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    What’s the Difference Between First-Degree and Second-Degree Murder in California?

    Posted on: March 9th, 2023 by Dod Law

    difference between first and second degree murderDifference Between First and Second Degree Murder

    California defines murder as the unlawful killing of a human being with malice or intention. When facing a murder charge in California, the state has a total of three murder charges that can be brought against a defendant: first-degree, second-degree, and capital murder. To secure a conviction, the prosecution must prove that a person deliberately killed another person, whether premeditated or not.

    At Dod Law, APC, we can provide representation for all three degrees of murder charges. Depending on the facts of the case and the severity of the crime, a trained criminal defense attorney can work to negotiate a plea deal or get the charges reduced. In this article, we will discuss the three types of murder charges in California, the sentences associated with each, and a few of the common defense strategies available to our clients. 

    What Are the Degrees of Murder in California?

    The first two types of murder charges in California are separated by degrees. The degree to which the charge is brought depends on the intent and circumstances of the crime.

    Capital Murder Charges

    Capital murder is the most serious murder charge and carries the most severe penalties. It is classified as first-degree murder but with additional circumstances that make it more serious. However, in recent years, there has been a moratorium in place on the death penalty in California. Therefore, at this time, if a defendant is convicted of capital murder, they will be sentenced to life in prison without the possibility of parole. 

    First-Degree Murder

    As the second most serious murder charge, the elements needed to prove first-degree murder are specific. To be convicted of first-degree murder, the prosecution must prove that the defendant deliberately and premeditatedly caused the death of the victim.  

    Premeditation means the defendant had time to think about the action and decide to go through with it. This could be seconds, minutes, or even days, but time must have been taken to plan the murder. Intent is another key element of murder, as the defendant must have intended to kill the victim. Lastly, malice aforethought must be present, which means the defendant acted without legal justification or excuse and was not concerned with ending a life.

    Second-Degree Murder

    Second-degree murder is less severe, but still carries a hefty sentence. To get a conviction on second-degree murder, the prosecution must prove that the defendant acted with “implied malice” and demonstrated a “conscious disregard for human life.” 

    This means that the defendant acted in a way that was reckless and showed no regard for the safety of others but not necessarily with the premeditation of planning the killing. Murders that fall into this category are typically those committed in the heat of the moment.

    If convicted of second-degree murder, the defendant may face 15 years to life in prison. However, depending on the circumstances of the case, there are aggravating circumstances that can increase the sentence. 

    Common Defenses to Murder Charges in California

    Due to the gravity of the offense, it is important to have a knowledgeable and experienced criminal defense attorney on your side to help defend you and your case. The most common defense strategies used in California murder cases include:


    Under California law, a defendant may claim self-defense if they can prove that they were in a situation where they were in imminent danger of bodily harm or death and acted to protect themselves. Self-defense works as an affirmative defense, which means that the defendant must prove that their actions were not only justified, but necessary to protect their own or someone else’s life.

    Accidental Death

    Murder charges are based primarily on whether there was an intent to kill, which is why accidental death is another common defense strategy. If the defendant can prove that the death of the victim was not intentional and the killing was purely accidental, they may be able to get the charges reduced or dismissed entirely.


    This strategy is one of the most difficult, as it requires defendants to submit to what is known as the M’Naghten test. For this strategy to be effective, the defendant and their attorney must prove that during the time the murder was committed, the defendant was not in their right mind.

    This means that the defendant either was unable to comprehend the nature or consequence of their actions due to a mental illness or disability. While the burden of proof is on the defense, the prosecution must also prove that the defendant was sane at the time of the crime.

    False Confession

    Law enforcement is known for creating an interrogation environment that can lead to false confessions. In California, a defendant may claim that the confession was not given of their own volition and under duress, which means that the confession is not admissible in court. 

    Dod Ghassemkhani An Award Winning Criminal Defense Attorney Discusses Who To Hire

    Get the Help of an Experienced Attorney from Dod Law, APC – Learn More About the Difference Between First and Second Degree Murder

    Compared to other criminal charges, the penalties for murder charges in California are among the most serious. If you are facing a murder charge, it is important to have an experienced criminal defense attorney on your side to fight for your rights. 

    At Dod Law, APC, we understand that facing criminal charges can be a complicated and overwhelming experience and we are here to provide you with the guidance and representation you need to help your chances of a favorable outcome for your case. Our lawyers have over 18 years of valuable experience. Contact us online or call us at (619) 814-5110 today for a free consultation.

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