Criminal Law

570. Voluntary Manslaughter: Heat of Passion - Lesser Included Offense

A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone because of a sudden quarrel or in the heat of passion.

The defendant killed someone because of a sudden quarrel or in the heat of passion if:

1. The defendant was provoked;

2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured (his/her) reasoning or judgment;


3. The provocation would 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 heat of passion to reduce a murder to voluntary manslaughter, 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 would have been provoked and how such a person would react in the same situation knowing the same facts.

[If enough time passed between the provocation and the killing for a person of average disposition to "cool off" and regain his or her clear reasoning and judgment, then the killing is not reduced to voluntary manslaughter on this basis.]

The People have the burden of proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on voluntary manslaughter on either theory, heat of passion or imperfect self-defense, when evidence of either is "substantial enough to merit consideration" by the jury. (People v. Breverman (1998) 19 Cal.4th 142, 153-163 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Barton (1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531].)

Related Instructions

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


Elements. Pen. Code, § 192(a).

Heat of Passion Defined. People v. Breverman (1998) 19 Cal.4th 142, 163 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; People v. Valentine (1946) 28 Cal.2d 121, 139 [169 P.2d 1]; People v. Lee (1999) 20 Cal.4th 47, 59 [82 Cal.Rptr.2d 625, 971 P.2d 1001].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 207-219.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, §§ 85.03[2][g], 85.04[1][c] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, §§ 142.01[3][e], 142.02[1][a], [e], [f], [2][a], [3][c] (Matthew Bender).

Lesser Included Offenses

Attempted Voluntary Manslaughter. People v. Von Ronk (1985) 171 Cal.App.3d 818, 824-825 [217 Cal.Rptr. 581]; People v. Williams (1980) 102 Cal.App.3d 1018, 1024-1026 [162 Cal.Rptr. 748].

Involuntary manslaughter is not a lesser included offense of voluntary manslaughter. (People v. Orr (1994) 22 Cal.App.4th 780, 784 [27 Cal.Rtpr.2d 553].)

Related Issues

Heat of Passion: Sufficiency of Provocation—Examples

In People v. Breverman, sufficient evidence of provocation existed where a mob of young men trespassed onto defendant's yard and attacked defendant's car with weapons. (People v. Breverman (1998) 19 Cal.4th 142, 163-164 [77 Cal.Rptr.2d 870, 960 P.2d 1094].) Provocation has also been found sufficient based on the murder of a family member (People v. Brooks (1986) 185 Cal.App.3d 687, 694 [230 Cal.Rptr. 86]); a sudden and violent quarrel (People v. Elmore (1914) 167 Cal. 205, 211 [139 P. 989]); verbal taunts by an unfaithful wife (People v. Berry (1976) 18 Cal.3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777]); and the infidelity of a lover (People v. Borchers (1958) 50 Cal.2d 321, 328-329 [325 P.2d 97]).

In the following cases, provocation has been found inadequate as a matter of law: evidence of name calling, smirking, or staring and looking stone-faced (People v. Lucas (1997) 55 Cal.App.4th 721,739 [64 Cal.Rptr.2d 282]); insulting words or gestures (People v. Odell David Dixon (1961) 192 Cal.App.2d 88, 91 [13 Cal.Rptr. 277]); refusing to have sex in exchange for drugs (People v. Michael Sims Dixon (1995) 32 Cal.App.4th 1547, 1555-1556 [38 Cal.Rptr.2d 859]); a victim's resistance against a rape attempt (People v. Rich (1988) 45 Cal.3d 1036, 1112 [248 Cal.Rptr. 510, 775 P.2d 960]); the desire for revenge (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704 [54 Cal.Rptr.2d 608,]); and a long history of criticism, reproach and ridicule where the defendant had not seen the victims for over two weeks prior to the killings (People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1246-1247 [7 Cal.Rptr.3d 401]). In addition the Supreme Court has suggested that mere vandalism of an automobile is insufficient for provocation. (See People v. Breverman (1998) 19 Cal.4th 142, 164, fn. 11 [77 Cal.Rptr.2d 870, 960 P.2d 1094]; In re Christian S. (1994) 7 Cal.4th 768, 779, fn. 3 [30 Cal.Rptr.2d 33, 872, P.2d 574].)

Heat of Passion: Types of Provocation

Heat of passion does not require anger or rage. It can be "any violent, intense, high-wrought or enthusiastic emotion." (People v. Breverman (1998) 19 Cal.4th 142, 163-164 [77 Cal.Rptr.2d 870, 960 P.2d 1094].)

Heat of Passion: Defendant Initial Aggressor

"[A] defendant who provokes a physical encounter by rude challenges to another person to fight, coupled with threats of violence and death to that person and his entire family, is not entitled to claim that he was provoked into using deadly force when the challenged person responds without apparent (or actual) use of such force." (People v. Johnston (2003) 113 Cal.App.4th 1299, 1303, 1312-1313 [7 Cal.Rptr.3d 161].)

Heat of Passion: Defendant's Own Standard

Unrestrained and unprovoked rage does not constitute heat of passion and a person of extremely violent temperament cannot substitute his or her own subjective standard for heat of passion. (People v. Valentine (1946) 28 Cal.2d 121, 139 [169 P.2d 1] [court approved admonishing jury on this point]; People v. Danielly (1949) 33 Cal.2d 362, 377 [202 P.2d 18]; People v. Berry (1976) 18 Cal.3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777].) The objective element of this form of voluntary manslaughter is not satisfied by evidence of a defendant's "extraordinary character and environmental deficiencies." (People v. Steele (2002) 27 Cal.4th 1230, 1253 [120 Cal.Rptr.2d 432, 47 P.3d 225] [evidence of intoxication, mental deficiencies, and psychological dysfunction due to traumatic experiences in Vietnam are not provocation by the victim].)

Premeditation and Deliberation—Heat of Passion Provocation

Provocation and heat of passion that is insufficient to reduce a murder to manslaughter may nonetheless reduce murder from first to second degree. (People v. Thomas (1945) 25 Cal.2d 880, 903 [156 P.2d 7] [provocation raised reasonable doubt about the idea of premeditation or deliberation].) There is, however, no sua sponte duty to instruct the jury on this issue because provocation in this context is a defense to the element of deliberation, not an element of the crime, as it is in the manslaughter context. (People v. Middleton (1997) 52 Cal.App.4th 19, 32-33 [60

Cal.Rptr.2d 366], disapproved on other grounds in People v. Gonzalez (2003) 31 Cal.4th 745, 752 [3 Cal.Rptr.3d 676, 74 P.3d 771].) On request, give CALCRIM No. 522, Provocation: Effect on Degree of Murder.


Manslaughter does not apply to the death of a fetus. (People v. Carlson (1974) 37 Cal.App.3d 349, 355 [112 Cal.Rptr. 321].) While the Legislature has included the killing of a fetus, as well as a human being, within the definition of murder under Penal Code section 187, it has "left untouched the provisions of section 192, defining manslaughter [as] the 'unlawful killing of a human being.' " (Ibid.)

(New January 2006)