Differences Between Homicide Murder & Manslaughter

Last Modified: January 22, 2024

Our expert attorneys discuss the differences between homicide, murder, and manslaughter. Learn more on the penalties for each.

The Differences Between Homicide, Murder and Manslaughter in California

Homicides, murders and manslaughters frequently occur in California. The media sometimes treats them as interchangeable terms (especially homicide and murder). However, that is not the case. In fact, the differences between homicide, murder, and manslaughter are important to the Los Angeles criminal defense attorneys who defend persons charged with those crimes.

And the differences between homicide, murder and manslaughter are extremely important to the persons accused of those crimes.


The term homicide refers to an instance when a person kills another person or fetus. However, not all homicides are criminal acts. For instance, if a person justifiably fears for their safety because of an attack by another person, that person may take steps to protect himself, including killing the aggressor.

Likewise, a police officer kills an aggressor to protect herself or other people. That is a homicide. But if her actions were justified, there is no crime.

Two cars could collide, resulting in the death of a driver. But if the other driver did not drive recklessly or under the influence of drugs or alcohol, it was an accident, not a crime.


On the other hand, murder is a homicide which is always a crime.

In California, there are three elements of a murder:

  • The defendant caused the death of the victim (or fetus);
  • The defendant acted with “malice aforethought;” and
  • The defendant killed without excuse or justification.

What is “Malice Aforethought”?

Malice aforethought is a legal term that defines the state of mind of the person who is about to commit a murder (the “actor”). The actor has malice aforethought when the actor, with total disregard for human life, commits an act that has a high degree of probability it will kill the victim. In the California Penal Code, there are degrees of murder.

First-Degree Murder

First-degree murder is charged in the following instances:

  • When the actor uses an explosive device, poison or armor-piercing ammunition;
  • hiding by the victim’s home;
  • When the actor tortures the victim;
  • The murder was willful, deliberate and premeditated; or
  • The murder was a felony murder (discussed below). The penalty for first-degree murder is 25 years to life in state prison. Furthermore, if the murder was a hate crime, the penalty is life without the possibility of parole. Capital murder Capital murder is first-degree murder with special circumstances. Some of those special circumstances occur when the actor kills:
  • a police officer, firefighter, prosecutor, judge, juror, or elected official;
  • more than one victim; or
  • to prevent a witness from testifying.

There are several other circumstances that can raise a charge of first-degree murder to capital murder.

The penalty for conviction on a capital murder charge is the death penalty or life in prison without the possibility of parole. However, Governor Newsome issued a moratorium on executions in 2019.

Second-Degree Murder

Second-degree murder is willful murder. Notwithstanding that, unlike first-degree murder, it is not premeditated or deliberate. A driver with a past DUI conviction who has a DUI accident, killing someone, could be charged with second-degree murder.

As another example, someone who tosses a cinderblock from an overpass onto a crowded highway, killing a driver, could be charged with second-degree murder.

The sentence for second-degree murder is 15 years to life in prison.

In addition, there are aggravating circumstances which can increase that penalty. For instance, if the victim was a peace officer, the penalty is 25 years to life in prison.

Likewise, if the defendant has a prior murder conviction, the sentence is life without the possibility of parole. If the defendant shot the victim from a car intending to cause serious injury, the penalty is 20 years to life.

Lastly, if the victim was a peace officer, and the defendant used a deadly weapon, intended to kill the officer or intended to cause serious bodily harm, the sentence can be life without the possibility of parole.

Felony Murder

A felony murder occurs when the actor kills a person while committing another felony. To be charged with felony murder, the actor would have to kill the victim during the underlying felony, aid in the killing of the victim or be a major participant in the killing.

Lastly, if an on-duty peace officer was killed, felony murder charges could apply.

Unlike prior law, accidental or negligently caused deaths are no longer considered felony murders (unless the victim is a peace officer).

First-degree felony murder is charged when the underlying felony is one of several specific felonies, such as carjacking, robbery, arson, etc.

The penalty for first-degree felony murder is 25 years to life without the possibility of parole.

Second-degree felony murder is charged when the underlying dangerous felony is not one of the specific felonies identified in the first-degree felony statute. The penalty for conviction is 15 years to life in prison.


Manslaughter is a lesser charge than murder. Manslaughter is the killing of the victim without malice. Frequently, during plea bargaining, prosecutors will drop murder charges in return for the defendant pleading guilty to manslaughter charges. Voluntary Manslaughter A voluntary manslaughter occurs when the actor kills the victim without malice in a spontaneous way (“the heat of passion”). For instance, a man finds his wife or girlfriend in bed with another man and kills the other man right then.

The penalty for voluntary manslaughter can be prison for up to 11 years.

Involuntary manslaughter

An involuntary manslaughter happens when the actor unintentionally causes the death of the victim because he engaged in an extremely risky action.

The penalty for involuntary manslaughter can be imprisonment up to four years.

Vehicular Manslaughter

A vehicular manslaughter occurs when the victim dies unintentionally in a motor vehicle accident as a passenger or with another vehicle. Depending on the facts, the driver can be charged with a misdemeanor (up to one year in jail) or a felony (up to six years).

Experienced Los Angeles Criminal Attorneys Can Help Persons Charged with Murder

The differences between a conviction for murder and one for manslaughter hinges on the specific facts of the incident that resulted in the death of the victim.

Moreover, there is a significant difference in the penalties for a murder conviction versus manslaughter. Lastly, prosecutors sometimes “overcharge” defendants, exposing defendants to greater penalties than the facts support.

Experienced Los Angeles criminal lawyers can assist persons charged with murder vigorously fight the charges. A good criminal defense attorney in Los Angeles will hold the prosecution to the high standard of proving their case beyond a reasonable doubt. Daniel Perlman and Matthew Cohen are experienced Los Angeles criminal defense lawyers at Perlman & Cohen. If you or a loved one have been charged with murder, they will investigate the incident, obtain all relevant police reports and records, interview witnesses and prepare your case for trial.

In appropriate cases, they will negotiate a plea to lesser charges from a position of strength. Call them at (310) 557-1700 to set up an initial consultation so they can help you fight the charges and protect your rights.

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