Call Today! Free Immediate Response (818) 781-1570


What is the Heat of Passion Defense?

Posted by Dmitry Gorin | Dec 05, 2023

If you have been charged with Penal Code 187 PC murder in California, you could be facing the most severe penalties allowed in the state if you are convicted. Second-degree murder carries a sentence of 15 years to life imprisonment, while the punishment for first-degree murder is 25 years to life. 

With so much at stake, it's a typical strategy among criminal defense attorneys to try to get murder charges reduced to Penal Code 192(a) voluntary manslaughter, which carries a much lighter penalty, specifically, one to 11 years. One of the most common ways to accomplish this is by using what has come to be known as the "heat of passion" defense. 

Heat of Passion Defense in California
A successful heat of passion defense could get murder charges reduced to voluntary manslaughter.

The heat of passion is a mitigating factor that could be raised as a claim of uncontrollable rage, terror, or fury at the time of the alleged crime, especially when provoked by the victim. The heat of passion defense is used to negate the element of malice in a PC 187 murder prosecution.

Often, there are many defenses to murder charges, which might reduce it to a lesser crime. A murder defense of the “heat of passion” or “sudden quarrel” might reduce a murder case to voluntary manslaughter with lighter penalties.

You might be able to claim you killed someone because of a sudden quarrel after you were provoked and acted harshly under the influence of intense emotion that obscured your judgment. Perhaps the provocation would have caused any average person to act rashly and without due deliberation.

A typical example of a heat-of-passion argument is when a man arrives home to find his wife with another man and becomes so emotionally enraged that he kills both of them. In this example, he might be able to claim heat of passion and have the PC 187 murder charges reduced to PC 192(a) voluntary manslaughter.

Simply put, a crime of passion is a crime committed under extreme rage or emotional disturbance (heat of passion) or when provoked. A killing that occurs under the heat of passion is done without premeditation, which lessens the severity of the criminal charge. 

The heat of passion has been described as “such a state of passion, or hot blood, or rage, anger, resentment, terror or fear as to indicate the absence of deliberate design to kill or as to cause one to act on impulse without reflection.” Let's review this topic further below.

What Does "Heat of Passion" Mean?

The term "heat of passion" refers to an intense emotional state that a person may experience in response to a significant provocation. In the context of law, it is used as a defense strategy in homicide cases as a defining element in a "crime of passion." 

The premise is that the accused was not in a rational state of mind at the time of the alleged act due to extreme emotional disturbance or agitation and, therefore, did not have the requisite intent or premeditation (known as "malice aforethought") to commit murder. 

This defense, when successfully argued, can lead to a reduction of charges from murder to voluntary manslaughter. However, we should note that the provocation must be such that it would cause an ordinary person to react impulsively or without due deliberation, and the response must have occurred immediately, without a sufficient 'cooling-off' period.

"Malice Aforethought": The Difference Between Murder and Manslaughter

Murder and manslaughter are both serious crimes involving the death of another person, but they're not the same. The distinguishing factor between the two is the presence or absence of "malice aforethought."

Murder, as defined under California Penal Code 187 PC, is the unlawful killing of a human being or fetus with malice aforethought. This term, "malice aforethought," implies that the act was committed intentionally or with a reckless disregard for human life.

On the other hand, voluntary manslaughter, as defined under California Penal Code 192(a) PC, involves the intentional killing of another person but without malice aforethought. This typically occurs in the heat of passion or during a sudden quarrel.

How Does the Heat of Passion Defense Work?

When successfully argued, the heat of passion defense effectively negates the element of malice aforethought. It argues that the defendant acted not out of a deliberate intent to kill but in a spontaneous reaction to a provocation so intense that it caused them to lose self-control.

To utilize this defense successfully in a murder case, a skilled California criminal defense attorney must establish the following key elements:

  • Adequate Provocation: The defendant must have been provoked by an event or situation that would cause a reasonable person to react passionately and without due deliberation. This doesn't necessarily have to be an illegal act.
  • Heat of Passion: The defendant must have acted under the influence of intense emotion that obscured their reasoning or judgment. Again, the passion must be such that it would cause a reasonable person to act rashly or without reflection.
  • Immediate Reaction: There should be no "cooling-off" period between the provocation and the act of killing. If a reasonable amount of time has passed such that a person could have regained control, this defense may not stand.
  • Causal Connection: The attorney must establish a causal link between the provocation, the heat of passion, and the act of killing.

What Are Some Examples?

EXAMPLE 1: Jake comes home unexpectedly to find his wife in an intimate situation with another man. Overwhelmed by a surge of intense emotion, Jake momentarily loses control and, in the heat of the moment, attacks the man, resulting in his death. In this case, the husband's legal team might successfully argue that the act was committed in the heat of passion. 

EXAMPLE 2: Julie discovers her business partner has been embezzling funds from their company. Angered by the betrayal, she meticulously plans and executes her partner's murder a week later. The 'heat of passion' defense would not apply in this case. Although her partner's actions provoked the woman, the delay between the discovery of the embezzlement and the act of murder allowed for a substantial "cooling-off" period. 

Can You Still Face Penalties?

Yes. The heat of passion defense is by no means a "get out of jail free" card, nor does it carry nearly the same weight as a claim of "self-defense."

Even if the defense is successful, you will still likely be charged with voluntary manslaughter and quite possibly convicted, considering the heat of passion defense requires you to admit to the killing by definition. 

However, considering the alternative of being convicted of murder, it does provide a legal avenue to mitigate the charges and potential sentence in your homicide case. Contact our criminal defense lawyers for a case review and to discuss legal options. Eisner Gorin LLP has offices in Los Angeles, CA.

Related Content:

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...

We speak English, Russian, Armenian, and Spanish.

If you have one phone call from jail, call us! If you are facing criminal charges, DON'T talk to the police first. TALK TO US!

Anytime 24/7