8.8.1: PC 192 (2024)

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.

(b) Involuntary—in the commission of an unlawful act, not amounting to a 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.

(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 a 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 a 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. This paragraph does not prevent prosecution of a defendant for the crime of murder.

(d) This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to a felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

(e) (1) “Gross negligence,” as used in this section, does not prohibit or preclude a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson (1981) 30 Cal.3d 290.

(2) “Gross negligence,” as used in this section, may include, based on the totality of the circumstances, any of the following:

(A) Participating in a sideshow pursuant to subparagraph (A) of subparagraph (2) of subdivision (i) of Section 23109 of the Vehicle Code.

(B) Engaging in a motor vehicle speed contest pursuant to subdivision (a) of Section 23109 of the Vehicle Code.

(C) Speeding over 100 miles per hour.

(f) (1) For purposes of determining sudden quarrel or heat of passion pursuant to subdivision (a), the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation.

(2) For purposes of this subdivision, “gender” includes a person’s gender identity and gender-related appearance and behavior regardless of whether that appearance or behavior is associated with the person’s gender as determined at birth.

What distinguishes murder from manslaughter is the criminal intent element. Manslaughter is an unlawful killing without malice or murder intent. The criminal act, causation, and harm elements of manslaughter and murder are fundamentally the same. Thus criminal intent is the only manslaughter offense element that is discussed in this section.

Manslaughter has two basic classifications: voluntary and involuntary. Voluntary manslaughter has the same criminal intent element as murder. In fact, a voluntary manslaughter killing is typically supported by express malice, specific intent to kill, or purposely. However, in a voluntary manslaughter, an emotional state called a heat of passion negates the murder intent. An adequate provocation from the victim inspires the heat of passion.

The adequacy requirement is essential to any voluntary manslaughter analysis. Many defendants are provoked and thereafter kill with murder intent. Nonetheless, most provocations are not adequate to drop the crime from murder to manslaughter. The victim’s provocation must be serious enough to goad a reasonable person into killing (People v. Steele, 2011). A reasonable person is a fictional and objective standard created by the trier of fact. Of course, the defendant must actually be provoked, which is a subjective standard (People v. Steele, 2011).

Example of Adequate Provocation

A traditional example of provocation that is adequate to reduce a crime from murder to manslaughter is an observation by one spouse of another spouse in the act of adultery (Ohio v. Shane, 2011). For example, José comes home from work early and catches his wife in bed with his best friend. He becomes so enraged that he storms over to the dresser, grabs his handgun, and shoots and kills her. Clearly, José acts with intent to kill. However, the victim provoked this intent with an act that could cause a reasonable person to kill. Thus José has probably committed voluntary manslaughter in this case, not murder.

Other Examples of Adequate Provocation

Other examples of adequate provocation are when the homicide victim batters the defendant and a killing that occurs during a mutual combat (Ohio v. Shane, 2011). Cases have generally held that words alone are not enough to constitute adequate provocation (Girouard v. State, 2011). Thus in the adequate provocation example in “Example of Adequate Provocation”, if a friend told José that his wife was committing adultery, and José responded by shooting and killing his wife, this would probably be murder, not voluntary manslaughter.

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