You come home from work, only to find your wife in bed with another man. In a sudden burst of rage, you kill them both. Despite the fact that this sounds like murder, it's probably not. Under California law, it's more likely to constitute voluntary manslaughter.
California's voluntary manslaughter laws apply to killings that you commit
Prosecutors rarely file Penal Code 192 (a) voluntary manslaughter as a separate charge. The offense usually comes up in murder cases, where the accused admits to killing the victim, but seeks have the charge reduced from murder to manslaughter.
If the charge is reduced to manslaughter, the defendant faces a maximum of 11 years in prison. With murder, by contrast, he faces a potential life sentence...or sometimes even execution.
Below, our California criminal defense attorneys2 address the following:
If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.
You may also find helpful information in our related articles on Penal Code 187 PC Murder; Attempted Murder; Penal Code 192(b) Involuntary Manslaughter; Penal Code 192(c) Vehicular Manslaughter; California's Driving Under the Influence Laws; Penal Code 191.5(a) Gross Vehicular Manslaughter While Intoxicated; Penal Code 191.5(b) Negligent Manslaughter While Intoxicated; DUI Murder / Watson Murder; California Legal Defenses; California's Self-Defense Laws; Accident as a Legal Defense; The Insanity M'Naghten Rule; and California's Three Strikes Law.
you either violate California's murder law or California's voluntary manslaughter law. The difference between the two is whether you acted with "malice aforethought".
Malice aforethought exists when you act with (a) an intent to kill or (b) a wanton disregard for human life. When you kill another person (or fetus).and act with malice aforethought.you are guilty of murder. However, when you kill someone during a sudden quarrel or in the heat of passion, California law presumes you acted without malice.which is why we have the reduced charge of voluntary manslaughter.3
Sudden quarrel or heat of passion
To kill another person during a sudden quarrel or in the heat of passion means
For Penal Code 192(a) purposes, "heat of passion" means any violent or intense emotion that causes a person to act impulsively. If.between the time you are provoked and the time you kill.you have had enough time to "cool off" and regain your ability to think rationally, then you would more likely be guilty of premeditated murder than manslaughter.5
And.with respect to provocation.California courts haven't established a set criteria for what constitutes "sufficient" provocation. They have, however, ruled that it can't be slight or remote.
The provocation must be so influential that it would cause an average person in the same situation to react emotionally rather than logically. This is an objective standard. How you personally reacted is only justifiable if it is how a fictional average person would have reacted.6
Example: Defendant picked up a young woman who was hitchhiking. They went back to her house and had sex before he stabbed her eight or nine times and manually strangled her to death. He claimed that he killed her because
- he was drunk, and
- upon hearing a helicopter fly overhead, he suffered Vietnam war flashbacks that caused him to "snap".
But as the California Supreme Court stated, "Defendant's evidence that he was intoxicated, that he suffered various mental deficiencies, that he had a psychological dysfunction due to traumatic experiences in the Vietnam War, and that he just "snapped" when he heard the helicopter, may have satisfied the subjective element of heat of passion.
But it does not satisfy the objective, reasonable person requirement, which requires provocation by the victim. To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to sufficient provocation.[E]vidence of defendant's extraordinary character and environmental deficiencies was manifestly irrelevant to the inquiry."7
The following are examples of some cases where courts held sufficient provocation existed to reduce murder to voluntary manslaughter under Penal Code 192 (a).
Being Accosted by an Angry Mob
In People v. Breverman, the court held that the defendant was entitled to a voluntary manslaughter jury instruction when a "mob" of young men.armed with dangerous weapons and harboring a specific hostile intent.trespassed upon his property, acting in a menacing manner. The group's conduct included challenging the defendant to fight and using the weapons to batter and smash the defendant's car which was parked in the defendant's driveway, only a short distance from his front door.
The court held that this scenario was enough to cause fear and panic and that defendant.and more importantly, an ordinary reasonable person...could have been aroused to passion which would have obscured his reasoning when he tried to scare the group away by firing random shots through his door and towards the men.8
Confronting Your Brother's Murder Suspect
In People v. Brooks, the defendant was at the crime scene where his brother had just been stabbed to death. People at the scene told the defendant who the alleged murderer was, and this person was also present at the scene. The defendant attacked the alleged suspect, but police broke up the fight. Defendant then left and returned two hours later with his gun when he shot and killed the alleged suspect.
The court held that "the disclosure of information that the victim murdered a family member of the defendant is legally adequate provocation for voluntary manslaughter." It further reasoned that even though two hours had passed between the time the defendant learned the information and shot the victim, the defendant still acted in the "heat of passion" based on the testimony of two police witnesses who stated that the defendant was "very upset" and "extremely upset" when he was questioning all the bystanders at the scene of his brother's murder.9
Being Tormented by One's Lover
In People v. Borchers, the defendant was prompted to kill his lover based on a series of events that included admitting to infidelity, trying to jump out of his moving car, taking a gun and threatening to kill herself, pleading with the defendant to kill her, and taunting him by asking if he was too "chicken" to pull the gun's trigger.
As the court opined, "It may fairly be concluded that the evidence on the issue of not guilty supports a finding that defendant killed in wild desperation induced by Dotty's long continued provocatory conduct."10
In contrast, the following are examples of cases where courts held that there was not sufficient provocation to reduce murder to voluntary manslaughter.
There are a variety of legal defenses to Penal Code 192(a) voluntary manslaughter that a skilled California criminal defense lawyer can present on your behalf. The following are some of the most common examples.
California's self-defense laws justify your killing another person when you kill to protect yourself or another from
These laws permit you to take whatever steps are reasonably necessary to protect against this harm.15
Example: You and your friend are at a bar. A drunk patron picks a fight with your friend. The two of you try to leave, but the aggressor follows you outside and lunges toward your friend with a knife, threatening to kill him. You attack the aggressor, manage to grab his knife and stab him instead. He subsequently dies from the knife wound.
Given these circumstances, California's self-defense laws would likely excuse your conduct.
However, if you kill another because you
this is what's known as imperfect self-defense. Imperfect self-defense does not absolve you of criminal liability altogether. It does, however, act as a mitigating factor that can reduce a murder charge to Penal Code 192(a) PC voluntary manslaughter.16
Example: Let's use the example from above but change some of the facts. Let's say that the drunk patron still picks a fight with your friend. The two of you try to leave, but the aggressor.who is considerably larger than your friend.follows you outside. He pushes your friend and taunts him, in effect challenging him to a fight. He doesn't appear to have a weapon. Because you fear that the aggressor will hurt your friend, you pull out your knife and stab and kill him.
Given these facts, while it's true that your friend may have been seriously hurt, it was unreasonable to believe that deadly force was necessary to prevent that danger. As a result, this type of imperfect self-defense would not excuse voluntary manslaughter.
If you kill another person, because you
you may be entitled to a verdict of not guilty by reason of insanity. This California insanity defense, governed by the M'Naghten test.which comprises the two elements just set forth.excuses your otherwise criminal conduct.17
Example: Mary.who has a history of severe mental illness.has a fight with her mother. Her mother, who truly can't deal with Mary's illness, screams out, "Oh, God, why don't you just kill me!" Mary, believing that she would be helping her mother by complying with what she believes is a "wish"...strangles and kills her mom. Given this type of scenario, Mary.who would otherwise be guilty of violating California's voluntary manslaughter law .would likely prevail on the insanity defense.
If you accidentally kill someone, you are not guilty of voluntary manslaughter - period. But as Rancho Cucamonga criminal defense attorney Michael Scafiddi18 explains, "Accident as a California legal defense generally only applies when you
Example: Again, taking the bar fight example from above.but changing it slightly.let's say that after the aggressor followed your friend out of the bar, the aggressor took a swing at your friend. Your friend then takes a swing at the aggressor, connects his punch, and hits him so hard that he falls back and hits his head on the back step outside the bar. He becomes unconscious and dies the next day.
Given these facts, the death was truly an accident. Even though the fight took place in the heat of passion and with sufficient provocation.which would ordinarily be sufficient to reduce a murder charge to manslaughter.this accidental nature of the death completely absolves your friend of either charge.
Again, it is important to understand that the crime of California voluntary manslaughter is, in itself, a legal defense in a murder case. If you are charged with Penal Code 187 PC murder.but can prove that you acted in the heat of passion or during a sudden quarrel.your potential state prison sentence, as well as your other penalties (discussed in the next section).will be reduced significantly.
If convicted of violating Penal Code 192(a) PC California's voluntary manslaughter law, you face three, six, or eleven years in the California state prison.20 By contrast, the penalty for committing Penal Code 187 PC murder is a minimum of 15-years-to-life and could even result in execution.
A voluntary manslaughter conviction could also trigger the following punishment and penalties:
There are several offenses that are related to California's voluntary manslaughter laws as they, too, involve unlawful killings. Some examples are described below.
Penal Code 187 PC California's murder law and voluntary manslaughter are very closely related. Both crimes involve an intent to kill. The difference between the two is that murder requires malice, that is, a willful and wanton disregard for human life. Voluntary manslaughter does not.
And although a murder charge may be reduced to manslaughter when there is substantial evidence of provocation in a "heat of passion" or "sudden quarrel" situation, manslaughter may be charged on its own when the prosecution doesn't believe it can establish murder.
Example: Mahone and Reed began taunting Ricardo and Steven, two men whom they believed were a homosexual couple. At first, Ricardo and Steven ignored the taunts and began walking home. When they reached Ricardo's home, Ricardo returned the insults. Ricardo and Steven entered the house and Mahone and Reed walked away.
As Mahone and Reed were leaving, Ricardo reappeared, holding a gun behind his back. He confronted Reed and the two began arguing at close range. Ricardo fired a shot into the air, and then pointed the gun directly in Reed's face. After Reed told Ricardo to "go ahead and pop him", Ricardo shot him in the eye. He later died.22
In a case such as this, where the prosecutor may be unsure about securing a murder conviction, he/she could opt to instead charge voluntary manslaughter. Both charges require a common element.that is, that the defendant unlawfully killed another person.but he/she is more likely to obtain a manslaughter conviction without having to prove the additional element of malice that is required for murder.
California's attempted murder laws apply when you
The significance of attempted murder to California's voluntary manslaughter law is that if you are charged with attempted murder, your California criminal defense attorney could seek to have the charge reduced to the lesser offense of "attempted voluntary manslaughter."
This would be the case if there is evidence that you had an intent to kill but didn't have the malice necessary to constitute murder.24
Example: Defendant and his girlfriend went to defendant's drug dealer's house to buy drugs. When he and his girlfriend got in a fight, the dealer interjected which upset the defendant. Further angered by the fact that the defendant believed he was being "cheated" in the deal, he challenged the dealer to a fight outside. As they were getting ready to go outside, the defendant pulled out a gun and said "I should kill you". When the dealer raised his hands, basically telling the defendant to leave him alone, the defendant shot him. Because of immediate medical care, the dealer did not die.
The court held that because the intent to kill was formed in the "heat of passion", it was logical that the defendant would be convicted of the lesser charge of attempted voluntary manslaughter rather than attempted murder.25
Prosecutors can charge you with Penal Code 192(b) PC California's involuntary manslaughter law when you kill another person
The difference between involuntary manslaughter and killing someone by accident is that with involuntary manslaughter, you are necessarily involved in either
at the time you kill the other person.27 By contrast, when you accidentally kill another person, you are not violating any laws at the time of the killing.
Involuntary manslaughter does not apply to acts that you commit while driving a car (those are covered by California's vehicular manslaughter laws).28
If convicted of involuntary manslaughter, you face two, three, or four years in the state prison.29
California's vehicular manslaughter laws apply to situations where a driver drives
Vehicular manslaughter is what's known as a "wobbler". Prosecutors can charge wobblers as either felonies or misdemeanors. If convicted of felony vehicular manslaughter, you face two-to-ten years in the state prison. If convicted of misdemeanor vehicular manslaughter, you face up to one-year in a county jail.31
If the driver was accused of simultaneously violating California's driving under the influence laws, prosecutors would likely charge either
Prosecutors are most likely to file a Watson murder case if you are a repeat DUI offender and kill another person while intoxicated. This charge is common for repeat DUI offenders who have received special education about the dangers of driving under the influence and who.at the time of conviction.acknowledge what's known as a Watson advisement.34
The Watson admonition states
What distinguishes this offense from first-degree murder is that in second-degree DUI murder, there is no intent to kill another person. If convicted, you face the same penalties that are imposed in connection with second-degree murder.that is, 15-years-to life in the state prison.
For questions about California's voluntary manslaughter laws, or to discuss your case confidentially with one of our California criminal defense attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions relating to Nevada's voluntary manslaughter laws. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.36
1California Penal Code 192(a) California's voluntary manslaughter law. ("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.")
2Our 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, and several nearby cities.
3California Jury Instructions, Criminal, CALJIC 8.40 -- California's manslaughter law. ("Every person who unlawfully kills another human being [without malice aforethought but] either with an intent to kill, or with conscious disregard for human life, is guilty of voluntary manslaughter in violation of Penal Code section 192, subdivision (a). [There is no malice aforethought if the killing occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in the necessity to defend [oneself] [or] [another person] against imminent peril to life or great bodily injury].]")
4Judicial Council Of California Criminal Jury Instruction, CALCRIM 570 -- California's voluntary manslaughter law. ("A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion. The defendant killed someone because of a sudden quarrel or in the heat of passion if:  The defendant was provoked;  As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment; AND  The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment.")
5See same. ("Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.[If enough time passed between the provocation and the killing for a person of average disposition to "cool off" and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.]")
See also People v. Breverman (1998) 19 Cal.4th 142, 163. ("Moreover, the passion aroused need not be anger or rage, but can be any " ' "[v]iolent, intense, high-wrought or enthusiastic emotion" ' " ( Wickersham, supra, at p. 327, quoting People v. Berry, supra, 18 Cal.3d at p. 515) other than revenge ( People v. Valentine, supra, 28 Cal.2d at p. 139). "However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter ...." ( Wickersham, supra, 32 Cal.3d at p. 327.)")
6See same. ("In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. 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 from judgment.")
See also People v. Valentine (1946) 28 Cal.2d 121, 139. ("The jury is further to be admonished and advised by the court that this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. Thus, no man of extremely violent passion could so justify or excuse himself if the exciting cause be not adequate, nor could an excessively cowardly man justify himself unless the circumstances were such as to arouse the fears of the ordinarily courageous man. Still further, while the conduct of the defendant is to be measured by that of the ordinarily reasonable man placed in identical circumstances, the jury is properly to be told that the exciting cause must be such as would naturally tend to arouse the passion of the ordinarily reasonable man. But as to the nature of the passion itself, our law leaves that to the jury, under these proper admonitions from the court. For the fundamental of the inquiry is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion-not necessarily fear and never, of course, the passion for revenge-to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment."")
7People v. Steele (2002) 27 Cal.4th 1230, 1253.
8People v. Breverman (1998) 19 Cal.4th 142, 163-164. ("Here, there was evidence that a sizeable group of young men, armed with dangerous weapons and harboring a specific hostile intent, trespassed upon domestic property occupied by defendant and acted in a menacing manner. This intimidating conduct included challenges to the defendant to fight, followed by use of the weapons to batter and smash defendant's vehicle parked in the driveway of his residence, within a short distance from the front door. Defendant and the other persons in the house all indicated that the number and behavior of the intruders, which defendant characterized as a "mob," caused immediate fear and panic. Under these circumstances, a reasonable jury could infer that defendant was aroused to passion, and his reason was thus obscured, by a provocation sufficient to produce such effects in a person of average disposition. FN11 FN11 The People ask us to rule as a matter of public policy that mere vandalism to an automobile is never sufficient provocation to warrant lesser included offense instructions on voluntary manslaughter. Indeed, we have so suggested. (See Christian S., supra, 7 Cal.4th 768, 779, fn. 3.) However, this case presents no such isolated issue. Here the jury could infer that defendant observed an attack on his vehicle, within feet of the entrance to his home, by a large, armed, and clearly hostile group of men who, defendant had reason to suspect, were seeking revenge for the incident of the previous evening, and that defendant feared the intruders intended to force their way into the residence. Such a scenario raises grounds of provocation beyond the "mere" destruction of property.")
9People v. Brooks (1986) 185 Cal.App.3d 687.
10People v. Borchers (1958) 50 Cal.2d 321.
11People v. Lucas (1997) 55 Cal.App.4th 721, 739.
12People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1246-1247.
13People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.
14People v. Rich (1988) 45 Cal.3d 1036, 1112.
15CALCRIM 505 -- Justifiable Homicide: Self-Defense or Defense of Another. ("The defendant acted in lawful (self-defense/ [or] defense of another) if:  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<)];  The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; AND  The defendant used no more force than was reasonably necessary to defend against that danger.")
16CALCRIM 571 -- Voluntary Manslaughter: Imperfect Self-Defense-Lesser Included Offense. ("A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because (he/she) acted in (imperfect self-defense/ [or] imperfect defense of another). If you conclude the defendant acted in complete (self-defense/ [or] defense of another), (his/her) action was lawful and you must find (him/her) not guilty of any crime. The difference between complete (self-defense/ [or] defense of another) and (imperfect self-defense/ [or] imperfect defense of another) depends on whether the defendant's belief in the need to use deadly force was reasonable. The defendant acted in (imperfect self-defense/ [or] imperfect defense of another) if: 1 The defendant actually believed that (he/she/ [or] someone else/ <insert name of third party>) was in imminent danger of being killed or suffering great bodily injury; AND 2 The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; BUT 3 At least one of those beliefs was unreasonable.")
17California Penal Code 25 - Insanity as a California legal defense. (". (b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.")
See also People v. Horn (1984) 158 Cal.App.3d 1014, 1032. ("Accordingly, we hold that Penal Code section 25, subdivision (b), reinstates the California M'Naghten right and wrong test as the standard for the insanity defense in this state."...")
See also CALJIC 4.00 -- Insanity as a California legal defense. ("A person is legally insane when by reason of mental disease or mental defect, [he] [she] was incapable at the time of the commission of the crime of one of the following:  Knowing the nature and quality of [his] [her] act; or  Understanding the nature and quality of [his] [her] act; or  Distinguishing what is legally right from what is legally wrong; or  Distinguishing what is morally right from what is morally wrong." Italics added).")
18Rancho Cucamonga criminal defense attorney Michael Scafiddi uses his former experience as an Ontario Police Officer to represent clients accused of violating California's manslaughter laws throughout the Inland Empire, including San Bernardino, Rancho Cucamonga, Riverside, Banning, Fontana, Joshua Tree, Barstow, Hemet, Palm Springs, and Victorville.
19California Penal Code 26 PC -- Persons capable of committing crime; exceptions. ("All persons are capable of committing crimes except those belonging to the following classes.Five--Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.")
See also California Penal Code 195 PC -- Excusable homicide. ("Homicide is excusable in the following cases:  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.  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.")
20California Penal Code 193 PC -- Punishment for violating California's manslaughter law. ("(a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.")
21California Penal Code 667 PC -- California's three strikes law. ("(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.")
See also California Penal Code 1192.7(c) PC -- California violent felonies. ("As used in this section [a California] 'violent felony' means any of the following. (1) murder or voluntary manslaughter.")
See also California Penal Code 1203.1 -- California's probation law. ("(j) [Per California's probation law] The court may impose.other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer.")
See also Penal Code 672 PC -- Offenses for which no fine prescribed; fine authorized in addition to imprisonment. ("Upon a conviction for any crime punishable by imprisonment in any jail or prison, in relation to which no fine is herein prescribed, the court may impose a fine on the offender not exceeding one thousand dollars ($1,000) in cases of misdemeanors or ten thousand dollars ($10,000) in cases of felonies, in addition to the imprisonment prescribed.")
See also Penal Code 12021 PC California's "felon with a firearm" law. ("(a)(1) Any person who has been convicted of a felony under the laws of the United States, the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.")
22Facts based on People v. Rios (2000) 23 Cal.4th 450.
23CALCRIM 600 -- Attempted Murder. ("The defendant is charged [in Count ] with [violating California's] attempted murder law. To prove that the defendant is guilty of attempted murder, the People must prove that:  The defendant took at least one direct but ineffective step toward killing (another person/ [or] a fetus); AND  The defendant intended to kill that (person/ [or] fetus).")
24People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825. ("Where a person intends to kill another person and makes an unsuccessful attempt to do so, his intention may be accompanied by any of the aggravating or mitigating circumstances which can accompany the completed crimes. In other words, the intent to kill may have been formed after premeditation or deliberation, it may have been formed upon a sudden explosion of violence, or it may have been brought about by a heat of passion or an unreasonable but good faith belief in the necessity of self-defense. If the law acts out of forebearance for the weakness of human nature and mitigates an intentional killing where mitigating circumstances appear, then we can discern no plausible reason why the law should not also mitigate an intentional attempt to kill under similar circumstances.There is nothing illogical or absurd in a finding that a person who unsuccessfully attempted to kill another did so with the intent to kill which was formed in a heat of passion or which arose out of an honest but unreasonable belief in the necessity of self-defense. Under those circumstances, the less culpable person is guilty of attempted voluntary manslaughter rather than attempted murder.")
See also CALJIC 8.41 -- Attempted voluntary manslaughter. ("(Penal Code §§ 664 & 192, subdivision (a)) [Defendant is accused [in Count[s] ] of having committed the crime of attempted voluntary manslaughter, in violation of sections 664 and 192, subdivision (a) of the Penal Code.] Every person who unlawfully attempts [without malice aforethought] to kill another human being is guilty of the crime of attempted voluntary manslaughter in violation of sections 664 and 192, subdivision (a) of the Penal Code, a crime. Voluntary manslaughter is the unlawful killing of a human being [without malice aforethought]. [There is no malice aforethought if the [killing] [or] [attempted killing] occurred [upon a sudden quarrel or heat of passion] [or] [in the actual but unreasonable belief in the necessity to defend [oneself] [or] [another person] against imminent peril to life or great bodily injury].]")
25Facts loosely based on People v. Van Ronk (1985), endnote 24 above.
26CALJIC 8.45 -- Involuntary manslaughter. ("Every person who unlawfully kills a human being, [without malice aforethought,] [and] [without an intent to kill, and without conscious disregard for human life,] is guilty of the crime of involuntary manslaughter in violation of Penal Code section 192, subdivision (b).")
27CALJIC 8.45 -- Involuntary manslaughter. ("A killing is unlawful within the meaning of this instruction if it occurred:  During the commission of an unlawful act [not amounting to a felony] which is dangerous to human life under the circumstances of its commission; or  In the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily harm, without due caution and circumspection.")
28California Penal Code 192(b) -- Involuntary manslaughter. ("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; 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.")
29California Penal Code 193 PC -- Punishment for violating California's manslaughter law. ("(b) Involuntary manslaughter is punishable by imprisonment in the state prison for two, three, or four years.")
30California Penal Code 192(c) -- Vehicular manslaughter. ("Manslaughter is the unlawful killing of a human being without malice. It is of three kinds.(c) Vehicular-- (1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. (2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. (3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person [also known as California automobile insurance fraud]. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.")
31California Penal Code 193 PC -- Punishment for violating California's manslaughter law. ("(c) Vehicular manslaughter is punishable as follows: (1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years. (2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year. (3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.")
32Penal Code 191.5(b) California's negligent vehicular manslaughter while intoxicated law. ("(b) Vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.")
33Penal Code 191.5(a) California's gross vehicular manslaughter while intoxicated law. ("("(a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.")
34People v. Watson (1981), 30 Cal.3d 290.
35The Watson admonition which is on all DUI plea Tahl waiver forms states "I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle, and is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged [in California] with murder."
36Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's murder laws. Our Nevada law offices are located in Reno and Las Vegas.
If you or a loved one faces misdemeanor or felony charges, contact our California criminal defense attorneys for help. We'd be glad to meet with you for a free consultation at one of our local criminal law offices in Los Angeles, San Francisco, Van Nuys, Pasadena, Long Beach, Orange County, Rancho Cucamonga, San Bernardino or Riverside.
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