California Criminal Jury Instructions (CALCRIM) (2017)

510. Excusable Homicide: Accident

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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
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).
New January 2006; Revised August 2012
Instructional Duty
The court has no sua sponte duty to instruct on accident. (People v. Anderson
(2011) 51 Cal.4th 989, 997–998 [125 Cal.Rptr.3d 408, 252 P.3d 968].)
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].)
Related Instructions
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].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Defenses, § 242.
3Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.01[5], 73.16 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.01[1][b] (Matthew Bender).
Traditional Self-Defense
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
531], and People v. Breverman (1998) 19 Cal.4th 142 [77 Cal.Rptr.2d 870, 960
P.2d 1094]. Because Curtis predates these opinions, Elize appears to be the more
persuasive authority.