581. Involuntary Manslaughter: Murder Not Charged

The defendant is charged [in Count ______] with involuntary manslaughter.

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

1. The defendant (committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence);

AND

2. The defendant's acts caused the death of another person.

[The People allege that the defendant committed the following crime[s]: <insert misdemeanor[s]/infraction[s])/ noninherently dangerous (felony/felonies)>.

Instruction[s] tell[s] you what the People must prove in order to prove that the defendant committed <insert misdemeanor[s]/infraction[s])/ noninherently dangerous (felony/ felonies)>.]

[The People [also] allege that the defendant committed the following lawful act[s] with criminal negligence: <insert act[s] alleged>.]

[Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;

AND

2. A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.]

[An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. 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 of the circumstances established by the evidence.]

[There may be more than one cause of death. An act causes death only if it is a substantial factor in causing the death. A substantial factor is more than a trivial or remote factor. However, it does not need to be the only factor that causes the death.]

Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.

[The People allege that the defendant committed the following (crime[s]/ [and] lawful act[s] with criminal negligence): <insert alleged predicate acts when multiple acts alleged>. You may not find the defendant guilty unless all of you agree that the People have proved that the defendant committed at least one of these alleged acts and you all agree on which act (he/she) committed.]

Bench Notes

Instructional Duty

The court has a sua sponte duty to instruct on the elements of the offense.

The court has a sua sponte duty to instruct on both theories of involuntary manslaughter (misdemeanor/infraction/noninherently dangerous felony and lawful act committed without due caution and circumspection) if both theories are supported by the evidence. (People v. Lee (1999) 20 Cal.4th 47, 61 [82 Cal.Rptr.2d 625, 971 P.2d 1001].) In element 1, instruct on either or both theories of involuntary manslaughter as appropriate.

The court has a sua sponte duty to specify the predicate misdemeanor, infraction or noninherently dangerous felony alleged and to instruct on the elements of the predicate offense(s). (People v. Milham (1984) 159 Cal.App.3d 487, 506 [205 Cal.Rptr. 688]; People v. Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409]; People v. Burroughs (1984) 35 Cal.3d 824, 835 [201 Cal.Rptr. 319, 678 P.2d 894], disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal.Rptr.2d 451, 999 P.2d 675].)

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, 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, 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].)

In cases involving vehicular manslaughter (Pen. Code, § 192(c)), there is a split in authority on whether there is a sua sponte duty to give a unanimity instruction when multiple predicate offenses are alleged. (People v. Gary (1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203 Cal.App.3d 575, 586-587 [249 Cal.Rptr. 906].) A unanimity instruction is included in a bracketed paragraph for the court to use at its discretion.

Authority

Involuntary Manslaughter Defined. Pen. Code, § 192(b).

Due Caution and Circumspection. People v. Penny (1955) 44 Cal.2d 861, 879-880 [285 P.2d 926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863].

Unlawful Act Not Amounting to a Felony. People v. Thompson (2000) 79 Cal.App.4th 40, 53 [93 Cal.Rptr.2d 803].

Unlawful Act Must Be Dangerous Under the Circumstances of Its Commission. People v. Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374]; People v. Cox (2000) 23 Cal.4th 665, 674 [97 Cal.Rptr.2d 647, 2 P.3d 1189].

Proximate Cause. People v. Roberts (1992) 2 Cal.4th 271, 315-321 [6 Cal.Rptr.2d 276, 826 P.2d 274]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863].

Lack of Due Caution and Circumspection Contrasted With Conscious Disregard of Life. People v. Watson (1981) 30 Cal.3d 290, 296-297 [179 Cal.Rptr. 43, 637 P.2d 279]; People v. Evers (1992) 10 Cal.App.4th 588, 596 [12 Cal.Rptr.2d 637].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the Person, §§ 220-234.

4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, §§ 140.02[4], 140.04, Ch. 142, Crimes Against the Person, § 142.02[1][a], [b], [e], [f], [2][b], [3][c] (Matthew Bender).

Lesser Included Offenses

There is no crime of attempted involuntary manslaughter. (People v. Johnson (1996) 51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)

Related Issues

Due Caution and Circumspection

"The words lack of 'due caution and circumspection' have been heretofore held to be the equivalent of 'criminal negligence.' " (People v. Penny (1955) 44 Cal.2d 861, 879 [285 P.2d 926].)

Felonies as Predicate "Unlawful Act"

"[T]he only logically permissible construction of section 192 is that an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection." (People v. Burroughs (1984) 35 Cal.3d 824, 835 [201 Cal.Rptr. 319, 678 P.2d 894], disapproved on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89 [96 Cal.Rptr.2d 451, 999 P.2d 675] [practicing medicine without a license cannot be predicate offense for second degree murder because not inherently dangerous but can be for involuntary manslaughter even though Penal Code section 192 specifies an "unlawful act, not amounting to a felony"].)

No Inherently Dangerous Requirement for Predicate Misdemeanor/ Infraction

"[T]he offense which constitutes the 'unlawful act' need not be an inherently dangerous misdemeanor or infraction. Rather, to be an 'unlawful act' within the meaning of section 192(c)(1), the offense must be dangerous under the circumstances of its commission. An unlawful act committed with gross negligence would necessarily be so." (People v. Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374].)

Fetus

Manslaughter does not apply to the death of a fetus. (People v. Carlson (1974) 37 Cal.App.3d 349, 355 [112 Cal.Rptr. 321].) While the Legislature has included the killing of a fetus, as well as a human being, within the definition of murder under Penal Code section 187, it has "left untouched the provisions of section 192, defining manslaughter [as] the 'unlawful killing of a human being.' " (Ibid.)

(New January 2006)