3404. Accident

<General or Specific Intent Crimes>

[The defendant is not guilty of <insert crime[s]> if (he/ she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of <insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.]

<Criminal Negligence Crimes>

[The defendant is not guilty of <insert crime[s]> if (he/ she) acted [or failed to act] accidentally without criminal negligence. You may not find the defendant guilty of <insert crime[s]> unless you are convinced beyond a reasonable doubt that (he/she) acted with criminal negligence. Criminal negligence is defined in another instruction.]

Bench Notes

Instructional Duty

There is no sua sponte duty to instruct on accident; however; the court must give this instruction on request when evidence of accident or misfortune has been introduced. (People v. Acosta (1955) 45 Cal.2d 538, 544 [290 P.2d 1].)

When instructing on the defense of accident and misfortune, only the mental state relevant to the crime charged should be included in the instruction. (People v. Lara (1996) 44 Cal.App.4th 102, 109 [51 Cal.Rptr.2d 402] [trial court erred in instructing on criminal negligence in battery case because battery is a general intent crime].) Give the first paragraph if the defense is raised to a general or specific intent crime. Give the second paragraph if the defense is raised to a crime that is committed by criminal negligence. In either case, the court should insert the specific crime in the space provided. If both intent and negligence crimes are charged, instruct with both paragraphs.

Related Instructions

If murder is charged, see CALCRIM No. 510, Excusable Homicide: Accidental.

Authority

Instructional Requirements. Pen. Code, §§ 26(5), 195.

Burden of Proof. People v. Black (1951) 103 Cal.App.2d 69, 79 [229 P.2d 61]; People v. Frye (1992) 7 Cal.App.4th 1148, 1154-1155 [10 Cal.Rptr.2d 217].

Misfortune as Accident. People v. Gorgol (1953) 122 Cal.App.2d 281, 308 [265 P.2d 69].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 241.

3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, § 73.01[5] (Matthew Bender).

Related Issues

Misfortune Defined

" 'Misfortune' when applied to a criminal act is analogous [to] the word 'misadventure' and bears the connotation of accident while doing a lawful act." (People v. Gorgol (1953) 122 Cal.App.2d 281, 308 [265 P.2d 69].)

(New January 2006)