California Penal Code § 195 PC defines excusable homicide as unintentionally killing someone in an unavoidable accident. Unintentionally killing someone in the “heat of passion” is also excusable homicide as long as the person
- was provoked by the victim,
- used no weapon, and
- acted the same way any reasonable person would under the circumstances.
The full text of the statute reads as follows:
195. 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.
California Penal Code § 195 PC acknowledges that purely accidental killings are not crimes. An accidental homicide is excusable when the following three conditions are true:
- The defendant was not doing anything unlawful;
- The defendant was exercising usual and ordinary caution; and
- The defendant had no unlawful intent.1
An example of excusable accidental homicide is a person driving the speed limit when a tree branch falls and crashes through the windshield, causing the driver to lose control of the car and swerve into a pedestrian, killing her. Here, the D.A. would probably press no charges because the driver was doing nothing unlawful or risky and had no criminal intent. An “act of God” caused him to swerve, tragically killing a pedestrian.2
A killing can also be excusable if it is done in the heat of passion. For this defense to block homicide charges, the following seven conditions must be met:
- The defendant acted in the heat of passion;
- The victim had provoked the defendant
- The defendant took no unfair advantage of the victim;
- The defendant used no dangerous weapon;
- The killing was not done in a cruel way;
- The defendant had no intent to kill;
- The defendant was not criminally negligent; and
- A reasonable person would have behaved like the defendant in that situation.3
Note that people who are innocent of criminal homicide charges could still face civil charges for wrongful death. This is because the bar for wrongful death liability is lower than for criminal liability.
- California Penal Code § 195 PC – Excusable homicide. See also People v. Mathews (Cal. App. 3d Dist., 1979), 91 Cal. App. 3d 1018 and People v. Bohana (Cal. App. 2d Dist., 2000), 84 Cal. App. 4th 360. CALCRIM No. 510. See also Penal Code § 196 PC, Penal Code § 197 PC and Penal Code § 198.5 PC.
- PC § 195. CALCRIM No. 511.