Return to CALJIC Part 3-4 – Contents
F 3.36a
Criminal Or Gross Negligence: Defined
(PC 26(5))
*Modify CJ 3.36 to provide as follows [added language is capitalized; deleted language is between <<>>]:
[Criminal or gross negligence] … is such a departure from what would be the conduct of an ordinarily prudent careful person under the same circumstances as to be <<contrary to>> INCOMPATIBLE WITH a proper regard for [human life] …
Points and Authorities
CALJIC’s use of the phrase of “contrary to” while in general compliance with the case law, does not utilize the exact language of the cases which uses the phrase “incompatible with.” (People v. Odom (91) 226 CA3d 1028, 1032 [277 CR 265]; People v. Peabody (75) 46 CA3d 43, 48-49 [119 CR 780].) While there may not be a major difference between the two terms, “incompatible with” is stronger. Thus, counsel may wish to consider requesting modification of CJ 3.36 based upon the cases discussed above.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
F 3.36b
Adaption of CJ 3.36 (Criminal Negligence) For Use In Battery Prosecution
ALERT: People v. Lara (96) 44 CA4th 102 [51 CR2d 402], held that battery requires general criminal intent and cannot be based on criminal negligence.
*Modify CJ 3.36 [added language is capitalized; deleted language is between <<>>]:
“Criminal negligence” means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care.
“Criminal negligence” refers to [a] negligent act[s] which [is] [are] aggravated, reckless and gross and which [is] [are] such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for THE RISK THAT AN UNLAWFUL TOUCHING WOULD OCCUR <<[human life] [danger to human life]>> or to constitute indifference to the consequences of such act[s]. The facts must be such that the consequences of the negligent act[s] could reasonably have been foreseen and it must appear that the UNLAWFUL TOUCHING <<[death] [danger to human life]>> was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless AND <<or>> grossly negligent act.
Points and Authorities
CJ 3.36 defines criminal negligence and should be given with FORECITE F 16.140a in battery cases where there is no intent to touch. However, it should be modified as follows to adapt it to a charge of battery which (1) applies to non-dangerous touching and (2) requires more than mere recklessness.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII.]
