Excusable Homicide & Justifiable Homicide in California Law
Penal Code 195 - 199 PC

Homicide -- the act of killing another person -- can be one of the most serious crimes there is.
If it is done with so-called "malice aforethought," it is the crime of murder.1 Even if there is no malice aforethought, it can be the crime of voluntary
manslaughter or involuntary manslaughter.2 But in some cases, it is not a crime at all!

There are two kinds of non-criminal homicide in California. These are:

  1. California excusable homicide,3 and
  2. California justifiable homicide.4

Excusable homicide occurs when someone kills another person without meaning to, while engaged in legal behavior.5 Justifiable homicide, on the other hand, can be intentional killing...but for a good enough reason that the law will not punish the person who did it.6

For practical purposes, though, there's no real difference between the two. If a defendant in a murder or manslaughter case can show that the homicide was either excusable or justifiable, s/he must be found not guilty.7

Basically, excusable homicide and justifiable homicide are very powerful legal
defense
that apply specifically to the crimes of murder, voluntary
manslaughter, and involuntary manslaughter.

Homicide -- murder and manslaughter -- charges are serious business, and it's not easy to show that the defenses of excusable or justifiable homicide apply. But depending on the facts of your case, an experienced California criminal defense attorney may be able to help you make the argument that they apply...and thus that you should be exonerated. In this article, our California criminal defense attorneys8 explain excusable homicide and justifiable homicide in California by addressing the following:

1. Excusable homicide in California
(Penal Code 195 PC)

1.1 Accidental homicide

1.2. Homicide in the "heat of passion"

2. Justifiable homicide in California for private citizens (Penal Code 197 PC)

2.1. Self-defense

2.2. Defense against harm within your home or property

2.3. Citizen's arrest or keeping the peace

3. Justifiable homicide in California for public officers (Penal Code 196 PC)

If you would like more information after reading this article, we invite you to contact us at Shouse Law Group.

You may also find helpful information in our related articles on Common Legal Defenses to California Crimes; Accident as a Legal Defense under California Criminal Law; California's Involuntary Manslaughter Law Penal Code 192(b) PC; Legal Definition of a Misdemeanor in California Law; Legal Definition of a Felony in California Law; The California "Felony-Murder Rule"; California's Legal Definition of "Criminal Negligence"; California's Voluntary Manslaughter Law Penal Code 192(a) PC; California's Murder Law Penal Code 187(a) PC; Capital Punishment (Death Penalty) in California Law; Self-defense as a Legal Defense Under California Criminal Law; California Domestic Violence; and California's "Resisting Arrest" Law Penal Code 148(a)(1) PC.

1. Excusable homicide in California
(Penal Code 195 PC)

1.1 Accidental homicide

People are killed by accident far too often. If anyone else was nearby or involved in whatever activity killed the person at the time of the accident, grieving family members and overzealous prosecutors may try to turn the accident into a criminal case.

The California concept of excusable homicide because of accident or misfortune can help a person caught up in this kind of unfortunate situation.9
Accident as a criminal defense can apply to almost any kind of criminal charges...but is especially powerful as a defense to serious charges of involuntary
manslaughter or even murder.

Excusable homicide on the basis of accident or misfortune can be an effective legal defense if the jury can be convinced that the following three things are true:

  1. The defendant was doing a lawful act (i.e., was not doing anything illegal) when the victim was killed,
  2. The defendant was acting with normal caution when the death occurred, AND
  3. The defendant didn't intend to do anything illegal.10

If any of these things is not true, then the excusable homicide defense will not apply.

For example, if the defendant was doing something illegal at the time of the killing, s/he may be convicted of involuntary manslaughter (California Penal Code
192b)
if the illegal activity was a misdemeanor .11 If the illegal activity was a
felony, then s/he may even be convicted of murder through the California "felony-murder rule."12

And, if the defendant was not acting cautiously enough at the time the killing occurred, s/he may be convicted of involuntary manslaughter, on the theory that s/he acted with criminal negligence.13

Example: Teresa is a private swim instructor who is teaching two children (Jane and Sally) to swim in the pool at their home. When Sally starts to have an asthma attack, Teresa rushes into the house with Sally to find her inhaler, leaving Jane alone. Jane drowns while they are gone.

The local prosecutor charges Teresa with involuntary
manslaughter, arguing that it was criminally negligent for Teresa to leave Jane alone at the pool.

But Teresa and her lawyer offer evidence that Jane was a good swimmer. Teresa testifies that she ordered Jane to stay out of the pool while she was gone. The jury is convinced that Teresa was acting with normal caution when Jane died, and she is acquitted because the jury believes Jane's death was excusable homicide.
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Example: Julio has a longstanding dispute with his elderly neighbor, Gloria, about her barking dog. It is common knowledge that Gloria has a heart condition and is in poor health.

One day, Julio decides to take revenge on Gloria by surprising her in the stairwell of their apartment building, wearing a ski mask and holding a realistic-looking toy gun. Gloria is so frightened by the sight that she has a heart attack, falls down the steep stairs, and is killed instantly.

At trial, Julio argues that he should be acquitted because Gloria's death was excusable homicide. But the jury finds him guilty of involuntary manslaughter, because they believe he was not as cautious as he should have been given Gloria's age and poor health.

Burden of proof

Because the concept of excusable homicide is a legal defense, the burden is on the prosecution to prove, beyond a reasonable doubt, that the homicide was not excusable.14 So if the jury is not sure whether a defendant was behaving with normal caution or with criminal negligence, they must decide in favor of the defendant...and conclude that s/he is innocent.

1.2. Homicide in the "heat of passion"

A killing can also be excusable if it is done accidentally . . . "in the heat of passion" or as the result of a "sudden combat."15

Here are the things a defendant must show to make the excusable-homicide defense on this basis:

  1. The defendant acted in the heat of passion (this means that s/he was provoked into doing something rash because of intense emotion that interfered with his or her reason and judgment);
  2. The person who was killed either suddenly provoked the defendant, or drew him/her suddenly into combat;
  3. The defendant did not take unfair advantage of the person who was killed;
  4. The defendant did not use a dangerous weapon;
  5. The defendant did not kill the other person in a cruel or unusual way;
  6. The defendant did not intend to kill the other person and did not consciously disregard the risk that s/he could kill that person; AND
  7. The defendant was not criminally negligent.16

An excusable homicide because of heat of passion or sudden combat is actually very similar to the crime of voluntary manslaughter.17 The difference is that it is voluntary manslaughter if the defendant did intend to kill the other person, because of the intense emotion that the other person provoked18 . . . whereas it is excusable homicide if the killing was not intended.

Example: Doug's sister Patty has been raped and murdered. The police have not made any arrests in the case. One night at a bar, a man Doug doesn't know comes up to him and tells him with a smile that he is Patty's killer.

Doug is shocked and enraged. He immediately begins punching the man hard in the face. Somehow his series of blows leads to the man getting a fatal head injury. The man dies in the hospital hours later.

This is probably excusable homicide. Doug was provoked to strong emotion by the man. But it's not clear that his intent was to kill him...all he did was hit him in a fit of rage. Doug will probably not be convicted of any crime.

BUT

Example: Let's say that instead of hitting the man, Doug immediately breaks a glass and uses it to stab the man in the throat. The man dies from blood loss in the bar.

This is probably voluntary manslaughter. Doug was acting in the heat of passion, but it's clear from his actions that he was trying to kill the man he thought was Patty's killer...and he used a dangerous weapon (the broken glass) in the fight. So, in this case, Doug goes to prison.

For the legal defense of heat of passion excusable homicide to apply, the defendant also has to show that s/he was justified in reacting with strong emotion. In other words, the defendant has to show that most normal people, faced with the same situation or events, would have also responded by "losing their cool" and letting their emotions take over their judgment.19

Example: Ara is an Armenian-American who feels very strongly about the mass killing of Armenians by the government of Turkey in the early 20th century. One night at a party, an acquaintance taunts him by claiming that the killings never occurred. Ara begins to beat the man violently...and ends up killing him.

Though the acquaintance's remarks were extremely offensive, the average person in that situation probably would not have been driven to act the way Ara did. So he probably cannot argue successfully that this was excusable homicide.

If you are charged with murder (California Penal Code 187), arguing that the killing was excusable homicide because it happened in the heat of passion can be helpful in more ways than one. First of all, if the jury believes that the excusable homicide defense applies, you will be acquitted.20

But even if the jury does NOT believe that the homicide was excusable, the evidence used to argue that it was also can help show that you should be convicted of voluntary manslaughter instead of murder. This is because heat-of-passion excusable homicide and voluntary manslaughter are so similar. Given that the maximum prison sentence for voluntary manslaughter is fifteen (15) years in prison,21 while it's life in prison or even the California death penalty for murder22 . . . a voluntary manslaughter conviction can still be a relatively desirable result.

2. Justifiable homicide in California for private citizens (Penal Code 197 PC)

In addition to excusable homicide, California law also offers the defense of justifiable homicide.23

Unlike excusable homicide, a justifiable homicide can be intentional.24 While excusable homicide is more likely to be a useful defense to manslaughter charges, justifiable homicide is more likely to be a useful defense to murder charges.

Penal Code 197 PC addresses justifiable homicide committed by normal citizens.25 (There is a separate law covering justifiable homicide by police or other public officers, which we will discuss in Section 3 below.26 )

2.1. Self-defense or defense of someone else

One very common form of justifiable homicide is a killing committed to defend oneself, or someone else, from death or serious injury.27
This kind of justifiable homicide is a type of the broader legal defense of California self-defense laws . . . which can apply not just to murder or manslaughter but to other crimes as well.28

In order to successfully make the case that a homicide was justifiable because of self-defense, a defendant has to show that the following things were true when the killing occurred:

  1. The defendant reasonably believed that s/he or someone else was in imminent danger of being killed, suffering great bodily injury, or being the victim of a "forcible and atrocious" crime;
  2. The defendant reasonably believed that s/he needed to use deadly force to prevent that from happening; AND
  3. The defendant used no more force than was reasonably necessary to keep the harm from occurring.29

Here is some further detail on what these ideas mean:

Reasonable belief

You can't argue justifiable homicide on the basis of self-defense unless your belief that you, or someone else, was in danger was reasonable. This means that the jury has to feel that most reasonable people would have believed the same thing given the information available.30

In making this determination, the jury can consider things like whether the person who was killed had harmed or threatened the defendant in the past.31

Example: Steve is in prison. He has a mental illness that causes him to hear voices telling him that the guards are planning to kill him. So he kills a guard, believing that he has no choice if he wants to save himself.

Steve cannot argue that the killing was justifiable homicide. He genuinely believed he needed to kill the guard in self-defense, but this belief wasn't reasonable...a reasonable person who didn't hear voices because of mental illness would not have believed the same thing.32

BUT

Example: Evelyn is married to Albert. Albert has been beating Evelyn for years, and lately he has been threatening to kill her. One day, he gets drunk and shoots a gun at her, but misses. A bit later, Albert begins hitting her again. Evelyn finds the gun where Albert left it and uses it to shoot and kill him.

Evelyn may be able to argue justifiable homicide based on self-defense. A normal person who had been subjected to regular beatings and death threats by their spouse might reasonably have believed that Albert was about to inflict severe harm on her at that moment.33
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But it's okay if the defendant's belief that s/he was being threatened was wrong...as long as it was reasonable under the circumstances.34

Example: Joanne is in the process of getting a divorce from her husband Ted. Ted has been very upset over the divorce and has threatened to kill himself, Joanne, and their young son Aaron.

One day Ted arrives at Joanne's house unexpectedly. He is acting strangely and seems to be under the influence of drugs. He says something about how they'd all be better off dead. Then he walks toward Aaron while reaching into his pocket.

Joanne panics, thinking that Ted is about to pull out a weapon and use it to harm Aaron. She grabs a kitchen knife and attacks Ted, killing him.

It turns out that Ted did not have a weapon on him. But Joanne may be able to argue justifiable homicide anyway, since her belief that Ted was about to hurt Aaron was reasonable . . . even if it was wrong.

Danger must be imminent

For a homicide to be justifiable because of self-defense or defense of someone else, the defendant has to have reasonably believed that s/he, or another person, was in danger of being killed or attacked imminently...that is, immediately or very soon.35

In other words, if you reasonably believe that someone is making plans to kill or harm you in the future, you cannot go kill them to prevent that from happening...and still claim the legal defense of justifiable homicide.

Example: Brenda has been the victim of severe domestic violence by her husband for years. One night, her husband beats her severely and then says he doesn't plan to let her live till morning. Then he falls asleep. Believing that her husband will kill her when he wakes up, Brenda gets a gun and shoots and kills him.

Brenda's killing of her husband was not justifiable homicide. While he posed a reasonable threat to her, the threat was not imminent. He would not have been able to kill or harm her until he woke up, possibly hours later.36

Defendant used no more force than necessary

A self-defense homicide is justifiable only if the person who committed it only used as much force as a reasonable person would believe was necessary to protect themselves against the threat.37

Example: Bella believes in vampires. She and her boyfriend Jacob are at a state fair and have been drinking heavily. Jacob gets into an argument with another drunk visitor, whose name is Ed. Jacob is taller and stronger than Ed. The argument turns violent, and Ed bites Jacob's hand.

Bella is convinced that Ed is a vampire and will kill Jacob by biting him. So she pulls a pair of nail scissors out of her purse and stabs Ed in the heart, killing him.

A reasonable person would not have believed in vampires and so would not have thought that Ed needed to be killed to protect Jacob. So this is probably not justifiable homicide.

One interesting thing to note is that you can assert the defense of justifiable homicide for self-defense even if you were the original aggressor in a fight...as long as you have tried and failed to end the fight.38

For example, if you are in a bar brawl and throw the first punch, but then try to retreat when you realize your opponent is fighting back more violently than expected...AND you have reason to believe that your opponent won't stop until you are dead or badly injured, it can still be justifiable homicide if you kill your opponent to stop that from happening.

2.2. Defense against harm within your home or property

Another kind of justifiable homicide is a killing that you commit in order to defend yourself or someone else against someone who is invading your home or your property.39

This kind of homicide is only justifiable if you reasonably believed that the person invading your home intended to commit violence against you or someone else, or else intended to commit a so-called "forcible and atrocious crime."40 Forcible and atrocious crimes include things like rape, robbery (using force or fear to take someone's property from them), and mayhem (disfiguring or disabling another person's body).41

So, in other words, it is not justifiable homicide to kill a burglar or car thief if there is no reasonable cause to believe that s/he intends to kill or injure someone else in order to carry out the crime.

Example: Don lives alone. After some tools are stolen from his garage, he sets a "trap gun" in the garage that will fire automatically if the door is opened. One day while he is not home, two unarmed teenage boys open the garage door intending to steal Don's possessions. The trap gun fires, and one boy is killed.

Don did not commit a justifiable homicide. The two boys' burglary did not pose a reasonable threat that anyone in the house was going to be killed or injured, and homicide is not justifiable if it's done only to prevent a burglary.42

In order to prove that the defense of justifiable homicide on this basis applies, the defendant has to convince the jury of all of the following things:

  1. S/he reasonably believed that s/he was defending a home against someone who intended to commit a forcible and atrocious crime, or an act of violence against someone in the house;
  2. S/he reasonably believed that the threat was imminent (i.e., that the person breaking in intended to commit a violent crime immediately or very soon);
  3. S/he reasonably believed that deadly force was necessary to get rid of that threat; AND
  4. S/he used no more force than was necessary to guard against the threat.43
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2.3. Citizen's arrest or keeping the peace

Another situation in which homicide may be justifiable is if the defendant was trying to arrest someone else for committing a violent felony.44 This kind of arrest by a person who is not a police officer is known as a "citizen's arrest."

Also, it can be justifiable homicide if a citizen uses deadly force to "preserve the peace"-that is, to prevent some kind of riot or violence from occurring.45

Killing someone else in the course of a citizen's arrest is only justifiable homicide if the person killed had actually committed a felony...and it has to have been a felony that created a risk of death or great bodily harm.46

Example: Dale sees a teenager steal something out of a woman's purse at a laundromat. He follows the teenager onto the street, pulls out a pistol he carries with them, and orders the boy to halt. When the boy ignores him, Dale chases after him and catches him. The two of them struggle, and Dale shoots and kills the boy.

This is NOT justifiable homicide...because the simple theft committed by the boy Dale killed was not a violent felony.47

Also, it may be the case that a killing during a citizen's arrest is justifiable homicide only if the defendant had reason to believe that the person s/he killed had not only committed a violent felony already...but also posed a future danger to society.48

According to Glendale criminal defense attorney Nicole Valera:49

"The law is currently unsettled as to whether it's justifiable to kill someone during a citizen's arrest just because they've already committed a violent crime...or whether you also need to have good reason to believe that they are going to commit more violent crimes in the future. Different California judges and prosecutors may take different approaches to this issue...so it's especially important to have a good attorney working for you if you're charged with a crime for killing someone during a citizen's arrest."
3. Justifiable homicide in California for public officers (Penal Code 196 PC)

As you might expect, California law also has special provisions for police and other "public officers" who commit justifiable homicide.50

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Public officers are not criminally liable for killing someone if the killing took place while the public officer was doing any of the following:

  1. Chasing a convicted felon who had escaped from custody,
  2. Arresting a person charged with a felony who is resisting arrest or trying to flee,
  3. Overcoming actual resistance to some legal process, OR
  4. Performing any other legal duty.51

It also has to be the case that:

  1. The killing was necessary to accomplish the public officer's goal; AND
  2. The public officer had probable cause to believe that the person killed posed a threat of death or great bodily injury to someone, or that the person killed had committed a forcible and atrocious crime or a crime that threatened someone else with death or great bodily injury.52

As with justifiable homicide committed by someone who is making a citizen's arrest, it may be the case that a public officer will have to show that the person s/he killed posed a future threat of violent harm...not just that they had already committed a violent crime. The law isn't totally clear on this point.53

For purposes of justifiable homicide, public officers don't just include police. They include custodial officers who work in county jails,54 the "transportation officers" who escort prisoners from one facility to another,55 and county parole officers.56 Also covered under this justifiable homicide law are ordinary citizens who are responding to a public officer's request for help.57

Call us for help...
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If you or loved one is charged with Penal Code 195 - 199 PC excusable homicide and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Legal References:

1 Penal Code 187 PC - Murder defined. ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.")

2 Penal Code 192 PC - Manslaughter; voluntary, involuntary, and vehicular. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary--upon a sudden quarrel or heat of passion. (b) Involuntary--in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle. . . . .")

3 Penal Code 195 PC - Excusable homicide. ("Homicide is excusable in the following cases: 1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.")

4 Penal Code 197 PC - Justifiable homicide; any person. ("Homicide is also justifiable when committed by any person in any of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or, 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or, 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.")

See also Penal Code 196 PC - Justifiable homicide; public officers. ("Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either--1. In obedience to any judgment of a competent Court; or, 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or, 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.")

5 Black's Law Dictionary (9th ed. 2009), homicide. (". . . excusable homicide. (18c) 1. Homicide resulting from a person's lawful act, committed without intention to harm another.")

6 Same. ("justifiable homicide. (18c) 1. The killing of another in self-defense when faced with the danger of death or serious bodily injury. . . . 2. A killing mandated or permitted by the law, such as execution for a capital crime or killing to prevent a crime or a criminal's escape. . . . It should be noted that a justifiable homicide is not criminal, since it is a killing which the law has either commanded or permitted: the actus in such a case is not legally punishable, and therefore we may perhaps say that it is an actus of killing which is not reus. As we shall see in most cases of justifiable homicide the killing is intentional, and therefore the mental element of criminal responsibility is clearly present: but there is no crime committed since there is no actus reus.") (internal quotation marks omitted)

7 Penal Code 199 PC - Justifiable and excusable homicide; discharge of defendant. ("Justifiable and excusable homicide not punishable. The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.")

8 Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.  We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, Sacramento, and several nearby cities.

9 Penal Code 195 PC - Excusable homicide. ("Homicide is excusable in the following cases: 1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. . . .")

10 Judicial Council of California Criminal Jury Instructions ("CALCRIM") 510 - Excusable Homicide: Accident. ("The defendant is not guilty of (murder/ [or] manslaughter) if (he/she) killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if: 1 The defendant was doing a lawful act in a lawful way; 2 The defendant was acting with usual and ordinary caution; AND 3 The defendant was acting without any unlawful intent.")

11 Penal Code 192 PC - Manslaughter; voluntary, involuntary, and vehicular. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: . . . (b) Involuntary--in the commission of an unlawful act, not amounting to felony; . . . .")

12 Penal Code 189 PC - Murder; degrees. ("All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.")

13 Penal Code 192 PC - Manslaughter; voluntary, involuntary, and vehicular. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: . . . (b) Involuntary-- . . .  in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.")

14 CALCRIM 510 - Excusable Homicide: Accident. ("The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter).")

15 Penal Code 195 PC - Excusable homicide. ("Homicide is excusable in the following cases: . . . 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner.")

16 CALCRIM 511 - Excusable Homicide: Accident in the Heat of Passion. ("The defendant is not guilty of (murder/ [or] manslaughter) if (he/she) killed someone by accident while acting in the heat of passion. Such a killing is excused, and therefore not unlawful, if, at the time of the killing: 1 The defendant acted in the heat of passion; 2 The defendant was (suddenly provoked by <insert name of decedent>/ [or] suddenly drawn into combat by <insert name of decedent>); 3 The defendant did not take undue advantage of <insert name of decedent>; 4 The defendant did not use a dangerous weapon; 5 The defendant did not kill <insert name of decedent> in a cruel or unusual way; 6 The defendant did not intend to kill <insert name of decedent> and did not act with conscious disregard of the danger to human life; AND 7 The defendant did not act with criminal negligence. A person acts in the heat of passion when he or she is provoked into doing a rash act under the influence of intense emotion that obscures his or her reasoning or judgment. The provocation must be sufficient to have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.")

17 Penal Code 192 PC - Manslaughter; voluntary, involuntary, and vehicular. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds: (a) Voluntary--upon a sudden quarrel or heat of passion. . . . ")

18 CALCRIM 511 - Excusable Homicide: Accident in the Heat of Passion. ("RELATED ISSUES: Distinguished From Voluntary Manslaughter. Under Penal Code section 195, subd. 2, a homicide is "excusable," "in the heat of passion" if done "by accident," or on "sudden ... provocation ... or ... combat." (Pen. Code, � 195, subd. 2.) Thus, unlike voluntary manslaughter, the killing must have been committed without criminal intent, that is, accidentally.")

19 Same. ("It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than judgment.")

20 Penal Code 199 PC - Justifiable and excusable homicide; discharge of defendant. ("Justifiable and excusable homicide not punishable. The homicide appearing to be justifiable or excusable, the person indicted must, upon his trial, be fully acquitted and discharged.")

21 Penal Code 193 PC - Voluntary manslaughter, involuntary manslaughter and vehicular manslaughter; punishment. ("(a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.")

22 Penal Code 190 PC -- Punishment for murder; murder of peace officers; shooting firearm from motor vehicle; release on parole. ("(a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5. Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.")

See also Penal Code 190.2 PC - Death penalty or life imprisonment without parole; special circumstances [Special circumstances murder]. ("(a) The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found under Section 190.4 to be true: . . .")

23 Penal Code 197 PC - Justifiable homicide; any person. ("Homicide is also justifiable when committed by any person in any of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or, 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or, 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.")

24 Black's Law Dictionary (9th ed. 2009), homicide. (". . . excusable homicide. (18c) 1. Homicide resulting from a person's lawful act, committed without intention to harm another. . . . justifiable homicide. (18c) 1. The killing of another in self-defense when faced with the danger of death or serious bodily injury. . . . 2. A killing mandated or permitted by the law, such as execution for a capital crime or killing to prevent a crime or a criminal's escape. . . . It should be noted that a justifiable homicide is not criminal, since it is a killing which the law has either commanded or permitted: the actus in such a case is not legally punishable, and therefore we may perhaps say that it is an actus of killing which is not reus. As we shall see in most cases of justifiable homicide the killing is intentional, and therefore the mental element of criminal responsibility is clearly present: but there is no crime committed since there is no actus reus.") (internal quotation marks omitted)

25 Penal Code 197 PC - Justifiable homicide; any person. ("Homicide is also justifiable when committed by any person in any of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or, . . . 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; . . . ")

26 Penal Code 196 PC - Justifiable homicide; public officers.

27 Penal Code 197 PC - Justifiable homicide; any person.

28 CALCRIM 3470 - Right to Self-Defense or Defense of Another (Non-Homicide).

29 CALCRIM 505 - Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant acted in lawful (self-defense/ [or] defense of another) if: 1 The defendant reasonably believed that (he/she/ [or] someone else/ [or] <insert name or description of third party>) was in imminent danger of being killed or suffering great bodily injury [or was in imminent danger of being (raped/maimed/robbed/ <insert other forcible and atrocious crime>)]; 2 The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND 3 The defendant used no more force than was reasonably necessary to defend against that danger.")

30 Same. ("When deciding whether the defendant's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed.")

31 Same. ("[If you find that <insert name of decedent/victim> threatened or harmed the defendant [or others] in the past, you may consider that information in deciding whether the defendant's conduct and beliefs were reasonable.]")

32 Loosely based on People v. Jefferson, (2004) 119 Cal.App.4th 508, 519. ("Defendant misstates the objective 'reasonable person' test. The issue is not whether defendant, or a person like him, had reasonable grounds for believing he was in danger. The issue is whether a 'reasonable person' in defendant's situation, seeing and knowing the same facts, would be justified in believing he was in imminent danger of bodily harm. By definition, a reasonable person is not one who hears voices due to severe mental illness. In blunt fashion, our Supreme Court long ago defined a reasonable person as a 'normal person.'")

33 Based on People v. Humphrey, (1996) 13 Cal.4th 1073.

34 CALCRIM 505 - Justifiable Homicide: Self-Defense or Defense of Another. ("If the defendant's beliefs were reasonable, the danger does not need to have actually existed.")

35 Same. ("Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of death or great bodily injury to (himself/herself/ [or] someone else).")

36 Based on People v. Aris, (1989) 215 Cal.App.3d 1178, 1189 (overruled on other grounds by People v. Humphrey, (1996) 13 Cal.4th 1073, 1089). ("This definition of imminence reflects the great value our society places on human life. The criminal law would not sentence to death a person such as the victim in this case for a murder he merely threatened to commit, even if he had committed threatened murders many times in the past and had threatened to murder the defendant; it follows that the criminal law will not even partially excuse a potential victim's slaying of his attacker unless more than merely threats and a history of past assaults is involved.")

37 CALCRIM 505 - Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified.")

38 People v. Trevino, (1988) 200 Cal.Ap.3d 874, 879. ("For example, it is settled that a person who has sought combat may decline further struggle and, if he really and in good faith does so before the killing, the killing may be justified on the same grounds as if that person had not originally been the aggressor.")

39 Penal Code 197 - Justifiable homicide; any person. ("Homicide is also justifiable when committed by any person in any of the following cases: . . . 2. When committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; . . . .")

40 People v. Ceballos, (1974) 12 Cal.3d 470, 479. ("Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life, or for the use of deadly force. The character and manner of the burglary could not reasonably create such a fear unless the burglary threatened, or was reasonably believed to threaten, death or serious bodily harm.") (citations omitted)

41 Same, at 478. ("Examples of forcible and atrocious crimes are murder, mayhem, rape and robbery. In such crimes from their atrocity and violence human life [or personal safety from great harm] either is, or is presumed to be, in peril.") (citations and internal quotation marks omitted)

42 Loosely based on the facts of the same.

43 CALCRIM 506 - Justifiable Homicide; Defending Against Harm to Person Within Home or on Property. ("The defendant is not guilty of (murder/ [or] manslaughter/attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill) to defend (himself/herself) [or any other person] in the defendant's home. Such (a/an) [attempted] killing is justified, and therefore not unlawful, if: 1 The defendant reasonably believed that (he/she) was defending a home against <insert name of decedent>, who (intended to or tried to commit <insert forcible and atrocious crime>/ [or] violently[[,] [or] riotously[,]/ [or] tumultuously] tried to enter that home intending to commit an act of violence against someone inside); 2 The defendant reasonably believed that the danger was imminent; 3 The defendant reasonably believed that the use of deadly force was necessary to defend against the danger; AND 4 The defendant used no more force than was reasonably necessary to defend against the danger.")

44 Penal Code 197 - Justifiable homicide; any person. ("Homicide is also justifiable when committed by any person in any of the following cases: . . . 4. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully suppressing any riot, or in lawfully keeping and preserving the peace.")

45 Same.

46 CALCRIM 508 - Justifiable homicide: citizen arrest (non-peace officer). ("The defendant is not guilty of (murder/ [or] manslaughter/attempted murder/ [or] attempted voluntary manslaughter) if (he/she) (killed/attempted to kill) someone while trying to arrest him or her for a violent felony. Such (a/an) [attempted] killing is justified, and therefore not unlawful, if: 1 The defendant committed the [attempted] killing while lawfully trying to arrest or detain <insert name of decedent> for committing (the crime of <insert forcible and atrocious crime, i.e., felony that threatened death or great bodily injury>/ <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or great bodily injury); 2 <insert name of decedent> actually committed (the crime of <insert forcible and atrocious crime, i.e., felony that threatened death or great bodily injury>/ <insert crime decedent was suspected of committing, e.g., burglary>, and that crime threatened the defendant or others with death or great bodily injury); . . . .")

47 Loosely based on People v. Piorkowski, (1974) 41 Cal.App.3d 324.

48 CALCRIM 508 - Justifiable homicide: citizen arrest (non-peace officer). ("It is unclear whether the defendant must always have probable cause to believe that the victim poses a threat of future harm or if it is sufficient if the defendant knows that the victim committed a forcible and atrocious crime.")

49 Glendale criminal defense attorney Nicole Valera was a public defender with the Los Angeles County Public Defender's Office before she began working as a private criminal defense lawyer. She handles the gamut of felony and misdemeanor cases and represents clients at courthouses throughout the Los Angeles County and San Bernardino County court systems.

50 Penal Code 196 PC - Justifiable homicide; public officers. ("Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either--1. In obedience to any judgment of a competent Court; or, 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or, 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.")

51 CALCRIM 507 - Justifiable Homicide: By Public Officer. ("Such (a/an) [attempted] killing is justified, and therefore not unlawful, if: . . . 2 The [attempted] killing was committed while (taking back into custody a convicted felon [or felons] who had escaped from prison or confinement[,]/ arresting a person [or persons] charged with a felony who (was/were) resisting arrest or fleeing from justice[,]/ overcoming actual resistance to some legal process[,]/ [or] while performing any [other] legal duty); . . .")

52 Same. ("3 The [attempted] killing was necessary to accomplish (one of those/that) lawful purpose[s]; AND 4 The defendant had probable cause to believe that (<insert name of decedent> posed a threat of death or great bodily injury, either to the defendant or to others/[or] that <insert name of decedent> had committed (<insert forcible and atrocious crime>/ <insert crime decedent was suspected of committing, e.g., burglary>), and that crime threatened the defendant or others with death or great bodily injury).")

53 Same. ("It is unclear whether the officer must always have probable cause to believe that the victim poses a threat of future harm or if it is sufficient if the officer has probable cause to believe that the victim committed a forcible and atrocious crime.")

54 Penal Code 831 PC - Custodial officers.

55 Penal Code 831.6 - Transportation officers; authority; requirements; use of force.

56 Penal Code 3089 PC.

57 Penal Code 196 PC - Justifiable homicide; public officers. ("Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, . . . .") (italics added)

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