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F 8.46 n1 “Due Caution” Is Lesser Standard Than “Gross Negligence.”
CJ 8.45 requires that the defendant act without “due caution and circumspection.” Without more, this instruction would be insufficient to describe the “wanton and reckless disregard for human life” requirement of PC 192(b). (See U.S. v. Shortman (9th Cir. 1996) 91 F3d 80.) “[A]cting ‘without due caution’ is a far less onerous standard than ‘gross negligence’….” (Shortman 91 F3d at 81-82.) Accordingly, even though CJ 8.46 purports to define “due caution” in terms of gross negligence (see People v. Stuart (56) 47 C2d 167, 173-174 [302 P2d 5]), it may be advisable to eliminate the term “due caution and circumspection” from the instructions and replace it with a full and accurate definition of gross negligence.