CALCRIM No. 510. Excusable Homicide: Accident

Judicial Council of California Criminal Jury Instructions (2023 edition)

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510.Excusable Homicide: Accident
The defendant is not guilty of (murder/ [or] manslaughter) if (he/she)
killed someone:
1. By accident and misfortune;
1. If 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 an unlawful intent to commit
(murder/ [or] manslaughter).
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, March 2022
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
Related Instructions
CALCRIM No. 3404, Accident.
Excusable Homicide. Pen. Code, § 195, subd. 1; People v. Garnett (1908) 9
Cal.App. 194, 203-204 [98 P. 247], disapproved on other grounds by People v.
Collup (1946) 27 Cal.2d 829, 838-839 [167 P.2d 714] and People v. Bouchard
(1957) 49 Cal.2d 438, 441-442 [317 P.2d 971].
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].
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
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 274.
3 Millman, 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).

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