Murder Defense Lawyers in Los Angeles: How California Homicide Cases Are Charged, Tried, and Defended

A murder charge in California is the one case where the sentence is measured in decades at the low end and in a lifetime at the high end. It is also the case where the difference between murder and manslaughter, or between first degree and second degree, turns on a few words about what was in the accused person’s mind, and on whether the jury was told the law correctly.

Wegman & Levin APC has defended homicide cases in Los Angeles County for more than 30 years, from the preliminary hearing through jury trial and appeal, including capital murder. This page explains what the prosecution has to prove, where those cases are won and lost, and what to do now if you or a family member is under investigation or already charged.

What is murder under California law?

Penal Code section 187 defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. Every word after “killing” is an element the prosecution must prove beyond a reasonable doubt, and “malice aforethought” is where most murder trials are decided.

Malice has nothing to do with hatred or ill will. Under section 188, it comes in two forms:

• Express malice means the person intended to kill. The statute calls it “a deliberate intention to unlawfully take away the life of a fellow creature.”
• Implied malice means the person did not necessarily intend to kill, but intentionally did something whose natural consequences were dangerous to human life, knew it was dangerous, and did it anyway with conscious disregard for life. The California Supreme Court set out that test in People v. Watson (1981) 30 Cal.3d 290 and confirmed in People v. Knoller (2007) 41 Cal.4th 139 that the disregard must be for human life, not merely for the risk of serious injury.

A killing without malice is not murder. It may be manslaughter, or it may be no crime at all.

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

The degree is set by Penal Code section 189, and first degree is broader than most people assume. A murder is first degree if it falls into any of these categories:

1. A willful, deliberate and premeditated killing. This is the category people have in mind when they think of first-degree murder. “Premeditated” does not require long planning. Section 189(d) says it is not necessary to prove that the defendant “maturely and meaningfully reflected” on the act, and the courts look at planning activity, motive, and the manner of the killing, the three categories identified in People v. Anderson (1968) 70 Cal.2d 15, to decide whether a killing was a considered decision or a rash impulse.
2. Killings by specified means: a destructive device or explosive, a weapon of mass destruction, knowing use of armor-piercing ammunition, poison, lying in wait, or torture.
3. Felony murder: a killing committed during the perpetration or attempted perpetration of arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, torture under section 206, or the sex offenses listed in section 189(a). Who can be convicted of felony murder changed in 2019, and that change is explained below.
4. A drive-by killing: discharging a firearm from a motor vehicle, intentionally at a person outside the vehicle, with the intent to inflict death.

Everything else is second-degree murder under section 189(b). That includes an intentional killing that was not premeditated, which is express-malice second-degree murder, and every implied-malice murder.

So the common description of second-degree murder as “a killing without intent to kill” is wrong in both directions. A person who decides to kill in the heat of the moment, without deliberation, has committed second-degree murder with express malice. And a person who never meant to kill anyone can be convicted of second-degree murder on implied malice, or of first-degree murder if the killing occurred during a listed felony.

Can someone be convicted of murder without intending to kill?

Yes. Implied-malice murder requires no intent to kill, and it is the theory behind some of the most common homicide prosecutions in Los Angeles County:

• Watson murder. A driver with a prior DUI conviction who kills someone in a drunk-driving crash can be charged with second-degree murder rather than vehicular manslaughter. The prosecution uses the prior conviction, the court’s warning under Vehicle Code section 23593 that if someone is killed as a result of future impaired driving the driver “can be charged with murder,” DUI program attendance, and the facts of the crash to argue the driver knew the danger and drove anyway. Our article on Watson murder charges in California covers that evidence in detail.
• Dangerous conduct that was not meant to kill. In Knoller the California Supreme Court upheld murder liability for a dog owner whose animals killed a neighbor. In People v. Cravens (2012) 53 Cal.4th 500 the court found sufficient evidence of implied malice from a single punch, given who threw it, at whom, and where. In People v. Nieto Benitez (1992) 4 Cal.4th 91 the court held that brandishing a loaded firearm can supply the dangerous act.

In every one of these cases the fight is over the subjective element: not whether a reasonable person would have known the conduct was dangerous, but whether this defendant actually knew and consciously disregarded the danger. Our post on implied-malice murder defense in Los Angeles explains how that element is attacked.

What is “capital murder” or “special circumstances” murder?

California has no separate crime called capital murder. What people mean is first-degree murder with a special circumstance found true under Penal Code section 190.2. A true finding takes 25 years to life off the table and leaves two possible sentences: life without the possibility of parole, or death.

Section 190.2 lists 22 special circumstances. Among them: a murder for financial gain; a prior murder conviction; more than one murder in the same case; killing by bomb or explosive; killing a peace officer, firefighter, witness, prosecutor, judge, juror or elected official because of their role; lying in wait; torture; poison; a killing because of the victim’s race, color, religion, nationality or country of origin; a drive-by killing; a killing by an active gang member to further the gang; and the felony-murder special circumstance, which applies when the murder was committed during one of the felonies listed in section 190.2(a)(17).

For a person who was not the actual killer, the felony-murder special circumstance requires proof under section 190.2(d) that they were a major participant in the felony and acted with reckless indifference to human life. The California Supreme Court gave those terms real content in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522: the getaway driver who waited blocks away, never saw the shooting and had no role in it is not a major participant acting with reckless indifference, and knowing that a robbery will be armed is not, by itself, reckless indifference to human life.

Whether to seek death is a charging decision the District Attorney makes case by case. Special-circumstance allegations are filed regardless, and life without parole is the sentence when one is found true and death is not imposed.

How did SB 1437 change felony murder?

Before 2019, anyone who participated in a listed felony during which someone died could be convicted of murder, first degree if the felony was one listed in section 189 and second degree for other inherently dangerous felonies, whether or not they killed anyone, intended to, or knew a death was likely. Senate Bill 1437, effective January 1, 2019, rewrote sections 188 and 189.

Under section 189(e), a participant in one of the listed felonies is liable for murder only if the prosecution proves one of three things: the person was the actual killer; the person, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer; or the person was a major participant in the felony who acted with reckless indifference to human life, as those terms are used in section 190.2(d). There is an exception under section 189(f) when the victim was a peace officer killed on duty.

Section 188(a)(3) added a rule that reaches beyond felony murder: “Malice shall not be imputed to a person based solely on his or her participation in a crime.” That sentence ended murder liability under the natural-and-probable-consequences doctrine, as the Supreme Court confirmed in People v. Gentile (2020) 10 Cal.5th 830.

The same law created a path back to court for people already convicted under the old rules. Under Penal Code section 1172.6, a person convicted of felony murder, murder under the natural-and-probable-consequences doctrine, or any other theory that imputed malice from participation in a crime, and, since January 1, 2022, a person convicted of attempted murder or manslaughter on those theories, may petition the sentencing court to vacate the conviction. If the petition makes a prima facie showing, the court must issue an order to show cause and hold a hearing at which the prosecution bears the burden of proving, beyond a reasonable doubt, that the petitioner is guilty of murder under the law as it stands now. People v. Lewis (2021) 11 Cal.5th 952 requires the court to appoint counsel when requested and bars it from weighing the facts against the petitioner at the prima facie stage, and People v. Strong (2022) 13 Cal.5th 698 holds that a special-circumstance finding made before Banks and Clark does not by itself defeat a petition.

Our 2022 post on California’s new felony murder rule introduced these changes; the resentencing procedure has developed considerably since then.

When is a killing manslaughter rather than murder?

Penal Code section 192 defines manslaughter as an unlawful killing without malice. The sentences under section 193 show why the distinction matters:

Offense	Sentence
First-degree murder (PC 190(a))	25 years to life; life without parole or death with a special circumstance
Second-degree murder (PC 190(a))	15 years to life (25 to life, or life without parole with specified findings, if the victim was a peace officer on duty and the defendant knew or should have known it; 20 to life for a drive-by shooting with intent to inflict great bodily injury)
Voluntary manslaughter (PC 192(a), 193(a))	3, 6 or 11 years in state prison
Involuntary manslaughter (PC 192(b), 193(b))	2, 3 or 4 years under Penal Code 1170(h), served in county jail
Gross vehicular manslaughter while intoxicated (PC 191.5(a))	4, 6 or 10 years in state prison; 15 years to life with qualifying priors
Vehicular manslaughter while intoxicated, without gross negligence (PC 191.5(b))	Up to one year in county jail, or 16 months, 2 or 4 years served in county jail
Vehicular manslaughter with gross negligence (PC 192(c)(1), 193(c)(1))	Up to one year in county jail, or 2, 4 or 6 years in state prison
Vehicular manslaughter without gross negligence (PC 192(c)(2), 193(c)(2))	Up to one year in county jail; a misdemeanor

A murder count becomes manslaughter in three main ways.

Heat of passion. Voluntary manslaughter is a killing “upon a sudden quarrel or heat of passion.” The provocation must be one that would cause an ordinary person of average disposition to act rashly and without due deliberation, from passion rather than from judgment. In People v. Beltran (2013) 56 Cal.4th 935 the Supreme Court made clear that the question is whether the provocation would cause an average person to react from passion, not whether it would cause an average person to kill. Section 192(f) adds that discovering or learning of a victim’s gender, gender identity, gender expression or sexual orientation is never objectively reasonable provocation, including when the discovery comes through an unwanted, nonforcible romantic or sexual advance.

Imperfect self-defense. A person who actually believed they had to use deadly force to avoid imminent death or great bodily injury, but whose belief was unreasonable, lacks malice. The killing is voluntary manslaughter, not murder. That rule comes from People v. Flannel (1979) 25 Cal.3d 668 and In re Christian S. (1994) 7 Cal.4th 768. The belief must be grounded in the actual circumstances; under People v. Elmore (2014) 59 Cal.4th 121, a belief that is purely delusional does not qualify.

No malice at all. Involuntary manslaughter under section 192(b) covers a killing during a misdemeanor or other unlawful act not amounting to a felony, or during a lawful act done without due caution and circumspection. A killing in the driving of a vehicle is charged under section 192(c) or, where the driver was intoxicated, section 191.5, which we cover in gross vehicular manslaughter while intoxicated.

Reduction to manslaughter is the most common outcome short of acquittal in a contested murder case, by plea or by verdict. Our post on reducing murder charges to voluntary manslaughter walks through how that happens in practice. One limit to know about: mental health diversion under Penal Code section 1001.36 is not available for a murder or voluntary manslaughter charge, though it can be for involuntary manslaughter, as explained in mental health diversion and manslaughter charges.

How does self-defense apply to California murder charges?

A killing in lawful self-defense or defense of another is not a crime. Penal Code section 197 makes homicide justifiable when committed in resisting an attempt to murder, to commit a felony, or to do great bodily injury, and in defense of a person or home against someone who manifestly intends violence. The jury instruction, CALCRIM No. 505, breaks that into three requirements: the defendant reasonably believed they or someone else was in imminent danger of being killed or suffering great bodily injury; reasonably believed that immediate deadly force was necessary to prevent it; and used no more force than was reasonably necessary.

Three points about self-defense in California that people get wrong:

• There is no duty to retreat. A person who is attacked may stand their ground and defend themselves, and may even pursue the attacker if that is reasonably necessary to end the danger. California has never required retreat.
• Reasonableness is judged from the defendant’s position. The jury asks what a reasonable person in the defendant’s situation, knowing what the defendant knew, would have believed. In People v. Humphrey (1996) 13 Cal.4th 1073 the Supreme Court held that expert testimony about intimate partner battering is admissible on that question.
• In the home, the law presumes fear. Under section 198.5, a resident who uses deadly force against someone outside the household who has unlawfully and forcibly entered the residence, knowing or having reason to believe that such an entry occurred, is presumed to have held a reasonable fear of imminent death or great bodily injury.

Self-defense fails when the defendant started the fight and did not try in good faith to withdraw, when the threat was not imminent, or when the force used was out of proportion to the danger. Where it fails only because the belief was unreasonable, the result is imperfect self-defense and voluntary manslaughter, not murder.

Who has to prove what?

The prosecution must prove every element of murder beyond a reasonable doubt, including malice and the degree. Section 189.5 says that once the killing is proved, the burden of showing mitigation or justification “devolves upon the defendant,” but the California Supreme Court has long read that as a burden to raise the issue, not to prove it. Once there is evidence of heat of passion or imperfect self-defense, the prosecution must disprove it beyond a reasonable doubt, as People v. Rios (2000) 23 Cal.4th 450 explains, and the self-defense instruction, CALCRIM No. 505, tells the jury the same thing about justification: the People must prove beyond a reasonable doubt that the killing was not justified. And under People v. Dewberry (1959) 51 Cal.2d 548, a jury that has a reasonable doubt whether the crime was murder or manslaughter, or first degree or second, must return the lesser verdict.

What happens when a jury is improperly instructed about self-defense or malice?

Murder trials are decided by instructions as much as by evidence, and instructional error is the most common ground on which homicide convictions are reversed. Under People v. Breverman (1998) 19 Cal.4th 142, the trial court must instruct the jury on every lesser included offense that the evidence substantially supports, whether or not the defense asks for it. Manslaughter is a lesser included offense of murder, and second-degree murder is a lesser included offense of first-degree murder. CALCRIM No. 522 tells the jury that provocation short of heat of passion may still reduce first-degree murder to second, and CALCRIM Nos. 570, 571 and 580 cover heat of passion, imperfect self-defense and involuntary manslaughter.

A judge who refuses those instructions, or who gives them in a way that misstates the burden, hands the defendant an appeal. This firm won a full reversal of a second-degree murder conviction on exactly that ground in People v. To (Cal. Ct. App., 2d Dist., Div. 4, Nov. 20, 2008, No. B201292), an unpublished decision: the trial court had refused to instruct on self-defense, imperfect self-defense, involuntary manslaughter and accident, the Court of Appeal found substantial evidence for each theory, and it ordered a new trial with those instructions. Appeals are a separate practice, described on our appeals and writs page, and the groundwork for them is laid at trial by objecting and requesting the right instructions.

What evidence decides a murder case?

Every homicide prosecution in Los Angeles County is built from the same kinds of evidence, and each kind has known weaknesses.

• The defendant’s own statements. Detectives interview suspects before charges are filed for a reason. A statement taken in violation of Miranda, after a request for counsel, or through coercion can be suppressed, and even a lawful statement is often less damaging than the police summary suggests. Say nothing and ask for a lawyer.
• Eyewitness identification. Penal Code section 859.7 now requires blind administration of lineups, cautionary instructions to the witness, and recording of the witness’s confidence, and a lineup conducted without those safeguards is open to challenge.
• Forensic evidence. Cause and manner of death, time of death, DNA mixtures, ballistics, blood spatter and cell-site location all come from experts whose methods and assumptions can be tested. The defense retains its own.
• Phone and digital evidence. Location history, messages and search history usually come from a warrant, and the warrant and its execution are reviewable.
• Gang evidence. Since January 1, 2022, Penal Code section 1109 entitles the defense to have a gang enhancement tried in a separate phase after the verdict on the underlying charge, so that gang evidence does not color the jury’s decision on guilt.
• Prior conduct. Evidence Code section 1101(b) allows prior acts only for limited purposes such as intent, knowledge or motive, and in a Watson case the prior DUI record is admitted on exactly that theory. What it may be used for, and what it may not, is a fight worth having.
• Firearm enhancements. Under Penal Code section 12022.53, personal use of a firearm in a murder adds 10 years, discharging it adds 20, and discharging it and causing great bodily injury or death adds 25 years to life, on top of the murder sentence. Since 2018 the court has discretion to strike those enhancements in the interest of justice, which makes the sentencing hearing a second trial.

What happens after an arrest for murder in Los Angeles?

Murder is charged in Los Angeles County by felony complaint in most cases, followed by an arraignment, a preliminary hearing at which the prosecution must show probable cause, and, if the case is held to answer, an information and a trial setting; a grand jury indictment skips the preliminary hearing. Bail is governed by a schedule and by the court; under article I, section 12 of the California Constitution a person charged with a capital crime may be held without bail when the facts are evident or the presumption great, and in every murder case release is contested. Our guides to how bail hearings work in California and the Los Angeles preliminary hearing describe those first stages, and what a life sentence means in California answers the question every family asks first.

Attempted murder is its own charge under Penal Code section 664: five, seven or nine years, or life with the possibility of parole if the attempt was willful, deliberate and premeditated.

Why trial experience matters more here than anywhere else

Most criminal cases settle. Murder cases go to trial more often than any other kind, because the gap between the offer and the exposure is so wide, and because the issues that decide them, malice, premeditation, provocation and self-defense, are jury questions. A lawyer who has not tried a homicide case to verdict has not seen how a jury handles an implied-malice instruction, or how a prosecutor uses a prior DUI, or what an expert’s assumptions look like under cross-examination.

Michael M. Levin has tried cases from DUI to murder in more than 30 years of practice, and Debra J. Wegman handles the appellate side, including the reversal described above. Their biographies are at Michael M. Levin and Debra J. Wegman. Our posts on possible defenses to a murder charge and plea bargains in murder cases cover the decisions that come later.

From our cases: In People v. Daniel F., the prosecution charged a Watson murder on the theory that he was fleeing an earlier injury collision when the fatal crash happened. At the preliminary hearing, Michael Levin put into evidence AutoSpotter photographs of the first driver’s Jeep, taken months earlier, showing that the damage she blamed on him was already there, and the court dismissed the murder, felony DUI causing injury and hit-and-run charges. Daniel F. later pleaded to vehicular manslaughter while intoxicated, without gross negligence, and was sentenced to probation.

If you are being investigated or have been charged

Do not talk to detectives, in person or by phone, without a lawyer present. Do not discuss the case on a jail call, with a cellmate, or on social media. Preserve anything that might matter: messages, photographs, receipts, the names of people who were there. And call us, at (818) 980-4000 or through our contact page, before the first court date, not after it. Wegman & Levin APC represents clients charged with murder, attempted murder and manslaughter throughout Los Angeles County and all of Southern California from our North Hollywood office.

Reviewed by Michael M. Levin, criminal defense attorney, November 3, 2026.