What is California's felony murder rule?

California's felony murder rule can make a death during certain listed felonies first degree murder without any intent to kill. Senate Bill 1437, effective in 2019, narrowed it: outside a limited peace officer exception, a participant who did not kill is liable for murder only if he or she intended to kill and aided the killer, or was a major participant acting with reckless indifference to human life.

The rule before 2019, and what changed

Before 2019, a participant in one of the felonies listed in the statute could be convicted of first degree murder for a death that happened during the crime without proof that he or she intended to kill, and a separate theory, the natural and probable consequences doctrine, let some aiders and abettors be convicted of murder for a killing they did not intend. Senate Bill 1437, effective January 1, 2019, amended Penal Code section 188 and section 189. The amended law now says that, except as stated in section 189(e), a principal must act with malice aforethought to be convicted of murder, and malice cannot be imputed to a person based solely on that person's participation in a crime (Penal Code section 188(a)(3)). In practice, this removed felony murder liability for someone like a getaway driver or a lookout who did not intend to kill and was not a major participant acting with reckless indifference to human life, even when a cofelon killed someone during the same robbery or burglary, unless the peace officer exception described below applies.

Which felonies can support a first degree charge

Felony murder applies only to a death that happens during the commission or attempted commission of a felony actually listed in Penal Code section 189(a), not any felony that happens to end in a death. The list is arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, and any act punishable under section 206 (torture), 286 (sodomy), 287 (oral copulation), 288 (lewd acts with a child), or 289 (sexual penetration), or former section 288a. Other parts of section 189(a), such as murder by poison, a weapon of mass destruction, or a firearm discharged from a vehicle with intent to kill, make a murder first degree but are not felony murder predicates. The predicate can also be an attempt to commit one of those felonies, though the prosecution still has to prove its elements. A felony that is not on that list, such as assault with a deadly weapon, does not support a first degree felony murder theory even if someone dies during it, though a murder charge can still rest on proof of malice.

How a non-killer can still be charged

For a participant in one of the listed felonies in which a death occurs, section 189(e) allows murder liability only if one of three routes is proved: the person was the actual killer, the person was not the killer but intended to kill and helped the actual killer commit first degree murder, or the person was a major participant in the underlying felony who acted with reckless indifference to human life. Both major participation and reckless indifference have to be proved; neither one by itself is enough. A separate exception in section 189(f) removes these limits when a peace officer is killed in the course of duty and the accused knew or reasonably should have known the victim was an officer performing those duties.

Charging papers may not spell out which of these three routes the prosecution is relying on. The firm's guide to what a felony murder charge actually has to allege walks through the records that identify it. A related but distinct theory, directly helping someone else commit a murder with the intent to kill, is covered separately in the firm's guide to aiding and abetting murder in California.

What the conviction actually carries

A conviction under the felony murder theory is classified as first degree murder, which Penal Code section 190(a) punishes with 25 years to life as the standard term. For a felony murder conviction, a sentence of death or life without parole generally requires a special circumstance under Penal Code section 190.2 that is alleged and found true, not just the murder conviction by itself. The felony special circumstance in section 190.2(a)(17) has its own list and, for a non-killer, its own intent and participation requirements in section 190.2(c) and (d), which the firm's guide to what a felony murder charge has to allege walks through. A first degree felony murder conviction does not by itself mean the harshest possible sentence applies.

If the conviction is old: Penal Code 1172.6

Someone convicted years ago under the law as it existed before 2019 may be able to petition for resentencing under Penal Code section 1172.6, a procedure the same reform created as section 1170.95 and the Legislature renumbered in 2022. Eligibility requires that the charging document allowed the prosecution to proceed on felony murder or another theory that imputed malice based solely on participation in a crime, that the person was convicted of murder, attempted murder, or manslaughter after a trial, or accepted a plea instead of a trial at which he or she could have been convicted of murder or attempted murder, and that the person could not now be convicted of murder or attempted murder because of the 2019 changes to sections 188 and 189. A murder conviction or a life sentence by itself does not establish eligibility; the conditions turn on the charging document and how the conviction was obtained. The firm's full guide to the eligibility conditions, how to file, and what happens at a hearing is at the page on California murder resentencing under Penal Code 1172.6.

Records to gather now

Whether you are defending a current felony murder charge or evaluating an old conviction, start with the charging document and any amendments, the preliminary hearing or grand jury transcript, any special circumstance allegation, the judgment and sentencing minute order, and, for an older case, any prior appellate opinion. These records show which predicate felony and which of the three liability routes the case actually rests on, rather than what the sentence alone suggests.

The Law Offices of David S. Chesley's murder and homicide defense practice can review a current charge or a past conviction record with you. Call (800) 755-5174.