What's the difference? This is a good question because I have found myself over the course of the last twenty-five years in defending murder cases arguing that this was a voluntary manslaughter situation instead of a murder situation.  A lot of times, you're talking about one big difference — the amount of time that a person is facing in custody if they get convicted of a murder charges versus a voluntary manslaughter charge.

For voluntary manslaughter under California Penal Code 192(a), you're usually looking at a maximum of eleven years in prison; whereas, for  murder charge, under California Penal Code 187, you could be looking at twenty-five to life and never getting out of prison.  So, obviously that's a huge difference so you want to have an idea of what separates a murder charge from a voluntary manslaughter charge.

Plan to Kill Someone vs Heat of Passion

Obviously, in a murder case usually the type of evidence you're going to see is somebody planning to kill another person and then executing that plan and killing the person and having a motive to kill them, and there's evidence that shows that the person maybe waited for the person or devised some sort of a scheme in order to be able to get in a position to murder the person.

Whereas, in a voluntary manslaughter situation, usually what you're going to see is what we call “a heat of passion killing.”  In other words, it's not necessarily a planned killing.  Maybe somebody walked in on their significant other having sex with another person and in a rage ended up killing another person.

Maybe somebody's on the road and another person is involved in a road-rage situation with them and they end up killing that person.  These are all situations where there is at least an argument that it's a voluntary manslaughter situation versus a murder situation.

Factor of “Common Sense”

A lot of these type of decisions are made by way of the elements of each of the crimes and common sense.  Criminal defense really is based in common sense, so that the common man or woman can understand it.

So, if somebody's in a rage, if their heat of passion has been aroused and there's legally adequate provocation by the other party, that may be a circumstance where the defense attorney can successfully argue for a manslaughter versus a murder charge.

But a lot of times where the person falls short is, yes they were angry; yes, there was heat of passion, but they really cannot legally say that the other party provoked them sufficiently in order to be able to avoid that murder conviction.

And again, where you're going to see what really separates voluntary manslaughter from murder is planning.  Anytime you see planning, a person has big problems.  Anytime you see a circumstance where nobody would be provoked to kill another person, the person's got some problems.

So, if you're in a scenario where you or a loved on is facing a murder charge and you realize that you or the other person did something wrong but you just don't think that it rises to the level of a murder case, and obviously you don't want to be saddled with a murder punishment where you're looking at twenty-five to life and potentially never getting out of prison again.

You're going to want to sit down with an attorney who has actually tried these cases and been successful.  Because if the attorney hasn't tried these cases — and I can tell you right now having done this for a long time and seeing the attorneys that are involved in these cases — there's not that many attorneys that have the experience to have tried a murder case before or even have the wherewithal to try a murder case.

Experienced Los Angeles Criminal Lawyer

I get a lot of murder cases where one attorney has done the preliminary hearing and then the people come to me and want me to do the trial.  I ask why aren't you using the other attorney and they say because the other attorney was scared and said he really wasn't equipped to do the murder cases.

This is idiotic because they should have never taken the case in the first place and they should have never done the preliminary hearing in a murder case because that is a very important hearing that you can get a lot of good evidence out.

So, they really do the clients a disservice if you haven't done a murder case and you're doing the preliminary hearing and then trying to jump ship because you realize that you're not qualified or experienced enough to do the murder case, and a lot of people are scared to do the murder case because they realize that all of the marbles are on the line and the other person is looking at a significant period of time in custody.