California recognizes only two degrees of murder: first degree and second degree. There is no third-degree murder in California, even though the term comes up often in news coverage and TV dramas. Third-degree murder exists in only three states: Florida, Pennsylvania, and Minnesota.
This guide explains how California defines each degree of murder, the penalties under the California Penal Code, how killings that fall short of murder are charged as manslaughter, and how prosecutors build these cases from arrest to verdict. If you or a family member is already facing charges, our murder defense attorneys can review your case.
How California Defines Murder
Under Penal Code 187, murder is the unlawful killing of a human being, or a fetus, with malice aforethought. Malice aforethought is the element that separates murder from manslaughter and from legally justified killings, such as those made in self-defense.
Penal Code 188 recognizes two kinds of malice:
- Express malice: the person intended to kill.
- Implied malice: the person deliberately did something dangerous to human life, knew it was dangerous, and acted with conscious disregard for life.
Malice does not require hatred, ill will, or planning. Planning is what raises a murder to first degree. For a broader look at how these terms fit together, see our guide to murder vs. homicide vs. manslaughter.
First-Degree Murder in California
Penal Code 189 makes a murder first degree in three main ways.
1. A willful, deliberate, and premeditated killing. The person intended to kill and weighed that decision before acting. Premeditation does not require a long period of time. A cold, calculated decision can be made quickly, while a rash, impulsive act is not premeditated no matter how long it took.
2. A killing by a listed method. A murder is automatically first degree if it was committed by:
- a destructive device or explosive
- a weapon of mass destruction
- ammunition designed mainly to penetrate metal or armor
- poison
- lying in wait
- torture
- intentionally shooting from a motor vehicle at a person outside it, with intent to kill
3. Felony murder. A killing during certain felonies, or attempts at them, is first-degree murder. The listed felonies include arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture, and several sex offenses.
Since 2019, Senate Bill 1437 has limited who can be convicted of felony murder. A participant who did not personally kill can be convicted only if they:
- intended to kill and helped the actual killer, or
- were a major participant in the felony and acted with reckless indifference to human life, or
- took part in a felony where the victim was a peace officer on duty, and they knew or reasonably should have known it.
Our article on rethinking California’s felony murder rule covers the background to this reform.
First-Degree Murder Penalties
The standard sentence for first-degree murder is 25 years to life in state prison under Penal Code 190. The person must serve at least 25 years before becoming eligible for parole, and release is never guaranteed.
The sentence becomes life without the possibility of parole (LWOP) or death if prosecutors prove a “special circumstance” under Penal Code 190.2. Common special circumstances include:
- murder for financial gain
- multiple murders, or a prior murder conviction
- killing a peace officer, firefighter, judge, prosecutor, juror, or witness in specified situations
- murder by lying in wait or involving torture
- murder during a listed felony, such as robbery, kidnapping, rape, carjacking, or burglary
- an intentional killing by an active gang member to further the gang’s activities
Sentence enhancements can add more time. Personally firing a gun and causing death adds 25 years to life under Penal Code 12022.53(d). A prior serious or violent felony can double the base term under the Three Strikes law. Defendants who were under 18 at the time of the crime cannot be sentenced to death.
Does California Still Have the Death Penalty?
Yes, on paper. Death is still a legal sentence, and prosecutors can still seek it. However, Governor Newsom’s March 2019 executive order placed a moratorium on executions, and California has not executed anyone since 2006. At least 25 people have received death sentences since the moratorium took effect (CalMatters).
As of October 2026, about 560 people remain on death row. Newsom is reportedly considering commuting all of those sentences before he leaves office in January 2027, though his office says no decision has been made. For more background, read our guide to the death penalty in California.
Second-Degree Murder in California
Any murder that does not qualify as first degree is second-degree murder. In practice, that usually means one of two things: an intentional killing without premeditation, or a killing with implied malice.
Examples of conduct that can lead to a second-degree murder charge:
- A sudden argument escalates and one person intentionally kills the other, without planning but also without enough provocation to reduce the charge to manslaughter.
- Someone fires a gun into an occupied home or a crowd, knowing the danger, and a person dies.
- A driver with a prior DUI conviction, who was formally warned that drunk driving can kill, drives impaired and causes a fatal crash. This is known as a “Watson murder” (see our page on DUI causing death).
- A person delivers a severe beating, aware it could be fatal, and the victim dies.
Older articles sometimes describe “second-degree felony murder.” That theory no longer applies in California. Since SB 1437, malice cannot be imputed to someone based only on their participation in a crime, so prosecutors must prove express or implied malice to get a second-degree murder conviction.
Second-Degree Murder Penalties
The standard sentence for second-degree murder is 15 years to life in state prison under Penal Code 190. Certain facts increase it:
| Situation | Sentence |
|---|---|
| Standard second-degree murder | 15 years to life |
| Shooting from a motor vehicle at a person outside it, intending great bodily injury | 20 years to life |
| Victim was a peace officer on duty, and the defendant knew or reasonably should have known | 25 years to life |
| Peace officer victim, plus intent to kill or cause great bodily injury, or use of a deadly weapon or firearm | Life without parole |
The same firearm enhancement that applies to first-degree murder can add 25 years to life, which is why a second-degree murder with a gun often results in 40 years to life.
Because these are life terms, release depends on a parole board finding the person suitable. Murder also has no statute of limitations in California under Penal Code 799, so charges can be filed decades later.
Is There Third-Degree Murder in California?
No. California law has only first- and second-degree murder. “Capital murder” is not a separate degree either; it is first-degree murder with a special circumstance that makes the defendant eligible for death or life without parole.
Third-degree murder exists in only three states, and each defines it differently:
| State | What third-degree murder covers | Maximum prison term |
|---|---|---|
| Florida | An unintended killing during a felony not on the state’s list of serious felonies | 15 years |
| Pennsylvania | Any murder that is not first degree (intentional) or second degree (felony murder), such as a killing with malice but no intent to kill | 40 years |
| Minnesota | A killing caused by an act eminently dangerous to others, done with a “depraved mind” but without intent to kill; also certain deaths from selling drugs | 25 years |
In California, conduct that would be third-degree murder in those states is usually charged as second-degree murder based on implied malice, or as manslaughter, depending on the facts.
Murder vs. Manslaughter in California
Manslaughter is an unlawful killing without malice, defined in Penal Code 192. It is the lowest level of criminal homicide in California and carries far shorter, fixed prison terms than murder.
| Charge | What it means | Prison term |
|---|---|---|
| Voluntary manslaughter | An intentional killing in a sudden quarrel or heat of passion after adequate provocation, or in “imperfect self-defense” (an honest but unreasonable belief that deadly force was needed) | 3, 6, or 11 years |
| Involuntary manslaughter | An unintended killing during a lawful act done without due caution, or during a lesser, non-dangerous offense | 2, 3, or 4 years |
| Gross vehicular manslaughter while intoxicated (PC 191.5) | Driving under the influence with gross negligence and causing a death | 4, 6, or 10 years; 15 years to life with certain priors |
Juries in murder trials are often instructed on manslaughter as a lesser offense. That means a well-built defense can turn a murder charge into a manslaughter conviction, or an acquittal.
How Murder Cases Are Prosecuted in California
Murder cases follow the same basic stages of a criminal case as other felonies, with higher stakes at every step.
- Investigation and arrest. Homicide detectives collect physical evidence, DNA, phone and video records, and witness statements. Anything a suspect says can be used later, which is why it matters to know your rights during an interrogation.
- Charging. The district attorney files a felony complaint. Murder is usually charged under Penal Code 187, and the jury decides the degree at trial. The DA also decides whether to allege special circumstances or sentence enhancements, and whether to seek the death penalty.
- Arraignment and bail. The defendant enters a plea. Bail in murder cases is often set very high or denied, and capital cases are not bailable when the evidence of guilt is strong.
- Preliminary hearing. A judge decides whether there is enough evidence to hold the defendant for trial. If the evidence is weak, the defense can file a 995 motion to dismiss.
- Discovery and pretrial motions. Both sides exchange evidence through discovery. Prosecutors must disclose evidence favorable to the defense, and failing to do so is a Brady violation.
- Trial. A jury of 12 must agree unanimously that guilt was proven beyond a reasonable doubt. Under CALCRIM 521, if jurors have a reasonable doubt about whether a murder was first or second degree, they must find it second degree.
- Penalty phase (capital cases only). If a special circumstance is found in a death penalty case, the same jury hears more evidence and decides between death and life without parole.
- Sentencing and appeal. After sentencing, the defense can appeal the conviction.
How Prosecutors Prove Premeditation
Prosecutors rarely have direct proof of what someone was thinking. Instead, they build a case from circumstantial evidence in three main categories:
- Planning: buying a weapon, scouting a location, or luring the victim
- Motive: a prior relationship, debt, or conflict that explains why the person would want the victim dead
- Manner of killing: a method so specific or deliberate that it suggests a preconceived plan
The defense often challenges these facts to reduce first degree to second degree, or murder to manslaughter. Common defenses include self-defense, mistaken identity, lack of intent, heat of passion, and in rare cases not guilty by reason of insanity.
Juvenile Cases
Under Proposition 57, prosecutors cannot file charges against a minor directly in adult court. A juvenile court judge must hold a hearing and decide whether to transfer the case.
Resentencing Under SB 1437 and Penal Code 1172.6
People convicted of murder under old felony-murder rules may be able to get their conviction vacated or their sentence reduced. When SB 1437 took effect on January 1, 2019, it created a petition process now found in Penal Code 1172.6 (originally numbered 1170.95).
A petition may succeed if the person was convicted under the felony-murder rule or the “natural and probable consequences” doctrine and could not be convicted of murder under the law as it stands today. A later law, SB 775, extended this relief to certain attempted murder and manslaughter convictions.
If the petition shows a valid claim, the court holds a hearing where the prosecution must prove beyond a reasonable doubt that the person is guilty under current law. If prosecutors cannot meet that burden, the murder conviction is vacated and the person is resentenced on the remaining charges.
These petitions are technical and depend on the trial record, so it is worth having an experienced attorney review the case before filing.
California Homicide Charges Compared (Plus Third-Degree Murder in Other States)
| Charge | Mental state | Sentence |
|---|---|---|
| First-degree murder (California) | Premeditated intent to kill, a listed method, or felony murder | 25 years to life; LWOP or death with a special circumstance |
| Second-degree murder (California) | Intent to kill without premeditation, or implied malice | 15 years to life, up to LWOP in some cases |
| Voluntary manslaughter (California) | Intent to kill, but in heat of passion or imperfect self-defense | 3, 6, or 11 years |
| Third-degree murder | Does not exist in California; varies in FL, PA, and MN | Up to 15 years (FL), 25 years (MN), or 40 years (PA) |
Frequently Asked Questions
Does California have third-degree murder?
No. California only has first-degree and second-degree murder. Third-degree murder exists only in Florida, Pennsylvania, and Minnesota, and many people hear the term in news coverage from those states, which is why it is a common misconception. In California, similar conduct is usually charged as second-degree murder or manslaughter, depending on whether the prosecution can prove malice.
What is the minimum sentence for first-degree murder in California?
The standard sentence is 25 years to life, meaning at least 25 years in prison before parole eligibility. Parole is never guaranteed, since the parole board decides whether a person is suitable for release. Enhancements, such as personally firing a gun, can add more years to the minimum. If a special circumstance is proven, the only possible sentences are life without parole or death.
How much prison time is second-degree murder in California?
The standard sentence is 15 years to life. It can rise to 20 or 25 years to life, or life without parole, depending on the facts, such as a shooting from a vehicle or a peace officer victim. Gun enhancements can add another 25 years to life, so a second-degree murder involving a firearm often results in 40 years to life. As with first-degree murder, release after the minimum term depends on the parole board.
What is the difference between murder and manslaughter?
The difference is malice. Murder requires malice, either an intent to kill or a conscious disregard for life. Manslaughter is an unlawful killing without malice, such as a killing in the heat of passion or through criminal negligence, and it carries fixed prison terms instead of life sentences. That is why the same death can lead to very different outcomes depending on the person’s state of mind.
Can a murder charge be reduced to manslaughter?
Yes. It can happen through a plea agreement, or a jury can convict on manslaughter as a lesser offense. This usually depends on evidence of provocation, heat of passion, imperfect self-defense, or a lack of intent to kill. The reduction makes a major difference, since voluntary manslaughter carries a maximum of 11 years instead of a life sentence.
Can you be convicted of murder if you didn’t kill anyone?
Only in limited situations. Since SB 1437, a person who did not kill can be convicted of murder only if they intended to kill and helped the killer, or were a major participant in a dangerous felony and acted with reckless indifference to human life. People convicted under the older, broader rules may be able to petition for resentencing under Penal Code 1172.6.
Facing a Murder Charge in California?
The difference between first-degree murder, second-degree murder, and manslaughter can mean the difference between life in prison and a fixed term with a release date. Those lines are drawn from evidence about intent, planning, and circumstances, which is exactly where a strong defense focuses.
If you or a loved one is under investigation or has been charged, talk to a murder defense lawyer as early as possible. Contact us for a free, confidential consultation.
This article is for general information only and is not legal advice. Laws and their application change, so speak with a licensed California attorney about your specific situation.