CALCRIM No. 511. Excusable Homicide: Accident in the Heat of Passion

Judicial Council of California Criminal Jury Instructions (2020 edition)

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511.Excusable Homicide: Accident in the Heat of Passion
The defendant is not guilty of (murder/ [or] manslaughter) if (he/she)
killed someone by accident while acting in the heat of passion. Such a
killing is excused, and therefore not unlawful, if, at the time of the
killing:
1. The defendant acted in the heat of passion;
2. The defendant was (suddenly provoked by <insert
name of decedent>/ [or] suddenly drawn into combat by
<insert name of decedent>);
3. The defendant did not take undue advantage of
<insert name of decedent>;
4. The defendant did not use a dangerous weapon;
5. The defendant did not kill <insert name of decedent>
in a cruel or unusual way;
6. The defendant did not intend to kill <insert name of
decedent> and did not act with conscious disregard of the danger
to human life;
AND
7. The defendant did not act with criminal negligence.
A person acts in the heat of passion when he or she is provoked into
doing a rash act under the influence of intense emotion that obscures his
or her reasoning or judgment. The provocation must be sufficient to have
caused a person of average disposition to act rashly and without due
deliberation, that is, from passion rather than from judgment.
Heat of passion does not require anger, rage, or any specific emotion. It
can be any violent or intense emotion that causes a person to act without
due deliberation and reflection.
In order for the killing to be excused on this basis, the defendant must
have acted under the direct and immediate influence of provocation as I
have defined it. While no specific type of provocation is required, slight
or remote provocation is not sufficient. Sufficient provocation may occur
over a short or long period of time.
It is not enough that the defendant simply was provoked. The defendant
is not allowed to set up (his/her) own standard of conduct. You must
decide whether the defendant was provoked and whether the provocation
was sufficient. In deciding whether the provocation was sufficient,
consider whether a person of average disposition, in the same situation
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and knowing the same facts, would have reacted from passion rather
than judgment.
[A dangerous weapon is any object, instrument, or weapon [that is
inherently deadly or dangerous or one] that is used in such a way that it
is capable of causing and likely to cause death or great bodily injury.]
[An object is inherently deadly if it is deadly or dangerous in the
ordinary use for which it was designed.]
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a 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 how 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.
The People have the burden of proving beyond a reasonable doubt that
the killing was not excused. If the People have not met this burden, you
must find the defendant not guilty of (murder/ [or] manslaughter).
New January 2006; Revised April 2011, September 2019
BENCH NOTES
Instructional Duty
The trial court has a sua sponte duty to instruct on accident and heat of passion that
excuses homicide when there is evidence supporting the defense. (People v.
Hampton (1929) 96 Cal.App. 157, 159-160 [273 P. 854] [court erred in refusing
defendant’s requested instruction].)
Give the bracketed phrase “that is inherently deadly or one” and give the bracketed
definition of inherently deadly only if the object is a deadly weapon as a matter of
law. (People v. Stutelberg (2018) 29 Cal.App.5th 314, 317-318 [240 Cal.Rptr.3d
156].)
Related Instructions
CALCRIM No. 510, Excusable Homicide: Accident.
CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.
CALCRIM No. 511 HOMICIDE
234
CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion - Lesser Included
Offense.
AUTHORITY
• Excusable Homicide if Committed in Heat of Passion. Pen. Code, § 195, subd.
2.
• Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th
1148, 1154-1155 [10 Cal.Rptr.2d 217].
• Deadly Weapon Defined. See People v. Aguilar (1997) 16 Cal.4th 1023,
1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
• Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1065 [232
Cal.Rptr.3d 51, 416 P.3d 42]; People v. Aguilar (1997) 16 Cal.4th 1023,
1028-1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
RELATED ISSUES
Distinguished From Voluntary Manslaughter
Under Penal Code section 195, subd. 2, a homicide is “excusable,” “in the heat of
passion” if done “by accident,” or on “sudden . . . provocation . . . or . . .
combat.” (Pen. Code, § 195, subd. 2.) Thus, unlike voluntary manslaughter, the
killing must have been committed without criminal intent, that is, accidentally. (See
People v. Cooley (1962) 211 Cal.App.2d 173, 204 [27 Cal.Rptr. 543], disapproved
on other grounds in People v. Lew (1968) 68 Cal.2d 774, 778, fn. 1 [69 Cal.Rptr.
102, 441 P.2d 942]; Pen. Code, § 195, subd. 1 [act must be without criminal intent];
Pen. Code, § 26, subd. 5 [accident requires absence of “evil design [or] intent”].)
The killing must also be on “sudden” provocation, eliminating the possibility of
provocation over time, which may be considered in cases of voluntary manslaughter.
(See Bench Notes to CALCRIM No. 570, Voluntary Manslaughter: Heat of
Passion - Lesser Included Offense.)
Distinguished From Involuntary Manslaughter
Involuntary manslaughter requires a finding of gross or criminal negligence. (See
Bench Notes to CALCRIM No. 581, Involuntary Manslaughter: Murder Not
Charged; Pen. Code, § 26, subd. 5 [accident requires no “culpable negligence”].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 274.
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, § 230.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.16 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, §§ 142.01[1][b], [g], 142.02[2][a] (Matthew Bender).
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