Manslaughter Overview in Los Angeles
Under California law, Manslaughter (California Penal Code section 192) is generally defined as the unlawful/unjustified killing of another person without planning or intent to kill. In other words, it’s a homicide crime with the absence of certain aggravating factors and with the presence of certain mitigating factors (as discussed below).
By contrast, Murder requires at least some “malice aforethought”, as well as an intent to kill the victim (which can include an unborn fetus). See California Penal Code section 187(a).
There are two different forms of manslaughter: voluntary and involuntary, the latter which includes Vehicular Manslaughter under California Penal Code section 191.5(c).
Voluntary manslaughter is always charged as a felony and can, therefore, result in significant prison time. The prosecutor can even charge you with a Strike offense, which can result in a sentencing enhancement, as well as additional penalties. See California Penal Code section 667. See also California Penal Code section 1192.7.
Involuntary manslaughter is usually considered to be a “wobbler” crime, meaning it can be charged either as a felony or misdemeanor, depending on the specifics of your case. (The exception is gross vehicular manslaughter – see below.)
Homicide Crimes -- Manslaughter as a “Lesser Included Offense”
If you’re facing a first or – far more likely – a second-degree murder charge, the prosecutor may offer you a chance to plea to manslaughter (typically voluntary) as a lesser included offense if his or her supervisor at the DA’s Office is uncertain of securing a conviction at trial (see below).
Alternatively, at the outset of your murder trial, your attorney may request that the judge provide the jury with a manslaughter instruction so that they have the option of convicting you of that lesser charge in the event the evidence is clear that you unlawfully killed the victim.
Homicide Crimes – Manslaughter Statute
California’s homicide laws are codified at Penal Code sections 187 through 199, with those pertaining to manslaughter set forth in Penal Code section 191.5 & Penal Code section 192.
This is the primary code regarding manslaughter and specifies that this crime consists of the unlawful killing of someone without malicious intent or advanced planning or preparation. From there, the offense divides into its voluntary and involuntary sub-crimes, which are further codified at Penal Code sections 192(a) & 192(b), respectively. Vehicular manslaughter is defined in Penal Code section 192(c).
Homicide Crimes -- Voluntary Manslaughter
What the prosecutor must prove to secure a conviction against you
For voluntary manslaughter to apply, the prosecutor typically must prove beyond a reasonable doubt that you intended to hurt (but not kill) the victim, and his or her death resulted instead.
For example, you got into a bar brawl, during which you punched the victim in the face, causing him to strike his head on the marble bar top and thereby killing him. Alternatively, you inadvertently killed the victim during the commission of a felony (typically an “inherently dangerous” one).
Homicide Crimes -- Voluntary Manslaughter as a Lesser Included Offense of Murder
Voluntary manslaughter is a lesser included offense of both first and second-degree murder. For example, suppose every patron in that bar saw you kill the victim, and the establishment’s security camera captured you doing so. Clearly, in that circumstance, there’s no possible way for your attorney to prove you did not kill the victim.
But hopefully, at best, your attorney will be able to present evidence that you acted in self-defense; or, at worst, that you acted in the heat of passion and, therefore, the killing was neither premeditated nor desired on your part.
Your attorney would therefore be wise to “insist” to the trial judge that he or she include as part of the jury instructions the elements for voluntary manslaughter, involuntary manslaughter, and self-defense. The jury would therefore have the option to convict you of, at worst, voluntary manslaughter.
See Judicial Council of California Criminal Jury Instruction (“CALCRIM”) number 570 (“Voluntary Manslaughter: Heat of Passion - Lesser Included Offense”).
Homicide Crimes -- Punishments for Voluntary Manslaughter
Excluding sentencing enhancements, a conviction will result in low, mid, and high prison terms of three years, six years, or eleven years in a California penitentiary, respectively. However, depending on how and with what (if anything) you killed your victim, you may also get hit with sentencing enhancements.
For example, suppose during that same bar brawl, you intentionally shattered a whisky bottle across your victim’s head and that caused him to fall back and hit his head. Consequently, you would receive a multi-year prison enhancement for personally using a deadly or dangerous weapon during the commission of the underlying felony (i.e., voluntary manslaughter).
See California Penal Code section 193.
Homicide Crimes -- Involuntary Manslaughter and Vehicular Manslaughter
What the Prosecutor Must Prove to Secure a Conviction Against You
By contrast, Involuntary Manslaughter typically applies when you never intended to hurt (much less kill) the victim but did so anyway out of criminal negligence or during the commission of a non-felony crime (i.e., misdemeanor or infraction). Occasionally, you could also be convicted of, or plead guilty/no contest to, this charge if the underlying crime was a felony that was “non-inherently dangerous”.
Alternatively, this statute applies if you inadvertently killed the victim while committing a lawful act in a dangerous manner or in a way where his or her death was foreseeable.
See CALCRIM number 581 (“Involuntary Manslaughter: Murder Not Charged”).
If you allegedly killed someone while driving in a criminally negligent manner, you would be charged with Vehicular Manslaughter (Penal Code section 191.5(c)). If the Deputy DA decides to charge this offense as a felony, then the specific violation is entitled Gross Vehicular Manslaughter.
However, if you kill someone while driving while intoxicated, then, depending on the circumstances, you will either be charged with Vehicular Manslaughter While Intoxicated (Pen. Code section 191.5(b)) or Gross Vehicular Manslaughter While Intoxicated (Pen. Code section 191.5(a)).
Homicide Crimes -- Involuntary Manslaughter is a Lesser Included Offense of Murder
However, it is not a lesser included offense of voluntary manslaughter. See CALCRIM number 580 (“Involuntary Manslaughter: Lesser Included Offense”).
Homicide Crimes -- Punishments for Involuntary Manslaughter and Vehicular Manslaughter
A conviction will result in a prison term of twenty-four, thirty-six, or forty-eight months. Penal Code section 193.
However, as previously stated, if this crime is committed with a firearm (Personally Discharging a Firearm During the Commission of a Serious Felony under California Penal Code section 12022.53(c)) or deadly weapon (Personal Use of a Dangerous Weapon During the Commission of a Felony under California Penal Code section 12022), then you can also be charged with a Strike offense (Penal Code section 667 & Penal Code section 1192.7).
See CALCRIM number 582 (“Involuntary Manslaughter: Failure to Perform Legal Duty—Murder Not Charged”).
California Penal Code section 192(c)
If you're convicted of misdemeanor Vehicular Manslaughter, at most you'll be sentenced to one year in jail.
However, a felony conviction for Gross Vehicular Manslaughter can result in a penitentiary term of two, three, or six years. Pen. Code § 193(b).
See also California Penal Code section 191.5 (sentencing), as well as CALCRIM number 592 (“Gross Vehicular Manslaughter”).
California Penal Code section 191.5(b) (Vehicular Manslaughter While Intoxicated)
A conviction for misdemeanor charge of Vehicular Manslaughter While Intoxicated is punishable by up to 12 months in the county jail.
But if you're convicted of felony Vehicular Manslaughter While Intoxicated, and the judge sentences you to prison, you'll receive a term of 16 months, 24 months, or 48 months. Pen. Code § 191.5(c)(2).
California Penal Code section 191.5(a) (Gross Vehicular Manslaughter While Intoxicated)
This is always charged as a felony and a conviction will result in a prison term of 48 months, 72 months, or ten years. Pen. Code § 191.5(c)(1).
However, if this is at least your second felony conviction for Gross Vehicular Manslaughter While Intoxicated under Pen. Code § 192(c)(1), or if you've previously been convicted of either felony Gross Vehicular Manslaughter or a DUI, the judge can sentence to you to anywhere from 15 years to life with potential parole. Pen. Code § 191.5(d).
Homicide Crimes -- Example of a Voluntary Manslaughter Case
San Leandro police officer charged with voluntary manslaughter for shooting mentally ill shoplifter
On or about April 17, 2020, a mentally ill, homeless man named Steve Taylor (thirty-three) entered a Walmart in San Leandro (NorCal’s East Bay) and attempted to shoplift an aluminum baseball bat and a tent. (Taylor was apparently having a mental health crisis at the time.)
A security guard called police and minutes later, San Leandro PD officer Jason Fletcher (forty-nine) arrived on scene. Over the course of the next minute, as allegedly depicted by Fletcher’s own body-worn video camera, Fletcher ordered Taylor to put down the bat and when he failed to do so, Fletcher Tased him twice then shot him once in the chest, killing him.
Following an investigation by the Alameda Co. DA’s Office, Fletcher was arrested and charged on September 1, 2020 with a violation of Pen. Code section 192(a), Voluntary Manslaughter. Specifically, the investigator allegedly found that the shooting was unnecessary and unjustified in light of the fact that Taylor had posed no threat to the officer or anyone else because he had already been “subdued” by the Taser shocks.
In mid September 2020, Fletcher was arraigned, at which time he pled not guilty. If convicted at trial, he faces a maximum of eleven years in prison, pursuant to P.C. § 193(a), not including a sentencing enhancement for Personally Discharging a Firearm During the Commission of a Serious Felony (California Penal Code section 12022.53(c)). He was released on $200,000 bail. His status on the SLPD force remains unclear
In any event, Taylor’s killing stoked the ongoing debate regarding whether or not police departments should employ de-escalation strategies, and undergo specialized training, when encountering mentally ill individuals. See latimes.com.
Homicide Crimes -- Examples of Involuntary Manslaughter Cases
The infamous shooting death by a BART cop of Oscar Grant as depicted in the film Fruitvale Station
Notably, the preceding example is the first time in almost a dozen years that a police officer has been prosecuted for an on-duty shooting in Alameda Co. The prior shooting occurred on January 1, 2009 and involved the death of Oscar Grant (twenty-two) at the Oakland BART station – a tragic event which was subsequently depicted in the 2013 film Fruitvale Station.
In that particular case, which was videotaped by witnesses and uploaded online, BART police officer Johannes Mehserle (twenty-seven) was convicted of Involuntary Manslaughter. (In both cases, the officer was white and the victim Black.)
Mehserle was actually tried for Second-Degree Murder (Pen. Code § 192(a)&(b)) since he allegedly shot Grant, who was unarmed, in the back while Grant was lying face down on the BART platform. As such, he was facing a maximum of fourteen years in prison if convicted of that charge.
The shooting resulted in blanket media coverage and public outrage to such a degree that the trial was moved to SoCal. Fortunately for Mehserle, however, the jury only found him guilty of the lesser included offense after he testified that he thought he had grabbed his Taser gun instead of his service pistol to shoot Grant.
As a result, in early November 2011, he was sentenced to the minimum – two years in jail (not prison) – for involuntary manslaughter. With time served while awaiting trial and time off for good behavior, he served only eleven months, which he did in a private cell at LA County’s Twin Towers jail facility in DTLA.
Mehserle’s lenient sentence sparked protests in both the Bay Area and LA. Indeed, not since Rodney King’s vicious beating by racist LAPD officers in 1991 has an incident of police brutality stoked such a strong public reaction in California. Grant’s family received a settlement of just under three million dollars. See nbcnews.com.
West LA convicted sex offender gets two years for disappearance of 19-year-old SDSU co-ed
On or about June 22, 2007, reportedly convicted sex offender John Burgess (thirty-four) allegedly picked up San Diego State University undergrad Donna Jou (nineteen) from her family’s home in Orange County and took her to a party in West LA. According to Burgess himself, he injected her with heroin and cocaine, which resulted in her O.D. death.
Burgess then claimed he panicked and dumped her body in the Pacific Ocean. (Her body was never found, and her family has never believed Burgess’ version of events, though all parties agreed she was dead.)
With no evidence or witnesses as to what may have actually happened to Jou, the LA Co. DA’s Office accepted Burgess’ guilty plea to involuntary manslaughter in May 2009 (twenty-three months after Jou disappeared). He received a five-year prison sentence, so with time served awaiting trial and time off for good behavior, he was released less than twenty-four months later in mid April 2011.
Burgess had reportedly met Jou via a Craigslist he placed, which was followed by their exchange of e-mails. He reportedly had previously been convicted of felonies for Aggravated Battery Causing Serious Bodily Injury (California Penal Code section 243(d)) and committing a Lewd Act with a Minor Child Under 14 (California Penal Code section 288) in 2002 and 2003, respectively – the latter conviction resulted in a lifetime requirement for Sex Offender Registration (California Penal Code section 290).
According to authorities, Burgess Failed to Register shortly after that conviction and had to serve thirty-six months in prison (see California Penal Code section 290.018). He apparently met Jou shortly after his release. See baltimoresun.com.
Notably, at the end of November 2012 – almost exactly a year-and-a-half after his release for Jou’s killing – Burgess was convicted of violating his parole by, among other things, allegedly being a Felon in Possession of Ammunition (California Penal Code section 29800), a charge to which he pled nolo contendre.
His arrest came about in July 2012 after two women had answered his ad on, again, Craigslist wherein he was ostensibly seeking a roommate for his Hollywood apartment. One of the women allegedly became disturbed after seeing a woman convulsing on his couch and, after Googling him, called police. (It remains unclear what happened to this woman, if anything.) He was sentenced to four years in prison and after his release, reportedly moved to Jacksonville, Florida, to live with his mother. See ktla.com.
Homicide Crimes -- Example of Involuntary Manslaughter – Gross Vehicular Manslaughter Case
Two men are sentenced for their roles in killing another driver on Crenshaw Blvd. while street racing
On or about January 14, 2016, Al Davila (twenty-three) and Tony Holley (forty) allegedly raced each other at excessive speed north on Crenshaw Blvd. in Hawthorne . Unfortunately, the former lost control of his vehicle, veered into and bounced off the divider, then plunged into oncoming traffic. His vehicle slammed into a car being driven by Ben Golbin (thirty-six), who was tragically killed upon impact. Holley allegedly kept driving and fled the scene despite being aware of the collision at the time.
Davila’s car was totaled and shortly thereafter, he was arrested and charged with second-degree murder, Gross Vehicular Manslaughter (felony under Penal Code section 191.5(c)), Hit and Run with Injury or Death (California Vehicle Code section 20001), and Speed Contests/Street Racing/Drag Racing (California Vehicle Code section 23109). (He suffered no injuries.)
Holley subsequently turned himself in and cut an extremely favorable deal with the DA’s Office. In exchange for his willingness to testify against Davila, Holley would plead out to a felony hit-and-run wobbler, which would ultimately be reduced to a misdemeanor and presumably expunged from his record thereafter. (He would eventually serve over ninety days in the county jail and be placed on thirty-six months of formal probation.)
Perhaps because of Holley’s anticipated cooperation, in late June 2017, Davila accepted a nolo contendre plea to a single count of gross vehicular manslaughter. As a result, one week later he received a four-year prison sentence. If he had gone to trial and lost, he would have received fifteen-to-life for the second-degree murder conviction alone. See latimes.com.
Homicide Crimes -- Celebrities Involved in a Voluntary Manslaughter Case
Then-Governor Arnold Schwarzenegger commutes 16-year manslaughter sentence of crony’s son
On or about October 3, 2008, San Diego State University student Louis Santos (twenty-two) got into an altercation with Esteban Núñez (same age) and Núñez’s friend near the campus at night. The altercation escalated to the point where Núñez and his friend allegedly pulled out knives and stabbed Santos to death.
As a result, Núñez and his friend were both charged with Second-Degree Murder (Penal Code section 187). Núñez eventually took a reduced plea for Voluntary Manslaughter (Pen. Code section 192(a)) and was sentenced to sixteen years in prison, including an enhancement for Personal Use of a Dangerous Weapon During the Commission of a Felony (California Penal Code section 12022).
What makes this story noteworthy is that Núñez’s father was then-California congressman and Speaker of the House Fabian Núñez, who was a close friend and supporter of then-Governor Arnold Schwarzenegger. In an act that shocked many Californians and clearly smacked of cronyism, as his last official deed before leaving office, the movie star commuted the younger Núñez’s sentence to such a degree that he was released after only serving less than six years.
Indeed, Schwarzenegger’s commutation so incensed lawmakers, particularly his successor Governor Jerry Brown, that in early October 2011, Brown signed into law Assembly Bill 648, which would require a victim’s family members to be notified at least ten days before any such commutation was finalized. (Santos’ family only learned about the commutation after the fact by a reporter.) See latimes.com.
Homicide Crimes -- Celebrities Involved in an Involuntary Manslaughter – Gross Vehicular Manslaughter Case
Famed tattoo artist Dan Silva gets one year in county jail for killing YouTube star Corey La Barrie
On or about May 9, 2020, YouTube sensation Corey La Barrie was celebrating his twenty-fifth birthday by partying with his good friend, famed tattoo artist Dan Silva (age twenty-seven). That night, La Barrie took a ride in the passenger seat in Silva’s brand-new quarter-million-dollar McLaren supercar with Silva driving.
Just after 9:30 pm, Silva – who was allegedly driving at an excessive rate of speed while intoxicated – lost control of the vehicle near North Hollywood, crashed into a tree, and mortally injured La Barrie, who died later that night at a local hospital.
As a result, Silva was arrested by LAPD and charged by the DA’s Office with second-degree murder. Silva had allegedly tried to flee the scene on foot but was tackled and held down until police arrived. In July, Silva accepted a plea of nolo contendre to gross vehicular manslaughter (a felony).
On or about August 24th, he received a year in the county jail, sixty months of formal probation, two hundred and fifty hours’ volunteer work, and a four-year suspended prison sentence. The latter term meant that if he violated his probation, he would instantly be remanded into custody to serve those forty-eight months.
Finally, he certainly had his driver’s license suspended for one or more years. If he had gone to trial and lost on the second-degree murder charge, however, he would have faced a fifteen-to-life prison term. See abc7.com.
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