Murder and manslaughter are both unlawful killings, but only murder requires malice: an intent to kill, or circumstances with no real provocation that show an abandoned and malignant heart. Manslaughter is an unlawful killing without malice, such as one committed in the heat of passion or through criminal negligence, and California punishes it far less severely than murder.
What exactly is malice, and why does it decide the charge?
Malice, not premeditation, is the real line between murder and manslaughter: an intent to kill, or acting with no real provocation under circumstances that show a disregard for human life.
Express malice and implied malice are the two kinds the law recognizes, and either one is enough to support a murder charge. Penal Code 187(a) defines murder as "the unlawful killing of a human being, or a fetus, with malice aforethought." Penal Code 188(a) breaks malice into two kinds:
"Malice is express when there is manifested a deliberate intention to unlawfully take away the life of a fellow creature." "Malice is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart." (Penal Code section 188(a)(1) and (a)(2))
Since 2019, malice cannot be assumed just because a person took part in a crime where someone died. Outside the felony murder rule described below, the prosecution has to prove that the specific person charged with murder personally acted with malice.
"Malice shall not be imputed to a person based solely on his or her participation in a crime." (Penal Code section 188(a)(3))
Manslaughter, by contrast, is defined as a killing that lacks malice entirely.
"Manslaughter is the unlawful killing of a human being without malice." (Penal Code section 192)
How is first-degree murder different from second-degree murder?
First-degree murder covers premeditated killings and killings committed by specific listed means or during specific felonies; every other murder is second degree, and both carry a life sentence or worse.
Caption: murder penalties by degree.
| Degree | What it covers | Sentence |
|---|---|---|
| First | Willful, deliberate, and premeditated killing; killing by poison, lying in wait, torture, or a destructive device; a killing during specific felonies such as rape, robbery, burglary, or kidnapping (the felony murder rule); an intentional drive-by shooting death | Death, life without parole, or 25 years to life |
| Second | Every other murder | 15 years to life (25 to life if the victim was an on-duty peace officer, or life without parole if the victim was an officer and a listed finding is proven; 20 to life for a drive-by shooting that killed someone when the shooter intended to cause great bodily injury) |
Premeditation does not require long planning or what the courts call "mature and meaningful" reflection on the killing; the law only requires that the decision to kill was made with some deliberation, however brief. The firm's first-degree murder and second-degree murder pages cover each degree's elements and defenses in depth.
What are the three kinds of manslaughter, and how are they punished?
California's manslaughter statute names three separate kinds, voluntary, involuntary, and vehicular, each with its own penalty range well below murder's.
Caption: manslaughter penalties by kind.
| Kind | What it covers | Sentence |
|---|---|---|
| Voluntary | A killing upon a sudden quarrel or in the heat of passion | 3, 6, or 11 years in state prison |
| Involuntary | A death during a non-felony unlawful act, or a lawful act done without due caution; does not apply to driving | 2, 3, or 4 years, served in county jail unless Penal Code 1170(h)(3) sends it to state prison (for example, a prior or current serious or violent felony) |
| Vehicular (gross negligence) | A driving death caused with gross negligence | Up to 364 days in county jail, or 2, 4, or 6 years in state prison |
| Vehicular (no gross negligence) | A driving death caused without gross negligence | Up to 364 days in county jail |
Involuntary manslaughter's own definition says it "shall not apply to acts committed in the driving of a vehicle," which is why California handles a driving death under the separate vehicular manslaughter rule instead. The firm's voluntary manslaughter page and its voluntary versus involuntary manslaughter comparison cover the elements and defenses for each kind.
Can a killing during a felony be charged as murder even without any intent to kill?
Yes, in three situations: the actual killer, an aider who intended to kill, or a major participant acting with reckless indifference to human life; a 2019 law set those limits.
"A participant in the perpetration or attempted perpetration of a felony listed in subdivision (a) in which a death occurs is liable for murder only if one of the following is proven: The person was the actual killer... [or], with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree... [or] was a major participant in the underlying felony and acted with reckless indifference to human life." (Penal Code section 189(e))
Those limits do not apply when the victim was a peace officer killed on duty and the defendant knew or reasonably should have known it (Penal Code 189(f)). This is the felony murder rule, and it is why a getaway driver or an accomplice who never intended anyone's death can still face a murder charge for a death that happened during the crime. The firm's felony murder rule answer explains the covered felonies, the 2019 limits in full, and how a person convicted under the older, broader version of the rule may petition to have the conviction reconsidered.
Can a charge move from murder to manslaughter, or between degrees?
Yes, because provocation that would make an ordinary person act rashly, without time to reflect, can reduce what would otherwise be murder to voluntary manslaughter by negating malice.
That reduction excuses nothing; it simply recognizes that the killing was not committed with malice. Whether the evidence in a specific case supports that reduction, or supports a lesser degree of murder than the one charged, is a fact-specific question a defense lawyer examines case by case. It is never something a prosecutor's initial charge decides for good.
Related questions
- What is California's felony murder rule? covers the specific felonies, the 2019 limits, and the resentencing petition for an older conviction.
- What does California have to prove for an attempted murder charge? answers the related question of a killing that was attempted but did not succeed.
- How long is a life sentence in California? explains what "25 years to life" and "life without parole" actually mean once a murder sentence is imposed.
Frequently asked questions
Does "malice" mean the killing was planned in advance?
No. Malice can be express (intent to kill) or implied (acting with no real provocation under circumstances showing disregard for life). Premeditation, not malice itself, is what makes many murders first degree rather than second degree.
Is vehicular manslaughter a type of involuntary manslaughter?
No. Penal Code 192 lists vehicular manslaughter as its own, third kind. Involuntary manslaughter's own definition specifically does not apply to acts committed while driving a vehicle.
Can a drunk driver who kills someone be charged with murder instead of manslaughter?
Yes, in some cases. California law does not stop a prosecutor from charging murder on an implied-malice theory, sometimes called a "Watson murder," when the facts show wantonness and a conscious disregard for life, even in a driving death.
Does a manslaughter conviction count as a strike under Three Strikes?
Voluntary manslaughter is listed as a violent felony and counts as a strike. Involuntary manslaughter and vehicular manslaughter are not on that list. The firm's three strikes guide explains how a strike can affect a later sentence.
Is there a deadline for the state to file a murder or manslaughter charge?
Murder has no filing deadline, because it is punishable by death or life. Voluntary manslaughter generally must be filed within six years. These deadlines are measured by the maximum sentence the statute allows, not the one actually sought.
Can a killing in self-defense be charged as murder or manslaughter at all?
A killing the law calls justifiable, such as one committed in reasonable fear while resisting a felony or an unlawful, forcible entry into one's home, is not murder or manslaughter in the first place. Whether a specific killing meets that standard is a fact-intensive question for a lawyer to examine.
Talk to a lawyer
The Law Offices of David S. Chesley offers a free consultation and is available 24/7 to discuss a murder or manslaughter charge, with payment plans and Se habla español. Call (800) 755-5174 or request a free consultation online.