California Penal Code § [Section] 187(a) – Murder
California Penal Code [CPC] §187(a) – Murder – Murder is the unlawful killing of a human being or fetus with malice aforethought. Penal Code Section 187 applies to murders that are premeditated or specified in the criminal statutes. The Section also applies to killings that occur during the commission of dangerous felonies via ‘the Felony-Murder Rule.'
If you're convicted under Section 187, you can be sentenced to life without the possibility of parole in a state prison and pay a fine of $10,000. Murder is also punished under California's “Three Strikes” system. If you get three “strikes” on your record, you'll serve a minimum of twenty-five years in prison.
What Does California Penal Code §187(a) [Murder] Prohibit?
In sum, to be guilty of Murder under CPC §187(a), you must:
- Commit an act that caused a death; OR,
- Have a legal duty to help a person who died; AND,
- Fail to perform your duty; AND,
- Cause the person's death; AND,
- Have a state of mind called malice aforethought; AND,
- Have no lawful excuse.
Defining “Murder” Under California Penal Code §187(a)
To convict you under CPC §187(a), the prosecutor must prove the following beyond a reasonable doubt:
- COMMITTED AN ACT: You committed an act that caused the death of another person or a fetus; OR,
- HAD A LEGAL DUTY: You had a legal duty to help, care for, rescue, warn, maintain the property of, or perform some other required action for another person or a fetus; AND,
- FAILED TO PERFORM: You failed to perform that duty; AND,
- MALICE AFORETHOUGHT: When you acted or failed to act, you had a state of mind called malice aforethought; AND,
- NO LAWFUL EXCUSE: You had no lawful excuse or justification.
Note: “It is not necessary that the defendant be aware of the existence of a fetus to be guilty of murdering that fetus.”
There are two kinds of malice aforethought. The first is express malice. The second is implied malice. If the prosecution can prove either of these, it is sufficient to establish the state of mind required for guilt under Section 187 of the California Penal Code.
- Express Malice
Simply put, you have “express” malice if you unlawfully intended to kill at the time of your act.
- Implied Malice
For purposes of the law, you have “implied” malice if: 1) You intentionally commit an act or fail to act; 2) The natural and probable consequences of the act or failure to act are dangerous to human life; 3) At the time you act or fail to act, you know it is dangerous to human life; and, 4) You deliberately act or fail to act with conscious disregard for human life.
Malice aforethought does not require hating or having ill will toward your victim. It is simply a mental state that must be formed before the act that causes death is committed. Nor does malice aforethought require deliberation or the passage of a particular period of time. A moment's consideration is enough time to find malice aforethought in a homicide situation.
Example: Defendant Davey is paid to kill Victim Vin. He approaches Vin in a nightclub and spills a drink onto Vin's bare arm. The drink is actually filled with cyanide. Vin dies three years and a day later in a hospital. Davey is then charged under CPC §187(a). He insists that he can't be charged because too much time has passed to connect him with the death. Is Davey correct?
Conclusion: Davey willfully administered cyanide to Vin by allowing it to seep into Vin's skin. Davey had no excuse for it. The facts communicate no reason for Vin to have died besides than the cyanide. These are the elements of the crime. Since Vin has died more than three years after being poisoned, there is a rebuttable presumption his death wasn't a murder. But Davey could still be charged. He is incorrect.
Penalties For Murder Under CPC §187(a)
If you're convicted of first-degree Murder, the penalty (without enhancement) may be:
- A term of 25 (twenty-five) years to life in a state prison; AND,
- A fine of up to $10,000 (ten-thousand dollars).
If your homicide is categorized as a hate crime, however, you face:
- A term of life without the possibility of parole in a state prison; AND,
- A fine of up to $10,000 (ten-thousand dollars).
As noted previously, murder is ordinarily punished with twenty-five (25) years to life in a state prison and a fine of up to $10,000 (ten-thousand dollars). However, if your murder is categorized as a hate crime, you face life without the possibility of parole.
Murder is also punished under California's “Three Strikes” system. If you get three “strikes” on your record, you'll serve a minimum of twenty-five (25) years in a state prison. Furthermore, if you used a firearm in commission of the murder, can face an additional twenty-five (25) years in state prison.
Note: LA County prosecutors are not seeking the death penalty for any reason at this time.
Defenses Against California Penal Code §187(a) – Murder
Five common defenses against a charge of Murder under CPC §187(a) are:
The Killing Was Accidental
Example: Defendant Derek goes hunting. He wears protective gear and a bright orange vest when he does it, knowing that he's required to do so. But Victim Veronica, thinking she'll attract prey to kill, ignores the rules and attires herself to look like a deer. Derek shoots and kills her from a great distance, only realizing that she was human when he's charged under CPC §187(a). Should he be convicted?
Conclusion: Derek willfully shot at a figure that turned out to be human. He killed Veronica. These are elements of the crime. But Derek had no way of knowing that he wasn't shooting lawfully at a deer “from a great distance” when he killed Veronica. She'd made an effort to appear to be an animal. Since he didn't believe he was hurting a human, Derek should be acquitted. The killing was accidental.
You Acted In Self-Defense Or Defense Of Another
Example: Defendant Dorian gets into a bar fight with Victim Verne. It begins as a fistfight. But Verne soon escalates it by breaking a bottle and jamming the jagged remnants into Dorian's neck. Dorian, desperate to defend himself, stabs Verne with a knife. Soon after, Verne dies. Now Dorian is facing a charge under CPC §187(a). He says he was defending himself and shouldn't be convicted. Is he correct?
Conclusion: Dorian willfully stabbed Verne. Dorian killed Verne by doing so. These are elements of the crime. But Dorian was responding to an escalation of force by Verne which could've cost Dorian his life. On these facts, so long as he used only the force reasonably necessary to defend himself (and for only as long as reasonably necessary), Dorian can claim a legal excuse. He is correct. He acted in self-defense.
You Were Mistakenly Identified
Example: Defendant Donna's Sister murders Victim Vonn. Donna so strongly resembles Sister that Witness later identifies Donna as Vonn's attacker. Donna is arrested and charged under CPC §187(a). She insists that she did nothing wrong. She also has an alibi for her whereabouts at the time of the murder, proving that she couldn't have done it. Is Donna guilty of Vonn's murder, on these facts?
Conclusion: Donna, as the facts make clear, didn't kill Vonn. Donna even has an alibi to establish that she couldn't be Vonn's murderer. Sister is the perpetrator of the crime. But Sister and Donna look so much alike that they were confused by Witness. Thus, Donna is innocent. She was mistakenly identified.
You Lacked Capacity To Kill (Insanity)
Example: Defendant Daniel is suffering from a dangerous delusion that Victim Vincent is about to kill him. He decides to take matters into his own hands and shoots Vincent in the back one day. Vincent dies five days later. Daniel is charged under CPC §187(a). Doctors and Friends insist Daniel couldn't tell the difference between right and wrong when he shot Vincent. Should Daniel be convicted, on these facts?
Conclusion: In California, one can be excused for committing a crime if one is incapable of understanding the difference between right and wrong or cannot understand the nature of one's acts at the time of committing a crime. This is the Insanity test. The facts state that Daniel was under a delusion when he shot Vincent. Others will testify to this. Daniel shouldn't be convicted. He lacked the capacity to kill.
You Were The Victim Of Police Misconduct
Example: Homicide Detective is desperate to solve a murder. He is convinced the killer is Defendant Dallas, so he trespasses onto Dallas's property and leaves a key piece of evidence connected to the murder in Dallas's bushes. Then he “finds” the evidence and has Dallas charged under CPC §187(a). Dallas insists he did nothing and is “being set-up.” Should he be convicted, under these circumstances?
Conclusion: Dallas didn't have the key evidence on his property before Homicide Detective left it under Dallas's bushes. This was the result of Homicide Detective's groundless suspicion. Furthermore, the facts provide no reason to believe Dallas committed the murder (completely consistent with what Dallas says of himself). It follows that he should not be convicted. Dallas is the victim of police misconduct.
Other Forms Of Homicide Under California Law
There are several other forms of homicide in California.
- Felony Murder
Felony Murder involves all forms of murder occurring while committing a dangerous felony. Under those circumstances, a prosecutor only need only prove that a death simply occurred during the commission of the felony to convict the defendant of murder. The rule exists in order to encourage people to commit felonies in a safer way, if they choose to commit felonies at all.
However, the felony murder rule prohibits being liable for murder unless a defendant was the actual killer (or, with intent to kill, “aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer,” or “was a major participant in the underlying felony and acted with reckless indifference to human life,” unless the victim was a peace officer killed in the course of performing his or her duties.
The “dangerous felonies” for purposes of first-degree felony murder charges are listed CPC §189(a). All other forms of murder are second-degree felony murders for charging purposes, so long as they involve inherently dangerous conduct and aren't listed in the Code Section. But the definition of “inherently dangerous” is unclear. No statute defines the term, so courts are left to flesh it out on an ad hoc (case-by-case) basis.
Felony Murder is also punished under California's “Three Strikes” system. If you get three “strikes” on your record, you'll serve a minimum of twenty-five (25) years in a state prison.
You can find more information in the California Violent Crime Defense Lawyers section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer - guaranteed.
- Second Degree Murder
Second Degree Murder encompasses all forms of murder which are not deliberate and premeditated.
Second degree murder convictions ordinarily carry a term of up to fifteen (15) years in prison and a fine of up to $10,000 (ten-thousand dollars). However, aggravating factors can increase the sentence up to a life term. You face a term that is longer than fifteen years if any of the following applies to you: 1) Your victim was a peace officer and you intended to kill the peace officer, inflict great bodily injury, or used a deadly weapon or a firearm; 2) You shot from a vehicle and intended to cause serious injury; or, 3) You served time previously for a murder.
Second Degree Murder is also punished under California's “Three Strikes” system. If you get three “strikes” on your record, you'll serve a minimum of twenty-five (25) years in a prison.
Manslaughter is punishable in three forms. The first is Voluntary. It occurs in “the heat of passion” or during an intense argument. The second form is Involuntary Manslaughter, which occurs “in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” The final form is Vehicular Manslaughter, which involves: 1) Driving in an unlawful way that doesn't amount to a felony (with or without gross negligence); 2) Driving during the commission of a lawful act that might produce death in an unlawful manner; or, 3) Knowingly causing an accident for financial gain. None involves malice in the killing, however.
The penalty for Voluntary Manslaughter may be a term of up to eleven (11) years in a state prison and a fine of up to $10,000 (ten-thousand dollars). The penalty for Involuntary Manslaughter may a term of up to four (4) years in a state prison and a fine of up to $10,000 (ten-thousand dollars). The penalty for Vehicular Manslaughter may be a term of up to ten (10) years in a state prison and a fine of up to $10,000 (ten-thousand dollars).
You can find more information in the California Manslaughter Defense Lawyer section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer – and that's guaranteed.
- DUI Murder (The Watson Rule)
DUI Murder is a unique category of second-degree murder. It originates with a case called People v. Watson. The defendant, Robert Watson, drove while intoxicated and caused a vehicular accident, killing two people. The Court found that Watson had notice of the danger he posed to others because, among other facts, he drove through a red light and then sped into an intersection at more than twice the speed limit. The circumstances were egregious, the Court concluded. Thus, Watson could be charged under the theory he had “implied malice” sufficient to make his act punishable as murder, not Vehicular Manslaughter. He intentionally committed a dangerous act. He knew of the danger it posed to others. Yet, still, Watson acted with conscious disregard for human life. These are now the elements of the legal test for DUI Murder.
For prosecution purposes, DUI Murder charges are usually filed against defendants who have a prior DUI conviction on their records. This explains why judges read a “Watson advisement” when convicting anyone of driving under the influence in California. The advisement makes it clear that if a convicted defendant has a subsequent fatal DUI, prosecutors may bring murder charges against him or her.
You can find more information in the California DUI Law section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer - guaranteed.
- Attempted Murder
Attempted Murder law in California specifies that it is a crime to take at least one direct (but ineffective) step towards killing another person or a fetus and intend on killing that person or fetus. The penalty may be a term of life in a state prison (with the possibility of parole) and a fine of up to $10,000 (ten-thousand dollars).
Attempted Murder is also punished under California's “Three Strikes” system. If you get three “strikes” on your record, you'll serve a minimum of twenty-five (25) years in a state prison.
- Gang-Related Murder
Gang-related Murder is subject to a special sentence enhancement. When prosecutors decide a murder punishable under CPC §187 was committed at the direction of a criminal street gang, for the benefit of a criminal street gang, or in association with a criminal street gang, a person convicted of that murder is subject to an additional term of fifteen (15) years to life in prison.
You can find more information in the Southern California Gang Crime Lawyer section of the Kann California Law Group's website. Feel free to contact the Kann California Law Group offices in Santa Clarita, Ventura, Encino, Pasadena or Los Angeles/Los Angeles County. Your call will go directly to a lawyer - guaranteed.
- Aiding A Suicide
Contrary to popular belief, California law criminalizes aiding another person in suicide outside of specified legal bounds. Penal Code Section 401 makes it illegal to aid, advise, or encourage another to commit suicide unless your actions comply with the End of Life Option Act. Note: “Aiding” involves providing means of some sort to the decedent. The crime is punishable by up to three (3) years in a state prison and/or a fine of up to $10,000 (ten-thousand dollars).
What Can I Do If I'm Charged With Murder?
The State of California regards Murder as an extremely serious offense. If you're charged with Murder, it's essential that you retain a skilled, dedicated criminal defense attorney as soon as possible. Your rights, freedom, and livelihood are at stake.
Remember, a professional criminal defense attorney may be able to:
- Negotiate a lesser charge in a plea bargain;
- Reduce your sentence;
- Or even get charges dismissed completely.
The attorneys at the Kann California Law Group have an excellent understanding of the local courts and an extensive knowledge of California's criminal justice system. We can represent you in Ventura, Santa Clarita, Los Angeles, Encino, Pasadena and many other Southern California cities.
If you or someone you know has been arrested for, or charged with, Murder, our attorneys will analyze the facts of your case and plan a strategy that will help you obtain the best possible outcome.
Contact the Kann California Law Group today to schedule your free and confidential consultation.
 See California Penal Code [CPC] §189 (a).
 See CPC §1192.7 (c) (1).
 “A fetus is an unborn human being that has progressed beyond the embryonic stage after major structures have been outlined, which typically occurs at seven to eight weeks after fertilization.” See California Criminal Jury Instructions 520 (CALCRIM) (2020).
 “An act or a failure to act causes death if the death is the direct, natural, and probable consequence of the act or failure to act and the death would not have happened without the act or failure to act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.” See above.
 “There may be more than one cause of death. An act or a failure to act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.” See California Criminal Jury Instructions 520 (CALCRIM) (2020).
 See California Criminal Jury Instructions 520 (CALCRIM) (2020).
 Fact pattern based on actual crimes of convicted serial/contract killer Richard Kuklinski. See Murderpedia.org.
 See CPC §194.
 See CPC §190 (a).
 See CPC §672.
 See CPC §422.55 for the definition of “hate crime.”
 See CPC §190.03 (a).
 See Endnote 10.
 See Endnote 9.
 See Endnote 10.
 See Endnote 11.
 See also CPC §667.5 (c) (1) [murder as a “violent felony”].
 See CPC §667 (e) (2) (A) (ii).
 See CPC §12022.53 (d).
 See “Special Directive 20-11” from George Gascon, Office of the LA District Attorney, December 7, 2020.
 See California Criminal Jury Instructions 1304 (CALCRIM) (2020).
 Fact pattern based on R. v M'Naghten (8 E.R. 718; (1843) 10 Cl. & F. 200 (1843)).
 See Senate Bill 1437 (Ch. 1015) (Approved, filed, September 30, 2018).
 See Endnote 2, 17.
 See Endnote 18.
 See Endnote 2, 17.
 See Endnote 18.
 See CPC §192.
 See CPC §193 (a).
 See Endnote 10.
 See CPC §193 (b).
 See Endnote 10.
 See CPC §193 (c) (3).
 See Endnote 10.
 See People v. Watson appeal (Crim. No. 21674, Supreme Court of California (1981)).
 See California Criminal Jury Instructions 600 (CALCRIM) (2020).
 See CPC §664 (a).
 See Endnote 10.
 See CPC §1192.7 (c) (39).
 See Endnote 18.
 See CPC §§ [Sections] 186.22 (B), (C). [Version: (Amended (as amended by Stats. 2017, Ch. 561, Sec. 179) by Stats. 2021, Ch. 699, Sec. 4.)]
 See CPC §401 (a).
 See CPC §443.
 See CPC §18 (a).
 See Endnote 10.