Criminal Law

253. Union of Act and Intent: Criminal Negligence

In order to be guilty of the crime[s] of <insert name[s] of alleged offense[s]> [or the allegation[s] of <insert name[s] of enhancement[s]>], a person must do an act [or fail to do an act] with (criminal/gross) negligence. (Criminal/Gross) negligence is defined in the instructions on that crime.

Bench Notes

Instructional Duty

This instruction is provided for the court to use when instructing on an offense for which criminal or gross negligence is an element. Do not give this instruction if only general or specific-intent offenses are presented to the jury. (People v. Lara (1996) 44 Cal.App.4th 102, 110 [51 Cal.Rptr.2d 402].) Although no case has held that the court has a sua sponte duty to give this instruction, the committee recommends that the instruction be given, if applicable, as a matter of caution.

The court must specify for the jury which offenses require criminal negligence by inserting the names of the offenses where indicated in the instruction. (See People v. Hill (1967) 67 Cal.2d 105, 118 [60 Cal.Rptr. 234, 429 P.2d 586].)

The court should select either "criminal" or "gross" based on the words used in the instruction on the elements of the underlying offense.


Statutory Authority. Pen. Code, § 20; see also Evid. Code, §§ 665, 668.

Criminal or Gross Negligence Defined. People v. Penny (1955) 44 Cal.2d 861, 879 [285 P.2d 926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863].

Secondary Sources

1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Elements, § 20.

6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, § 140.02[1], [4] (Matthew Bender).

(New January 2006)