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

Posted by Ronald D. HeddingSep 13, 2022

It's a quick query but a lit bit longer of an answer.  California Penal Code 187 PC defines the crime of murder as the unlawful killing of someone or a fetus with malice aforethought.

First-degree murder covers all premeditated killings and felony murder, which involves a scenario where somebody dies during a carjacking, robbery, torture, arson, burglary, mayhem, or other serious crimes.

Difference Between First and Second-Degree Murder in California

It also includes murder related to rape or other sex crimes, such as sodomy, forced oral copulation, sexual penetration with a foreign object, and lewd acts with a minor.

To charge somebody with PC 187 murder, prosecutors have to prove you killed someone with malice or forethought, which means you thought about it and planned it.

In cases where the murder didn't involve premeditation, it will typically be charged as a second-degree murder that carries a sentence of 15 years to life in prison if convicted.

Under Penal Code 187 PC, second-degree murder is a willful act but not deliberate, and there was no premeditation.  It's any murder that doesn't fall under the category of first-degree murder.

The first difference between a first-degree murder charge and a second-degree murder charge is the amount of time a person who is convicted would spend in custody.

The penalties for each of these degrees of a murder could differ widely, and the definition of the degrees of murder is codified in Penal Code 189 PC. Our California criminal defense attorneys will explain this topic further below.

What Are the Penalties for Murder?

For a first-degree murder charge, the person is looking at 25 to life; for a second-degree murder charge, the person is looking at 15 to life.

Penalties for Penal Code 187 PC Murder

In either scenario, the person would serve 85% of the time and then be eligible for parole.  They may never be paroled.  They may never get out of custody. 

That's why, if we negotiate a first or second-degree murder charge because the prosecutors have good evidence in the case, we're always trying to get what's called a determinative sentence.

This means we know when a person will get out of prison, which will require changing the charge from a premeditated willful first or second-degree murder to something different.

For example, they could be charged with Penal Code 192(a) voluntary manslaughter, which would give the person a determinative sentence.  Other differences between the crimes are what it takes to prove each crime. 

Because a second-degree murder charge is much more spontaneous, and a person can quickly make that decision.  Many times are rash and impulsive, but if they have just enough time to think about it, they could still be charged with second-degree murder, which makes it less sinister, and therefore, the person is looking at less time.

Was the Killing Planned and Premeditated?

On the flip side, a first-degree murder charge is something that's planned.  It's premeditated.  It's thought about – someone lying in wait would be a good example.

First-Degree Murder Charge in California

They're waiting to kill somebody.  They thought about it versus somebody who might be armed, they see somebody they don't like, and they quickly decide to kill them.  That would be more of a second-degree murder charge.

Also, to be considered, I see that people are usually not just charged with first or second-degree murder; they're also accused of other allegations. 

For example, they can add a gun allegation if they use a gun.  If they're a gang member, they can add a gang allegation.  If they fire the weapon, they can add extra time for that.  If they hit somebody with a bullet, they can add extra time.  So, I typically see a whole host of charges filed with first or second-degree murder.

There is an argument that there is no difference between the two because, in both scenarios, the person is facing life in prison. 

However, recently people in murder and attempted murder cases have been getting out of custody and paroled, even though they got a life sentence behind their sentence.  So, it would make a big difference between 15 and 25 to life. 

What Are the Best Defense Strategies for Murder?

Usually, strategy-wise, what I want to do if my client is going to have to take a deal on a first or second-degree murder case, is try to convince the prosecutors to give them a different charge – a charge that does not require a life sentence. 

Examples of these charges are a second-degree murder charge with no premeditation or deliberation involved; a Penal Code 664/187 PC attempted murder charge, a voluntary manslaughter charge, or Penal Code 2145(a)(1) PC assault with a deadly weapon charge

There are all kinds of ways to get a different charge than first or second-degree murder, but of course, you have to convince the prosecutors that they have a problem with their case, that your client is outside the gambit of what somebody should get in a murder case

Maybe they were trying to defend themselves, but they did so improperly, so an imperfect self-defense-type angle.  Maybe there's a good defense in the case, and the prosecutors can lose the case. That would be a reason for them to give some charge other than murder.

Contact a Murder Defense Professional for Help

What I see the prosecutors do, though, in first and second-degree murder cases, not just in LA county but throughout California because I go all over the place, they will look and see if they're going to give something less than 15 or 25 to life or more, they're going to look and see what they think the amount of time should be.

Then they will marshal the charges around that amount of time.  For example, let's say they think this person doesn't deserve a life sentence on the back.  We're going to give them a determinative sentence.

Murder Defense Professional in California

They can decide they're going to give them 20 years.  They know when they're going to get out.  They're going to serve 85% of 20 years because murder is a violent felony, so the person would be hit with a strike if they pled to a murder charge, or they could come up with other charges that added up to 20 years. 

For example, assault with a deadly weapon and voluntary manslaughter.  A whole host of different charges can be used in a murder case.  It just has to fit the factual scenario. 

In other words, if somebody took out a gun, pointed it at somebody, and fired, that could be assault with a deadly weapon.  Even though they might have killed the person, they could still have them plead to assault with a deadly weapon which is still a strike, but they're not forced to give them a life sentence.

So, pick up the phone now if you or a loved one is charged with murder in the first or second degree and you're looking for the best attorney.  Set up a meeting with Ron Hedding.  We'll go over everything. 

I will meet with your loved one and do everything we can to help them. The Hedding Law Firm can discuss all the cases during a free case evaluation. Contact us by phone or fill out the contact form.