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Homicide is defined as a killing of another human being, whether lawful or unlawful. An unlawful homicide can be charged as murder, either in the first, or in the second degree, or as manslaughter, voluntary or involuntary. When a human being is killed in the driving of a vehicle while intoxicated, depending on the circumstances of the crime and the driver’s record, it may be charged either as a second-degree murder or a vehicular manslaughter. Other homicides involving the operation of an automobile without intoxication are prosecuted as vehicular manslaughters.

If you, your friend, or a family member are being investigated for, have been arrested for, or are presently charged with a homicide offense, it is imperative to consult an experienced criminal defense attorney right away. Homicide cases present some of the greatest challenges to a legal practitioner, and require handling with skill, experience, and knowledge of criminal law and procedure, forensic investigation techniques, complex evidentiary issues, and mental health and substance abuse, to name a few.


Under California Penal Code section 187(a), “Murder” is defined as “the unlawful killing of a human being, or a fetus, with malice aforethought.” The term “malice” is defined under Penal Code section 188, stating: “Such malice can be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” 

The most serious type of murder is murder in the first degree, which can be punishable by death, imprisonment in the state prison for life without parole, or imprisonment in the state prison for a term of 25 years to life. With some statutory exceptions, second degree murders carry a punishment of imprisonment in the state prison for a term of 15 years to life. (Cal. Penal Code Code section 190 (a). Depending on the circumstances of the offense and the manner in which it was committed, additional sentencing enhancements may apply to either first or second degree murder.

First Degree vs. Second Degree Murder

For a murder to qualify as a “murder in the first degree,” it must meet the requirements of Penal Code section 189. That statute recognizes three types of first degree murders: 1) any kind of willful, deliberate, and premeditated killing; 2) any killing that is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of armor-piercing ammunition, poison, lying-in-wait, or torture; or 3) any “felony-murder”, defined as a killing that is committed in the perpetration, or attempted perpetration, of arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking,  any act punishable under section 20, 286, 288, 288(a), or 289 of the Penal Code, or a discharging a firearm from motor vehicle with the intent to inflict death. 

Any other kind of murder that is not in the first degree is a second degree murder. (Cal. Penal Code section 189.) This includes intentional killings that lack sufficient evidence of deliberation or premeditation, as well as unintentional killings committed when the defendant does a deliberate act, the natural consequences of which are dangerous to life, with knowledge that this conduct endangers the life of others, and who consciously disregards that risk to life. 

“DUI-Murder” or “Watson” Murder

A “Watson” murder is a special species of implied malice murder, which is commonly charged by the District Attorney’s Office when the killing is committed by an intoxicated driver while operating an automobile. (See People v. Watson (1981) 30 Cal. 3d 290). Watson murder prosecutions are based on the legal theory that driving while under the influence of alcohol is conduct that is inherently dangerous to human life, so that a person who is aware of the dangers of driving under the influence and who consciously ignores those risk is acting with implied malice. 

Generally speaking, Watson murder prosecutions are reserved for repeat DUI offenders. That is because prosecutors rely on prior DUI convictions and special warnings routinely given to DUI offenders at the time of their plea or sentence that spell out the dangerousness of driving while under the influence to establish knowledge and awareness of risk, necessary to prove implied malice. However, depending on the circumstances of the crime, and the extent of bad driving, it is possible to be prosecuted for a second degree murder even without any prior notice.

If convicted of a DUI murder or “Watson” murder, the defendant faces a punishment of 15 years to life, subject to additional enhancements, such as when there are multiple victims and/or great bodily injuries. Because neither “diminished capacity” nor “voluntary intoxication” are available as a defense in a “Watson murder” case, it is not possible under the current law to argue that the defendant was too drunk to harbor the mental state equivalent to “implied malice.” 

Gross Vehicular Manslaughter and Vehicular Manslaughter While Intoxicated under P.C. 191.5

In cases where evidence is not sufficient to show that the defendant acted with implied malice, it may nonetheless be possible for the prosecutor to prove that the defendant had committed a lesser offense of either Gross Vehicular Manslaughter under Penal Code section 191.5 (a), or a simple Vehicular Manslaughter While Intoxicated under Penal Code section 191.5 (b).

The two crimes are similar in that both require the government to prove that the defendant operated a vehicle while under the influence of alcohol or drug, and the killing was the proximate result of defendant either committing some unlawful act, or a lawful act that might produce death, but in an unlawful manner. The difference between the two crimes lies in the degree of negligence required. A simple vehicular manslaughter requires proof of only ordinary negligence, defined as a failure to use reasonable care to prevent reasonably foreseeable harm to self or others. (See, CALCRIM 591.) In contrast, gross vehicular manslaughter requires more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when 1) he or she acts in a reckless way that creates a high risk of death or great bodily injury, AND 2) a reasonable person would have known that acting in that way would create such a risk.

If convicted of only vehicular manslaughter while intoxicated, a defendant would typically receive a punishment of 16 months, 2 years, or 4 years. In contrast, a person convicted of a gross vehicular manslaughter would be facing a punishment of 4, 6, or 10 years. In addition, if a person convicted of a gross vehicular manslaughter had sustained one or more prior DUI conviction, the mandatory punishment will be 15 years to life in the state prison.

Other Types of Manslaughter

Manslaughter is defined by Penal Code section 192 as any “unlawful killing of a human being without malice.” A homicide can either be charged as a manslaughter outright, or reduced to a manslaughter by the trier of fact if the government is unable to prove that the killing was committed with malice.

The three types of manslaughter under California Penal Code section 192 are: 

  1. Voluntary Manslaughter – killing committed in the heat of passion, upon a sudden quarrel, or in imperfect self-defense;
  2. Involuntary Manslaughter – killing in the commission of an unlawful act, not amounting to a felony, or a lawful act which might produce death, in an unlawful manner or without due caution and circumspection; or
  3. Vehicular Manslaughter – driving a vehicle in the commission of an unlawful act not amounting to a felony, and with gross negligence OR driving a vehicle in the commission of a lawful act which might produce death, but in an unlawful manner, and with gross negligence. 

The punishment for manslaughter is substantially lower than the punishment for murder. Under Penal Code section 193, voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years. Involuntary manslaughter is punishable by imprisonment in the local jail pursuant to Section 1170 of the Penal Code for 2, 3, or 4 years. The punishment for most vehicular manslaughters without intoxication can range from up to 1 year in local jail to imprisonment in the state prison for 2, 4, or 6 years, and in some cases involving crimes committed for financial gain, for as much as 10 years.

Fighting for You

Being charged with any type of homicide is a nerve-wrecking, life-altering experience. At the Law Offices of William V. Pernik, we understand the seriousness of your situation, and are committed to handling it with the highest degree of attention and care. Whether it involves deployment of our most trusted private investigators or consulting with appropriate experts in relevant forensic fields, we are prepared to meet the challenges your case presents, and will apply all of our skill and knowledge to craft the best possible legal defense for you. 

Because time is often of the essence in these cases, please do not hesitate to contact us if you or someone you care about is charged with this type of crime. Call Law Offices of William V. Pernik today to request your confidential legal consultation.​

Law Offices of William V. Pernik serves the entire Monterey County, including the cities of Salinas, Marina, Monterey, Carmel, and Pacific Grove, and accepts cases from nearby counties of Santa Cruz and San Benito. Upon request, we also take selected cases from the San Francisco Bay Area.