I. California Penal Code 192/191.5: Manslaughter

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Legal Definition: Manslaughter is the unlawful killing of a human being without malice. Manslaughter does not apply to the death of a fetus, but murder, on the other hand, does apply to a fetus.

There are three kinds of manslaughter that the Penal Code defines:

• (a) Voluntary – A killing upon a sudden quarrel or heat of passion. (PC 192(a))
• (b) Involuntary – A killing 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. (PC 192(b))
• (c) Vehicular – A killing while 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. (PC 191.5)

For a person to be convicted of a violation of PC 192(a), the prosecution must prove the following:

1. You committed an act that caused the death of another person; AND
2. When you acted, you unlawfully intended to kill someone; AND
3. You killed without lawful excuse or justification.

For a person to be convicted of a violation of PC 192(b), the prosecution must prove the following:

1. You committed a crime/a lawful act in an unlawful manner;
2. You committed the crime/act with criminal negligence; AND
3. Your act caused the death of another person.

For a person to be convicted of a violation of PC 191.5, the prosecution must prove the following:

1. You drove under the influence of an alcoholic beverage/a drug/under the combined influence of both/drove while having a blood alcohol level of 0.08 or higher/when under the age of 21, drove while having a blood alcohol level of 0.05 or higher when under the age of 21);
2. While driving that vehicle under the influence you also committed a misdemeanor/an infraction/otherwise lawful act that might cause death;
3. You committed the misdemeanor/an infraction/otherwise lawful act that might cause death with gross negligence; AND
4. Your grossly negligent conduct caused the death of another person.

II. What does this mean?

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1. Voluntary Manslaughter (PC 192(a)) – Voluntary manslaughter is an intentional killing that would otherwise be considered murder but is reduced due to some mitigating factor or factors. Another way to describe it, is a killing that occurs, during a heat of passion, and you have no cooling-off period between the heat and the cooling-off to consider your actions. Mitigating factors include imperfect self-defense, the heat of passion, and diminished capacity. Voluntary manslaughter is never charged by the district attorney; it is a lesser included offense to the crime of murder. This is because some mitigating factor shows that the case should be reduced from murder.

Heat of Passion: Heat of passion is an intentional killing that occurs during your uncontrolled rage or passion. A common example is that you return home from a long day of work, only to see your wife in bed with your best friend. In a fit of rage, you grab some scissor’s on the table and stab both your best friend and wife to death. It must be shown that you subjectively were so enraged that you could not control yourself or stop yourself from acting and killing. It also must be true that objectively, a reasonable person in your position would have reacted with rage as well. This, of course, has to happen on the spot. If you see the incident described above, then go home and blog about it, update your Facebook Status to “complicated”, then the next day show up with a bazooka to blow up your old home, that would be too long of a cooling-off period. The logic is, that your rage could have cooled, and as time passes, your rage calms down after you are able to contemplate your actions. Thus, if there is a cooling-off period, then there is no heat of passion.

Diminished Capacity: Generally, Diminished Capacity is not a complete defense against a crime, not since 1982. However, it can be used as a potential defense of an element of a crime, mostly, specific intent. Diminished capacity is when there is some internal or external mental ingredient that did not allow you to appreciate the wrongfulness of the act of intentionally killing another person.

Imperfect self-defense: The intentional killing of another person while you, subjectively, truly believed that you needed to act in self-defense. However, a reasonable person, under similar circumstances, would not believe that he or she would have needed to act in self-defense. That is where objectively you are wrong, but subjectively, you thought you were right.

An act causes death if death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.

2. Involuntary Manslaughter (PC 192(b)) – Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:1. You act in a reckless way that creates a high risk of death or great bodily injury; and 2. A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

There may be more than one cause of death in PC 192(a) or PC 192(b). An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor.

3. Vehicular Manslaughter (PC 191.5(a)/PC 191.5(b)) – The important distinction here is whether your case falls under (a) or (b) is that (a) deals with Gross Negligence (defined above) whereas (b) deals with just ordinary negligence, and is thus a lesser charge.

Ordinary negligence is the failure to use reasonable care to prevent reasonably foreseeable harm to oneself or someone else. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation/fails to do something that a reasonably careful person would do in the same situation.

The combination of driving a vehicle while under the influence of an alcoholic beverage/and/a drug and violating a traffic law is not enough by itself to establish gross negligence. In evaluating whether you acted with gross negligence, your intoxication must be considered, if any; the way you drove; and any other relevant aspects of your conduct.

III. Penalties

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1. Voluntary Manslaughter (PC 192(a)) – Voluntary Manslaughter is a straight felony in California. If you are convicted of this charge, you could be sentenced to upwards of three, six, or eleven years in State Prison. You would be required to serve 85% of that sentence. This is also a Strike offense under California’s Three Strike Laws. This is in addition to fines and fees, generally a high restitution amount (for burial costs), as well as issues with Immigration (since it is a strike) and professional licensing issues.
2. Involuntary Manslaughter (PC 192(b)) – Involuntary Manslaughter is a straight felony in California. If you are convicted of this charge, you could be sentenced to upwards of two, three, or four years in State Prison. You would be required to serve 50% of that sentence. This is also a Strike offense under California’s Three Strike Laws. This is in addition to fines and fees, generally a high restitution amount (for burial costs), as well as issues with Immigration (since it is a strike) and professional licensing issues.
3. Vehicular Manslaughter (PC 191.5 & 192(c)) –
   1. PC 191.5(a): This is a straight felony in California. If convicted under this section, you could be sentenced to upwards of four, six, and ten years in State Prison. You also will lose your Driving Privileges for three years from the DMV upon conviction.
   2. PC 191.5(b): This is a wobbler offense in California. That means it can be charged as a misdemeanor or as a felony offense. If you are charged with this as a misdemeanor, you could be sentenced to County Jail for up to one year. If you are sentenced to this charge as a Felony you could be sent to State Prison for upwards of two, three, or four years.
   3. PC 191.5(d): A conviction under this second, where you have previously been convicted of a DUI, is a maximum of 15 years to life in State Prison.
   4. PC 192(c)(1): This is a wobbler offense in California. That means it can be charged as a misdemeanor or as a felony offense. If you are charged with this as a misdemeanor, you could be sentenced to County Jail for up to one year. If you are sentenced to this charge as a Felony you could be sent to State Prison for upwards of two, four, or six years.
   5. PC 192(c)(2): This is a straight misdemeanor offense, if you are convicted you could be sentenced to County Jail for up to one year.

IV. Common Defenses

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1. Statute of Limitations
2. Insufficient Evidence
3. Violation of your Rights
4. Self Defense

For any situation with driving, causing death, a common defense is an alibi defense, meaning a person who was with you at the time, and because the accident was a hit and run, did not get good luck with you.

In regards to Voluntary Manslaughter, generally, you do not defend against Voluntary Manslaughter, as it is a reduction from a Murder charge. The reason you would not defend against it is that you already have to get to that charge. Any other defense past that would generally be simply stating that you did not kill another person, or that it was an accidental killing, that was not done with any negligence. Another possible defense is generally a self-defense claim or a defense of others.

Fight gross and ordinary negligence occurs when looking at the facts of your situation from an objective standpoint. Sometimes incidents happen in life that are outside of our control, that is how you can defeat a negligence allegation. If you are acting with due care, and some freak accident occurs involving you, and the death of another, it doesn’t always lead to your fault. If you were not careless in any way, there is no conviction under this section.

V. Call Today

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