factors” can increase the defendant’s sentence.

  1. If the defendant already committed murder and served a sentence, the Second Degree Murder sentence can increase to life without the possibility of parole;
  2. If a defendant shot someone from a vehicle with an intent to cause serious harm or injury, the sentence can be 20 years to life in prison;
  3. If the defendant kills a peace officer, the sentence can be life without the possibility of parole;
  4. Suppose the defendant intended to kill the peace officer, inflict great bodily harm or injury, or committed the killing by using a deadly weapon. In that case, the sentence can be life without the possibility of parole.

Additional Penalties

California allows for additional penalties for murder. 

Some include the following:

  1. Victim restitution;
  2. An enhanced sentence if a gun is used;
  3. An enhanced sentence if the crime which results in murder is gang-related;
  4. A fine with a maximum of $10,000;
  5. Loss of the right to own or use guns;
  6. Another “strike” which is according to the “Three-Strikes Law” in California;
  7. Suppose the murder also involved the crimes of forcible so-called “sex acts” such as a rape, or sodomy or lewd acts with minors. In that case, the defendant will have to register as a tier three sex offender for the rest of their life.

Defending First and Second Degree Murder Charges

An experienced criminal defense attorney will assert many defenses if you face a murder charge and will be familiar with the best legal defense strategies to fight and defend against these charges. Below are some common strategies/defenses your attorney will assert:

Self Defense/Defense of Others

In California, you are allowed and justified to kill in certain scenarios when you reasonably believe that you or someone else is in imminent danger of (1) being killed; (2) suffering great bodily injury; or being raped, maimed, robbed, or a victim of other forcible crimes. 

You have to have a “reasonable belief” as opposed to unreasonable.  


  1. Two married people are in an abusive/domestic violence situation. The wife is being brutally beaten by her husband daily. One day they are in their kitchen, and he picks up a gun and says he is going to kill her. She picks up a knife and stabs him before he can shoot her, and he dies. She is entitled to this defense.
  2. A girlfriend goes to her boyfriend’s home. She sees her boyfriend being brutally beaten by her boyfriend’s brother. She begs him to stop and tries to intervene to no avail. The brother who is beating up her boyfriend grabs a brick, and it appears he is going to beat him to death with it. The girlfriend sees a gun, shoots the assailant, and kills him to save her boyfriend. She is entitled to this defense. 

Accidental Killings

An accidental killing is a legal defense. 

To apply, the defendant must meet the following criteria:

  1. They had no intent to do criminal harm;
  2. They were not acting negligently;
  3. At the time of the killing, the defendant was otherwise engaged in a lawful activity.

Insanity Defense / M’Naughten Rule

You can plead “not guilty by reason of insanity” if you can pass the M’Naughten test, the legal standard for the California “insanity” defense.

To apply, the defendant must prove the killing occurred only because:

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

The entire case can be discussed, and murder will be excused if this standard applies.


Suppose a mother suffers from post-partum depression and deliberately crashes her car into a cement wall and kills her baby (but the mother survives). In that case, she can use her underlying psychosis to show she was “legally insane” at the time of the killing.

False and Coerced Confessions

 Law enforcement must follow proper procedures afforded to us by the United States Constitution, such as what rights we are entitled to through our “Miranda” rights, and they cannot coerce confessions.

This usually happens when police officers interrogate suspects and make threats against them or their own families or threaten the defendant with a sentence involving the death penalty. 

They also will try to offer a lesser sentence in exchange for a confession. If this occurs, the court will exclude the confession. While it is illegal, unfortunately, it is more common than people think.


A police officer tells a suspect that he will get the death penalty if he does not confess to the murder. Because the suspect is scared of being sentenced to death, he confesses to the crime that he did not commit.  

Illegal Search and Seizure

While California allows searches and seizures of suspects’ property, there are limits under the United States Constitution. 

This is known as our “Fourth Amendment Right” against unreasonable searches and seizures.

Suppose evidence is obtained through an illegal search and seizure. In that case, an experienced defense attorney can petition the court to have the evidence dismissed. Suppose the evidence obtained illegally is vitally important to the prosecution’s case, and the evidence is excluded based on the illegal search and seizure. In that case, the prosecution may have to dismiss the murder charge. 


Let’s say a boyfriend and girlfriend are in a relationship but live in separate places. The boyfriend is a suspect in a murder by using a gun. The police have a search warrant to search the boyfriend’s apartment as the suspect. However, they do not have a search warrant to search the girlfriend’s apartment. When they search the boyfriend’s apartment, they do not find the gun. But, when they search the girlfriend’s apartment illegally with no search warrant granted, they find the gun. The illegal search and seizure would be cause to exclude evidence of the finding of the gun due to the illegal search and seizure, which may mean that the prosecution would not be allowed to introduce evidence that the gun was ever found. 

This then could be used by the criminal defense attorney to possibly exclude that evidence of the gun ever being found into being admitted into evidence at trial.

Mistaken Identification

It has been demonstrated and learned through research that a case of mistaken identity is one of the biggest causes of wrongful convictions for murder.

People often think they can identify a person’s identity, but their memory may not be as reliable as they believe; this can occur for several reasons. Some reasons are identified below:

  1. Stress at the time of the event;
  2. Sole focus on a weapon instead of a person;
  3. The person or witness was intoxicated or under the influence of drugs or alcohol;
  4. Time has passed such that the witness’ memory is not as sharp as they believe it to be;
  5. Police or prosecutors try to improperly influence the witness.

To help combat this issue, an experienced criminal defense attorney will utilize several approaches, including demanding a live lineup. This will help determine whether the witness can accurately identify the defendant. 

Also, the attorney can challenge procedures that may have been used in prior lineups or photographs to exclude the evidence. They can have an “eyewitness identification expert” testify at trial to explain how common it is for the witness to mistakenly identify the defendant, no matter how hard they try to remember accurately.

The most important aspect of this strategy is creating a reasonable doubt about the actual killer’s identity.  

5) What is Third Degree Murder/or Manslaughter?

Third Degree murder does not exist in California. It exists in only a few states.

However, it is similar to Manslaughter charges. With Manslaughter, “Malice Aforethought” is not an element of the crime, as it is with Murder. Thus, it is clear that one’s state of mind at the time of the killing is vital in determining what type of charges will be filed.

California has three types of Manslaughter charges: 

  1. Voluntary;
  2. Involuntary;
  3. Vehicular.


While a person still kills another person willfully, deliberately, and intentionally under this scenario, the killing is committed without “premeditation.” This may seem a bit confusing. However, this is the typical “heat of the moment” scenario. Here is an example. A husband comes home and sees his wife engaged in sexual activity with another man in their bedroom. The man also happens to be his best friend, and the husband is completely shocked and upset. In the heat of the moment, he grabs his gun in his nightstand and kills his wife. This will likely be charged as Voluntary Manslaughter. This conviction can carry up to 11 years in state prison. (Usually, it is a three (3), six (6), or 11-year sentence).


Here, a person is killed by another, but there is no intent or malice involved. However, there must be a conscious and reckless disregard for human life. This carries up to a four (4) year sentence. (Usually, it is a two (2), three (3), or four (4) year sentence.


Vehicular Manslaughter occurs when some is killed by another person who is driving at the time of the incident. It can be charged as either a misdemeanor or felony; it will depend on the facts and circumstances of the case. (For example, if this is a repeat offense, it will likely be charged as a felony).

We’re Here to Help

If you’ve been charged with First Degree Murder or Second Degree Murder or Manslaughter in the Los Angeles area, contact us today for a free consultation. Your freedom depends on finding an experienced defense attorney immediately. The sooner you reach out, the sooner we can work on getting your case drastically reduced or dismissed entirely.

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How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

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