California's voluntary manslaughter law covers killings that are committed during a sudden quarrel or in the heat of passion.  Voluntary manslaughter is rarely charged as a separate offense.  It typically applies in circumstances where it is undisputed that the defendant committed the killing but what is disputed is the manner of the killing.  In those situations, the defendant seeks to reduce the charge of premeditated or second-degree killing to voluntary manslaughter or, if the case has proceeded to jury trial, asks for a voluntary manslaughter jury instruction.  It is then the defendant’s burden to establish that the particular killing was not first-degree or second-degree murder but only voluntary manslaughter.


When you intentionally kill another person (without a legal excuse) or kill with a conscious disregard for human life, you have committed a homicide.  What reduces this homicide from first-degree intentional killing or second-degree reckless killing to voluntary manslaughter is the lack of “malice aforethought.”  Malice aforethought is when you kill intentionally or with wanton disregard for human life AND without adequate and justifiable provocation.   But when you kill in the “heat of passion”—i.e., with adequate or justifiable provocation—the law presumes that you lacked malice aforethought and, consequently, you are guilty of only voluntary manslaughter.

“Heat of Passion”

You kill in the heat of passion when:

  1. You are provoked;
  2. because are were provoked, you are influenced by intense emotion that makes you act impulsively and that obscures your reasoning or judgment; and
  3. the provocation is enough to have caused the average reasonable person in your position to act rashly and without thinking clearly

If enough time existed between the provocation and the killing for you to have calmed down and thought through your actions, then a charge of first degree or premeditated murder is more applicable to you than manslaughter. Note that you must meet both the objective and subjective elements of a “heat of passion” killing: it is not enough that you were provoked and that you acted as result of this provocation.  You must in addition show that a reasonable person in your situation would have been provoked as well.

For example, John and Jill go on a first date.  Afterwards, John takes Jill to his apartment and proceeds to have sex with her.  In the midst of the act, Jill grabs an icepick and stabs and kills John.  Jill gets arrested for murder.  At trial, Jill’s attorney seeks a voluntary manslaughter jury instruction on the basis that Jill had been violently raped before by another man and that the manner and nature of the sexual act with John reenacted this trauma and caused Jill to snap.  In this scenario, Jill was provoked and because of this provocation she snapped.  Jill therefore was subjectively provoked.  However, she likely cannot meet the objective element of a “heat of passion” killing because nothing that John did would have justifiably made a reasonable person in Jill’s situation resort to deadly violence.  In this scenario, Jill will likely be convicted of the more serious charge of second-degree murder.

Now consider the following examples:

  • John comes home to find Jill, his wife, having sex with another man. Provoked, John picks up a nearby knife and kills both his wife and her lover.  John acted in the heat of passion, as the sight of his wife engaging in intercourse with another man was terribly traumatic.  A reasonable person in John’s position would have been equally provoked by this trauma.  John did not have time to cool off between when he experienced the trauma and when he picked up the knife to attack.  In this scenario, John is entitled to a reduction to voluntary manslaughter.
  • Janet, an African American transgender, is sitting in a restaurant when a gang of white supremacists accost her and insult her. Janet leaves the restaurant but the gang follows her.  As she attempts to leave the parking lot of the restaurant, the gangs throw eggs at her car, blocks her way, and challenges her to fight.  Janet gets her loaded gun from the glove compartment and begins shooting at the gang, killing three of their members.  The gang’s actions caused fear and panic in Janet, thus provoking her.  A reasonable person in Janet’s situation would have been equally provoked.  There was no time for Janet to “cool off” between the moment when the gang is blocking her way and egging her car to when she picked up her revolver to shoot.  In this scenario, Janet is entitled to a reduction to voluntary manslaughter.
  • John comes home to find his daughter lying on floor in a pool of blood. Still alive, she tells John that the next-door neighbor, Jack, raped her and stabbed her several times.  John calls for help.  When the police arrive, John picks up his gun, sneaks out of the house, runs up to Jack’s house, and shoots him.  John was provoked, and a reasonable person in John’s position would have been so provoked.  In this scenario, too, John is likely entitled to a reduction to voluntary manslaughter.

Contrast the above examples with the following:

  • Jill, a transgender, is accosted in a restaurant by a group of white supremacists who hurl at her racist insults. Jill grabs a knife and attacks and kills one of the members.  In this scenario, racist insults likely do not constitute adequate provocation to kill.
  • Jack and John, two brothers, shoot their father. Their justification for the killing is that their father treated them with strict scrutiny for years.  Although provocation for a “heat of passion” killing can develop overtime, a harsh, disciplinarian upbringing will unlikely constitute adequate provocation.


As mentioned before, voluntary manslaughter is rarely filed as a separate charge and typically sought by the defense as an alternative charge to murder.  However, in rare cases, a defendant’s actions are indisputably in the “heat of passion.”  The prosecutor then files a charge against the defendant for voluntary manslaughter.  In cases, the following legal defenses apply:

Self-defense / defense of others

The law allows for whatever steps are reasonably necessary—including killing—to protect the defendant or another person from:

  • being killed,
  • suffering great bodily injury or battery with serious bodily injury
  • being raped, maimed, robbed, or the victim of some other "forcible and atrocious crime".

Example: John sees two men beat a transgender with a knife.  John attacks the aggressors and stabs them with his own knife.  Had John not acted as promptly, the victim could have died.  John therefore appropriately acted in the defense of another.

Imperfect Self-Defense

Imperfect self-defense may occur when a defendant

  1. believed that s/he or another was in imminent danger of being seriously hurt or killed, and
  2. believed that deadly force was necessary to defend against that danger, but
  3. at least one of those beliefs was unreasonable,

Since the belief that led to the killing was not justified or unreasonable, a claim of imperfect self-defense is not an absolute defense to a murder charge but it can be a mitigating factor in reducing the appropriate sentence or in reducing a murder charge to Penal Code 192(a), voluntary manslaughter.

Example: Consider the scenario above with the exception that John manages to scare off the two aggressors.  A few minutes later, while John is tending to the victim, the two aggressors come back and challenge John to a fight, but neither aggressor appears to have a weapon.  Instead of calling the police or picking up the victim and walking away, John now attacks one of the aggressors with a knife and kills him.  In this scenario, John arguably acted in imperfect self-defense.  While it was reasonable for John to entertain the possibility that the aggressors would have attacked again, it was arguably unreasonable for John to believe that deadly force was necessary to prevent this attack.


A defense of insanity may be possible against a charge of Voluntary Manslaughter if a defendant kills another person but s/he

  1. does not understand what s/she is doing and/or,
  2. cannot distinguish between right and wrong

Example: Jill suffers from severe schizophrenic. While having sexual intercourse with John, Jill begins to hear voices and starts to believe that John is going to strangle her during the act. Jill then picks up an icepick and kills John.  In this scenario, Jill is entitled to an insanity defense.


A death caused by an accident is not voluntary manslaughter.  This defense applies if the defendant:

  1. has no criminal intent to do harm,
  2. was not acting negligently at the time of the accident, and
  3. was otherwise engaged in lawful behavior at the time of the accidental killing.

Example: John comes home to find his wife having sex with another man.  John immediately leaves the house and gets into his car to drive away.  Still in the heat of passion, John angrily speeds out of the driveway.  Jill, John’s wife, had followed John to the car and had unexpectedly jumped in front of his car. John had no intention of killing Jill.  The accidental nature of the death might completely absolve him.


A violation of Penal Code 192(a), California's voluntary manslaughter law, carries a prison sentence of 3, 6, or 11 years in the California State prison (a conviction for murder brings a punishment of 15-years-to-life and could be a death penalty offense in certain circumstances.)

Other punishments for a voluntary manslaughter conviction could include:

  1. a fine of up to $10,000;
    1. a strike under California’s Three Strikes Law;
    2. loss of the right to own or possess a gun;
    3. community service or labor;
    4. court ordered counseling; and
    5. other conditions that the court believes are necessary


One of the hallmarks of Negin’s strengths is her thoroughness and ability to uncover facts that are otherwise buried deep in the history of the case or hidden by the prosecution.  Negin will uncover these facts and thoroughly examine the specific circumstances of your case to earn you the best possible outcome, whether that outcome is a reduction to voluntary manslaughter or a complete dismissal or acquittal of the charge of voluntary manslaughter against you. If you are being charged it is important to contact an experienced criminal defense lawyer that can help resolve your case. Call today for a free 1 on 1 consultation with Negin Yamini.