510. Excusable Homicide: Accident
The defendant is not guilty of (murder/ [or] manslaughter) if (he/ she) killed someone as a result of accident or misfortune. Such a killing is excused, and therefore not unlawful, if:
1. The defendant was doing a lawful act in a lawful way;
2. The defendant was acting with usual and ordinary caution;
3. The defendant was acting without any unlawful intent.
A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation.
The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter).
The trial court has a sua sponte duty to instruct on lawful acts that excuse homicide when there is evidence supporting that defense. (See People v. Hampton (1929) 96 Cal.App. 157, 159-160 [273 P. 854] [court erred in refusing defendant's requested instruction]; People v. Slater (1943) 60 Cal.App.2d 358, 369 [140 P.2d 846]; People v. Bloyd (1987) 43 Cal.3d 333, 353-354 [233 Cal.Rptr. 368, 729 P.2d 802] [instruction not required when defendant argued the victim killed herself by accident].)
When this instruction is given, it should always be given in conjunction with CALCRIM No. 581, Involuntary Manslaughter: Murder Not Charged or CALCRIM No. 580, Involuntary Manslaughter: Lesser Included Offense, unless vehicular manslaughter with ordinary negligence is charged. (People v. Velez (1983) 144 Cal.App.3d 558, 566-568 [192 Cal.Rptr. 686].) A lawful act can be the basis of involuntary manslaughter, but only if that act is committed with criminal negligence ("in an unlawful manner or without due caution and circumspection"). (Pen. Code, § 192(b).) The level of negligence described in this instruction, 510, is ordinary negligence. While proof of ordinary negligence is sufficient to prevent a killing from being excused under Penal Code section 195, subd. 1, proof of ordinary negligence is not sufficient to find a defendant guilty of involuntary manslaughter under Penal Code section 192(b). (People v. Penny (1955) 44 Cal.2d 861, 879-880 [285 P.2d 926].)
CALCRIM No. 3404, Accident.
Excusable Homicide If Committed by Lawful Act. Pen. Code, § 195, subd. 1.
Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148, 1154-1155 [10 Cal.Rptr.2d 217].
Instructing With Involuntary Manslaughter. People v. Velez (1983) 144 Cal.App.3d 558, 566-568 [192 Cal.Rptr. 686].
Misfortune as Accident. People v. Gorgol (1953) 122 Cal.App.2d 281, 308 [265 P.2d 69].
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 242.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73, Defenses and Justifications, §§ 73.01, 73.16 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85, Submission to Jury and Verdict, § 85.04[c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.01[b] (Matthew Bender).
In People v. Curtis (1994) 30 Cal.App.4th 1337, 1358-1359 [37 Cal.Rptr.2d 304], the court held that the claim that a killing was accidental bars the defendant from relying on traditional self-defense not only as a defense, but also to negate implied malice. However, in People v. Elize (1999) 71 Cal.App.4th 605, 610-616 [84 Cal.Rptr.2d 35], the court reached the opposite conclusion, holding that the trial court erred in refusing to give self-defense instructions where the defendant testified that the gun discharged accidentally. Elize relies on two Supreme Court opinions, People v. Barton (1995) 12 Cal.4th 186 [47 Cal.Rtpr.2d 569, 906 P.2d], and People v. Breverman (1998) 19 Cal.4th 142 [77 Cal.Rptr.2d 142, 960 P.2d 1094]. Because Curtis predates these opinions, Elize appears to be the more persuasive authority.
(New January 2006)