California Penal Code 189 splits murder into two degrees. First-degree murder covers killings that were willful, deliberate, and premeditated; killings carried out by specific deadly methods the statute names; and killings that occur during certain violent felonies. Every other murder with malice is second degree. The baseline sentences are 25 years to life for first-degree murder and 15 years to life for second-degree, both set by Penal Code 190.
What Penal Code 189 Covers
Section 189 doesn’t define murder itself. That job belongs to Penal Code 187, which defines murder as the unlawful killing of a human being or a fetus with malice aforethought,1California Legislative Information. California Penal Code 187 and Penal Code 188, which explains what malice means. Express malice is a deliberate intent to kill. Implied malice is present when a person intentionally does something so dangerous to human life that the act itself shows a conscious disregard for whether someone dies.2California Legislative Information. California Penal Code 188 – Malice
Once a killing qualifies as murder under 187, Section 189 sorts it into a degree. That sort controls the sentence and, in some cases, whether the death penalty or life without parole is on the table.
First-Degree Murder Under Section 189
Penal Code 189 identifies three ways a murder becomes first degree: premeditation, use of a listed deadly method, or death during a listed felony.3California Legislative Information. California Penal Code 189
Willful, Deliberate, and Premeditated
A killing is first-degree murder when the defendant intended to kill (willful), weighed the decision (deliberate), and decided to kill before acting (premeditated). The statute makes clear that premeditation doesn’t demand lengthy or meaningful reflection on the gravity of the act. A brief period of advance planning is enough.
This is the line most often argued at trial. A person who intends to kill in a sudden rage may have express malice, but without any pause to consider the choice, the killing typically falls into second-degree murder. Premeditation is what separates the two.
Killings by Listed Methods
Certain methods automatically make a killing first degree because the method itself reflects calculation. Section 189 names poison, lying in wait, torture, use of a destructive device or explosive, a weapon of mass destruction, and armor-piercing ammunition designed to penetrate metal. A drive-by shooting — firing from a motor vehicle at a person outside the vehicle with intent to kill — is on the list as well.
Lying in wait is worth its own note because it comes up often and is more specific than it sounds. The prosecution has to show that the defendant concealed the purpose of the encounter, watched and waited long enough to demonstrate deliberation, and launched a surprise attack that gave the victim no chance to defend themselves. Physical concealment isn’t required. Hiding the purpose is enough, even if the victim knew the defendant was present.
The Felony Murder Rule
Under Penal Code 189, a death that occurs during the commission or attempted commission of certain violent felonies is first-degree murder even if the defendant didn’t intend to kill. The listed felonies are arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, and specific sex offenses including lewd acts with a child and forcible penetration.
That rule used to sweep broadly. A getaway driver who never expected violence could be convicted of murder because someone else killed during the underlying felony. Senate Bill 1437, effective January 1, 2019, tightened the rule.
Who Can Be Convicted Under the Current Rule
Penal Code 189(e) now limits felony murder liability for participants who weren’t the actual killer. A non-killer participant can be convicted only if one of the following is true:
- The person aided or encouraged the actual killer with the specific intent that the victim die.
- The person was a major participant in the underlying felony and acted with reckless indifference to human life.
These limits do not apply when the victim was a peace officer killed in the line of duty and the defendant knew or reasonably should have known the victim’s role.
Resentencing Petitions Under Penal Code 1172.6
The 2019 reform is retroactive through a resentencing procedure. Under Penal Code 1172.6, a person convicted of felony murder, murder on a natural and probable consequences theory, or any theory that attributed malice based solely on participation in a crime can petition the sentencing court to vacate the murder conviction if they could not be convicted under the current statute. If the court finds a preliminary basis for relief, it holds a hearing where the prosecution has to prove beyond a reasonable doubt that the petitioner is still guilty of murder under the current standards. People convicted of attempted murder on a natural and probable consequences theory can petition as well.4California Legislative Information. California Penal Code 1172.6
For anyone currently serving a murder sentence tied to a felony where someone else did the killing, 1172.6 is worth reviewing with a criminal defense attorney.
Second-Degree Murder
Penal Code 189(b) puts it in a single line: all other kinds of murders are of the second degree. If a killing involves malice aforethought but doesn’t meet a first-degree category, it’s second degree.
Most second-degree cases turn on implied malice. Prosecutors don’t have to prove a plan to kill. They have to prove the defendant intentionally did something whose natural consequences were dangerous to human life, knew the act was dangerous, and did it anyway with conscious disregard for life.5Justia. CALCRIM No. 520 – First or Second Degree Murder With Malice Aforethought Firing a gun into an occupied building without aiming at anyone in particular, or providing a lethal dose of drugs while knowing the risk, are the kinds of facts prosecutors bring under this theory.
Watson Murder: Fatal DUI as Second-Degree Murder
The California Supreme Court held in People v. Watson (1981) that a fatal DUI can be charged as second-degree murder when the driver acted with implied malice rather than ordinary negligence.6Justia. People v. Watson Penal Code 192(e) preserves that path by stating that gross negligence in a vehicular death does not preclude a murder charge when the facts show conscious disregard for life.7California Legislative Information. California Penal Code 192
To prove a Watson murder, prosecutors introduce evidence that the defendant already knew drunk driving was deadly. Prior DUI convictions are the clearest proof. Courts and DUI programs also require defendants to sign a “Watson advisement,” a written acknowledgment that driving under the influence is extremely dangerous to human life and can support a murder charge if someone dies. DUI education records serve the same purpose. When a driver signed that advisement or completed that class and then killed someone while impaired, the state has strong evidence of the awareness that separates murder from manslaughter.
Sentences for First- and Second-Degree Murder
Penal Code 190 sets the sentences. Credit for time served does not reduce the minimum term of any murder sentence, and a defendant cannot be paroled before completing the stated minimum.8California Legislative Information. California Penal Code 190
First Degree
The baseline is 25 years to life in state prison. If the jury finds one or more “special circumstances” true under Penal Code 190.2, the sentence becomes life without the possibility of parole or death.9California Legislative Information. California Penal Code 190.2 – Penalty for First Degree Murder Commonly charged special circumstances include murder for financial gain, multiple murders in the same proceeding, a prior murder conviction, killing to avoid arrest or escape custody, intentional killing of a peace officer, federal agent, or firefighter performing official duties, killing a witness to prevent testimony, and use of an explosive or destructive device the defendant planted, mailed, or delivered. The full list in 190.2 is longer.
The death penalty remains in the code, but Governor Gavin Newsom’s March 2019 executive order imposed a moratorium on executions, granted a reprieve to everyone on death row, repealed the state’s lethal injection protocol, and closed the execution chamber at San Quentin.10California Department of Corrections and Rehabilitation. California Capital Punishment Courts can still impose death sentences, but life without parole is currently the harshest sentence actually being carried out.
Second Degree
The baseline is 15 years to life. Three situations raise it:
- Drive-by shooting: firing from a vehicle at a person outside with intent to inflict great bodily injury raises the sentence to 20 years to life.
- Peace officer victim: killing a peace officer in the line of duty, where the defendant knew or should have known the victim’s role, carries 25 years to life.
- Peace officer victim with aggravating findings: the same scenario plus a finding of specific intent to kill, intent to cause great bodily injury, or personal use of a firearm or deadly weapon carries life without parole.
Where Manslaughter Fits Instead
Section 189 only governs killings that already qualify as murder under Penal Code 187. When a killing is unlawful but lacks malice, it falls under manslaughter in Penal Code 192, not under 189. Voluntary manslaughter (an intentional killing during a sudden quarrel or in the heat of passion) and involuntary manslaughter (a killing caused by criminal negligence during a non-felony act) sit outside the two-degree structure entirely, with far shorter sentences.7California Legislative Information. California Penal Code 192 Whether a case is charged and tried as murder under 189 or as manslaughter under 192 turns on that malice question.