CALCRIM No. 603. Attempted Voluntary Manslaughter: Heat of Passion - Lesser Included Offense (Pen. Code, §§ 21a, 192, 664)

Judicial Council of California Criminal Jury Instructions (2022 edition)

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603.Attempted Voluntary Manslaughter: Heat of Passion - Lesser
Included Offense (Pen. Code, §§ 21a, 192, 664)
An attempted killing that would otherwise be attempted murder is
reduced to attempted voluntary manslaughter if the defendant attempted
to kill someone because of a sudden quarrel or in the heat of passion.
The defendant attempted to kill someone because of a sudden quarrel or
in the heat of passion if:
1. The defendant took at least one direct but ineffective step toward
killing a person;
2. The defendant intended to kill that person;
3. The defendant attempted the killing because (he/she) was
provoked;
4. 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;
AND
5. The attempted killing was a rash act done under the influence of
intense emotion that obscured the defendant’s reasoning or
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 a sudden quarrel or heat of passion to reduce an attempted
murder to attempted 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, in the same situation
and knowing the same facts, would have reacted from passion rather
than judgment.
[If enough time passed between the provocation and the attempted
killing for a person of average disposition to “cool off” and regain his or
her clear reasoning and judgment, then the attempted murder is not
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reduced to attempted voluntary manslaughter on this basis.]
The People have the burden of proving beyond a reasonable doubt that
the defendant attempted to kill someone and was not acting as a 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 attempted murder.
New January 2006; Revised August 2009, April 2010, April 2011, August 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to instruct on attempted 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. (See People v. Breverman
(1998) 19 Cal.4th 142, 153-163 [77 Cal.Rptr.2d 870, 960 P.2d 1094] [discussing
charge of completed murder]; People v. Barton (1995) 12 Cal.4th 186, 201 [47
Cal.Rptr.2d 569, 906 P.2d 531] [same].)
If the victim’s gender identity or sexual orientation raises specific issues concerning
whether provocation was objectively reasonable, give an instruction tailored to those
issues on request. (Pen. Code, § 192(f), amended effective January 1, 2015.)
Related Instructions
CALCRIM No. 511, Excusable Homicide: Accident in the Heat of Passion.
CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion - Lesser Included
Offense.
CALCRIM No. 604, Attempted Voluntary Manslaughter: Imperfect Self-
Defense - Lesser Included Offense.
AUTHORITY
Attempt Defined. Pen. Code, §§ 21a, 664.
Manslaughter Defined. Pen. Code, § 192.
Attempted Voluntary Manslaughter. People v. Van 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].
Gender Identity and Sexual Orientation Not Proper Basis for Finding
Provocation Objectively Reasonable. Pen. Code, § 192(f), amended effective
January 1, 2015.
RELATED ISSUES
Specific Intent to Kill Required
An attempt to commit a crime requires an intention to commit the crime and an
overt act towards its completion. Where a person intends to kill another person
and makes an unsuccessful attempt to do so, his intention may be accompanied
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by any of the aggravating or mitigating circumstances which can accompany the
completed crimes. In other words, the intent to kill may have been formed after
premeditation or deliberation, it may have been formed upon a sudden explosion
of violence, or it may have been brought about by a heat of passion or an
unreasonable but good faith belief in the necessity of self-defense.
(People v. Van Ronk (1985) 171 Cal.App.3d 818, 824 [217 Cal.Rptr. 581] [citation
omitted].)
No Attempted Involuntary Manslaughter
There is no crime of attempted involuntary manslaughter. (People v. Johnson (1996)
51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)
See the Related Issues section to CALCRIM No. 570, Voluntary Manslaughter:
Heat of Passion - Lesser Included Offense.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person § 224.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 141,
Conspiracy, Solicitation, and Attempt, §§ 141.20[2], 141.21; Ch. 142, Crimes
Against the Person, §§ 142.01[3][e], 142.02[2][a] (Matthew Bender).
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