Before we get into homicide, let’s clear up a point of confusion about its definition.

Because the term ‘homicide’ is so widely used, I’m often asked about the types of homicide or to explain the differences between ‘homicide vs. murder’ or ‘homicide vs manslaughter’.

So, what is homicide?

Homicide is a legal term used on a death certificate when someone dies at the hands of another, no matter how. This includes murder, manslaughter and even an accident.

Both murder and manslaughter have varying degrees and sentences, but all are considered felonies and count as a strike under the state’s three-strikes law (learn more about felonies here). The only exception is vehicular manslaughter involving drugs or alcohol, which is a wobbler.


The main difference between murder and a lesser charge of voluntary manslaughter comes down to one thing – the mental state of the person who committed the homicide.

California Penal Code 187 defines murder as unlawfully killing a human being or fetus and doing so with malice aforethought. Malice aforethought is a reckless disregard for human life and acting in a way a reasonable person would know had a high probability to cause death.

California Penal Code 192(a) defines voluntary manslaughter as killing a human being in the heat of passion, in a sudden fight, or in an unreasonable but honest belief the act was in self-defense. Note: rarely charged originally, this is almost always a reduced murder charge.

Both murder and manslaughter have degrees also defined by the state of mind of the killer.


There are both first and second degrees of murder. Both of them fall under the aforementioned California Penal Code 187. First-degree murders have sentences that are much harsher because it is almost always premeditated, meaning the person planned it out for some amount of time.

The following things constitute first-degree murder:

  • The premeditated definition used above is true or the act was otherwise deliberate or willful (particularly with reckless regard for human life).
  • The act was accomplished using a weapon/something destructive, or the perpetrator was ‘lying in wait’, or tortured the victim, all of which adds severity to the sentence.
  • The California felony murder rule calls for it because it happened during another serious/violent felony crime, such as armed robbery.

All other murders are considered second-degree murder (unless the victim is a police officer and other select peace/government officers, in which case life without the possibility of parole or even the death penalty is possible). First-degree murder generally carries a sentence of 25 years to life in state prison while second degree faces 15 years to life.

What is the felony murder rule? Simply put, if someone was committing or attempting a violent felony and a murder took place (whether they committed the murder or not) they could be charged with first-degree murder and could face life without the possibility of parole and potentially the death penalty. In 2018, California Senate Bill 1437 amended the law to require them to be a major participant in the killing.

Again, proving someone was a major participant has largely to do with their state of mind. If they didn’t induce, solicit, aid and abet, request it or otherwise INTEND it through any words or deeds, including physical restraint, the rule does not apply. (The only exception is when the victim is an on-duty police officer.)


Because of the severity of its implications, capital punishment requires the prosecution to prove one or more “special circumstances” are true (on top of proving the murder case):

    • The person charged had a prior murder conviction.
    • The murder was carried out for the perpetrator’s financial gain.
    • The murder happened in the commission of a felony as mentioned above.
    • More than one person was murdered.
    • A destructive device or bomb was used.
    • The murder was committed by poison.
    • The murder was committed by drive-by shooting.
    • The person was ‘lying in wait’, meaning they had not only premeditated the murder but waited, perhaps in the bushes or just nearby, for the victim to arrive.
    • Escaping or preventing arrest through murder.
    • The murder of a federal agent, police officer or firefighter.
    • The murder of a government official, judge, juror or prosecutor.
    • The murder was committed by a street gang member.
    • The murder was of a witness.
    • The murder was committed due to religion, race or nationality.
    • The murder involved torture.

If someone is convicted of both murder and at least one of the special circumstances, there is a penalty phase. Known as a trial after the trial, the jury then decides if they will be receiving the death penalty or life without the possibility of parole. A defense attorney will never want to see you get to this phase because both choices effectively end your life.


As mentioned earlier in this article, voluntary manslaughter, under California Penal Code 192(a), is often a reduced murder charge stemming from something happening in the heat of passion, sudden fight, or an unreasonable but honest belief the act was in self-defense. The sentence goes up to 3, 6, or 11 years in state prison.

California Penal Code 192(b) is involuntary manslaughter. It does not require the intent to kill but stems from reckless indifference for life, meaning something a reasonable person would think could cause death. Alternatively, it could be charged if the act happened accidentally while committing a non-dangerous California felony and is charged with up to 2, 3, or 4 years in prison.

Vehicular manslaughter, California Penal Code 192(c), is the only wobbler here, as mentioned earlier. It can be charged as a misdemeanor or felony, all based on the level of negligence. Gross negligence can range from 1 year in county jail to 6 years in prison while ordinary negligence is a misdemeanor with up to 1 year in county jail.

If you were drinking, this gets especially complicated, especially with a prior conviction because a murder charge is on the table. Getting a defense attorney right away is now a priority, because things are about to get very complicated, especially after a DUI arrest.


While it can be terrifying to be involved in any situation that involves the death of someone else, a charge does not make you guilty.

If you acted in defense of yourself or others (most justified homicide cases), were involved in an accident that negligence or criminal activity wasn’t responsible for (excusable homicide), or you were falsely accused, you will likely be faced with overwhelming decisions to make from the moment of your arrest.

Seeking proper defense right away is paramount to proving your innocence because you’ll likely be highly reactive and emotional which may hurt your case. Be proactive and don’t wait because any statement you make without legal counsel could be to your detriment.

Find a successful end to your search for ‘lawyers near me’ with Proper Defense, one of the most compassionate Fresno law firms in the criminal justice space according to dozens of reviews on Avvo, an online Fresno attorneys directory. While often sought as a Fresno lawyer, Proper Defense serves the Greater Central Valley area, including Clovis, Coalinga, Kingsburg, Hanford, Madera, Merced, Porterville, Reedley, Sanger, Selma, and Tulare.

Contact us today for an initial consultation at (559) 825-3800 or schedule an appointment online on our ‘Contact Us’ page. It gets better with Proper Defense, we promise.

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