California’s Felony Murder Rule – What You Need to Know

California still has a felony murder rule. Senate Bill 1437 narrowed liability effective January 1, 2019; it did not abolish felony murder. Under Penal Code 189(e), a participant in an enumerated felony resulting in death generally must fall within one of three specified categories to be liable for murder.

Before the reform, participation in a qualifying felony could support murder liability even without intent to kill. The current law requires examination of the defendant’s own role and mental state, the underlying felony and the connection between that felony and the death.

The change is especially significant for participants who did not kill, intend a killing or act as major participants with reckless indifference to human life.

The Legislature passed SB 1437 in 2018 to limit felony murder and other imputed-malice liability. Later legislation expanded the petition procedure for some qualifying attempted murder and manslaughter convictions. A charge or conviction must be evaluated under the applicable statutory theory.

The penalties for a felony murder conviction are the same as murder, so they are still very steep. If you are convicted of felony murder, you can face penalties as high as life in prison without parole.

What is felony murder?

Under Penal Code 189, first-degree felony murder concerns a death during the commission or attempted commission of specified felonies. An unintended death can qualify, but participation alone or mere foreseeability of death does not establish every participant’s murder liability.

The prosecution must establish the qualifying felony, the legally required connection to the death and the defendant’s liability under the applicable rule, beyond a reasonable doubt. Relevant foundational issues include:

1. The defendant was involved in the commission or attempted commission of a qualifying felony.
2. A death occurred during the commission or attempted commission of the qualifying felony.
3. The death was a direct or natural consequence of the commission or attempted commission of the qualifying felony.

For a participant covered by section 189(e), the prosecution must prove that the defendant was the actual killer; intentionally assisted the actual killer in first-degree murder with intent to kill; or was a major participant in the underlying felony who acted with reckless indifference to human life. Section 189(f) contains an exception involving a peace officer killed while performing duties when the defendant knew or reasonably should have known the victim’s status.

Qualifying felonies for a felony murder charge

Penal Code 189(a) identifies the qualifying felonies. The list includes the following offenses and attempts, with sexual penetration under Penal Code 289 also included:

1. Arson
2. Robbery
3. Burglary
4. Kidnapping
5. Carjacking
6. Train wrecking
7. Torture
8. Mayhem
9. Rape
10. Sodomy
11. Oral copulation
12. Lewd acts on a child
13. Sexual penetration under Penal Code 289

This can apply to a lot of situations, so let’s look at three examples:

Example 1: Mike and Tony rob a store. Mike shoots and kills the clerk. Mike may be liable as the actual killer. Tony’s liability requires separate analysis: did he assist the killing with intent to kill, or was he a major participant in the robbery with reckless indifference to human life? Being present at the robbery does not answer that question.

Example 2: Suppression of illegally obtained evidence can weaken proof of the robbery or murder. A separate conviction on the underlying felony is not a prerequisite to felony murder; prosecutors must still prove the underlying felony and the other murder requirements in the murder case.

Example 3: Greg carjacks a vehicle and fatally strikes a pedestrian while fleeing. His possible liability as the actual killer turns on the evidence and required connection between the felony and death. The major-participant/reckless-indifference route primarily addresses participants who were not the actual killer and did not intentionally assist a killing.

What’s the difference between California’s old and new felony murder laws?

The passage of Senate Bill 1437 (SB 1437) in 2018 brought significant changes to California’s felony murder doctrine. The bill aimed to narrow the scope of the rule and limit the circumstances under which someone can be charged and convicted of felony murder. Below, we outline the key differences between the old and new felony murder rules and the changes brought about by SB 1437.

Under the old felony murder rule, any participant in a qualifying felony could be charged with murder if a death occurred during the commission or attempted commission of the felony, regardless of whether they had any direct involvement in the killing or had any intent to kill. This rule led to many individuals being held responsible for deaths they did not directly cause or foresee.

The revised rule limits who can be convicted of felony murder. Major participation and reckless indifference are separate requirements. Counsel should examine planning, weapons, presence, knowledge of the danger, opportunities to prevent harm and the defendant’s response to the violence rather than treating a role label such as “getaway driver” as decisive.

Penalties for felony murder in California

The ordinary sentence for first-degree murder is 25 years to life. Life without parole or a death sentence requires additional legally sufficient findings, including an applicable special circumstance. The list below describes possible murder penalties, not an automatic range for every felony murder defendant:

• 25 years to life in California state prison
• Life in prison without the possibility of parole
• The California death penalty

California’s executive moratorium halts executions; the death penalty remains in state law. The California Department of Corrections and Rehabilitation explains the moratorium and current capital punishment framework.

A non-enumerated felony does not automatically become “second-degree felony murder.” Penal Code 188 generally requires malice to be established for the defendant, except as provided by the felony murder rule in section 189(e). Second-degree murder ordinarily carries 15 years to life, subject to applicable statutory variations and enhancements.

Review of an older conviction under Penal Code 1172.6

Penal Code 1172.6, formerly numbered 1170.95, provides a petition process for qualifying convictions based on specified theories of imputed liability. It can cover eligible murder, attempted murder or manslaughter convictions, subject to all statutory conditions. It does not erase every conviction involving more than one participant.

A useful review file includes the charging document, verdict or plea record, jury instructions, trial transcripts and prior appellate decisions. These documents show the theory actually used and whether the person could still be convicted under current law. Eligibility, a prima facie showing and the ultimate evidentiary decision are separate stages; filing a petition does not guarantee release.

Charges related to felony murder

Felony murder is a serious charge that can have severe consequences. However, there are also several other charges that can be related to felony murder or share similar elements. Understanding these related charges can provide a broader context for felony murder cases and help defendants, friends, and family members better navigate the legal system. Below is a list of charges that are related to felony murder:

First-degree murder

First-degree murder occurs when a person unlawfully kills another person with malice aforethought and deliberation, which means the killing was planned or premeditated. This charge is distinct from felony murder but can still apply in cases where a death occurs during the commission of a qualifying felony.

Second-degree murder

Second-degree murder is the unlawful killing of another person with malice aforethought but without premeditation or deliberation. This charge can apply to cases where the defendant did not specifically intend to kill, but their actions demonstrated a conscious disregard for human life.

Voluntary manslaughter

Voluntary manslaughter occurs when a person intentionally kills another person without lawful justification, but does so in the heat of passion or under other circumstances that might reduce their culpability. This charge can be applicable in cases where the defendant’s actions led to a death, but they did not act with the malice aforethought required for a murder charge.

Involuntary manslaughter

Involuntary manslaughter is the unintentional killing of another person due to criminal negligence or during the commission of an unlawful act that is not a qualifying felony for felony murder. This charge might apply in cases where the defendant’s actions were not inherently dangerous but still resulted in a death.

Attempted murder

Attempted murder is the crime of intentionally trying to kill another person but failing to do so. This charge can be related to felony murder if the defendant attempts to commit murder during the commission of a qualifying felony.

Conspiracy to commit murder

Conspiracy requires an agreement, intent to kill and an overt act; it is distinct from participation in an enumerated felony that results in death.

Aiding and abetting

Aiding and abetting is the act of helping or encouraging another person to commit a crime. This charge can be related to felony murder if the defendant aids and abets someone else in committing a qualifying felony that results in a death.

Accessory after the fact

Accessory after the fact is the crime of helping a person who has committed a felony to avoid arrest, prosecution, or punishment. This charge can be related to felony murder if the defendant assists someone who has committed a qualifying felony resulting in a death.

Solicitation to commit murder

Solicitation of murder is a separate offense. A request to kill does not by itself substitute for proof of the elements of felony murder.

Defenses against felony murder charges in California

If you or someone you love has been charged with felony murder, the stakes are high.

However, an experienced criminal defense attorney can work with you to examine the facts of your case and develop a defense. Maybe you weren’t guilty of involvement in a felony? Maybe your involvement doesn’t qualify you as a “major participant?”

A skilled defense attorney can help you navigate these questions and defend your Constitutionally guaranteed rights to a fair defense.

Robert M. Helfend has handled murder cases since beginning his Los Angeles-area practice in 1984. His Super Lawyers profile lists selection for 2020-2023. Call 800-834-6434 for a consultation.

Sources and legal standards

• Penal Code 188 and 189: malice and felony murder
• Penal Code 1172.6: petition conditions and procedure
• CALCRIM 540A-540C: felony murder instructions

Legal information checked October 10, 2026. The charge, evidence and applicable version of the law control the analysis of an individual case.

References

1. California Penal Code § 189(a). https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=189&lawCode=PEN
2. California Penal Code § 188(a)(3). https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=188&lawCode=PEN
3. California Penal Code § 1170.95(a). https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1170.95&lawCode=PEN
4. Senate Bill 1437 (2018). https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1437