Unlawful killing
The Basics: A "homicide" refers to the killing of another person, whether lawful or unlawful. A homicide therefore includes murder, manslaughter, as well as justifiable killings.
"Murder" is the most aggravated type of homicide. It is always unlawful. What distinguishes murder from manslaughter in California law is the fact that malice is necessarily involved in a murder.
Malice aforethought
"The mental state constituting malice aforethought does not presuppose or require any ill will or hatred of the particular victim. When a defendant 'with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death,' he acts with malice aforethought."3
Under California murder law, Penal Code 187 (a), malice may be express or implied.
Express malice means that you specifically intend to kill the victim. Malice is implied when: (a) The killing resulted from an intentional act; (b) The natural consequences of the act are dangerous to human life; and (c) The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.4 Both first- and second-degree murder require malice.
First-degree murder in California law
Under California law, there are three ways to be convicted of first-degree murder:
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by committing the murder
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using a destructive device or explosive, weapon of mass destruction, ammunition primarily designed to penetrate metal or armor, or poison, or
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by killing in a way that is willful, deliberate, and premeditated, OR
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by way of the felony-murder rule (that is, by committing a specifically enumerated felony that automatically turns any logically related death into first-degree murder, discussed below).5
Capital murder
Under California law, capital murder, also referred to as first-degree murder with special circumstance , refers to first-degree murder charges that are punishable by either
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the death penalty, or
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a state prison sentence for life without the possibility of parole "LWOP".
Capital murder applies to over 20 different situations that involve murder. These "special circumstances" that elevate first-degree murder to capital murder are listed in California Penal Code 190.2 PC and include (but are not limited to):
Second-degree murder in California Law
Under California Penal Code 187, second-degree murder is also willful but is not deliberate and premeditated. Second-degree murder is any murder that isn't defined as first-degree murder.7 Examples of second-degree murder include (but are not limited to):
- shooting a gun into a crowded room and killing someone, even if that wasn't your intention (this is also a violation of (Penal Code 246.3 PC negligently discharging a firearm),8 and
- a convicted DUI offender getting drunk and causing an accident that kills another person.
The felony-murder rule
California's felony-murder rule applies to both first- and second-degree murder. It essentially creates murder liability for individuals…or their accomplices…who kill another person during the commission of a dangerous felony.
Under California murder law, there is no requirement that you kill the victim in furtherance of the underlying felony. In fact, any death that is logically related to the felony will suffice, regardless of whether it was intentional, accidental, or negligent.9 This means that even unforeseeable deaths will subject you to murder charges, so long as there is more than a mere coincidence between the time and place of the murder and the other felony.
First-degree felony-murder
The first-degree felony-murder rule only attaches during the commission of the following felonies:
Second-degree felony-murder
The second-degree felony-murder rule attaches to felonies that (1) are "inherently dangerous", and (2) not specifically included under the first-degree felony-murder rule.11
California courts have defined "inherently dangerous" felonies as those which cannot be committed without creating a substantial risk that someone will be killed.12 There is no established list of inherently dangerous felonies. As a result, the second-degree felony-murder rule is applied on a case-by-case basis.