Homicide is the unlawful killing of another human being. Included among homicides are murder and manslaughter, of which there are varying degrees and types.



Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. There are two types of murder: murder in the first degree and murder in the second degree. In order to bring murder charges, the victim must die within a year of the crime causing his death. Murder is defined in Penal Code Section 187. First degree murder is defined as a willful, deliberate, and premeditated killing, requiring malice aforethought. Malice aforethought is the conscious intent to cause death or great bodily harm to another person before a person commits the crime. Such malice is a required element to prove first degree murder. It is also described as a general evil and depraved state of mind in which the person is unconcerned for the lives of others. This is the type of killing which is referred to as a killing “in cold blood." Second degree murder is defined as a killing without premeditation, as in the heat of passion or in a sudden quarrel or fight. Unlike first degree murder, second degree murder does not require a showing of malice aforethought, although it may be implied. Second degree murder includes such an implied malice aforethought provision in Penal Code Section 188. This section is used to convict multiple DUI offenders who kill someone while they are driving a vehicle under the influence, for second degree murder.

Manslaughter is defined in California Penal Code Section 192, which states manslaughter is killing a person without premeditation or malice aforethought. Malice aforethought means having an evil intent prior to the killing. Like murder, there are different degrees of seriousness of manslaughter: voluntary and involuntary. Voluntary manslaughter means that while the person had an intention to kill, the killing was provoked, such as during an argument. This is referred to as being in the “heat of passion." Voluntary manslaughter may also be committed during the commission of a felony. On the other hand, involuntary manslaughter is defined as a killing occurring without premeditation, in the heat of passion. Vehicular manslaughter is a type of involuntary manslaughter which does not require the element of an intention to kill. The only difference between a vehicular homicide and other homicides is the use of a motor vehicle as a weapon, as opposed to a gun or knife. Deaths occurring as a result of operating a vessel on a waterway, such as a boat, while intoxicated, results in manslaughter charges.

The degree of punishment imposed for a homicide depends on whether it has been prosecuted as a misdemeanor or a felony. A person found guilty of murder in the first degree can be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. However, if the jury finds that the murder was committed under special circumstances, the only penalty is death or life without the possibility of parole. Some crimes are termed “wobblers," meaning they may be charged as either a misdemeanor or felony. Wobblers may also be sentenced as either a misdemeanor or a felony. Misdemeanors are punished by up to one year in the county jail. Felonies are punishable by imprisonment in the state prison.