Second Degree Murder


The second degree murder rule attaches to felonies that are both inherently dangerous, and not specifically included under the first-degree felony-murder rule. “Inherently dangerous” felonies are those that cannot be committed without creating a substantial risk that someone will be killed. For example, setting a car on fire that is found in close proximity to people, is inherently dangerous to human life and triggers the second-degree felony-murder rule.

Overview of California Second Degree Murder Laws

A prosecutor may charge homicide, the unlawful killing of a human being, as murder or manslaughter. Murder requires proof of “malice aforethought,” which refers to the defendant’s intent or state of mind. In a murder case, California state laws require the prosecutor to prove that the defendant exhibited express or implied malice. Express malice means that the defendant deliberately chose to commit murder. Alternatively, the prosecutor may show implied malice in the defendant’s conduct that reflects an “abandoned and malignant heart.” Implied malice may arise if the defendant meant to create the circumstances that resulted in the killing of another person. When a criminal case lacks malice, the prosecutor will likely need to pursue manslaughter charges instead of murder charges.

Murder in California may be prosecuted in the first degree or second degree. First degree murder is the more serious of the two charges. The legal definition of first degree murder affects the definition of second degree murder — state law defines second degree murder as all murders that do not qualify as first degree murder.

California state laws list a number of special circumstances that qualify a homicide as first degree murder. The circumstances of first degree murder include a killing committed during the commission of one of the felonies specified by state law or the use of a designated means of killing such as a weapon of mass destruction or an explosive device. All homicides that do not meet the definition of first degree murder will be charged as second degree murder unless the prosecutor chooses to pursue a charge of manslaughter.

If the victim does not die within three years and one year after the date when the cause of death allegedly occurred, California state laws include a presumption that the homicide was not a criminal act of murder or manslaughter. The prosecutor must rebut the presumption in order to pursue a second degree murder charge.