Updated October 2026 | The Bulldog Law | California Homicide Defense

Second-degree murder is every murder that is not first-degree murder. Under Penal Code 187 a murder is an unlawful killing with malice aforethought, and under Penal Code 189 a murder is first degree when it was willful, deliberate, and premeditated, or committed by a listed means, or committed during a listed felony; all other murder is second degree. In practice that covers two kinds of killing: an intentional killing without premeditation, and a killing with implied malice, where the person did not intend to kill but intentionally did something they knew was dangerous to human life and did it anyway. The sentence is 15 years to life, rising to 20 or 25 to life in listed circumstances and to 40 to life when a firearm caused the death, and parole after the minimum depends on a suitability finding. Most second-degree murder trials are about whether the killing was really manslaughter, and most second-degree murder pleas are to manslaughter.

The Bulldog Law's homicide attorneys defend second-degree murder charges across California, and they are, in a sense, the most contestable homicide charge the prosecution files: the premeditation that defines first degree is absent by definition, so the case rests on malice, and malice is the element that the defenses of provocation, imperfect self-defense, lack of awareness, and intoxication are built to attack. What follows is the definition, the two kinds of malice, the fact patterns that produce implied-malice charges, the Watson DUI murder doctrine, the sentence and parole, the line between first and second degree, and the routes down to manslaughter. Call (888) 928-1609 or message our team.

The residual definition

Penal Code 187 defines murder, and Penal Code 189 divides it. First-degree murder is a murder perpetrated by means of a destructive device or explosive, a weapon of mass destruction, armor-piercing ammunition, poison, lying in wait, or torture, or by any other kind of willful, deliberate, and premeditated killing, or committed in the perpetration of or attempt to perpetrate arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or listed sex offenses, or a drive-by shooting with intent to kill. Subdivision (b) provides that all other kinds of murder are of the second degree. The definition is therefore residual: the prosecution proves a murder, and the jury decides whether any first-degree circumstance was also proved; if not, the verdict is second degree. Our page on murder under Penal Code 187 covers the statute as a whole, and the federal system's version of the same division, under 18 U.S.C. 1111, is covered on our page on first and second-degree murder under federal law.

Express and implied malice

Malice aforethought is the mental state that makes a killing murder, and the jury instruction, CALCRIM 520, defines it in two forms. Malice is express when the defendant unlawfully intended to kill. Malice is implied when the defendant intentionally committed an act, the natural and probable consequences of the act were dangerous to human life, the defendant knew at the time that the act was dangerous to human life, and the defendant deliberately acted with conscious disregard for human life. The two forms produce the two kinds of second-degree murder. An express-malice second-degree murder is an intentional killing that the jury finds was not premeditated: a killing in a fight that escalated, a shooting in a confrontation, a killing decided on the spot.

An implied-malice second-degree murder is a killing the defendant did not intend at all, where the act was so dangerous and the defendant so aware of the danger that the law treats the indifference as equivalent to intent. Neither form requires a motive, and neither requires that the defendant knew the particular victim; a person who fires into a crowd has implied malice toward everyone in it. The word aforethought does not mean planning; it means only that the malice existed at the time of the act.

The implied-malice fact patterns

Implied-malice charges cluster in four situations. Shooting into an occupied building or vehicle, or in the direction of people, where the shooter claims no intent to hit anyone. Extreme driving, such as street racing, fleeing police at high speed through traffic, or driving the wrong way, where the driver knew the danger and a death resulted. Severe beatings, strangulation, and shaking of an infant, where the force used was obviously capable of killing. And driving under the influence with knowledge of the danger, which is the Watson murder discussed below. In each, the prosecution's proof of the knowledge element is circumstantial: the obviousness of the danger, prior warnings or incidents, statements, and what the defendant did afterward. The defense attacks the same element, because a defendant who did not actually appreciate the danger, however obvious it seems in hindsight, had at most criminal negligence, which is involuntary manslaughter.

Watson murder: DUI with implied malice

A driver who kills someone while driving under the influence is ordinarily charged with gross vehicular manslaughter while intoxicated under Penal Code 191.5, which carries four, six, or ten years. The California Supreme Court held in 1981 that the same conduct supports a second-degree murder charge when the driver actually knew that driving under the influence was dangerous to human life and drove anyway, and that charge is known as a Watson murder. The knowledge is proved most often by a prior DUI conviction, because every DUI defendant in California is now given a Watson advisement at sentencing stating that driving under the influence is extremely dangerous to human life and that a death caused by it may be prosecuted as murder, and the advisement is in the file.

DUI school attendance, a professional license with alcohol training, prior crashes, and the extremity of the impairment and driving are also used. A first-offense DUI death with no such evidence is charged under 191.5; a death caused by a driver with a prior DUI and the advisement is charged as murder in most counties, with 191.5 as the lesser offense. The defense in a Watson case is the knowledge element and the conduct: whether the driver actually appreciated the danger at the time, and whether the driving itself showed conscious disregard rather than ordinary impaired driving.

Second-degree felony murder after Senate Bill 1437

Before 2019, a killing during any felony inherently dangerous to human life but not listed in Penal Code 189 was second-degree felony murder, with no malice required. Senate Bill 1437 rewrote Penal Code 189(e) to provide that a participant in a felony is liable for a murder committed during it only if the participant was the actual killer, or aided the actual killer with intent to kill, or was a major participant in the felony who acted with reckless indifference to human life, and the Legislature's stated purpose was to end the imputation of malice from participation in a crime.

The second-degree felony-murder theory survives for the actual killer in an inherently dangerous unlisted felony, such as furnishing a controlled substance in some circumstances, but it no longer reaches accomplices who lacked intent or major-participant recklessness, and people convicted under the former rule may petition for resentencing under Penal Code 1172.6. The practical result is that most second-degree murder cases today are tried on express or implied malice, not on the felony-murder theory.

The sentence, enhancements, and parole

Penal Code 190 sets the base terms. Second-degree murder is a violent felony, so conduct credits are limited to 15 percent and do not reduce the minimum parole eligibility below the statutory floor in most cases. A person serving 15 to life receives an initial parole suitability hearing shortly before the minimum term is served and is released only if the Board of Parole Hearings finds that they no longer pose an unreasonable risk to public safety, which depends on the offense, the prison record, insight, programming, and the parole plan; our page on the parole system for life-sentenced inmates covers the process. A person who was 25 or younger at the time of the offense is eligible for a youth offender parole hearing under Penal Code 3051 after 20 years, with the Board required to give great weight to the diminished culpability of youth, and that provision changes the real sentence for a large share of second-degree murder defendants.

The line against first degree

The prosecution charges first-degree murder in most intentional killings and asks the jury to find premeditation, and the defense's first task in those cases is to hold the verdict at second degree. Premeditation means the defendant decided to kill before acting; deliberation means the decision was weighed, and the courts have said that the process can be brief but must exist, and that a killing on a rash impulse, without reflection, is not deliberate even if intentional. The evidence juries are told to consider is planning activity, motive, and the manner of killing; a killing with no planning, no clear motive, and a manner consistent with an explosion of violence rather than a preconceived design is second degree.

 Provocation that is insufficient to reduce the crime to manslaughter can still negate premeditation and reduce first degree to second, and voluntary intoxication under Penal Code 29.4 is admissible on whether the defendant actually premeditated, though not on implied malice. Where a premeditation finding would also support a special circumstance, the difference between first and second degree is the difference between life without parole and 15 to life.

The routes down to manslaughter

The second task is to take the case below murder entirely, and the two routes are set out in Penal Code 192. An intentional killing becomes voluntary manslaughter when it was committed in a sudden quarrel or heat of passion after provocation that would cause an ordinary person to act rashly, or in an honest but unreasonable belief in the need for self-defense; either circumstance negates malice, and the prosecution must prove beyond a reasonable doubt that neither applied. An implied-malice killing becomes involuntary manslaughter when the defendant did not actually know the act was dangerous to life, so that the conduct was criminally negligent rather than consciously reckless.

Our comparison of manslaughter and murder covers both routes. The jury is instructed on each lesser offense the evidence supports, and the sentencing gap, 15 to life against 3 to 11 or 2 to 4 years, is why the provocation, fear, and awareness evidence is developed from the first interview. The negotiated landscape follows the same shape: second-degree murder charges are resolved by plea to voluntary manslaughter, often with a weapon or injury enhancement to raise the term, in a large share of cases where the self-defense or provocation evidence is credible, and to involuntary manslaughter where the awareness evidence is weak. Where the attempt failed and the victim survived, the same analysis governs attempted murder and its lesser offense.

Frequently asked questions

What is second-degree murder?

Second-degree murder is an unlawful killing with malice aforethought that is not first-degree murder. In California, Penal Code 189 defines first-degree murder as a killing that was willful, deliberate, and premeditated, or committed by a listed means such as poison, lying in wait, or torture, or committed during a listed felony, and provides that all other murder is second degree. Most second-degree murders are either intentional killings without premeditation or killings with implied malice, where the person intentionally did something they knew was dangerous to human life and did it anyway.

What is the sentence for second-degree murder in California?

Fifteen years to life in state prison under Penal Code 190(a). The term rises to 20 years to life for a drive-by shooting from a vehicle with intent to inflict great bodily injury, and 25 years to life when the victim was a peace officer killed in the performance of duty. A prior murder conviction makes the sentence life without parole under Penal Code 190.05. Personal use of a firearm causing death adds 25 years to life under Penal Code 12022.53(d), so a second-degree murder by gunshot is commonly 40 years to life. A person sentenced to 15 to life becomes eligible for a parole hearing after 15 years, minus limited credits, and is released only if the Board finds them suitable.

What is the difference between first and second-degree murder?

Premeditation and the listed circumstances. Both require malice. First-degree murder requires, in addition, that the killing was willful, deliberate, and premeditated, meaning the person decided to kill after weighing the decision, however briefly; or that it was committed by one of the means listed in Penal Code 189, including poison, lying in wait, torture, a destructive device, or a drive-by shooting with intent to kill; or that it occurred during the commission of a listed felony such as robbery, burglary, rape, kidnapping, or arson. Everything else is second degree. First-degree murder carries 25 years to life; second degree carries 15 years to life.

What is implied malice?

Malice is implied when a person intentionally commits an act whose natural and probable consequences are dangerous to human life, knows at the time that the act is dangerous to life, and deliberately acts with conscious disregard for life. No intent to kill is required. Firing a gun into an occupied house, driving at extreme speed through a crowded intersection, beating someone severely, and driving drunk after being warned that it could kill someone are the classic implied-malice cases, and each is second-degree murder if a death results.

What is a Watson murder?

A second-degree murder charge against a driver who killed someone while driving under the influence, based on implied malice. The name comes from the 1981 California Supreme Court decision that approved the theory. Prosecutors prove the driver's knowledge of the danger through a prior DUI conviction, the Watson advisement that every DUI defendant now receives at sentencing stating that driving under the influence can kill and that a resulting death may be charged as murder, DUI school attendance, or the circumstances of the driving. A first-offense DUI death without that knowledge evidence is charged as gross vehicular manslaughter while intoxicated instead.

Can second-degree murder be reduced to manslaughter?

Yes, and it is the central fight in most second-degree murder trials. If the killing was intentional but committed in a sudden quarrel or heat of passion, or in an honest but unreasonable belief in the need for self-defense, it is voluntary manslaughter, three to eleven years. If the person did not actually appreciate the danger of their act, so that their conduct was criminally negligent rather than consciously reckless, it is involuntary manslaughter, two to four years. The jury is instructed on both whenever the evidence supports them, and a plea to manslaughter is the common negotiated resolution of a second-degree murder charge.

Related reading from our attorneys

• Murder under Penal Code 187
• Manslaughter versus murder: the differences
• Gross vehicular manslaughter while intoxicated under Penal Code 191.5

Charged with murder? Malice is the element, and malice is the defense

The Bulldog Law's criminal defense attorneys defend first and second-degree murder, Watson DUI murder, and manslaughter cases across California, with the mental-state evidence developed from the first appearance. Call (888) 928-1609 or reach us online.