Penal Code sections 195, 196, and 197 PC set forth California state laws on excusable and justifiable homicide. “Homicide” is the act of killing another human being and typically leads to criminal charges. These laws, however, hold that homicide is not a crime in certain situations.
The legal definition of 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 (such as 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 about justifiable homicide laws
- 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 criminal law 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 having a swim lesson with an eleven-year-old who is already a strong, award-winning swimmer. Megan then leaves the pool to use the bathroom, during which the child has an embolism and dies.
If charged with involuntary manslaughter, Megan can likely use the defense of excusable homicide. She was performing a legal act in teaching swimming and had no reason to think the child would experience a medical emergency.
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: While Paco is mourning his sister’s brutal murder, a man accosts him at a bar and boasts that he was the one who killed her. Enraged, Paco punches him, resulting in the man soon dying from internal bleeding.
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.
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
A person can kill in justified self-defense if he or she:
- was in “imminent danger” of suffering great bodily injury,
- used only the force against the assailant that was necessary to defend against that danger,10 and
- used no more such force than was reasonably necessary for self-defense or defense of others.11
Example: Pam’s ex-husband John shows up to her house and says he wants to kill her for divorcing him. Then he walks toward Pam while reaching into his pocket. Panicking, she grabs a kitchen knife and stabs him, 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 cause personal injury her had reasonable grounds . . . 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 “castle doctrine” 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:
- sexual assault, 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: After awakening to loud noises in his house, Don grabs his handgun and finds her daughter’s ex-boyfriend holding a knife to her neck. Don shoots him dead.
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 hurt his daughter.
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 by lawful ways to prevent a riot or violence from occurring.16
Example: After witnessing a shoplifting, Lisa shoots the unarmed thief outside of the store. In this scenario, Lisa would be unsuccessful in using the defense of justifiable homicide because the thief committed a non-violent crime and probably posed no risk of violence.
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
- such person killed posed a future threat of violent harm.18
“Public officers” means more than law enforcement officers. The term includes:
- custodial officers who work in county jails,
- transportation officers who escort prisoners, and
- county parole officers.
For additional help…
- California Penal Code 195 PC.
- CALCRIM No. 510 – 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 – 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. See also PC 198.
- 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.