Updated March 27, 2020
Penal Code sections 195, 196, and 197 PC set forth California’s laws on excusable and justifiable homicide. “Homicide” is the act of killing another person and typically leads to criminal charges. These laws, however, hold that homicide is not a crime in certain situations.
Excusable homicide is when a person kills someone on accident and while engaged in a lawful act. Justifiable homicide is when a person kills someone intentionally but does so for a “justifiable” reason (e.g., while acting in self-defense).
Homicide typically leads to criminal charges such as
- murder, under Penal Code 187 PC,
- voluntary manslaughter, under Penal Code 192 PC, and
- involuntary manslaughter, under Penal Code 192b PC.
Excusable and justifiable homicide, however, serve as legal defenses to these crimes. Both acts do involve a person killing another. But the law says that the facts surrounding the homicide excuse that person from criminal liability.
There are two kinds of excusable homicide under California law. These are:
- accidental homicide, and
- homicide in the heat of passion, or homicide by “sudden combat.”
The law says that people are justified in taking a life when:
- they act in self-defense,
- they defend their home or property, and / or
- they are trying to make a citizen’s arrest.
Public officers are also justified in committing homicide in certain scenarios.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is excusable homicide under Penal Code 195?
- 2. What is justifiable homicide under Penal Code 197?
- 3. What is justifiable homicide for public officers under Penal Code 196?
1. What is excusable homicide under Penal Code 195?
PC 195 is the California statute that says excusable homicide occurs when there is:
- an accidental homicide, and
- a homicide in the heat of passion.1
1.1. Accidental homicide
An accidental homicide is when a defendant causes a death and:
- the defendant was doing a lawful act,
- the defendant was acting with usual and ordinary caution, and
- the defendant was acting without any unlawful intent.2
Prosecutors have to prove that a killing was not excused.3
Example: Megan is a private swim instructor who is teaching two children (Jack and Lilly, both 8) to swim in the pool at their home. Both are already good swimmers and responsible kids.
Lilly suddenly starts to have an asthma attack. Megan tells Jack to get out of the pool and rushes into the house with Sally to get her inhaler. Jack is left alone and drowns.
The D.A. charges Megan with involuntary manslaughter. Here, Megan can likely use the defense of excusable homicide. She was performing a legal act in teaching swimming and she was not acting with an unlawful intent. She also acted with caution, instructing Jack (a skilled swimmer, aged 8,) to get out of the pool.
Note, though, that this defense would likely not be available if Jack was 3 years old and could not swim. Ordinary caution does not mean leaving an infant, who cannot swim, in a pool.
1.2. Homicide in the heat of passion
A killing can be excusable if done in the “heat of passion.” The heat of passion is when a person:
- experiences an intense emotional reaction to something, and
- because of this, does something rash and unreasonable.
A defendant must show the following to make this defense work:
- the accused acted in the heat of passion,
- the person who was killed provoked the defendant,
- the defendant did not take unfair advantage of the person who was killed,
- the defendant did not use a dangerous weapon,4
- the defendant did not kill the other person in a cruel way,
- the defendant did not intend to kill the other person5, and
- the accused was not criminally negligent.6
Example: Paco’s sister Veronica was raped and murdered. The police have not made any arrests in the case. One night at a bar, a guy Paco doesn’t know says to him with a smile that he killed his sister.
Paco grows enraged. He immediately begins punching the man in the face as hard as he can. The man suffers a serious fatal head injury because of the blows. The man dies hours later at the hospital.
This is probably excusable homicide. Paco was provoked to strong emotion by the man. Further, the facts do not suggest that Paco intended to kill the guy. They just show that he wanted to hit him in a fit of rage. In addition, Paco did not have a weapon or kill the man in an unusual way.
Note that the legal defense, however, would not work if Paco toke some time after the man’s comment and broke a beer bottle and stabbed the man with it in his throat. These facts suggest Paco intended to kill the man and used a dangerous weapon (broken glass) in doing so.
Note that in these cases the defendant has to show that he/she:
- reacted to something with intense emotion, and
- was justified in doing so.
This is accomplished by showing that:
- most normal people would have “lost their cool” in similar situations, and
- they would have let their emotions take over their judgement.7
2. What is justifiable homicide under Penal Code 197?
PC 197 is the California Statute says that a person is justified in killing another if he/she:
- acts in self-defense of himself or another,8
- defends his/her home or property, and
- makes a citizen’s arrest or tries to keep the peace.9
Defendants legally act in self-defense if:
- they were in “imminent danger” of suffering bodily injury,
- the use of force was necessary to defend against that danger,10 and
- they used no more force than was reasonably necessary.11
Example: Pam is in the process of getting a divorce from her husband John. John has been very upset over the divorce and has threatened to kill himself, Pam, and their young son Aaron.
One day John arrives at Pam’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.
Pam panics, thinking that John is about to pull out a weapon and use it to harm Aaron. She grabs a kitchen knife and attacks John, killing him.
It turns out that John did not have a weapon on him. But Pam may be able to argue justifiable homicide anyway, since her belief that John was about to hurt Aaron was reasonable . . . even if it was wrong.
2.2. Defense of a person’s home or property
California law says that it is a justifiable homicide if:
- a person kills someone, and
- does so while defending his/her home or property.
For this defense to work, the defense must show that:
- the defendant was defending his/her home or other property,
- there was an intruder who intended to commit a violent act,
- the accused reasonably believed that a threat of harm was imminent,12
- the defendant reasonably believed that deadly force was necessary to remove the threat, and
- the defendant used reasonable force to guard against the threat.13
For this defense to work:
- there must be an intruder, and
- that intruder must intend on committing an atrocious crime.14
An atrocious crime includes things like:
- rape, in violation of Penal Code 261 PC,
- robbery, in violation of Penal Code 211 PC, and
- mayhem, in violation of Penal Code 203 PC.
Example: Don has a 17-year-old daughter Kim. Kim’s ex-boyfriend has been stalking her and has been seen outside their home.
Don awakens one night to loud noises in the house – they are coming from his daughter’s bedroom. He grabs his handgun and rushes to her and finds the ex-boyfriend violently undressing her while holding a knife to her neck. Don shoots and kills the ex.
Here, it is likely that Don can successfully use the defense of justifiable homicide. He was defending his home against an intruder that intended to rape his daughter. There was also an imminent threat that required deadly force to remove it.
2.3. Citizen’s arrest or keeping the peace
Per California law, it is justifiable homicide if a person:
- kills someone else while trying to make a citizen’s arrest, and
- the victim was being arrested for committing a felony.
Note that this defense will only work if:
- the felony involved created a risk of death/ great bodily injury, and
- the victim posed a future danger to society. 15
The defense also works if the defendant was acting to “preserve the peace.” This means he/she was trying to prevent a riot or violence from occurring.16
Example: Lisa sees a teenage boy steal something out of a woman’s purse at a laundromat. She follows the teen onto the street, pulls out a gun, and orders the boy to stop. When the boy ignores her, Lisa chases after him. She catches the boy and later shoots him after a struggle.
In this scenario, Lisa would be unsuccessful in using the defense of justifiable homicide. The teenager committed the crime of theft., which is not a violent felony. The outcome would be different, though, if Lisa tried to stop the teenager after he tried to rape the woman at the laundromat.
3. What is justifiable homicide for public officers under Penal Code 196?
Penal Code 196 PC says that “public officers” can commit homicide in some situations. These are when the officer is:
- chasing a convicted felon who has escaped from custody,
- arresting a person for a felony and the person is resisting arrest, or
- overcoming actual resistance to some legal process.17
It also has to be the case that:
- the person killed posed a threat of death/ great bodily injury to someone, and
- the person killed posed a future threat of violent harm.18
“Public officers” means more than police officers. The term includes:
- custodial officers who work in county jails,
- transportation officers who escort prisoners, and
- county parole officers.
For additional help…
For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.
- California Penal Code 195 PC.
- CALCRIM No. 510 -- Excusable Homicide: Accident. Judicial Council of California Criminal Jury Instructions (2017 edition).
- See same. See also People v. Frye (1992) 7 Cal.App.4th 1148.
- People v. Aguilar (1997) 16 Cal.4th 1023.
- People v. Villanueva (2008) 169 Cal. App. 4th 41.
- CALCRIM No. 511 -- Excusable Homicide: Accident in the Heat of Passion. Judicial Council of California Criminal Jury Instructions (2017 edition).
- See same.
- People v. Bates (2019) 35 Cal. App. 5th 1.
- California Penal Code 197 PC.
- People v. Sotelo-Urena, 4 Cal. App. 5th 732.
- CALCRIM No. 3470 -- Right to Self-Defense or Defense of Another. Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Nguyen (2015) 61 Cal. 4th 1015; and, People v. Humphrey (1996) 13 Cal.4th 1073.
- People v. Humphrey (1996) 13 Cal.4th 1073.
- CALCRIM No. 506 -- Justifiable Homicide: Defending Against Harm to Person Within Home or on Property. Judicial Council of California Criminal Jury Instructions (2017 edition).
- People v.Ceballos (1974) 12 Cal.3d 470.
- CALCRIM No. 508 -- Justifiable Homicide: Citizen Arrest (Non-Peace Officer). Judicial Council of California Criminal Jury Instructions (2017 edition). See also People v. Piorkowski (1974) 41 Cal.App.3d 324.
- California Penal Code 197 PC.
- California Penal Code 196 PC. See also CALCRIM No. 507 -- Justifiable Homicide: By Public Officer. Judicial Council of California Criminal Jury Instructions (2017 edition). See also Estate of Serrano v. Menh Trieu (2017) 2017 Cal. Super. LEXIS 2523.
- See same.