California Criminal Jury Instructions (CALCRIM) (2017)

582. Involuntary Manslaughter: Failure to Perform Legal Duty - Murder Not Charged

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582.Involuntary Manslaughter: Failure to Perform Legal
Duty—Murder Not Charged (Pen. Code, § 192(b))
The defendant is charged [in Count ] with involuntary
manslaughter [in violation of Penal Code section 192(b)] based on
failure to perform a legal duty.
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant had a legal duty to <insert name of
decedent>;
2. The defendant failed to perform that legal duty;
3. The defendant’s failure was criminally negligent;
AND
4. The defendant’s failure caused the death of <insert
name of decedent>.
(A/An) <insert description of person owing duty> has a legal
duty to (help/care for/rescue/warn/maintain the property of/
<insert other required action[s]>)<insert
description of decedent, not name>.
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 how 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.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[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
person would know is likely to happen if nothing unusual intervenes. In
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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.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
Legal Duty
The existence of a legal duty is a matter of law to be decided by the judge.
(Kentucky Fried Chicken v. Superior Court (1997) 14 Cal.4th 814, 819 [59
Cal.Rtpr.2d 756, 927 P.2d 1260]; Isaacs v. Huntington Memorial Hospital (1985)
38 Cal.3d 112, 124 [211 Cal.Rptr. 356, 695 P.2d 653].) The court should instruct
the jury if a legal duty exists. (See People v. Burden (1977) 72 Cal.App.3d 603,
614 [140 Cal.Rptr. 282] [proper instruction that parent has legal duty to furnish
necessary clothing, food, and medical attention for his or her minor child].) In the
instruction on legal duty, the court should use generic terms to describe the
relationship and duty owed. For example:
A parent has a legal duty to care for a child.
A paid caretaker has a legal duty to care for the person he or she was hired to
care for.
A person who has assumed responsibility for another person has a legal duty to
care for that other person.
The court should not state “the defendant had a legal duty to the decedent.” (See
People v. Brown (1988) 46 Cal.3d 432, 444–445 [250 Cal.Rptr. 604, 758 P.2d
1135] [correct to state “a Garden Grove Regular Police Officer [is a] peace officer”;
would be error to state “Officer Reed was a peace officer”].)
However, in a small number of cases where the legal duty to act is based on the
defendant having created or increased risk to the victim, the existence of the legal
duty may depend on facts in dispute. (See People v. Oliver (1989) 210 Cal.App.3d
138, 149 [258 Cal.Rptr. 138].) If there is a conflict in testimony over the facts
necessary to establish that the defendant owed a legal duty to the victim, then the
issue must be submitted to the jury. In such cases, the court should insert a section
similar to the following:
The People must prove that the defendant had a legal duty to (help/rescue/
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warn/ <insert other required action[s]>)<insert
name of decedent>.
In order to prove that the defendant had this legal duty, the People must
prove that the defendant <insert facts that establish legal
duty>.
If you decide that the People have proved that the defendant
<insert facts that establish legal duty>, then the defendant had a legal duty
to (help/rescue/warn/ <insert other required action[s]>)
<insert name of decedent>.
If you have a reasonable doubt whether the defendant
<insert facts that establish legal duty>, then you must find (him/her) not
guilty.
AUTHORITY
• Elements. Pen. Code, § 192(b); People v. Oliver (1989) 210 Cal.App.3d 138,
146 [258 Cal.Rptr. 138].
• Criminal Negligence. 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].
• Legal Duty. People v. Heitzman (1994) 9 Cal.4th 189, 198–199 [37
Cal.Rptr.2d 236, 886 P.2d 1229]; People v. Oliver (1989) 210 Cal.App.3d 138,
149 [258 Cal.Rptr. 138].
• Causation. People v. Roberts (1992) 2 Cal.4th 271, 315–321 [6 Cal.Rptr.2d
276, 826 P.2d 274].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, §§ 232–234.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.03, 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[2][b] (Matthew Bender).
LESSER INCLUDED OFFENSES
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
Legal Duty to Aid
In People v. Oliver (1989) 210 Cal.App.3d 138, 147 [258 Cal.Rptr. 138], the court
explained the requirement of a legal duty to act as follows:
A necessary element of negligence, whether criminal or civil, is a duty owed to
the person injured and a breach of that duty . . . . Generally, one has no legal
duty to rescue or render aid to another in peril, even if the other is in danger of
losing his or her life, absent a special relationship which gives rise to such
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duty . . . . In California civil cases, courts have found a special relationship
giving rise to an affirmative duty to act where some act or omission on the part
of the defendant either created or increased the risk of injury to the plaintiff, or
created a dependency relationship inducing reliance or preventing assistance
from others . . . . Where, however, the defendant took no affirmative action
which contributed to, increased, or changed the risk which would otherwise
have existed, and did not voluntarily assume any responsibility to protect the
person or induce a false sense of security, courts have refused to find a special
relationship giving rise to a duty to act.
Duty Based on Dependency/Voluntary Assumption of Responsibility
A legal duty to act exists when the defendant is a caretaker or has voluntarily
assumed responsibility for the victim. (Walker v. Superior Court (1988) 47 Cal.3d
112, 134–138 [253 Cal.Rptr. 1, 763 P.2d 852] [parent to child]; People v.
Montecino (1944) 66 Cal.App.2d 85, 100 [152 P.2d 5] [contracted caretaker to
dependent].)
Duty Based on Conduct Creating or Increasing Risk
A legal duty to act may also exist where the defendant’s behavior created or
substantially increased the risk of harm to the victim, either by creating the
dangerous situation or by preventing others from rendering aid. (People v. Oliver
(1989) 210 Cal.App.3d 138, 147–148 [258 Cal.Rptr. 138] [defendant had duty to
act where she drove victim to her home knowing he was drunk, knowingly allowed
him to use her bathroom to ingest additional drugs, and watched him collapse on
the floor]; Sea Horse Ranch, Inc. v. Superior Court (1994) 24 Cal.App.4th 446, 456
[30 Cal.Rptr.2d 681] [defendant had duty to prevent horses from running onto
adjacent freeway creating risk].)
583–589. Reserved for Future Use
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