MURDER & HOMICIDE LAW — CALIFORNIA
Second Degree Murder in California — PC §187 Implied Malice
Second degree murder carries 15 years to life in state prison. It is murder with malice but without the premeditation and deliberation required for first degree. Implied malice and Watson murder are the most common theories.
Reviewed by Daniel S. Rubin, CA Bar 302093 · Los Angeles Criminal Defense Attorney
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Second Degree Murder California — At a Glance
- Law / Code
- PC §187 / PC §188
- Classification
- Felony — Life Sentence
- Maximum Penalty
- 15 years to life in state prison
- Probation Eligible
- Never
- Strike Offense
- Yes — violent felony
What Is Second Degree Murder California Under California Law?
Legal Framework. Second degree murder under Penal Code sections 187 and 188 is an unlawful killing of a human being, or a fetus, with malice aforethought that is not first degree murder. Malice may be express—an intent unlawfully to kill—or implied. Under PC §188(a)(3), implied malice exists when a person intentionally commits an act, the natural and probable consequences of which are dangerous to human life, knows the act is dangerous to human life, and deliberately acts with conscious disregard for life. The prosecution must prove more than negligence, poor judgment, or an accidental death. It must establish the defendant’s personal awareness of the life-threatening risk and a conscious decision to proceed.
The Prosecution's Burden. Murder is generally a second degree offense unless the prosecution proves a statutory first degree theory. PC §189 makes specified killings first degree, including a willful, deliberate, and premeditated killing; certain killings accomplished by specified means; and murder committed during enumerated felonies. A murder that is intentional but not proven deliberate and premeditated is ordinarily second degree. Implied-malice murder is also ordinarily second degree. The ordinary sentence is 15 years to life under PC §190(a), but the minimum parole term can increase under special statutes, including 20 years to life for certain drive-by shootings under PC §190(d), 25 years to life where the victim was a peace officer in specified circumstances, and other provisions depending on the victim and facts.
Potential Consequences. Second degree murder is often charged after a fatal assault, shooting, stabbing, dangerous drug conduct, or highly dangerous driving. A so-called Watson murder is an implied-malice murder based on driving: the prosecutor alleges the driver knew intoxicated or otherwise reckless driving endangered human life and nevertheless acted with conscious disregard. The name comes from People v. Watson, not a separate Penal Code offense. Second degree murder differs from vehicular manslaughter under PC §191.5 and gross vehicular manslaughter while intoxicated under PC §191.5(a), which require different mental-state showings and carry different sentencing rules. It also differs from voluntary manslaughter under PC §192(a), where legally adequate heat of passion or imperfect self-defense negates malice.
05 — Defense Strategies
How Rubin Law Defends Second Degree Murder California Charges
Rubin Law, P.C. attacks the elements of PC §187 / PC §188 and drives outcomes that avoid conviction where possible.
Contest Conscious Disregard for Life
Implied malice is not established simply because conduct was dangerous or because a death resulted. Under PC §188(a)(3), the prosecution must prove the defendant actually knew the conduct endangered human life and deliberately acted despite that knowledge. The defense focuses on the defendant’s personal awareness, not what a reasonable person should have known. In an assault, shooting, or drug case, that may involve the circumstances, warnings received, the defendant’s statements, training, intoxication evidence, and expert testimony about the actual risk. If subjective awareness cannot be proved beyond a reasonable doubt, the case may be reduced from murder to manslaughter or result in acquittal.
U.S. Const. amend. IV
Challenge Causation and Intervening Events
The prosecution must prove that the defendant’s act was a substantial factor in causing death. A serious injury, a dangerous act, or temporal proximity does not eliminate causation questions. Medical complications, delayed treatment, an independent assault, a victim’s preexisting condition, a drug interaction, or an unforeseen intervening event may create reasonable doubt about whether the charged conduct legally caused the death. Defense counsel reviews autopsy findings, hospital records, toxicology, accident reconstruction, and the chronology of care with independent experts. Even when an act contributed to a death, the factual record may not support the prosecution’s claimed mechanism, level of culpability, or murder theory.
17 CCR §1219.3
Reduce Murder to Voluntary Manslaughter
Malice is negated—and murder may be reduced to voluntary manslaughter under PC §192(a)—when the evidence supports legally adequate provocation causing heat of passion, or an actual but unreasonable belief in the need to use deadly force in self-defense or defense of another. Imperfect self-defense does not justify the killing, but it can eliminate malice if the belief was honestly held and not based on the defendant’s own wrongful conduct. The defense develops the full encounter rather than accepting a snapshot of the fatal moment: threats, physical evidence, prior violence, eyewitness inconsistencies, and the defendant’s state of mind can be central to a manslaughter instruction and resolution.
NHTSA SFST
Establish Lawful Self-Defense or Defense of Others
A killing is not murder if it was committed in lawful self-defense or defense of another. The issue is whether the defendant reasonably believed they or another person faced imminent danger of being killed or suffering great bodily injury, reasonably believed immediate deadly force was necessary, and used no more force than reasonably necessary. The defense may rely on physical evidence, injuries, surveillance footage, 911 calls, witness accounts, prior threats known to the defendant, and expert interpretation of the scene. The prosecution bears the burden of proving beyond a reasonable doubt that the defendant did not act in lawful self-defense once the issue is supported by evidence.
VC §23152
Attack the Watson Murder Knowledge Evidence
In a fatal-driving case, intoxication, speed, or a traffic violation alone does not automatically prove implied malice. The prosecutor must prove actual awareness that the driving conduct endangered human life and a conscious choice to ignore that risk. Prior DUI convictions, DUI school advisements, prior warning signs, driving pattern, statements, and the circumstances of the collision are often used to establish knowledge. The defense scrutinizes whether any alleged advisement was actually received and understood, whether the driving evidence is reliable, whether impairment is scientifically supported, and whether the collision resulted from an independent road hazard or another driver. These issues can distinguish Watson murder from PC §191.5 vehicular manslaughter.
17 CCR §1219.1
Litigate Unlawful Search, Statement, and Identification Issues
Homicide cases frequently depend on statements, digital evidence, firearms evidence, vehicle data, or eyewitness identifications obtained during rapidly evolving investigations. The defense examines whether police complied with the Fourth Amendment and California search-and-seizure rules, whether a custodial interrogation honored Miranda rights and was voluntary, and whether any identification procedure was unduly suggestive. A successful motion to suppress may exclude a weapon, phone contents, location evidence, blood evidence, or admissions that form the backbone of the malice theory. In Los Angeles County, early preservation and review of LAPD or LASD body-worn camera footage, dispatch recordings, warrants, and forensic chain-of-custody records are particularly important.
VC §23103.5
Constitutional Sources: Fourth Amendment — U.S. Constitution
Questions
Frequently Asked — Second Degree Murder California
What is the sentence for second degree murder in California?
The baseline sentence for second degree murder is 15 years to life in California state prison under PC §190(a). “Life” does not mean a fixed release date; the person must serve the applicable minimum term and later be considered for parole under the rules governing life-term cases. The minimum term may be higher in specified circumstances. For example, PC §190(d) provides 20 years to life for certain drive-by shooting murders, and other statutes increase punishment when the victim is a peace officer or in other protected categories. Firearm enhancements under PC §12022.53 can add substantial consecutive terms when their statutory requirements are met. A murder conviction also carries severe collateral consequences, including a strike conviction and loss of firearm rights.
Is second degree murder a wobbler or can it be charged as a misdemeanor?
No. Second degree murder is always a felony and is not a wobbler. PC §187 defines murder, and PC §190(a) prescribes an indeterminate state-prison sentence for second degree murder. The prosecutor may make charging decisions based on the available proof, but a court cannot reduce a murder conviction to a misdemeanor. The meaningful charging and trial issues are usually whether the evidence proves murder at all, whether it proves first rather than second degree murder, or whether the correct offense is voluntary or involuntary manslaughter. In a fatal driving case, the dispute may be between implied-malice murder and a vehicular manslaughter offense under PC §191.5, not between felony and misdemeanor murder.
What does implied malice mean under PC section 188?
PC §188(a)(3) defines implied malice through a specific mental state. The defendant must intentionally commit an act whose natural and probable consequences are dangerous to human life, know that the act is dangerous to human life, and deliberately act with conscious disregard for life. This is subjective awareness: the prosecution must prove the defendant actually appreciated the life-threatening danger, not merely that a reasonable person would have appreciated it. Implied malice can arise from conduct that is not intended to kill, such as a fatal assault or extremely dangerous driving. But it is not the same as ordinary negligence, gross negligence, intoxication, or a tragic accident. The facts must support a knowing, life-disregarding choice.
Can a DUI fatality be charged as second degree Watson murder?
Yes. A fatal DUI can be charged as second degree implied-malice murder, commonly called Watson murder after People v. Watson. It is not a separate offense. The prosecution must prove the driver knew their conduct endangered human life and nevertheless drove with conscious disregard for life. Prior DUI convictions, DUI-school warnings, a signed Watson advisement, driving behavior, blood-alcohol evidence, statements, and the circumstances of the crash may be offered to prove that knowledge. But none of those facts automatically establishes murder. Depending on the evidence, a death caused by impaired driving may instead be charged as gross vehicular manslaughter while intoxicated under PC §191.5(a) or another vehicular manslaughter offense. The distinction turns heavily on the evidence of actual awareness and conscious disregard.
Can self-defense reduce or defeat a second degree murder charge?
Yes. Lawful self-defense or defense of another is a complete defense when the defendant reasonably believed that they or another person faced imminent danger of death or great bodily injury, reasonably believed immediate deadly force was necessary, and used no more force than reasonably necessary. If the belief in the need for deadly force was honestly held but unreasonable, imperfect self-defense can negate malice and reduce murder to voluntary manslaughter under PC §192(a). The facts matter closely: who initiated or escalated the encounter, whether the danger was imminent, whether the defendant could perceive a weapon or threat, and whether the force continued after the danger ended. Video, 911 recordings, injuries, scene evidence, and prior threats can materially affect these issues.
What happens after an arrest for second degree murder in Los Angeles County?
After an LAPD or LASD arrest, the case is generally presented to the Los Angeles County District Attorney for filing review. The defendant is brought to arraignment in the appropriate Los Angeles County Superior Court, where the complaint is addressed, bail and custody issues may be litigated, and counsel can begin obtaining discovery. Felony cases ordinarily proceed through a preliminary hearing unless there is another lawful disposition; at that hearing, the prosecution must show sufficient cause to hold the defendant to answer. Defense counsel should act promptly to preserve surveillance video, vehicle data, witness information, body-camera footage, and medical or forensic records. Because a murder filing has immediate custody and evidentiary consequences, early case-specific legal review is critical; Rubin Law, P.C. can be reached at (213) 723-2337.
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