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About George L Mertens

This article addresses California’s “Unlawful Act Involuntary Manslaughter Rule” which is also referred to as the “misdemeanor manslaughter rule.” On its face, like the analogous felony-murder rule, this law can be applied in a brutally unjust manner. Indeed, this law is worse than the felony-murder rule in that the statute does not enumerate specific predicate acts. On its face, the law could apply to any violation of a misdemeanor or infraction which results in death. Judicially, the law had undergone significant limitations over time with the most significant coming in the last decade.
This article is timely and important for two reasons. First, the judicial limitations in the last decade has had a profound effect on its application. California has taken an approach that is distinct from the huge majority of states, three quarters of which abolished the rule. Secondly, due to creative applications of the first and second degree murder rules, criminal defense practitioners always consider the applicability of lesser included offenses to present the jury or in charge bargaining. In the context of a felony murder prosecution, a cogent argument can frequently be made the predicate felony offense actually constitutes a misdemeanor. As such, involuntary manslaughter under this rule would apply. Tactically, in many situations, a court, prosecutor or a jury would prefer such liability over an “all or nothing” choice.