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San Diego Manslaughter Lawyer

In San Diego, the crime of Manslaughter can be committed voluntarily, involuntarily, or with a vehicle and is punished accordingly by California Penal Code Section 192 which states in relevant part:

Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:

a) Voluntary—upon a sudden quarrel or heat of passion.

b) Involuntary—in the commission of an unlawful act, not amounting to 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.

c) Vehicular-

1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to 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.

2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.

3) Driving a vehicle in connection with a violation of paragraph (3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.


This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.

“Gross negligence,” as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.

As the statute clearly sets out, manslaughter is broken up into three types: voluntary, involuntary and vehicular. Each is a very different charge prosecuted under different circumstances. Defense strategies will therefore vary depending on the facts specific to your case.

Voluntary Manslaughter

Voluntary manslaughter under PC § 192 is typically not the original charge brought against the defendant by the prosecution. If a victim is suspected to have been killed at the hands of another, generally the suspect will originally be charged with first or second degree murder under PC § 187. Because murder carries a penalty of a life sentence or even death in California, voluntary manslaughter may be argued as a defense or plea to a lesser sentencing of 3 to 11 years. Also, the jury may compromise to involuntary manslaughter during a murder deliberation that the killing was committed at the hands of the defendant when it cannot be agreed upon that it was done with malice. (Please See Section on Murder).

Therefore, while the prosecution bears the burden of proving each element of a murder charge, in practice it is generally the defendant that assumes the burden of proving the elements of voluntary manslaughter. In order to prove this, the jury must find that the

1. The defendant was provoked; AND
2. That the provocation caused the defendant to act rashly under the influence of intense emotion absent of reasoning or judgment; AND
3. That given the same circumstances, the provocation would have caused a person of reasonable judgment to act rashly, without deliberation, and void of sound judgment as well.

Showing provocation alone will be relatively simple in most homicide cases. Any course of events causing one to kill would satisfy the requirement of provocation alone.

Provocation Without Reason

The second element, that the provocation actually caused the defendant to abandon his reasoning or judgment, will be a bit more difficult to prove. This state of mind that negates the malice necessary is known as acting in the “heat of passion.” Essentially, the argument is that you were so engulfed in anger and hatred that you were incapable of forming the malice necessary for murder. A skilled defense attorney will work tirelessly in conducting an independent investigation into every small detail of the facts specific to your case. This will include a substantial amount of investigatory research and acquisition of reliable witnesses to establish your unique susceptibility to influence from events that might have provoked to this altered state.

Voluntary Manslaughter Example

For example, the most common illustration of voluntary manslaughter virtually every criminal law professor uses is a husband catching his wife in bed with another man and shooting the couple immediately upon making the discovery. However, a situation that might be more difficult to prove may be if the unfaithful wife was not actually partaking in the act of adultery at the time of the killing. She may have carried out a known affair for some time, refused to terminate it, and simply taunted the husband at the time of the killing.

The jury might not immediately see how the cheating wife’s taunting alone would amount to sufficient provocation to overcome reasoning and judgment such that homicidal tendencies would be the immediate response. However, a skillful and diligent defense attorney will be able to extract testimony of those close to the parties involved, flesh out the history of the relationship, and illustrate how simple taunting in such a circumstance might in fact cause a reasonable individual to lose all senses of reason and judgment in the heat of passion.

Reasonable Provocation

The third element is even more difficult. It will be largely up to the subjective judgment of the jury as to what the standard of reasonable provocation would be to a reasonable person. Once the defense has shown the defendant was provoked and that this provocation resulted in a rash decision absent of judgment, the jury will then essentially judge from their own personal experience as to whether or not a reasonable person would have acted in a similar manner under the circumstances and been driven to kill in the heat of passion.

There is no objective standard for the jury to make their decision by. This is why it is absolutely crucial to your defense that you retain a skilled, resourceful and experienced defense attorney that is able to articulate the series of events leading up to the homicide that will detail exactly why your actions were typical given the level of provocation presented to you.

An additional element the prosecution will have the burden of proving is that enough time elapsed between the provocation and the act that the defendant had time to “cool off”. The theory behind this element is that even if the provocation was sufficient to influence homicidal thoughts in a reasonable person, enough time passed since the provocation that good sense and judgment would have overcome and thus any subsequent killing would be done with malice, elevating the homicide back to murder.

Using the example of the cheating wife above, the prosecution will attempt to show that enough time went by or a series of events occurred that would lead a reasonable person to cool down and regain some level of reasonableness and rational thought before the homicidal act. The prosecution must prove this beyond a reasonable doubt which will be a very difficult burden. Again, this will be an issue for the jury to decide. Here as well, it will be crucial that your attorney articulates the facts specific to your case sufficiently to fully explain the magnitude and impact of the provocation, given your very unique circumstance, to persuade the jury that this cooling off period did not occur in light of the seriousness of the provocation.

Involuntary Manslaughter

Like voluntary manslaughter, involuntary manslaughter is also used as a defense to murder or a compromise amongst a divided jury. However, it is also commonly charged independently under PC § 192. Involuntary manslaughter requires an intentional act that unintentionally results in a death. While the individual intends to do the unlawful act, it was not their intention that the victim would die from the act like voluntary manslaughter and murder where such intent does exist.

The prosecution must show that your actions fall into one of two categories. An individual may be convicted under this section if the victim is killed in the commission of a misdemeanor or another act of criminal negligence.

There are a number of crimes that do not amount to a felony for which one may be prosecuted for involuntary manslaughter. For example, furnishing a bottle of alcohol to a minor is a misdemeanor in California. However if that minor should unfortunately die from alcohol poisoning or get behind a wheel and die because they were driving under the influence of the alcohol you purchased for them, you may be charged with involuntary manslaughter.

Misdemeanor vs. Criminal Negligence

An example of criminal negligence may arise if an individual lawfully, but recklessly without caution acts in a manner that results in the death of another. Medical malpractice cases resulting in death might bring the threat of prosecution for involuntary manslaughter. Over prescribing medication is one example.

Whether misdemeanor or criminal negligence, what must be proven beyond a reasonable doubt is that the actions were the foreseeable and actual cause of the death. If a death occurs from something other than natural causes, law enforcement will find somebody to arrest and it’s possible that the district attorney will file charges based on probable cause alone before a full and complete investigation is made.

For example, in the case of distributing alcohol to a minor, at first glance it would appear that but for the distribution the victim might still be alive. This is why is it crucial that you retain a skilled and resourceful defense attorney to prove that other factors might have been at play. For example, witness testimony may establish that the minor may have been coming back from a party from which numerous sources of alcohol or other drugs may have actually caused the minor’s death, or at least played a dominant role.

Medical Malpractice and Self Defense

Likewise, in a medical malpractice allegation where a patient overdoses on prescription drugs, a skilled defense attorney will have the resources to put physicians on the stand to possibly prove that your actions were reasonable given the information provided to you by the patient, and that the amount of drugs prescribed alone is not sufficient to prove criminal negligence. It is entirely possible that the alleged “over prescription” was simply a reasonable attempt to treat symptoms requiring an abnormally large quantity of prescription medication.

Self defense or defense of others is also always an available defense in any homicide charge. If you had sufficient reason to believe you or another person was in danger of serious bodily injury or death, you will be justified in using deadly force to prevent such injury from occurring.

The penalties for involuntary manslaughter are far less severe than voluntary manslaughter or murder. As stated above, Voluntary Manslaughter is a felony, carrying a sentence from 3-11 years in state prison. Involuntary manslaughter is also a felony, however it carries a prison sentence of 2, 3 or 4 years, probation, and a maximum $10,000 fine.

Vehicular Manslaughter

Vehicular manslaughter is a very frightening offense in California because of the severe penalties and its practical applicability to otherwise generally law abiding citizens. It is often times committed while the driver is intoxicated, however, the driver does not need to be intoxicated to be punished under this section. (Please See DUI Resulting in Injury or Death).

The prosecution may charge an individual with vehicular manslaughter for any death caused by negligent or reckless driving. In most cases, the decision to prosecute under this section will likely be determined by the totality of the circumstances. Ordinary speeding, such as going 10 miles over the limit on the freeway that results in death might not result in charges brought against you. However, 10 miles over the limit in a school zone and killing a child probably will. Driving 30-40 miles over the limit and causing an accident that results in death on the highway will more than likely be considered gross negligence for the purposes of this section and enhanced sentencing will be given here as well. Construction zones will also be more sensitive areas in determining the level of recklessness of a driver; which is unfortunate considering the difficulty in navigating through these zones at times and the many personal working so close to the road.

More often than not, in recent years, police are arresting and charging the individual with vehicular manslaughter and letting the district attorney’s investigators flesh out the details later to determine whether or not the charges are warranted. This results in a tragic turn of events. An individual must not only cope with the guilt of unintentionally taking the life of another, possibly even a loved one riding as a passenger in their own car, but then defending themselves against unwarranted charges of recklessness behind the wheel.

Manslaughter Lawyer, Marc S. Kohnen

Attorneys at the Law Office of Marc S. Kohnen have a vast amount of experience in these very difficult situations involving voluntary, involuntary, and vehicular manslaughter. By the very virtues inherent in the charge, even an individual that meets the elements necessary for a conviction will either have been acting against their own reasonable judgment, or never intended the death in the first place. It certainly is one of the more tragic offenses in the Penal Code simply for the fact that even a guilty party is in many ways a victim.

At the Law Offices of Marc S. Kohnen, we deeply appreciate the difficult time you or your loved one must be going through if arrested and charged under this section. We have the necessary skills, experience, and a tireless investigatory team with time proven results in refuting the prosecution’s claims and disproving the allegations being brought under PC § 192. The sooner you contact an experienced San Diego manslaughter attorney, the sooner they may begin an independent investigation into your case and possibly unveil valuable information that could result in reducing the charges or having the charges dismissed all together.

If you or a loved one has been arrested and charged for murder or manslaughter, it is imperative that you contact the Law Office of Marc S. Kohnen for a complimentary and confidential consultation regarding this pressing issue.

“When I met Marc, I was immediately relieved. His calm and professional demeanor was exactly what I needed. He handled my case without a hiccup.”

Heather M. | Rosemead, CA
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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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Contact The Law Office of Marc S. Kohnen if you have been arrested and charged with a crime and need a skilled San Diego criminal defense lawyer. The firm represents clients throughout the community, and you can learn about their services by visiting the Areas We Serve page.

Office of Marc S. Kohnen
1350 Columbia Street, #700
San Diego, CA 92101
(619) 398-2500

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