F 4.45

F 4.45 n1 Accident: Brandishing In Self-Defense.

There may be a sua sponte duty to instruct on both accident and self-defense. In People v. Curtis (94) 30 CA4th 1337 [37 CR2d 304] the court noted cases from other jurisdictions which held that “when the defendant claims to have killed by accident while engaged in acts of self-defense, the trial court should instruct on self-defense as well as on excusable homicide by accident so the jury can properly evaluate whether the defendant’s acts were lawful or unlawful, and hence whether the killing was excusable homicide or manslaughter. [Citations.]” (Curtis, at 1362-63.) (See also FORECITE F 5.50b [Brandishing A Deadly Weapon In Self-Defense].)

F 4.45 n2 Appellate Issue Alert: Pre-1997 Version.

The pre-1997 version of CJ 4.45 may have permitted conviction based on criminal negligence when not appropriate. (See CALJIC History CJ 4.45.)

F 4.45 n3 Accident: Duty To Instruct When Defendant Testifies That Victim’s Injuries Were Caused Accidentally.

People v. Gonzales (99) 74 CA4th 382, 389-90 [88 CR2d 111] held that it was reversible error to not instruct, sua sponte, upon the defense of accident when the defendant testified that the victim’s injuries were caused accidentally.

F 4.45a

Accident: Reasonable Doubt Favors Defendant

(PC 26(5))

*Add at end of CJ 4.45:

If there is a reasonable doubt as to whether or not the __________ [insert act or omission which is charged] was an accident, you must resolve the doubt in favor of the defendant and [bring in a verdict of not guilty] [find criminal intent to be absent].

Points and Authorities

As to many affirmative defenses CALJIC includes a statement of the burden of proof. (E.g., identity (CJ 2.91); alibi (CJ 4.50); unconsciousness (CJ 4.30); and self-defense (CJ 5.15).) These instructions comply with the mandate of EC 502 which requires a burden of proof instruction “on each issue and as to whether that burden requires that a party raise a reasonable doubt ….” (Emphasis added.) (See also, People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden].) Accordingly, a specific burden instruction should also be included when instructing the jury upon accident (CJ 4.45). The above instruction was approved in People v. Black (51) 103 CA2d 69, 79 [229 P2d 61].

Nor is CJ 2.90 adequate to inform the jury as to the burden applicable to affirmative defenses. (See People v. Adrian (82) 135 CA3d 335, 342 [185 CR 506].) CJ 2.90 only tells the jury that a reasonable doubt as to “guilt” warrants an acquittal. (See Adrian, 135 CA3d at 342.) This instruction works fine when the jury is reviewing the elements of the offense. But as to an affirmative defense such as accident, the absence of a specific burden instruction erroneously suggests that the defendant is required to prove the act was committed by accident before the defense is applicable.

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See generally, FORECITE PG VII(C).]

NOTES

The affirmative defense of accident is expressly set forth in PC 26(5). Since it is an affirmative defense (see People v. Thurmond (85) 175 CA3d 865, 871 [221 CR 292]), it is the court’s duty to instruct sua sponte on accident in an appropriate case. This is so since a trial court must instruct sua sponte on all affirmative defenses, such as unconsciousness, which are specified in PC 26. (See People v. Sedeno (74) 10 C3d 703, 716 [112 CR 1]; see also People v. Barton(95) 12 C4th 186, 195-98 [47 CR2d 569].)

When the age of the victim is an element, a mistake as to the age is not a defense. (See FORECITE F 12.02 n1; FORECITE F 10.67 n1.)

[See Brief Bank # B-511 and ask for Brief Bank # B-510 for additional briefing on this issue.]