2141. Failure to Perform Duty Following Accident: Death or Injury - Defendant Nondriving Owner or Passenger in Control

The defendant is charged [in Count ______] with failing to perform a legal duty following a vehicle accident that caused (death/ [or] [permanent] injury) to another person.

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant [owned and] was riding as a passenger in a vehicle involved in an accident;

2. At the time of the accident, the defendant had full authority to direct and control the vehicle even though another person was driving the vehicle;

3. The accident caused (the death of/ [or] [permanent, serious] injury to) someone else;

4. The defendant knew that the vehicle had been involved in an accident that injured another person [or knew from the nature of the accident that it was probable that another person had been injured];

AND

5. The defendant willfully failed to perform one or more of the following duties:

(a) To cause the driver of the vehicle to stop immediately at the scene of the accident;

(b) When requested, to show (his/her) driver's license, or any other available identification, to (the person struck/ the driver or occupants of any vehicle collided with) or any peace officer at the scene of the accident;

(c) To provide reasonable assistance to any person injured in the accident;

[OR]

(d) To give to (the person struck/the driver or occupants of any vehicle collided with) or any peace officer at the scene of the accident all of the following information:

The defendant's name and current residence address;

The registration number of the vehicle (he/she)

(owned/ was a passenger in);

[AND]

The name and current residence address of the driver of the vehicle(;/.)

<Give following sentence if defendant not owner of vehicle.>

[[AND]

The name and current residence address of the owner of the vehicle if the defendant is not the owner(;/.)]

<Give following sentence if occupants of defendant's vehicle were injured.>

[AND

The names and current residence addresses of any occupants of the defendant's vehicle who were injured in the accident(;/.)]

<Give element 5(e) if accident caused death.>

[OR

(e) The driver must, without unnecessary delay, notify either the police department of the city where the accident happened or the local headquarters of the California Highway Patrol if the accident happened in an unincorporated area.]

Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

The duty to stop immediately means that the (owner/passenger in control) must cause the vehicle he or she is a passenger in to stop as soon as reasonably possible under the circumstances.

To provide reasonable assistance means the (owner/passenger in control) must determine what assistance, if any, the injured person needs and make a reasonable effort to see that such assistance is provided, either by the (owner/passenger in control) or someone else. Reasonable assistance includes transporting anyone who has been injured for medical treatment, or arranging the transportation for such treatment, if it is apparent that treatment is necessary or if an injured person requests transportation. [The (owner/passenger in control) is not required to provide assistance that is unnecessary or that is already being provided by someone else. However, the requirement that the (owner/passenger in control) provide assistance is not excused merely because bystanders are on the scene or could provide assistance.]

The (owner/passenger in control) of a vehicle must perform the duties listed regardless of who was injured and regardless of how or why the accident happened. It does not matter if someone else caused the accident or if the accident was unavoidable.

You may not find the defendant guilty unless all of you agree that the People have proved that the defendant failed to perform at least one of the required duties. You must all agree on which duty the defendant failed to perform.

[To be involved in an accident means to be connected with the accident in a natural or logical manner. It is not necessary for the vehicle to collide with another vehicle or person.]

[A permanent, serious injury is one that permanently impairs the function or causes the loss of any organ or body part.]

[An accident causes (death/ [or] [permanent, serious] injury) if the (death/ [or] injury) is the direct, natural, and probable consequence of the accident and the (death/ [or] injury) would not have happened without the accident. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.]

[There may be more than one cause of (death/ [or] [permanent, serious] injury). An accident causes (death/ [or] injury) only if it is a substantial factor in causing the (death/ [or] injury). A substantial factor is more than a trivial or remote factor. However, it need not be the only factor that causes the (death/ [or] injury).]

[If the accident caused the defendant to be unconscious or disabled so that (he/she) was not capable of performing the duties required by law, then (he/she) did not have to perform those duties at that time. [However, (he/she) was required to do so as soon as reasonably possible.]]

[If the defendant told the driver to stop and made a reasonable effort to stop the vehicle, but the driver refused, then the defendant is not guilty of this crime.

Bench Notes

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elements of the crime. Give this instruction if the prosecution alleges that the defendant was a nondriving owner present in the vehicle or other passenger in control. If the prosecution alleges that that the defendant drove the vehicle, give CALCRIM No. 2140, Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver.

If causation is at issue, the court has a sua sponte duty to instruct on proximate cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590- 591 [35 Cal.Rptr. 401].) If the evidence indicates that there was only one cause of death or injury, the court should give the "direct, natural, and probable" language in the first bracketed paragraph on causation. If there is evidence of multiple causes of death or injury, the court should also give the "substantial factor" instruction in the second bracketed paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43 Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746-747 [243 Cal.Rptr. 54].)

If the defendant is charged under Vehicle Code section 20001(b)(1) with leaving the scene of an accident causing injury, but not death or permanent, serious injury, delete the words "death" and "permanent, serious" from the instruction. If the defendant is charged under Vehicle Code section 20001(b)(2) with leaving the scene of an accident causing death or permanent, serious injury, use either or both of these options throughout the instruction, depending on the facts of the case. When instructing on both offenses, give this instruction using the words "death" and/or "permanent, serious injury," and give CALCRIM No. 2142, Failure to Perform Duty Following Accident: Lesser Included Offense.

Give bracketed element 5(e) only if the accident caused a death.

Give the bracketed portion that begins with "The (owner/passenger in control) is not required to provide assistance" if there is an issue over whether assistance by the defendant to the injured person was necessary in light of aid provided by others. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1027 [80 Cal.Rptr.2d 676]; People v. Scofield (1928) 203 Cal. 703, 708 [265 P. 914]; see also discussion in the Related Issues section of CALCRIM No. 2140, Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver.)

Give the bracketed paragraph defining "involved in an accident" if that is an issue in the case.

Give the bracketed paragraph that begins with "If the accident caused the defendant to be unconscious" if there is sufficient evidence that the defendant was unconscious or disabled at the scene of the accident.

Give the bracketed paragraph that begins with "If the defendant told the driver to stop" if there is sufficient evidence that the defendant attempted to cause the vehicle to be stopped.

Authority

Elements. Veh. Code, §§ 20001, 20003 & 20004.

Sentence for Death or Permanent Injury. Veh. Code, § 20001(b)(2).

Knowledge of Accident and Injury. People v. Holford (1965) 63 Cal.2d 74, 79-80 [45 Cal.Rptr. 167, 403 P.2d 423]; People v. Carter (1966) 243 Cal.App.2d 239, 241 [52 Cal.Rptr. 207]; People v. Hamilton (1978) 80 Cal.App.3d 124, 133-134 [145 Cal.Rptr. 429].

Willful Failure to Perform Duty. People v. Crouch (1980) 108 Cal.App.3d Supp. 14, 21-22 [166 Cal.Rptr. 818].

Duty Applies Regardless of Fault for Accident. People v. Scofield (1928) 203 Cal. 703, 708 [265 P. 914].

Involved Defined. People v. Bammes (1968) 265 Cal.App.2d 626, 631 [71 Cal.Rptr. 415]; People v. Sell (1950) 96 Cal.App.2d 521, 523 [215 P.2d 771].

Immediately Stopped Defined. People v. Odom (1937) 19 Cal.App.2d 641, 646-647 [66 P.2d 206].

Duty to Render Assistance. People v. Scofield (1928) 203 Cal. 703, 708 [265 P. 914]; People v. Scheer (1998) 68 Cal.App.4th 1009, 1027 [80 Cal.Rptr.2d 676].

Permanent, Serious Injury Defined. Veh. Code, § 20001(d).

Nondriving Owner. People v. Rallo (1931) 119 Cal.App. 393, 397 [6 P.2d 516].

Statute Does Not Violate Fifth Amendment Privilege. California v. Byers (1971) 402 U.S. 424, 434 [91 S.Ct. 1535, 29 L.Ed.2d 9].

Unanimity Instruction Required. People v. Scofield (1928) 203 Cal. 703, 710 [265 P. 914].

Unconscious Driver Unable to Comply at Scene. People v. Flores (1996) 51 Cal.App.4th 1199, 1204 [59 Cal.Rptr.2d 637].

Offense May Occur on Private Property. People v. Stansberry (1966) 242 Cal.App.2d 199, 204 [51 Cal.Rptr. 403].

Duty Applies to Injured Passenger in Defendant's Vehicle. People v. Kroncke (1999) 70 Cal.App.4th 1535, 1546 [83 Cal.Rptr.2d 493].

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Public Peace and Welfare, §§ 246-252.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.03 (Matthew Bender).

Lesser Included Offenses

Failure to Stop Following Accident—Injury. Veh. Code, § 20001(b)(1).

Misdemeanor Failure to Stop Following Accident—Property Damage. Veh. Code, § 20002; People v. Carter (1966) 243 Cal.App.2d 239, 242-243 [52 Cal.Rptr. 207].

Related Issues

See the Related Issues section in CALCRIM No. 2140, Failure to Perform Duty Following Accident: Death or Injury—Defendant Driver.

(New January 2006)