“Heat Of Passion” Defense Is Alive And Well in California

As any Torrance Criminal Defense Attorney knows, the defenses to murder are plentiful. In some cases when the evidence supports it the law allows an accused to mitigate his conduct by arguing that the circumstances were such as to necessitate a “heat of passion” argument to the jury. This is one such case.

The acccused was charged with murder after he accompanied his girlfriend to a party where the intoxicated victim became belligerent, intimidating and increasingly aggressive. After the victim insulted appellant’s girlfriend, appellant pulled a gun and shot him in the chest. The victim’s friend, who was trying to restrain the victim, received a shotgun wound to the hand from the same bullet. Appellant was convicted of attempted murder, assault with a firearm of the victim, assault with a firearm on the friend, as well as related firearm enhancements. The jury did not find that the attempted murder was willful, deliberate, and premeditated; this allegation was dismissed. At trial the defense presented evidence of self-defense, but did not ask for, nor did the court give, an instruction for guilt on attempted voluntary manslaughter if he acted under a heat-of-passion.

On appeal the Court found error. The attempted murder conviction was reversed. The Court opined that Attempted murder requires the specific intent to kill and commission of a direct act toward the killing. But when a person attempts to kill while acting upon a sudden quarrel or in the heat of passion, even if exercising a sufficient measure of thought to form an intent to kill, he acts with a mental state precluding the formation of malice. Thus, the offense of attempted murder is reduced to the lesser included offense of attempted voluntary manslaughter when the defense lawyer presents evidence that the person acts in the heat of passion. Courts have a sua sponte duty to instruct on all lesser necessarily included offenses supported by the evidence. The appellate court reviews de novo and views the evidence in the light most favorable to the defendant Here substantial evidence was presented upon which the jury could have found that appellant acted under heat of passion. Noting that whether a federal standard applies when assessing error has not yet been resolved, the court found that under the state Watson standard that the instructional error was prejudicial since there was a reasonable chance the jury would have convicted appellant of attempted voluntary manslaughter if it had been given a heat-of-passion instruction. On remand, the prosecution will have the option of retrying appellant and if it decides not to the judgment will be modified to reflect a conviction for attempted voluntary manslaughter without enhancements. (Courtesy CCAP)

This appeal took many months and the District Attorney know has some hard decisions to make about how to proced. Though not a Torrance case, these types of situations are common in the South Bay and throughout Los Angeles County. The California laws have recognized this defense forever and it is somewhat mystifying as to how the Judge would have overlooked this argument. The impact these cases have on witnesses, the victim’s family and juries is not to be discounted, retrying a case like this should be avoided whenever possible.

About thetorranceattorney

Matthew Ruff is a Torrance criminal defense attorney located near the 405 freeway on Crenshaw Blvd. Focusing on DUI and serious criminal cases for over twenty five years. In addition to criminal cases, Matthew also defends clients at the DMV regarding license suspension hearings stemming from drunk driving arrests.
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