California Penal Code §187: What to Know About Murder Allegations

If you’re facing murder charges in California or have a loved one who is, you’re confronting one of the most serious allegations in our criminal justice system. Murder charges not only carry the potential for decades or even life in prison, but they also bring intense public scrutiny, media attention, and emotional strain.

At The Nieves Law Firm, we know that understanding the law is the first step toward mounting an effective defense. Our team has defended clients against the most serious criminal charges, including murder, and we’re committed to protecting your rights at every stage of the process.

What Exactly is Murder Under California Law?

California Penal Code § 187 defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.”

This seemingly simple definition contains several critical elements that prosecutors must prove beyond a reasonable doubt:

Element 1: Unlawful Killing

Not all killings are unlawful. For example, killings in legitimate self-defense, during war, or by law enforcement within the scope of their duties may be lawful. The prosecution must prove that the killing wasn’t justified or excused by law.

Element 2: Human Being or Fetus

The victim must be a human being or, in certain circumstances, a fetus. However, California law specifically exempts from murder charges:

• Medical procedures performed in accordance with the Reproductive Privacy Act
• Procedures performed by licensed physicians where childbirth would result in death or substantial risk to the pregnant person
• Acts by the pregnant person or acts solicited, aided, or consented to by the pregnant person

Element 3: Malice Aforethought

This is perhaps the most important element that distinguishes murder from manslaughter. Malice aforethought can be either:

• Express malice: When there’s a deliberate intention to kill
• Implied malice: When a person’s conduct shows a conscious disregard for human life

This legal concept of “malice” doesn’t necessarily mean hatred or ill will—it refers to a particular mental state that the law considers especially blameworthy.

First-Degree vs. Second-Degree Murder in California

California divides murder into two degrees, with first-degree carrying more severe penalties:

First-Degree Murder

First-degree murder includes killings that are:

• Willful, deliberate, and premeditated: The killer carefully weighed the decision to kill before acting
• Committed using destructive devices or explosives, armor-piercing ammunition, poison, or by lying in wait or torture
• Committed during certain felonies (felony murder): Including arson, rape, carjacking, robbery, burglary, kidnapping, and other specified serious felonies

Second-Degree Murder

Second-degree murder is any murder that doesn’t meet the specific requirements of first-degree murder. It typically involves:

• Killings with malice aforethought but without premeditation and deliberation
• Killings that show a conscious disregard for human life (implied malice)
• Certain DUI killings where the defendant had prior DUI convictions

Penalties for Murder Convictions in California

The consequences of a murder conviction in California are severe:

First-Degree Murder

• 25 years to life in state prison
• Potential for life without the possibility of parole (LWOP) with special circumstances
• Possibility of the death penalty in cases with special circumstances (though California currently has a moratorium on executions)

Second-Degree Murder

• 15 years to life in state prison
• 20 years to life if the killing involved shooting from a vehicle
• 25 years to life if the victim was a peace officer

Beyond imprisonment, a murder conviction also results in:

• Strike under California’s Three Strikes Law
• Lifetime firearms prohibition
• Restitution to the victim’s family
• Potential civil liability
• Loss of voting rights while incarcerated
• Severe immigration consequences for non-citizens

Special Circumstances That Enhance Murder Penalties

California law lists numerous “special circumstances” that can increase the penalty for first-degree murder to life without parole or potentially death. These include murders:

• For financial gain
• With multiple victims
• Of police officers, prosecutors, judges, or other officials
• Based on the victim’s race, color, religion, nationality, or country of origin
• Committed while engaged in other specified felonies
• Involving torture
• By means of lying in wait
• To prevent testimony or retaliate against a witness

Legal Defenses to Murder Charges in California

Despite the gravity of murder charges, there are several potential defenses depending on the specific circumstances:

Self-Defense or Defense of Others

If you reasonably believed you or someone else was in imminent danger of being killed, seriously injured, or becoming a victim of another forcible and atrocious crime, you may have the right to use deadly force in defense.

Accident

If the death resulted from an accident with no criminal negligence involved, this may be a complete defense to murder charges.

Insanity

Under California’s M’Naghten rule, if you were unable to understand the nature of your act or distinguish right from wrong because of a mental disease or defect, you may qualify for the insanity defense.

False Accusations or Mistaken Identity

Some murder charges result from mistaken eyewitness identifications, false confessions, or deliberately false accusations. Challenging these forms of evidence can be critical to your defense.

Insufficient Evidence

The prosecution must prove every element of murder beyond a reasonable doubt, including your identity as the perpetrator, the cause of death, and your mental state. Gaps in their evidence can create reasonable doubt.

Heat of Passion or Provocation

While not a complete defense to homicide, evidence that you acted in the heat of passion upon adequate provocation can reduce murder to voluntary manslaughter, significantly lowering the potential sentence.

Lack of Intent

Challenging the “malice aforethought” element by demonstrating you lacked the required mental state can reduce a murder charge to manslaughter.

How Murder Charges Are Typically Investigated

Understanding how murder investigations work can help you appreciate the importance of early legal representation:

Initial Response and Evidence Collection

After a homicide is discovered, detectives secure the scene and collect evidence including:

• Physical evidence (weapons, DNA, fingerprints, blood spatter)
• Surveillance footage
• Digital evidence (phones, computers, GPS data)
• Witness statements

Forensic Analysis

The investigation typically involves extensive forensic work:

• Autopsy and toxicology reports
• Ballistics testing
• DNA analysis
• Blood spatter analysis
• Digital forensics

Witness Interviews and Interrogations

Investigators will interview:

• Eyewitnesses
• People with knowledge of the relationship between suspect and victim
• Alibi witnesses
• The suspect themselves (which is why remaining silent and requesting an attorney is crucial)

Key Differences Between Murder and Manslaughter

Not all homicides are charged as murder. Understanding the distinction between murder and manslaughter is important:

Voluntary Manslaughter

Killing without malice but:

• In the heat of passion
• Due to adequate provocation
• Imperfect self-defense (genuine but unreasonable belief in the need for self-defense)
• Punishment: 3, 6, or 11 years in state prison

Involuntary Manslaughter

Killing without malice during:

• A lawful act with criminal negligence
• An unlawful act not amounting to a felony
• Punishment: 2, 3, or 4 years in state prison

Vehicular Manslaughter

Killing caused by driving:

• With ordinary negligence
• With gross negligence
• While intoxicated (without malice)
• Punishment varies based on negligence level, from misdemeanor to up to 10 years

Common Questions About Murder Charges

Q: Can I be charged with murder if I didn’t intend to kill anyone?

Yes. Under California law, murder doesn’t always require an intent to kill. Second-degree murder can be charged based on implied malice—acting with conscious disregard for human life. Additionally, the felony murder rule allows charges when deaths occur during certain dangerous felonies, regardless of intent to kill.

Q: What’s the difference between murder and attempted murder?

Attempted murder requires the specific intent to kill and a direct but ineffective step toward killing. The main difference is that the victim survives. Attempted murder carries penalties of life in prison for first-degree attempts and 5, 7, or 9 years for second-degree attempts.

Q: Can murder charges be filed years after the crime?

Yes. Unlike most crimes, murder has no statute of limitations in California. Charges can be filed decades after the alleged crime, especially with advances in DNA technology and forensic science.

Q: What about deaths caused by drug dealing?

California has begun charging drug dealers with murder in some cases where they sell fentanyl or other drugs that cause fatal overdoses. These “drug-induced homicide” cases are relatively new and legally complex.

Why Experienced Legal Representation Is Critical

Murder cases demand attorneys with specific skills and resources:

• Thorough Investigation: We work with investigators to re-examine crime scenes, interview witnesses, and analyze forensic evidence.
• Expert Witnesses: We collaborate with forensic pathologists, ballistics experts, DNA analysts, and other specialists to challenge the prosecution’s evidence.
• Strategic Defense Planning: Each murder case requires a tailored defense strategy based on the specific facts, evidence, and potential legal theories.
• Jury Selection Experience: In cases that go to trial, selecting the right jury is crucial.
• Negotiation Skills: Even in murder cases, skilled negotiation can sometimes result in reduced charges or favorable plea agreements.

The Nieves Law Firm Difference

When facing murder charges, the attorney you choose can significantly impact the outcome of your case. At The Nieves Law Firm, we bring:

• Deep knowledge of California homicide laws
• Experience handling high-stakes criminal defense cases
• Relationships with top forensic experts
• A team approach with our in-house investigator
• A track record of success in serious felony cases
• Compassionate support for you and your family throughout the process

Murder charges are emotionally devastating, publicly humiliating, and legally dangerous. But charges are not convictions. With proper legal representation, many defendants have seen their charges reduced or dismissed, or have been acquitted at trial.

If you or someone you love is facing murder charges in the Bay Area, contact The Nieves Law Firm immediately for a confidential consultation. When your freedom and future are at stake, experience matters.