Penal Code 187 PC: Murder Degrees, Penalties & Defenses

California Penal Code 187 is the state’s murder statute. It defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought, and it is the law prosecutors use to charge every murder case in California, from premeditated shootings to fatal drunk driving crashes. A conviction under Section 187 carries anywhere from 15 years to life in state prison up to life without the possibility of parole, depending on the degree of murder and whether aggravating factors apply.¹

What Prosecutors Have to Prove

To get a murder conviction, the prosecution has to prove three things beyond a reasonable doubt: that the defendant killed another person, that the killing was unlawful (meaning not legally justified), and that the defendant acted with malice aforethought. Malice is the element that separates murder from lesser homicide charges.

Malice comes in two forms. Express malice means the defendant intended to kill. Implied malice applies when a person commits an intentionally dangerous act, knows the act risks human life, and does it anyway with conscious disregard for that risk. The statute describes implied malice as conduct showing “an abandoned and malignant heart.”²

Prosecutors also have to prove causation: the defendant’s actions were a substantial factor in causing the death. If the victim would not have died without the defendant’s conduct, causation is established. This matters where multiple factors contributed to death, such as a victim with a pre-existing medical condition that made the injury more lethal than it otherwise would have been.

First-Degree Murder

First-degree murder is a killing that was willful, deliberate, and premeditated. Deliberation means the defendant weighed the decision to kill before acting. The prosecution does not have to show planning over hours or days. Even brief reflection counts, as long as the decision came before the fatal act rather than during it.³

Some killing methods are first-degree murder automatically, regardless of how much planning went into them. These include murder by poison, torture, lying in wait, explosive device, weapon of mass destruction, or armor-piercing ammunition. A drive-by shooting aimed intentionally at someone outside the vehicle with intent to kill also qualifies.⁴

Second-Degree Murder

Any murder that is not first-degree is second-degree. This usually covers killings where the defendant intended to kill but acted impulsively without premeditation, and killings resulting from extremely reckless conduct where the defendant knew the danger and ignored it.⁴

Watson Murder: DUI as Second-Degree Murder

The best-known use of implied-malice second-degree murder in California comes from People v. Watson, a 1981 California Supreme Court case. The court held that driving drunk with conscious awareness of the deadly risk can support a murder charge instead of just manslaughter.⁵

A prior DUI conviction is not technically required, but it is how most of these cases are built. When someone is convicted of DUI in California, the court requires them to sign a “Watson advisement” acknowledging that drunk driving is dangerous to human life and that a subsequent fatal DUI could be prosecuted as murder. That signed acknowledgment becomes strong evidence of the knowledge needed to prove implied malice.

The Felony Murder Rule

If someone dies during the commission of certain dangerous felonies, the people involved can be charged with first-degree murder even if no one planned a killing. The qualifying felonies include arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, and several sex offenses.⁴

California narrowed the felony murder rule significantly in 2019 through Senate Bill 1437. Before the reform, anyone involved in a qualifying felony where someone died could be charged with murder, including a lookout across the street. Now, a participant in the underlying felony is only liable for murder if one of three conditions is met:

They were the actual killer.
They helped the actual killer and intended for the victim to die.
They were a major participant in the felony and acted with reckless indifference to human life.

One exception remains. If the victim was a peace officer killed in the line of duty and the defendant knew or should have known the victim was an officer, the narrowed rules do not apply.⁴

Penalties Under Penal Code 187

Sentencing depends on the degree of murder and on any special circumstances or enhancements the prosecution proves.

First-Degree Murder

A first-degree murder conviction carries 25 years to life in state prison. The defendant must serve at least 25 years before becoming eligible for a parole hearing, with no guarantee of release. If prosecutors prove one or more special circumstances, the sentence becomes life without the possibility of parole or, in theory, death.⁶

Second-Degree Murder

The standard sentence for second-degree murder is 15 years to life. Enhanced sentences apply in specific situations:

25 years to life if the victim was a peace officer killed in the line of duty and the defendant knew or should have known the victim was an officer.
Life without parole if the victim was a peace officer and the defendant specifically intended to kill, intended to inflict great bodily injury, or personally used a firearm or deadly weapon.
20 years to life if the killing was a drive-by shooting committed with intent to inflict great bodily injury.

⁶

Special Circumstances

Special circumstances are aggravating factors that make a first-degree murder defendant eligible for life without parole or death. The statute lists more than 20, and prosecutors must prove them separately from the murder charge. Commonly charged special circumstances include:

Murder for financial gain
Multiple murder convictions, current or prior
Murder of a peace officer, firefighter, or witness
Murder committed during a robbery, kidnapping, rape, or other specified felony
Murder by a bomb or explosive placed in a building
Murder to avoid arrest or escape custody

⁷

Firearm Enhancements

California’s “10-20-life” law adds consecutive time for murders involving a firearm. Personally using a gun during the murder adds 10 years. Firing the gun adds 20 years. If the shooting caused great bodily injury or death, the enhancement is 25 years to life, stacked on top of the murder sentence.

The Death Penalty Moratorium

Although the death penalty remains on the books for first-degree murder with special circumstances, California has not carried out an execution since 2006. Governor Gavin Newsom signed an executive order in March 2019 placing a moratorium on all executions, closing the execution chamber at San Quentin State Prison, and withdrawing the state’s lethal injection protocols. The moratorium does not commute existing death sentences or release anyone from prison, but no executions will occur while it remains in effect.⁸

Murder vs. Manslaughter

The line between murder and manslaughter is malice. Murder requires it; manslaughter does not. The sentencing gap is enormous, which is why reducing a murder charge to manslaughter is often the central goal of a defense.⁹

Voluntary manslaughter is an intentional killing committed during a sudden quarrel or in the heat of passion. The provocation has to be severe enough that a reasonable person could have been driven to act from emotion rather than judgment, and the killing has to happen before the defendant had time to cool down. The sentencing range is three, six, or eleven years in state prison, compared with 15-to-life or 25-to-life for murder.

Involuntary manslaughter covers unintentional killings resulting from criminal negligence or the commission of a minor unlawful act. The defendant did not mean to kill and was not acting with the extreme recklessness that supports implied malice. A fatal bar fight where someone throws a single punch and the victim falls and hits their head is a familiar example. Vehicular manslaughter is treated as a separate category under the same statute and applies to deaths caused by negligent or unlawful driving.⁹

Defenses to a Murder Charge

A charge is not a conviction. Several defenses can lead to acquittal, reduced charges, or lower sentencing.

Self-Defense and Defense of Others

California recognizes homicide as justifiable when committed to resist an attempt to murder, commit a felony, or inflict great bodily injury on any person. The same rule applies when defending your home against someone who clearly intends to commit a violent crime inside it. A successful self-defense claim is a complete acquittal, because the killing was lawful and therefore not murder at all.¹⁰

The defendant has to have reasonably believed they or someone else faced imminent danger of death or serious injury, and the force used must have been proportional to the threat. Self-defense is not available to someone who was the initial aggressor, unless they genuinely tried to withdraw from the fight before the killing.

Imperfect Self-Defense

When the defendant honestly believed they faced imminent deadly danger and honestly believed deadly force was necessary, but one or both of those beliefs was objectively unreasonable, the defense is called imperfect self-defense. It does not produce an acquittal. It removes the malice element required for murder and reduces the charge to voluntary manslaughter. Juries are instructed to consider what the defendant actually knew and believed at the moment of the killing, including prior threats or violence from the victim.¹¹

Insanity

California uses a strict insanity test. The defendant has to prove, by a preponderance of the evidence, that at the time of the killing they were incapable of understanding the nature of their act and could not distinguish right from wrong. Both prongs have to be met. A successful insanity defense does not mean release; the defendant is typically committed to a state mental hospital.¹²

There Is No Statute of Limitations

Murder charges can be filed at any time, no matter how many years have passed since the killing. California provides no statute of limitations for offenses punishable by death or life in prison, which covers both first-degree and second-degree murder. Cold case units regularly file murder charges decades after the crime, and advances in DNA technology have made that increasingly common.¹³

1
California Legislative Information. California Code PEN 187 – Murder
2
California Legislative Information. California Penal Code 188 – Malice Defined
3
Justia. CALCRIM No. 521 – First Degree Murder
4
California Legislative Information. California Penal Code 189 – Degrees of Murder
5
Justia Law. People v. Watson
6
California Legislative Information. California Penal Code 190 – Punishment for Murder
7
California Legislative Information. California Penal Code 190.2 – Special Circumstances
8
Office of the Governor. Governor Gavin Newsom Orders a Halt to the Death Penalty in California
9
California Legislative Information. California Penal Code 192 – Manslaughter
10
California Legislative Information. California Penal Code 197 – Justifiable Homicide
11
Justia. CALCRIM No. 571 – Voluntary Manslaughter Imperfect Self-Defense
12
California Legislative Information. California Penal Code 25 – Insanity Defense
13
California Legislative Information. California Penal Code 799 – No Limitation