Skip to Content

What is Murder in California? (Penal Code section 187)


What is the Crime of Murder in California?

All crimes in California are contained in statutes. California has no common law crimes.

Murder is the unlawful killing of a human being or fetus with malice aforethought which essentially means on purpose with some thought behind it. The standard California murder statute is Penal Code 187.

Using the word malice is confusing so in practical terms you can substitute, "the thought process for murder is divided into two type of thought."

The law says there are two mental states for murder. Murder with Malice that is express and murder where the malice (thought to kill) is implied”.

Express is a thought process that is very direct such as “I am going to kill that person”. Implied is a thought process that is not direct but is obvious such as, “If I drive a car into the crowd it is obvious someone might get killed”.

There is also felony murder which is a murder charge filed against someone who doesn’t plan to kill but causes the death of another person by being a major participant in a different crime such as a bank robbery.

Murder can be classified into different degrees, depending on the circumstances of the killing. First-degree murder is the most serious type of murder, and it includes premeditated killings, felony murders, and killings involving certain weapons or methods such as lying in wait.

Second-degree murder is any murder that does not fall under the first-degree category.

The punishment for murder in California varies depending on the degree and the presence of any special circumstances. First-degree murder can be punished by 25 years to life in prison, life without parole, or death. Second-degree murder can be punished by 15 years to life in prison1 There are also additional penalties for certain factors, such as the victim’s identity, the defendant’s criminal history, or the use of a firearm. The use of a firearm is a major enhancement.

Life Without Parole arises in cases where the death penalty is permitted by law but the prosecution chooses to proceed for the lesser penalty of prison with no chance of release.

Defenses in murder cases include accident, no intent to kill, self defense and heat of passion (voluntary manslaughter).

If you are charged with murder our Criminal Defense Specialists have taken dozens of murder cases to trial.  Daniel Horowitz has been trial counsel in 7 death penalty cases and over 30 murders.