California Criminal Jury Instructions (CALCRIM) (2017)

581. Involuntary Manslaughter: Murder Not Charged

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581.Involuntary Manslaughter: Murder Not Charged (Pen. Code,
§ 192(b))
The defendant is charged [in Count ] with involuntary
manslaughter [in violation of Penal Code section 192(b)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant committed (a crime/ [or] a lawful act in an
unlawful manner);
2. The defendant committed the (crime/ [or] act) with criminal
negligence;
AND
3. 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
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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.]
New January 2006; Revised April 2011
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
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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].
• Criminal Negligence Requirement People v. Butler (2010) 187 Cal.App.4th
998, 1014 [114 Cal.Rptr.3d 696].
• 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
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(1996) 51 Cal.App.4th 1329, 1332 [59 Cal.Rptr.2d 798].)
Aggravated assault is not a lesser included offense of involuntary manslaughter.
(People v. Murray (2008) 167 Cal.App.4th 1133, 1140 [84 Cal.Rptr.3d 676].)
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.)
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