Yes, if prosecutors can prove malice. Selling or sharing fentanyl does not supply malice by itself: the prosecution must show the person knew the drug was dangerous to human life and consciously disregarded that risk, and that the drug caused the death. Second degree murder carries 15 years to life. Without proof of that awareness, the lesser homicide is involuntary manslaughter, which turns on criminal negligence.
What prosecutors must prove to charge an overdose death as murder
Murder is "the unlawful killing of a human being, or a fetus, with malice aforethought" (Penal Code section 187(a)). Where there was no intent to kill, the prosecution relies on implied malice, which section 188(a)(2) describes as a killing whose circumstances "show an abandoned and malignant heart."
Section 188(a)(3) closes the shortcut many families fear: "Malice shall not be imputed to a person based solely on his or her participation in a crime." Drug sales are also not among the felonies listed in section 189(a) for first degree felony murder, a rule explained further in what a felony-murder count must allege. So a sale or handoff alone does not establish murder; the prosecution has to prove the person's own state of mind.
The standard jury instruction, CALCRIM No. 520, lists four things the prosecution must prove for implied malice:
- The person intentionally committed the act, such as selling or handing over the drug.
- The natural and probable consequences of the act were dangerous to human life.
- At the time, the person knew the act was dangerous to human life.
- The person deliberately acted with conscious disregard for human life.
The instruction says an act is dangerous to human life if it "involved a high degree of probability that it would result in death." The third element asks what this particular person actually knew, not what a reasonable person should have known, and it is the line between murder and involuntary manslaughter. A second degree murder conviction carries 15 years to life under section 190(a); see the firm's page on second degree murder.
How Alexandra's Law makes a prior warning matter
Proposition 36 (2024) added Health and Safety Code section 11369, which the statute names Alexandra's Law. A court must now advise anyone convicted of, or pleading guilty or no contest to, one of the listed sale, transport, possession-for-sale, or manufacturing offenses involving a hard drug (sections 11351, 11351.5, 11352, 11378, 11378.5, 11379, 11379.5, or 11379.6) that dealing drugs can kill, and that if that conduct "results in the death of a human being, you could be charged with homicide, up to and including the crime of murder." The advisement is given in writing, on a plea form or at sentencing, and the fact that it was given must be stated on the record and recorded in the abstract of the conviction. "Hard drug" includes substances containing fentanyl, heroin, cocaine, cocaine base, methamphetamine, or PCP, and excludes cannabis and psychedelics.
The statute does not say how a later court uses the warning, but it creates a written record that the person was told this conduct can kill. The Legislative Analyst's Office, in its analysis of Proposition 36, said the warning "could make it more likely" that a person who later sells or provides drugs to someone who dies is convicted of murder. It works much like the warning given after a DUI conviction, explained in the Watson advisement. Someone with no earlier qualifying conviction, or whose earlier conviction came before the law took effect on December 18, 2024, will not have received this warning, so the prosecution has to prove awareness of the danger through other evidence, and the defense can test that evidence directly.
Causation when more than one drug was involved
Every homicide charge also requires proof that the defendant's act caused the death. Under CALCRIM No. 240, an act causes death if the death is the "direct, natural, and probable consequence of the act" and would not have happened without the act. When there is evidence of more than one possible cause, jurors are told an act counts only if it was a substantial factor, meaning "more than a trivial or remote factor," although it "does not have to be the only factor."
That framework matters because an overdose death can involve fentanyl combined with other substances. Questions that bear on causation include what the toxicology and autopsy findings actually show, whether the drug the defendant supplied can be traced to the drug found in the person who died, whether anyone else also supplied drugs, and how much time passed between the handoff and the death.
Involuntary manslaughter and the drug charges that can come with it
Involuntary manslaughter is an unlawful killing without malice (Penal Code section 192(b)), punishable by two, three, or four years (section 193(b)). CALCRIM No. 580 explains that the difference between it and other homicide offenses, including murder, "depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk." Involuntary manslaughter instead requires criminal negligence: acting in a reckless way that creates a high risk of death or great bodily injury, where a reasonable person would have known of that risk. The firm's involuntary manslaughter page covers that charge.
The drug conduct itself can be charged as well. Health and Safety Code section 11352(a) covers anyone who "sells, furnishes, administers, or gives away" a listed narcotic, a list that includes fentanyl, and carries three, four, or five years, so sharing without payment can still fall within it. Fentanyl also has its own weight enhancements in section 11370.4(c), starting with 3 added years when the substance exceeds 28.35 grams (one ounce) and rising in steps to 25 years above 80 kilograms. Those additions depend on weight, not on whether anyone died; they must be charged and proven, and the court can strike them for mitigating circumstances. For the drug charges themselves, see the firm's fentanyl charges page.
Federal charges when a death results
Federal prosecutors can bring a separate case. Fentanyl is a Schedule II substance under federal law (21 C.F.R. section 1308.12). Under 21 U.S.C. section 841(b)(1)(C), distributing a Schedule I or II substance carries "not less than twenty years or more than life" if death or serious bodily injury "results from the use of such substance," and life imprisonment if the person already has a final conviction for a felony drug offense. In Burrage v. United States (2014), the Supreme Court held that, at least where the drug was not an independently sufficient cause, that penalty applies only if use of the defendant's drug was a but-for cause of the death. Whether a case is filed in state or federal court changes the sentencing exposure substantially, so it matters early to know which agencies are investigating.
What families should know right away
Calling 911 for help does not protect the person who supplied the drugs from charges for supplying them. California's overdose Good Samaritan law, Health and Safety Code section 11376.5, covers only being under the influence and possession for personal use, and subdivision (b) states that it does not affect laws prohibiting "the selling, providing, giving, or exchanging of drugs." The details are in what the Good Samaritan overdose law covers.
Because these cases turn on what the person knew about the drug, statements about the drug and the person who died can become central evidence on the knowledge element. Anyone under investigation has good reason to speak with a lawyer before answering questions, and families can find practical first steps in what to do after a homicide arrest.
For how the firm approaches charges like these, see its murder and homicide defense page.