MURDER & HOMICIDE LAW — CALIFORNIA
First Degree Murder in California — PC §189 Premeditated Murder
First degree murder under PC §189 requires premeditation and deliberation. It carries 25 years to life in state prison. With special circumstances it can result in life without parole.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney
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First Degree Murder California — At a Glance
- Law / Code
- PC §189
- Classification
- Felony — Life Sentence
- Maximum Penalty
- 25 years to life in state prison / LWOP with special circumstances
- Probation Eligible
- Never
- Strike Offense
- Yes — violent felony
What Is First Degree Murder California Under California Law?
Legal Framework. First degree murder is an unlawful killing of a human being, or a fetus, with malice aforethought that falls within Penal Code section 189. It includes a willful, deliberate, and premeditated killing; murder accomplished by specified means, including an explosive or destructive device, weapon of mass destruction, poison, lying in wait, torture, or discharging a firearm from a motor vehicle with intent to inflict death; and murder committed during certain enumerated felonies. For a premeditated murder theory, the prosecution must prove an intent to kill and that the decision to kill was considered beforehand and weighed rather than made rashly or impulsively. Premeditation need not take any particular amount of time; the issue is the quality of reflection, not a fixed period of planning. Malice may be express—an intent unlawfully to kill—or implied under Penal Code section 188.
The Prosecution's Burden. A conviction for first degree murder under Penal Code sections 187 and 189 is a felony, not a wobbler. The ordinary punishment is an indeterminate state-prison term of 25 years to life under Penal Code section 190(a). If the prosecution proves one or more special circumstances alleged under Penal Code section 190.2, the authorized sentences are death or life imprisonment without the possibility of parole; California’s present moratorium on executions does not eliminate death as a statutory sentencing option. Sentencing can also be increased by firearm allegations. For example, personal and intentional discharge of a firearm causing death can add 25 years to life under Penal Code section 12022.53(d), subject to the court’s authority to strike or dismiss an enhancement in the interests of justice. A murder conviction is a strike under Penal Code sections 667(b)-(i) and 1170.12.
Potential Consequences. First degree murder must be distinguished from second degree murder, which is murder with malice that does not meet a first-degree theory. Voluntary manslaughter under Penal Code section 192(a) is also different: it applies where an unlawful intentional killing occurs in a sudden quarrel or heat of passion, or where imperfect self-defense reduces malice. Felony murder under Penal Code section 189 is limited by Penal Code section 189(e): except for a peace officer victim case under section 189(f), a participant may be liable only if the person was the actual killer, acted with intent to kill and assisted the killing, or was a major participant in the underlying felony who acted with reckless indifference to human life. In Los Angeles County, charging decisions commonly turn on digital communications, surveillance, firearm evidence, medical evidence, witness reliability, and whether the alleged predicate felony or special circumstance can be proved beyond a reasonable doubt.
05 — Defense Strategies
How Rubin Law Defends First Degree Murder California Charges
Rubin Law, P.C. attacks the elements of PC §189 and drives outcomes that avoid conviction where possible.
Challenge Deliberation and Premeditation
A premeditated-murder theory requires more than proof that a person intentionally killed. The prosecution must establish that the defendant formed a considered decision to kill after reflection, rather than acting in an unconsidered, rash, or impulsive response. We examine the chronology, prior communications, relationship history, scene evidence, intoxication evidence, and the prosecution’s claimed planning acts. A brief interval can legally support premeditation, but it does not automatically do so. Where the evidence instead shows a confrontation that escalated quickly, panic, confusion, or an impulsive act, the jury may reject first degree murder and consider second degree murder or, where supported, voluntary manslaughter.
U.S. Const. amend. IV
Attack the Felony-Murder Theory
When the state relies on felony murder, the defense can litigate both the alleged underlying felony and the defendant’s legally limited role in the killing. Penal Code section 189(e) generally bars felony-murder liability unless the accused was the actual killer, intended to kill and aided the killing, or was a major participant who acted with reckless indifference to human life. We test whether the predicate felony was actually committed or attempted, whether it was independent of the homicide, whether the defendant knowingly participated, and whether the evidence establishes the required mental state. A person’s presence, association, or after-the-fact conduct alone does not establish every element of first degree felony murder.
17 CCR §1219.3
Establish Lawful Self-Defense or Defense of Another
A homicide is not murder when the defendant reasonably believed that they or another person faced imminent danger of being killed or suffering great bodily injury, reasonably believed immediate force was necessary, and used no more force than reasonably necessary. The assessment depends on the circumstances known to the defendant, including threats, weapons, prior violence, physical disparities, and the rapid evolution of the encounter. We seek 911 recordings, body-worn camera footage, prior reports, medical records, witness accounts, and forensic reconstruction evidence that may corroborate imminent danger. Even if a jury finds the belief in the need for lethal force was honest but objectively unreasonable, imperfect self-defense can negate malice and reduce murder to voluntary manslaughter.
NHTSA SFST
Challenge Identity, Causation, and Forensics
The prosecution must prove beyond a reasonable doubt that the accused committed the fatal act or otherwise satisfies a valid theory of murder liability, and that the act was a legal cause of death. In homicide cases, that often means closely examining eyewitness identifications, video quality, phone-location evidence, DNA transfer, firearm and toolmark comparisons, autopsy conclusions, and chain-of-custody records. An apparent identification can be mistaken; an item of forensic evidence may show contact without proving when or why it occurred. Medical causation can also be contested where there were intervening injuries, delayed treatment, preexisting disease, or disputed toxicology. Retaining appropriate independent experts can expose gaps that are not apparent from police summaries alone.
VC §23152
Seek Heat-of-Passion Manslaughter Instructions
The evidence may support voluntary manslaughter rather than murder if the defendant killed in a sudden quarrel or heat of passion caused by legally adequate provocation. The provocation must be sufficient to cause an ordinary person in the same situation to act rashly and without due deliberation, and the defendant must actually have acted under that influence. This is not simply a claim that the defendant was angry. We develop the events immediately preceding the killing, the victim’s conduct, communications, threats, and whether there was a meaningful cooling-off period. When supported by substantial evidence, the court must properly instruct the jury on the lesser offense, giving jurors a legally grounded alternative to a murder verdict.
17 CCR §1219.1
Litigate Special Circumstances and Sentencing Exposure
A first degree murder count and a special-circumstance allegation are separate issues. Under Penal Code section 190.2, the prosecution must prove the specific alleged circumstance beyond a reasonable doubt before life without parole may be imposed. The defense can challenge whether an alleged robbery, burglary, gang purpose, lying in wait, multiple-murder circumstance, or other statutory circumstance was actually established. In an accomplice case, the special-circumstance inquiry can require proof that the defendant intended to kill, or was a major participant who acted with reckless indifference to human life, depending on the allegation. We also separately contest firearm enhancements and pursue lawful sentencing mitigation, including dismissal or striking of enhancements where the record supports it.
VC §23103.5
Constitutional Sources: Fourth Amendment — U.S. Constitution
Questions
Frequently Asked — First Degree Murder California
What is the punishment for first degree murder in California?
The baseline sentence for first degree murder is 25 years to life in state prison under Penal Code section 190(a). The sentence is indeterminate, meaning release is not guaranteed after 25 years; parole suitability is decided later through the parole process. If a special circumstance under Penal Code section 190.2 is found true, the authorized punishment is life without the possibility of parole or death. Firearm allegations can substantially increase the sentence. Under Penal Code section 12022.53(d), personal and intentional discharge of a firearm causing death may add 25 years to life, though the sentencing court has statutory discretion in appropriate cases to strike or dismiss an enhancement. Murder is also a serious and violent felony strike under Penal Code sections 667.5(c), 1192.7(c), 667(b)-(i), and 1170.12.
How does California prove premeditation and deliberation?
There is no required number of minutes, hours, or days for premeditation. Under Penal Code section 189, the prosecution must prove a willful, deliberate, and premeditated killing, meaning the defendant intended to kill and made a considered decision after reflection. California courts commonly evaluate evidence of planning activity, motive, and the manner of killing, but no rigid checklist controls the outcome. Prosecutors may rely on texts, searches, weapon acquisition, prior threats, surveillance footage, a defendant’s statements, or conduct before and after the event. The defense may argue that the proof shows an impulsive confrontation rather than reflection. An intentional killing can still be murder without qualifying as first degree premeditated murder; absent another first-degree theory, it may be second degree murder.
Can I be charged with first degree murder if I did not pull the trigger?
Possibly, but liability is limited and fact-specific. For felony murder, Penal Code section 189(e) generally requires proof that you were the actual killer, acted with intent to kill and aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer, or were a major participant in the underlying felony who acted with reckless indifference to human life. Outside felony murder, the prosecution may pursue aiding-and-abetting liability by proving you knew the perpetrator’s unlawful purpose and intended to facilitate or encourage the murder. Mere presence at the scene, knowledge that a crime might occur, association with the killer, or conduct after the crime does not by itself prove that required intent. The exact theory and jury instructions matter greatly.
Is first degree murder a wobbler or eligible for probation?
No. First degree murder is a felony and is not a wobbler. A court cannot reduce it to a misdemeanor under Penal Code section 17(b). Probation is not available for a person convicted of murder because Penal Code section 1203.075 prohibits probation for murder and certain other serious offenses. A murder case also is not eligible for California’s general pretrial diversion programs, including mental health diversion under Penal Code section 1001.36, because that statute excludes defendants charged with murder. These restrictions make early litigation especially important: the level of homicide charged, special-circumstance allegations, firearm enhancements, and the availability of lesser-offense instructions can determine the eventual sentencing range far more than ordinary probationary considerations.
Can self-defense reduce or defeat a first degree murder charge?
Yes, depending on the facts. Complete self-defense or defense of another applies when the defendant reasonably believed there was an imminent threat of death or great bodily injury, reasonably believed immediate lethal force was necessary, and used no more force than reasonably necessary. If established, the killing is justified and the defendant is not guilty of murder. A defendant who actually believed deadly force was necessary but whose belief was unreasonable may have imperfect self-defense. That doctrine does not acquit the defendant, but it negates malice and can reduce murder to voluntary manslaughter under Penal Code section 192(a). The prosecution may challenge imminence, necessity, proportionality, or whether the defendant was the initial aggressor, so objective evidence such as video, 911 calls, injuries, and prior threats can be critical.
What happens after an arrest for first degree murder in Los Angeles County?
After an LAPD, LASD, or other agency arrest, the person may be held for booking and presented for an initial court appearance, usually at the appropriate Los Angeles County Superior Court courthouse. The Los Angeles County District Attorney decides whether to file charges, often after reviewing reports, witness statements, digital evidence, and forensic testing. At arraignment, the court addresses the complaint or indictment, counsel, plea, bail or detention issues, and future dates. Felony proceedings can include preliminary-hearing litigation, motions to suppress unlawfully obtained evidence under Penal Code section 1538.5, discovery disputes, expert investigation, plea negotiations, and trial. Families should act quickly to preserve video, locate witnesses, and prevent damaging unsupervised statements. For immediate case-specific guidance, Rubin Law, P.C. can be reached at (213) 723-2337.
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