First-degree murder is the most serious form of murder. In most states, it is categorized as “deliberate” – that is, the defendant made a clear-headed decision to kill the victim; “premeditated” – the defendant actually thought about the killing before it occurred (the period for this can be very brief); and “with malice”- doing a harmful act without just cause or legal excuse. So if someone decides to kill a business rival who is attempting a corporate takeover, gets a gun, waits for the victim in a deserted parking garage, and shoots him, that killing would have all the elements of first-degree murder. If, on the other hand, the competitors get in a fight when the rival announces his intentions to take over the other man’s business, and the second man picks up something and hits the rival with it, causing his death, that is not likely to be first-degree murder. The killer did not plan or make a decision to kill in advance.

Second-degree murder is killing another with malice – doing a harmful act without just cause or legal excuse – but without premeditation or deliberation. In other words, this means intentionally killing someone without planning to do so in advance. So, if a person becomes angry, walks over to a desk where he keeps a legal weapon for defense, takes out the gun and shoots the other, that may be second-degree murder. There was no plan or advance decision to kill, but the act of taking out the gun and shooting was intentional.

Felony murder is a killing that happens during the course of the commission of a felony. Even a death that is an accident, will be considered felony murder by most states if it happens while a felony is being committed. For example, if someone becomes frightened and falls down a flight of stairs during a robbery, that would be felony murder in some states, even though the death was accidental and the robber did not mean to cause the death. If 3 people are involved in robbing a bank and one of them shoots a guard, against the wishes of the others, all 3 would be guilty of felony murder, since they willingly participated in the felony.

If the killing happens during certain felonies, determined by the state, it will be considered first-degree felony murder. The felonies most often included in this category are arson, robbery, burglary, rape, mayhem and kidnapping.

California Penal Code §189 classifies a homicide as first degree murder when it is a murder committed during the commission of one of the following predicate felonies:

  • Arson
  • Rape and other sexual crimes
  • Carjacking
  • Robbery
  • Burglary
  • Mayhem
  • Kidnapping
  • Train wrecking
  • And any homicide committed by intentionally firing a gun from a motor vehicle at a person outside of the motor vehicle with the intention to cause death


* What are the penalties for Murder in California?


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