SERIES 2100 VEHICLE OFFENSES
F 2140 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver (VC 20001, VC 20003 & VC 20004)
TABLE OF CONTENTS
F 2140.1 Titles And Identification Of Parties
F 2140.1 Inst 1 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Title
F 2140.1 Inst 2 Identification Of Prosecution And Defendant
F 2140.2 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Tailoring To Facts: Persons, Places, Things And Theories
F 2140.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
F 2140.3 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Language That Is Argumentative, Confusing, Etc.
F 2140.3 Inst 1 Willfully: Argumentative
F 2140.4 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Burden Of Proof Issues
F 2140.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 2140.4 Inst 2 Hit And Run: Modification Of Burden Shifting Language—Unconsciousness As Complete Defense To Duty To Render Aid
F 2140.5 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Elements And Definitions
F 2140.5 Inst 1 Incorporation Of Definitional Duties To Be Performed At Scene Of Accident Into Enumerated Elements
F 2140.5 Inst 2 Willfully: Knowledge
F 2140.5 Inst 3 Willfully: Delete Argumentative Language
F 2140.5 Inst 4 Hit And Run: Duties Limited To The Scene Of The Accident (VC 20001, VC 20002, VC 20003, VC 20004, VC 20008)
F 2140.5 Inst 5 Incorporate Definition Of Causation Into Enumerated Elements
F 2140.6 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Defense Theories
F 2140.6 Inst 1 Willfully: Balance
F 2140.6 Inst 2 Juror Consideration Of Fact That Bystanders Could Have Provided Assistance
F 2140.6 Inst 3 (a & b) Juror Consideration That Accident Was Unavoidable Or Caused By Someone Else
F 2140.6 Inst 4 Felony Hit And Run: Consideration Of Circumstances Of The Collision
F 2140.6 Inst 5 Unconsciousness As Defense Theory
F 2140.6 Inst 6 (a-c) Hit And Run: No Duty To Render Aid If It Is Being Adequately Provided By Another
F 2140.6 Inst 7 Hit And Run: Necessity As Defense
F 2140.7 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Preliminary Fact Issues [Reserved]
F 2140.8 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Unanimity/Duplicity/Multiplicity [Reserved]
F 2140.9 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Lesser Offense Issues [Reserved]
Return to Series 2100 Table of Contents.
F 2140.1 Titles And Identification Of Parties
F 2140.1 Inst 1 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 2140.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 2140.2Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Tailoring To Facts: Persons, Places, Things And Theories
F 2140.2 Inst 1 Separate Enumeration Of Combined Elements; Tailoring To Facts
*Modify CC 2140, Elements, as follows [added language is underlined; deleted language is stricken]:
1. While driving, the defendant was involved in a vehicle accident;
2. _______________ <name of injured/killed person> [was killed] [sustained serious injury during the accident] caused (the death of/ [or] [permanent, serious] injury to) someone else;
3. _______________’s <name of injured/killed person> [death] [serious injury] was caused by the accident;
3 4. The defendant knew that (he/she) had been involved in an accident that injured another person [or knew from the nature of the accident that it was probable that another person had been injured];
AND
4. The defendant willfully failed to perform one or more of the following duties:
5. The defendant failed to _________________<specify duty/duties to perform relied on by the prosecution e.g, stop at the scene, provide assistance, etc.>;
6. The defendant’s failure to perform the [duty] [duties] was willful.
[Delete duties.]
…
Points and Authorities
Tailor To Facts —See FORECITE F 400.2 Inst 1.
Separate Enumeration—See FORECITE F 3500.2 Inst 1.
F 2140.3 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Language That Is Argumentative, Confusing, Etc.
F 2140.3 Inst 1 Willfully: Argumentative
Re: CC 2140, paragraph 3, see FORECITE F 820.3 Inst 1.
F 2140.4 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Burden Of Proof Issues
F 2140.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 2140.4 Inst 2 Hit And Run: Modification Of Burden Shifting Language—Unconsciousness As Complete Defense To Duty To Render Aid
*Modify CC 2140, paragraph 13, sentence 1, as follows [added language is underlined; deleted language is stricken]:
[If the accident caused the defendant to be Unless the prosecution has proven beyond a reasonable doubt that the defendant was unconscious or disabled able so that (he/she) was not capable of performing the duties required by law, then (he/she) did not have to perform those duties at that time.
[For pinpoint instruction on unconsciousness, see FORECITE F 2140.6 Inst 5.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Unconsciousness As A Defense Theory Which Negates An Element Of The Offense—VC 20001, VC 20002, VC 20003, VC 20004, and VC 20008 impose requirements upon a driver involved in an accident to render assistance and perform other tasks at the scene of the accident. However, unconsciousness at the scene of the accident is a complete defense to a charge of violation of VC 20001 because it negates criminal intent. (See People v. Crouch (1980) 108 CA3d Supp. 14, 21-22; People v. Mayo (1961) 194 CA2d 527, 536-37; People v. Wallace (1934) 2 CA2d 238, 244; People v. Scofield (1928) 203 C 703, 708-09. Because criminal intent is an element of the charge the defendant does not need to prove he or she was unconscious. (See e.g., CC 3425.)
[See also FORECITE F 315.1.2 Inst 2.]
People v. Flores (1996) 51 CA4th 1199, 1204, held that under VC 20001 and VC 20003, a driver who was rendered unconscious at the scene of the accident is required to meet the disclosure requirements of VC 20003 as soon as reasonably possible after regaining consciousness. Flores further held that VC 20001 requires the driver to both stop and comply with VC 20003. The driver who stops but does not comply with VC 20003 is still liable for hit and run per VC 20001.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[See Brief Bank # B-703 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 12.70 n3.
F 2140.5 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Elements And Definitions
F 2140.5 Inst 1 Incorporation Of Definitional Duties To Be Performed At Scene Of Accident Into Enumerated Elements
*Modify CC 2140, Element 4, Duties (a) and (c), as follows [added language is underlined; deleted language is stricken]:
(a) To stop immediately at the scene of the accident (his/her) vehicle as soon as reasonably possible under the circumstances;
…
(c) To provide reasonable assistance to any person injured in the accident determine what assistance, if any, the injured person needs and make a reasonable effort to see that such assistance is provided, either by the driver or someone else. Reasonable assistance includes transporting anyone who has been injured for medical treatment, or arranging the transportation for such treatment, if it is apparent that treatment is necessary or if an injured person requests transportation. [The driver is not required to provide assistance that is unnecessary or that is already being provided by someone else. However, the requirement that the driver provide assistance is not excused merely because bystanders are on the scene or could provide assistance];
Points and Authorities
See FORECITE F 417.5 Inst 2.
F 2140.5 Inst 2 Willfully: Knowledge
Re: CC 2140, paragraph 3, see FORECITE F 820.5 Inst 1.
F 2140.5 Inst 3 Willfully: Delete Argumentative Language
See FORECITE F 416.3 Inst 4.
STRATEGY NOTE AND CAVEAT—Objection to specific instruction on matters which the prosecution does not have to prove may open the door, in the judge’s view, to prosecutorial objection to specific evidence instructions on matters which are not alone sufficient to prove guilt. (See listing of such instructions at FORECITE PG XI(D)(2).) Although the considerations should be different due to the presumptions of innocence (see e.g., FORECITE F 100.1 Inst 1), the judge may not see it this way. In this light, an alternative approach could be a request that the instruction be balanced and clarified to assure the jurors do consider the specified matter in determining whether the prosecution has proven all essential facts and elements of the charged offense. (See FORECITE F 2140.6 Inst 1.)
Additionally, if the judge rejects a defense request to delete or balance argumentative language that favors the prosecution, this may provide a basis for requesting argumentative language favoring the defendant in another instruction. [See generally FORECITE F 416.3 Inst 4.]
F 2140.5 Inst 4 Hit And Run: Duties Limited To The Scene Of The Accident (VC 20001, VC 20002, VC 20003, VC 20004, VC 20008)
*Modify CC 2140, paragraph 13, sentence 2, as follows [added language is underlined]:
[However, (he/she) was required to do so as soon as reasonably possible provided (he/she) was still at the scene.]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Duties Limited To The Scene Of The Accident—VC 20001 et seq. impose duties on a driver who is involved in an accident, which must be fulfilled at the scene of the accident. As set forth in FORECITE F 2140.4 Inst 2; F 12.70 n3, unconsciousness is a complete defense to such a charge. This is so even if the defendant later, after leaving the scene of the accident, regains consciousness. At that point, there is no longer any duty to do the acts required by VC 20001.
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
[Additional briefing on this issue is available to FORECITE subscribers, Brief Bank # B-703.]
CALJIC NOTE: See FORECITE F 12.70 n4.
F 2140.5 Inst 5 Incorporate Definition Of Causation Into Enumerated Elements
See FORECITE F 1551.5 Inst 7.
F 2140.6 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Defense Theories
F 2140.6 Inst 1 Willfully: Balance
See FORECITE F 820.3 Inst 2.
F 2140.6 Inst 2 Juror Consideration Of Fact That Bystanders Could Have Provided Assistance
*Add to CC 2140, paragraph 5:
Nevertheless, the fact that bystanders were on the scene or could have provided assistance is a circumstance to consider in determining whether the prosecution has proved beyond a reasonable doubt that the defendant willfully failed to perform a duty.
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 2140.6 Inst 3 (a & b) Juror Consideration That Accident Was Unavoidable Or Caused By Someone Else
*Add after CC 2140, paragraph 6:
Alternative a [fact not disputed]:
However, the fact that [someone else caused the accident] [and] [or] [the accident was unavoidable] is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [______________ <insert specific element to which the evidence relates>.
Alternative b [fact disputed]:
However, whether or not [someone else caused the accident] [and] [or] [the accident was unavoidable] is a circumstance to consider in evaluating whether the prosecution has proven [all the elements of the alleged _______________] [_____________ <insert specific element to which the evidence relates>.
Alternative c [fact disputed]:
*Add to paragraph 6, as follows:
However, in attempting to determine whether or not ___________, consider whether [someone else caused the accident] [and] [or] [the accident was unavoidable].
Points and Authorities
See FORECITE F 416.3 Inst 7.
F 2140.6 Inst 4 Felony Hit And Run: Consideration Of Circumstances Of The Collision
*Add to CC 2140:
In deciding whether the defendant had a duty to stop, consider all the circumstances, including but not limited to, the lighting and whether the collision was in a high-crime area.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Instruction Generally—See FORECITE F 374 Inst 2.
Juror Consideration Of The Circumstances Of The Collision—People v. Digirolamo (1996) 664 NE2d 720 [279 Ill.App. 3d 487] suggests that the circumstances of the collision—e.g., whether it occurred in a poorly-lit high-crime area or on a dark country road—may be considered in determining whether there was a duty to stop.
CALJIC NOTE: See FORECITE F 12.70 n2
F 2140.6 Inst 5 Unconsciousness As Defense Theory
*Add to CC 2140 [CC 3400 adaption]:
The prosecution must prove that the defendant willfully failed to perform a legal duty. The defendant contends that any failure to act was not willful because (he/she) was unconscious. The prosecution must prove that the defendant was conscious. The defendant does not need to prove (he/she) was unconscious. If you have a reasonable doubt about whether the defendant was conscious, you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Unconsciousness As Defense Theory—See FORECITE F 2140.4 Inst 2.
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
F 2140.6 Inst 6 (a-c) Hit And Run: No Duty To Render Aid If It Is Being Adequately Provided By Another
Alternative a:
*Add as element to CC 2140 when prosecution relies on failure to provide assistance:
The assistance which the defendant failed to provide was:
A. Necessary;
AND
B. Not already being provided by someone else.
Alternative b [Pinpoint instruction based on People v. Scheer (1998) 68 CA4th 1009]:
*Add to CC 2140:
As to the duty to render aid imposed upon drivers knowingly involved in an accident resulting in injury to another, even if aid is necessary, a driver is excused from providing such aid if it is being adequately provided by another. The law requires only that necessary assistance be rendered. A failure to provide aid which is not necessary under the facts in a given case does not subject a driver to criminal responsibility under the law. In determining whether a driver is required to render aid, you may consider the aid and/or assistance being rendered to the injured party by others. If the needs of the injured party are apparently met, no duty to render aid remain. If you have a reasonable doubt as to whether the rendering of aid was necessary, it is your duty to give the defendant the benefit of that doubt and find that there was no duty to render aid.
Alternative c [CC 3400 adaption]:
The People must prove that the assistance was necessary and not being provided. The defendant contends that the assistance was [not necessary because ___________] [was being provided by ______________]. If you have a reasonable doubt about whether the defendant failed to provide assistance, you must find (him/her) not guilty.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Only Necessary Assistance Need Be Provided—People v. Scheer (1998) 68 CA4th 1009, concluded that the driver’s duty to render assistance under VC 20003 does not apply “where such assistance by the driver is unnecessary…” (Scheer, 68 CA4th at 1027; see also People v. Scofield (1928) 203 C 703, 708-09.) However, the driver does have a duty to ascertain what assistance, if any, the injured person needs and to make a reasonable effort to see that such assistance is provided, whether through himself or third parties. (Ibid.)
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 12.70a.
F 2140.6 Inst 7 Hit And Run: Necessity As Defense
*Add to CC 2140 as follows:
The defendant is not guilty of failing to provide identification at the scene of the accident if (he/she) acted because of legal necessity.
In order to establish this defense, the defendant must prove that:
1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else);
2. (He/She) had no adequate legal alternative;
3. The defendant’s acts did not create a greater danger than the one avoided;
4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil;
5. A reasonable person would also have believed that the act was necessary under the circumstances;
AND
6. The defendant did not substantially contribute to the emergency.
The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request—[See CALCRIM Motion Bank # CCM-001.]
Right To Pinpoint Instruction Relating Defense Theory To Prosecution’s Burden Of Proof—See FORECITE F 315.1.2 Inst 2.
Right To Necessity Defense—When the defendant is involved in an injury-accident, there may be situations where the need to seek immediate help for an injured person is more important than giving a name and address to that person per VC 20001. In such situations, the defense of necessity should apply. (See People v. Richards (1969) 269 CA2d 768, 774-775; People v. Lovercamp (1974) 43 CA3d 823, 827.) [See Brief Bank # B-797 for additional briefing on this issue.]
WARNING! Federal constitutional claims may be lost without proper federalization—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:
FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 12.70 n8.
F 2140.7 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Preliminary Fact Issues[Reserved]
F 2140.8 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Unanimity/Duplicity/Multiplicity [Reserved]
F 2140.9 Failure To Perform Duty Following Accident: Death Or Injury—Defendant Driver—Lesser Offense Issues[Reserved]
