Criminal Law

571. Voluntary Manslaughter: Imperfect Self-Defense - Lesser Included Offense

A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because (he/she) acted in (imperfect self-defense/ [or] imperfect defense of another).

If you conclude the defendant acted in complete (self-defense/ [or] defense of another), (his/her) action was lawful and you must find (him/her) not guilty of any crime. The difference between complete (self-defense/ [or] defense of another) and (imperfect self-defense/ [or] imperfect defense of another) depends on whether the defendant's belief in the need to use deadly force was reasonable.

The defendant acted in (imperfect self-defense/ [or] imperfect defense of another) if:

1. The defendant actually believed that (he/she/ [or] someone else/ <insert name of third party>) was in imminent danger of being killed or suffering great bodily injury;


2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;


3. At least one of those beliefs was unreasonable.

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.

In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant.

[If you find that <insert name of decedent/victim> threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendant's beliefs.]

[If you find that the defendant knew that <insert name of decedent/victim> had threatened or harmed others in the past, you may consider that information in evaluating the defendant's beliefs.]

[If you find that the defendant received a threat from someone else that (he/she) reasonably associated with <insert name of decedent/victim>, you may consider that threat in evaluating the defendant's beliefs.]

[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]

The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in (imperfect self-defense/ [or] imperfect defense of another). 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].)

Perfect Self-Defense

Most courts hold that an instruction on imperfect self-defense is required in every case in which a court instructs on perfect self-defense. If there is substantial evidence of a defendant's belief in the need for self-defense, there will always be substantial evidence to support an imperfect self-defense instruction because the reasonableness of that belief will always be at issue. (See People v. Ceja (1994) 26 Cal.App.4th 78, 85-86 [31 Cal.Rptr.2d 475], overruled in part by People v. Blakeley (2000) 23 Cal.4th 82, 91 [96 Cal.Rptr.2d 451, 999 P.2d 675]; see also People v. De Leon (1992) 10 Cal.App.4th 815, 824 [12 Cal.Rptr.2d 825].) The court in People

v. Rodriguez disagreed, however, and found that an imperfect self-defense instruction was not required sua sponte on the facts of the case where the defendant's version of the crime "could only lead to an acquittal based on justifiable homicide," and when the prosecutor's version of the crime could only lead to a conviction of first degree murder. (See People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1275 [62 Cal.Rptr.2d 345]; see also People v. Williams (1992) 4 Cal.4th 354, 362 [14 Cal.Rptr.2d 441, 841 P.2d 961] [in a rape prosecution, the court was not required to give a mistake-of-fact instruction where the two sides gave wholly divergent accounts with no middle ground to support a mistake-of-fact instruction].)

In evaluating whether the defendant actually believed in the need for self-defense, the jury may consider the effect of antecedent threats and assaults against the defendant, including threats received by the defendant from a third party that the defendant reasonably associated with the aggressor. (People v. Minifie (1996) 13 Cal.4th 1055, 1065, 1069 [56 Cal.Rptr.2d 133, 920 P.2d 1337].) If there is sufficient evidence, the court should give the bracketed paragraphs on prior threats or assaults on request.

Related Instructions

CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another.


Elements. Pen. Code, § 192(a).

Imperfect Self-Defense Defined. People v. Flannel (1979) 25 Cal.3d 668, 680-683 [160 Cal.Rptr. 84, 603 P.2d 1]; People v. Barton (1995) 12 Cal.4th 186, 201 [47 Cal.Rptr.2d 569, 906 P.2d 531]; In re Christian S. (1994) 7 Cal.4th 768, 773 [30 Cal.Rptr.2d 33, 872 P.2d 574]; see People v. Uriarte (1990) 223 Cal.App.3d 192, 197-198 [272 Cal.Rptr. 693] [insufficient evidence to support defense of another person].

Imperfect Defense of Others. People v. Michaels (2002) 28 Cal.4th 486, 529-531 [122 Cal.Rptr.2d 285, 49 P.3d 1032].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, § 210.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.11[1][c], [2][a] (Matthew Bender).

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][d.1], [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, 822 [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.Rptr.2d 553].)

Related Issues

Battered Woman's Syndrome

Evidence relating to battered woman's syndrome may be considered by the jury when deciding if the defendant actually feared the batterer and if that fear was reasonable. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1089 [56 Cal.Rptr.2d 142, 921 P.2d 1].)

Blakeley Not Retroactive

The decision in Blakeley—that one who, acting with conscious disregard for life, unintentionally kills in imperfect self-defense is guilty of voluntary manslaughter—may not be applied to defendants whose offense occurred prior to Blakeley's June 2, 2000, date of decision. (People v. Blakeley (2000) 23 Cal.4th 82, 91-93 [96 Cal.Rptr.2d 451, 999 P.2d 675].) If a defendant asserts a killing was done in an honest but mistaken belief in the need to act in self-defense and the offense occurred prior to June 2, 2000, the jury must be instructed that an unintentional killing in imperfect self-defense is involuntary manslaughter. (People v. Johnson (2002) 98 Cal.App.4th 566, 576-577 [119 Cal.Rptr.2d 802]; People v. Blakeley, supra, 23 Cal.4th at p. 93.)

Inapplicable to Felony Murder

Imperfect self-defense does not apply to felony murder. "Because malice is irrelevant in first and second degree felony murder prosecutions, a claim of imperfect self-defense, offered to negate malice, is likewise irrelevant." (See People v. Tabios (1998) 67 Cal.App.4th 1, 6-9 [78 Cal.Rptr.2d 753]; see also People v. Anderson (1991) 233 Cal.App.3d 1646, 1666 [285 Cal.Rptr. 523]; People v. Loustaunau (1986) 181 Cal.App.3d 163, 170 [226 Cal.Rptr. 216].)


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.)

See also the Related Issues Section to CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another.

Reasonable Person Standard Not Modified by Evidence of Mental Impairment

In People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [14 Cal.Rptr.3d 473], the court rejected the argument that the reasonable person standard for self-defense should be the standard of a mentally ill person like the defendant. "The common law does not take account of a person's mental capacity when determining whether he has acted as the reasonable person would have acted. The law holds 'the mentally deranged or insane defendant accountable for his negligence as if the person were a normal, prudent person.' (Prosser & Keeton, Torts (5th ed. 1984) § 32, p. 177.)" (Ibid.; see also Rest.2d Torts, § 283B.)

(New January 2006)