Study guide
10.2 Degrees of Murder, Premeditation & Deliberation
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
10.2 Degrees of Murder, Premeditation & Deliberation
Key Takeaways Explain This Topic AI
Degrees of murder are entirely statutory; common law murder had no degrees.
First degree murder typically covers wilful, deliberate, and premeditated killing, killing by an enumerated means such as poison or lying in wait, and killing during an enumerated felony.
Premeditation means the defendant reflected on the decision to kill, and deliberation means he did so with a cool mind, though the reflection may occupy only a brief moment.
Every murder that is not elevated by statute is second degree murder, which is where depraved-heart killings and intent-to-inflict-serious-bodily-harm killings ordinarily land.
Because premeditation is a specific mental state, voluntary intoxication can reduce first degree murder to second degree.
Last updated: September 2026
Degrees of Murder, Premeditation & Deliberation
Doctrinal Foundation: At English common law, there were no degrees of murder. All unlawful killings committed with malice aforethought were simply "murder" and carried a mandatory sentence of capital punishment. To mitigate the severity of automatic capital sentencing, American legislatures—led by the Pennsylvania Statute of 1794—divided murder into First-Degree Murder and Second-Degree Murder . On the FYLSE, understanding the dividing lines between the degrees of murder, the mechanics of premeditation and deliberation, and the multifaceted limitations of the Felony Murder Rule (FMR) is essential for bar exam mastery.
I. Statutory Degrees of Murder
Modern penal statutes classify common law murders into two primary statutory grades: ┌──────────────────────────────────────┐
- │ Statutory Degrees of Murder │
- └──────────────────┬───────────────────┘
- │
- ┌───────────────────────────────────┴───────────────────────────────────┐
- ▼ ▼
- [FIRST-DEGREE MURDER] [SECOND-DEGREE MURDER]
- 1. Premeditated & Deliberate Killings - All other common law murders
- Cool-blooded reflection; prior design - Unpremeditated intent to kill
- 2. Heinous / Specific Statutory Means - Intent for grievous bodily harm
- Lying in wait, poison, torture, explosives - Depraved heart extreme recklessness
- 3. Statutory Enumerated Felonies (BARRK) - Non-enumerated inherently dangerous
- Burglary, Arson, Robbery, Rape, Kidnapping felony murders (majority rule)
- 1. First-Degree Murder: Three Recognized Categories
Under California Penal Code § 189 and standard modern penal codes, first-degree murder is strictly confined to three categories:
Category A: Premeditated and Deliberate Killings
A willful, deliberate, and premeditated killing requires proof of a specific intent to kill accompanied by cold-blooded reflection:
Premeditation: Thinking about and planning the killing beforehand. While the quantity of time required to form premeditation can be relatively brief, the law demands an appreciable period of prior reflection.
Deliberation: The decision to kill must be formed in a cool, calm, and dispassionate state of mind , capable of weighing the reasons for and against the choice. Deliberation cannot be formed in the throes of sudden unconsidered passion, violent panic, or frenzy.
Important
The Anderson Evidentiary Framework ( People v. Anderson , 70 Cal. 2d 612 (1968)): California courts evaluate whether premeditation and deliberation exist by assessing three types of evidence:
Planning Activity: Facts regarding what the defendant did prior to the killing showing preparation (e.g., obtaining a weapon, casing the location, laying a trap, following the victim);
Motive: Facts concerning the defendant's prior relationship or conduct with the victim showing a reason to kill (e.g., prior hostility, financial gain, jealousy, silencing a witness);
Manner of Killing: Facts showing that the physical mechanism of the killing was so particular, exacting, and calculated that the slayer must have acted pursuant to a preconceived design (e.g., execution-style shot to the temple, ligature strangulation, methodical poison administration).
Category B: Killings by Heinous, Atrocious, or Specific Statutory Means
Statutes explicitly elevate certain homicides to first-degree murder regardless of whether independent deliberation is proven, because the means employed inherently manifest calculated depravity:
Poison: Methodical chemical administration implies stealth, concealment, and cold design;
Lying in Wait: Requires concealment of purpose, a period of watching and waiting for an opportune moment, and a surprise assault from a position of advantage;
Torture: Requires the intentional infliction of extreme and prolonged physical pain with a sadistic intent to cause suffering for revenge, extortion, persuasion, or personal gratification;
Explosives, Destructive Devices, or Armor-Piercing Ammunition.
Category C: Statutory Enumerated Felony Murder (The BARRK Felonies)
Any killing occurring during the perpetration or attempted perpetration of specific felonies statutorily designated as first-degree predicates. The classic bar exam mnemonic is BARRK :
- B urglary;
- A rson;
- R obbery;
- R ape (and designated sexual assaults);
K idnapping. (California Penal Code § 189(a) also enumerates mayhem, carjacking, train wrecking, the specified sexual offenses, and murder by discharging a firearm from a motor vehicle at a person outside it; other modern codes list their own variants. Learn the mnemonic as the core, not as a closed list.)
2. Second-Degree Murder: The Residual Category
Second-degree murder encompasses all other common law murders that do not meet the statutory criteria for first-degree murder. Second-degree murder is established by:
Unpremeditated Intent to Kill: An intentional killing executed upon sudden impulse without cool deliberation or prior reflection;
Intent to Inflict Grievous Bodily Harm: Defendant intended to cause severe, disabling trauma, but did not premeditate a death;
Depraved Heart Murder: Extreme recklessness manifesting an abandoned and malignant heart and wanton indifference to human life;
Non-Enumerated Inherently Dangerous Felony Murder: A killing occurring during an inherently dangerous felony that is not specifically listed in the first-degree murder statute (e.g., manufacturing methamphetamine, shooting at an inhabited aircraft).
- II. Working the Degree Ladder
- 1. "No Time Is Too Short" — and the Limit of That Slogan
Courts repeat that no particular period of time is required for premeditation; the reflection may occupy only moments. Read carelessly, that sentence erases the line between the degrees, because every intentional killing involves some decision. The controlling idea is qualitative rather than temporal : the question is whether the defendant actually reflected on the decision to kill, however briefly, or simply acted on an impulse that formed at the same instant as the killing. A killing that follows immediately on a sudden quarrel is second degree; the same killing after the defendant walked to the car, retrieved a weapon, and returned can be first, because the interval supplied an opportunity for reflection that the defendant used.
2. Intoxication and Mental Condition Move the Degree, Not the Verdict
Because premeditation and deliberation describe a specific mental state , evidence that the defendant was voluntarily intoxicated, or suffering a mental condition short of legal insanity, is admissible to show the state never formed. The effect is a reduction, not an acquittal : malice may still be established, so the killing remains murder and simply drops to the second degree. California states the principle cleanly in Penal Code section 29.4(b) , which makes voluntary intoxication admissible "solely on the issue of whether or not the defendant actually formed a required specific intent, or, when charged with murder, whether the defendant premeditated, deliberated, or harbored express malice aforethought." The same evidence does nothing against a general-intent or implied-malice theory — which is precisely why it lands the defendant in second degree rather than out of the case.
3. Sorting Fact Patterns to Degrees
Facts Degree Reasoning
Buys a gun, waits two nights outside the victim's home, shoots on sight First Planning activity, plus lying in wait as an enumerated means
Enraged mid-argument, grabs a knife off the counter and stabs Second Intent to kill formed with the act; no prior reflection
Fires into an occupied bus to frighten the passengers; one dies Second Depraved-heart implied malice; no intent to kill at all
Beats the victim for an hour to force disclosure of a PIN; victim dies First Torture: extreme pain inflicted for extortion
Heavily intoxicated, but forms and carries out a plan over an hour Jury question Intoxication evidence may negate premeditation, dropping it to second
Kills a store clerk during an armed robbery First Enumerated-felony murder; no separate proof of premeditation needed
Scope reminder. The State Bar states that the FYLSX tests "legal theories and principles of general applicability" and that "[d]etailed knowledge of California-specific law is not required." Penal Code section 189 and People v. Anderson appear here as a well-drafted illustration of the standard American degree scheme — not because California trivia is tested. Where a question gives you a statute, apply the statute it gives you.