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Oct 27, 2022

California Attempted Voluntary Manslaughter

Voluntary manslaughter, like murder, is a felony with severe penalties in California. However, voluntary manslaughter is considered a lesser crime with lighter penalties than murder.  Although both charges are serious crimes, murder is described as a homicide involving malicious afterthought, while voluntary manslaughter consists of the lack of malice afterthought.

Because of the complicated difference in the extent and severity of the felonies and their penalties, voluntary manslaughter is almost never filed as the original charge in homicides. An individual is first charged with murder, and then later, with the help of a legal team, they might plead down the murder charge to voluntary manslaughter if the evidence is insufficient to support the original charge.

According to California’s laws, even if the killer didn’t succeed in killing someone, attempted manslaughter is still illegal. Attempted voluntary manslaughter is charged as a third-degree felony in the US and has serious sentencing and charges.

Get in touch with a skilled and knowledgeable defense attorney at Silver Law Firm or call (510) 995-0000 to get the details of your case examined and determine if it’s possible to secure a favorable deal and reduce the charges against you.

How Is Attempted Voluntary Manslaughter Defined?

In California, the intentional killing of another person without a legal reason for the killing is referred to as either voluntary manslaughter or murder. However, there is a crucial difference used to define each crime, making murder a more serious crime. This difference is known in California as “malice afterthought,” meaning the wanton disregard for human life or the intent to kill.

If a defendant killed another person with malice afterthought, they would be charged with murder under California Penal Code 187 PC. But in a case where the killing had no malice afterthought, their case is reduced to voluntary manslaughter under California Penal Code 192 PC.

Malice is different from intentionally killing another person, as one involves the premeditation of the crime while the other doesn’t.

Therefore, attempted voluntary manslaughter refers to a crime where the defendant committed a criminal act that would have led to the victim’s death, but someone or something stopped the death, or the person’s actions failed to result in the victim’s death. This invalidates the defendant’s intent to kill the other party.

A criminal act that would otherwise be charged as attempted murder could be reduced to attempted voluntary manslaughter if the individual attempted to kill another person because of a sudden provocation or in the heat of passion.

Under California statutes, the defendant is considered to have attempted voluntary manslaughter if:

  1.       The defendant performed at least a single direct but ineffective action  toward killing another person;
  2.       The defendant had the intention to kill the other person;
  3.       The defendant attempted to  kill the other person because they were provoked;
  4.       The provocation was sufficient to cause another individual of average disposition to similarly act rashly and without adequate deliberation, meaning from the heat of passion instead of judgment; and
  5.       The attempted act of killing was rashly done under the influence of intense emotion that marred or obscured the defendant’s judgment or reasoning.

For a sudden argument or heat of passion to cause attempted voluntary manslaughter to be reduced to attempted murder, the defendant must have done the act under the immediate or direct influence of provocation.

The heat of passion doesn’t need rage, anger or any specific emotion. It can involve any violet or deep emotion causing an individual to act without reflection or due deliberation. While no set amount of provocation is required, remote or slight provocation is considered insufficient.

Attempted Voluntary Manslaughter Conviction

For the state prosecutors to convict a defendant of attempted voluntary manslaughter, they must prove that:

  1. The act would have killed the victim; and
  2. The defendant:
  1.   Intentionally took the steps that would have resulted in the victim’s death;
  2.   Was culpably negligent, which would have led to the victim’s death.

As a defendant, you can’t be charged with attempted voluntary manslaughter if the actions you took were only negligent. Negligence is a case where a person goofs-up and does not act like normal people do, while culpable negligence is when an individual goofs up with additional disregard for other people’s safety. Hence, the prosecutor must prove that you were culpably negligent and that the negligence was higher.

The prosecutor can also not charge you with attempted voluntary manslaughter if the potential killing could be justified or excused. Attempted voluntary manslaughter can be excused if the act was an accident caused by another incident that is not defined within legal limits. The crime is also justifiable if you were trying to prevent the victim from killing you or completing a felony. For example, if you almost kill an armed robber who kills people while robbing, you can’t be charged with attempted voluntary manslaughter.

And if you willingly abandoned or, one way or the other, prevented the killing from occurring, you have a defense to your attempted voluntary manslaughter case.

Elements of provocation in attempted voluntary manslaughter

Attempted voluntary manslaughter is the most common crime in cases involving intense emotion or sudden quarrels that would result in the victim’s death. For the crime to occur, an element of provocation has to be proved. The provocation should have led the defendant to act with an uncontrollable passion that clouded due judgment. And it should be sufficient to show that a reasonable individual would have acted in the same manner from the heat of passion and not judgment.

It is not enough that an individual was provoked to commit the crime. A charge of attempted voluntary manslaughter requires sufficient evidence that the provocation would be adequate to emotionally challenge a person of average disposition in similar circumstances and knowing the same facts to react from passion instead of judgment. The defendant is not allowed to specify their own standard.

The attempted killing should have happened within a reasonable time after the provocation proving that the defendant didn’t have time to make a better judgment. If there is adequate time to cool off and regain clear reasoning between the provocation and the act of attempted killing, you will most likely be charged with attempted murder. As already mentioned, there are no specific criteria in California to establish sufficient provocation, but it can’t be slight or remote.

The prosecution also has the burden to prove beyond reasonable doubt that you attempted to kill another person and were not acting under the influence of a sudden quarrel or in the heat of passion.  Without sufficient proof, you might be found not guilty of attempted murder and your charge reduced to attempted voluntary manslaughter.

Examples of attempted voluntary manslaughter

The following are a few cases that have in the past been reduced from attempted murder to attempted voluntary manslaughter conviction since it was determined that there was evidence of sufficient provocation:

  • A defendant almost killed someone when a group of young adults with hostile intent trespassed into his property carrying weapons. The group destroyed his property and challenged the defendant to a fight. The prosecutors determined that the defendant was sufficiently provoked as he feared for his life, and in that state of panic, he fired a few random gunshots to frighten and scatter the mob and a result, shot someone.
  • In another past case, an individual physically assaulted and almost took a suspect’s life in his brother’s homicide case just a few hours after accessing the information on the suspect. The court determined that the defendant was acting with intense emotions as witnesses supported that he seemed quite distressed when confronting his brother’s alleged murderer.

Conversely, the court determined in the following cases that the provocation was not sufficient to reduce an attempted murder case to an attempted voluntary manslaughter charge:

  • The court concluded that cases involving taunting, name-calling, and smirking, no matter how offensive, would not be considered sufficient provocation for a reasonable person to attempt to kill someone.
  • In a different case, the defendant almost killed another person for molesting his daughter, but the act of attempted killing happened two days after the knowledge of the molestation. The court concluded that the time difference was enough time for the defendant to regain his senses and cool off, and as such, his judgment was not marred.
  • Attempted killing while also taking part in another serious crime, such as robbery with violence, does not establish enough provocation, even if the other person was resisting.

What Are the Penalties For Attempted Voluntary Manslaughter?

Attempted Voluntary Manslaughter

Penalties for attempted voluntary manslaughter are substantially less severe than the penalties for attempted murder which could result in life in prison. The penalties for attempted voluntary manslaughter in California include the following:

  • Three, six, or up to eleven years in the state prison
  • A maximum fine of $10,000
  • Community service
  • The loss of the right to own firearms
  • Mandatory counseling
  • A possible strike on your criminal record, according to California’s three strikes laws,  which might result in a possible increase in your penalties or punishment if you have previous offenses or strikes on your record.

A prosecutor can consider mitigating and aggravating factors while deciding the penalties and punishment for an attempted voluntary manslaughter charge. Mitigating factors such as lack of criminal record, age, mental capacity, or admitting responsibility for the offense in most cases reduces an attempted killing sentence since the factors may highlight that you don’t pose any significant risk to public safety.

Aggravating factors, on the other hand, most likely increase the conviction’s severity. The court will often consider factors like your criminal record, the evidence and the nature of the offense, as well as the victim’s vulnerability.

Legal Defenses Against Attempted Voluntary Manslaughter Charges

If you are facing an attempted murder charge, the first step is to get in touch with a skilled defense attorney. A knowledgeable and experienced attorney will help make your attempted murder charge reduced to attempted voluntary manslaughter. Your legal team will still need some possible defenses to handle the lesser attempted killing charge.

A skilled and experienced lawyer can present the following legal defenses to attempted voluntary manslaughter while representing you:


Your criminal defense attorney may argue that the illegal attempted killing was a misfortune or an accident. This will require the legal team to prove beyond reasonable doubt that:

  • You did not have an intention of harming the other person
  • You were not culpably neglectful
  • You were not engaged in illegal behavior at the event of the accident

If these are sufficiently proven, then you should be found not guilty and absolved of criminal liability.

If the killing attempt was genuinely an accident, regardless of whether it involves sufficient provocation or uncontrollable emotion, then the accident nature should free you of any criminal liability.

Self-defense or defense of others

In California, a killing attempt is justified if it happens while trying to defend yourself or another person from getting killed, suffering severe bodily injury, being raped, robbed, maimed or any other serious crime. For the attempted voluntary manslaughter to be justifiable or excusable on account of self-defense or the defense of others, you must prove that you reasonably thought that you or others would have likely been killed or physically assaulted.


In California law, the insanity defense means the defendant cannot be convicted of a crime if they were legally insane during the killing attempt. A defendant is only considered insane under California’s insanity defense if they either failed to understand the characterization of the act or if their action was morally and legally unacceptable. Your attorney has to prove through a test your mental status during the crime.

Contact Oakland Criminal Defense Attorney of Silver Law Firm

Facing an attempted voluntary manslaughter charge can be quite complicated and confusing as you might not know how to proceed or plead your case. That is why experienced and skilled defense attorneys at Silver Law Firm are willing and adequately ready to help evaluate the facts of your charge and determine possible defenses that will get you favorable deals.  Contact us or call us at (510) 995-0000 and let our experienced criminal defense attorneys tenaciously represent you throughout your case and help you get your charge reduced or dismissed.

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