F 8.45

F 8.45 n1 Involuntary Manslaughter: Effect Of Treatment By Spiritual Means (PC 192(b)).

For purposes of the crime of abandonment and neglect of children, PC 270 specifically excludes parents who provide medical treatment for their child by “spiritual means.” The appropriate section of PC 270 provides as follows:

“If a parent provides a minor with treatment by spiritual means through prayer alone in accordance with the tenets and practices of a recognized church or religious denomination, by a duly accredited practitioner thereof, such treatment shall constitute ‘other remedial care,’ as used in this section.”

In Walker v. Superior Court (88) 47 C3d 112, 123-26 [253 CR 1], the court held that PC 270 does not provide a complete exemption from felony prosecution for involuntary manslaughter and felony child endangerment. (See alsoPeople v. Rippberger (91) 231 CA3d 1667, 1687-88 [283 CR 111].) [RESEARCH NOTE: See “Putting Square Pegs in a Round Hole: Procedural Due Process and Effect of Faith Healing Exemptions on the Prosecution of Faith Healing Parents.” J.L.R. 29 U.S.F.L. REB. 43-119, Fall 1994.]

F 8.45 n2 Involuntary Manslaughter Based Upon Non-Inherently Dangerous Felony (PC 192(b)).

Involuntary manslaughter may be predicated upon the commission of an inherently dangerous misdemeanor (see CJ 8.45) and second degree murder may be predicated upon the commission of an inherently dangerous felony. Hence, a death which is proximately caused by the commission of an “undangerous felony” is involuntary manslaughter. (People v. Burroughs (84) 35 C3d 824, 834-36 [201 CR 319].)

(See also FORECITE F 8.45b.)

F 8.45 n3 Unreasonable Self-Defense With No Intent To Kill Is Voluntary Manslaughter (PC 192(b)).

See People v. Blakeley (2000) 23 C4th 82, 87 [96 CR2d 451] [imperfect self-defense with no intent to kill is voluntary, not involuntary manslaughter].

Retroactivity Note: See FORECITE F 8.40 n15.

See also FORECITE F 5.17d.

F 8.45 n4 Aider And Abettor Must Intend To Aid And Abet The Act Committed By The Perpetrator (PC 192(b)).

“Attempted” involuntary manslaughter is a legal impossibility, since involuntary manslaughter has no “intent to kill” element. (See People v. Broussard (77) 76 CA3d 193, 197 [142 CR 664].) Hence, involuntary manslaughter is not an offense that one may directly aid and abet, because aiding and abetting requires that one know and share the intent of the perpetrator. (See People v. Beeman (84) 35 C3d 547, 560-61 [199 CR 60].) Since it is a legal impossibility for the perpetrator to intend to commit involuntary manslaughter, the liability of an aider and abetter must flow, if at all, from a known and shared intent to commit the act upon which the involuntary manslaughter charge is predicated. (See generally, FORECITE F 3.02.)

F 8.45 n5 Involuntary Manslaughter As LIO Of Murder Based On Assault Or Battery Without Malice.

It is established that involuntary manslaughter may be based upon the commission of a non-inherently dangerous felony. (See FORECITE F 8.45 n2.) However, involuntary manslaughter may also be based upon the inherently dangerous felonies of assault or battery. Such a result is based upon the following analysis: 1) a second-degree felony murder conviction may not be sustained based on a killing which occurs during the commission of a felony which is an integral part of the homicide such as assault or battery (People v. Ireland (69) 70 C2d 522, 539 [75 CR 188]); 2) if there was no intent to kill the defendant may not be convicted of voluntary manslaughter (see People v. Coad (86) 181 CA3d 1094, 1106 [226 CR 386]; see also People v. Rhodes (89) 215 CA3d 470, 476, fn 3 [263 CR 603]); 3) in light of the above and to avoid absurd results, the defendant who commits an unintentional killing without malice during the commission of an assault or battery, should be liable for conviction of involuntary manslaughter. (People v. Cameron (94) 30 CA4th 591, 603 [36 CR2d 656] [disapproving People v. Rhodes (89) 215 CA3d 470, 476, fn 3 [263 CR 603].) Accordingly, the jury should be instructed that if the killing occurred during the commission of an assault or battery, and was unintentional and was committed without malice, the homicide is involuntary manslaughter. [See Brief Bank # B-719 for additional briefing on this issue.]

F 8.45 n6 Involuntary Manslaughter As LIO Of Murder Based On Heat Of Passion.

People v. Shannon (96) 46 CA4th 1365 [54 CR2d 416] held that voluntary manslaughter is not a lesser included of implied malice murder based on heat of passion. (But see FORECITE F 8.40 n11.) Shannon‘s conclusion was based, in part, upon the fact that voluntary manslaughter requires an intent to kill and a killing occurring with implied malice does not involve intent to kill. (But see FORECITE F 5.17d [Imperfect Self-Defense Applies to Implied Malice].) [An article addressing heat of passion and the lesser offenses of involuntary and voluntary manslaughter is available to FORECITE subscribers, ask for Article Bank # A-67.] However, Shannon did not consider and resolve the question of whether a non-intentional killing committed in the heat of passion may be reduced to involuntary manslaughter. The impediment of a required intent to kill — which Shannon held precluded reduction of the killing to voluntary manslaughter — is not present in involuntary manslaughter and, hence, there is, perhaps, a stronger argument for reduction of such an offense to involuntary manslaughter. [See Brief Bank # B-720 for additional briefing on this issue, including a discussion on out-of-state authorities.]

F 8.45 n7 Appellate Issue Alert: Pre-1997 Version.

The pre-1997 version of CJ 8.45 failed to require that the unlawful act be dangerous under the circumstances of its commission. (See CALJIC History CJ 8.45.)

F 8.45 n8 Involuntary Manslaughter: Instruction On Target Offense.

People v. Huynh (2002) 99 CA4th 662 [121 CR2d 340] held that there is no sua sponte duty to instruct on target offenses which are the predicate for an involuntary manslaughter conviction. (See also FORECITE F 3.02 n16.) However, if the prosecutor requests that the jury consider a specific target offense, then sua sponte instruction on that target offense may be required. (Huynh (99 CA4th at 678.)

However, this holding would not preclude the instruction upon target offenses if requested by defense counsel. (Ibid.)

F 8.45 n9 Involuntary Manslaughter: Misdemeanor Battery.

(See People v. Benavides (2005) 34 C4th 69, 103 [listing examples of involuntary manslaughter based on misdemeanor assault or battery].)

F 8.45a

Involuntary Manslaughter:

Causal Requirement

(PC 192(b))

*Modify ¶ 4 of CJ 8.45 to provide as follows [added language is capitalized; deleted language is between <<>>]:

A killing is unlawful within the meaning of this instruction if it WAS CAUSED BY <<occurred>>:

I. <<During>> ….

*At the end of CJ 8.45 add the following:

You may not find that the killing was caused by the act committed by defendant unless the killing was a probable consequence naturally flowing from the commission of the act.

Points and Authorities

Involuntary manslaughter is described in PC 192 as a killing without malice “in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” Additionally, under both definitions of involuntary manslaughter, a causal connection between the defendant’s act and the killing is a necessary requirement. (See People v. Penny(55) 44 C2d 861, 867-68 [285 P2d 926]; People v. Butts (65) 236 CA2d 817, 837 [46 CR 362]; see also People v. Burroughs (84) 35 C3d 824, 835 [201 CR 319]; People v. Rodriguez (60) 186 CA2d 433, 440 [8 CR 863].) CJ 8.45 fails to convey this requirement. Although the requirement is suggested by CJ 8.46 (due caution and circumspection — defined) as to any ordinarily lawful act, no causation requirement is included as to the unlawful act (inherently dangerous misdemeanor) theory of liability. Hence, CJ 8.45 should be modified as set forth above to set forth the causation requirement as it is stated in Butts.

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.]

NOTES

[Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-555.]

[For additional briefing on this issue, see Brief Bank # B-956.]

For additional discussion of causation, see generally, FORECITE F 3.40 and FORECITE F 3.41.

Homicide: Causation. See FORECITE F 8.55a.

F 8.45b

Involuntary Manslaughter: Defined – Non-Inherently Dangerous Felony

(PC 192(b))

ALERT: In People v. Lee (99) 20 C4th 47 [82 CR2d 625] the California Supreme Court held that the trial court is obligated to instruct sua sponte on all theories of involuntary manslaughter presented to the evidence.

*Modify ¶ 7 CJ 8.45, when appropriate, to provide as follows:

During the commission of a felony which is not inherently dangerous to human life; namely, __________ [insert applicable felony], if that felony is committed without due caution and circumspection.

Points and Authorities

CJ 8.45 defines involuntary manslaughter only as an inherently dangerous misdemeanor. However, involuntary manslaughter also occurs when the defendant commits an unintentional homicide in the course of a non-inherently dangerous felony which might, nevertheless, produce death if committed without due caution and circumspection. (People v. Burroughs (84) 35 C3d 824, 836 [201 CR 319]; see also People v. Cameron (94) 30 CA4th 591, 603 [36 CR2d 656]; People v. Evers (92) 10 CA4th 588, 596 [12 CR2d 637].)

[See Brief Bank #B-743 for additional briefing on this issue.]

PRACTICE NOTE

Obviously the defendant would only want to request this instruction for strategic reasons in order to provide a lesser option to submit to the jury. However, the court may be obligated to instruct sua sponte on lesser included offenses even over defense objection. (See People v. Barton (95) 12 C4th 186 [47 CR2d 569]; see also FORECITE LIO II.)

F 8.45c

Involuntary Manslaughter: Dangerousness And Gross Negligence Elements

(PC 192(b))

SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 8.45 was amended to adopt FORECITE’s definition of an unlawful killing [unlawful act which must be dangerous under the circumstances of its commission].

*Replace definition of unlawful killing in CJ 8.45 with the following:

A killing is unlawful within the meaning of this instruction if it occurred during the commission of an act which was:

1. Committed in a manner which was dangerous to human life and safety,

2. Committed with gross negligence as defined in these instructions, and

3. A cause of the killing as defined in these instructions.

An act is dangerous to human life and safety if, under the circumstances of its commission it involved a high degree of risk of death or great bodily injury to another person.

Points and Authorities

In People v. Stuart (56) 47 C2d 167, 173 [302 P2d 5], the Supreme Court held that “[t]o be an unlawful act within the meaning of section 192 … the act in question must be dangerous to human life or safety and meet the conditions of [PC] section 20.” [Emphasis added.]

Subsequent Court of Appeal cases suggested that the dangerousness requirement of Stuart was satisfied by commission of a misdemeanor or infraction which is determined by the trial court to be “inherently dangerous in the abstract.” (See cases discussed in People v. Wells (96) 12 C4th 979, 984-89 [50 CR2d 699].)

This construction of Stuart resulted in illogical application of the statute. On the one hand, an act which was grossly negligent and extremely dangerous in its commission could be excluded from the scope of PC 192(c) if the misdemeanor predicate for the conviction was not determined to be inherently dangerous. (See Wells, 12 C4th at 988.) On the other hand, an act not necessarily dangerous in its commission (e.g., going 1 mile per hour over the speed limit) could be the basis for conviction of involuntary manslaughter. (Compare CJ 8.97 [violation of maximum speed law is inherently dangerous misdemeanor or infraction] with People v. Hammond DEPUBLISHED (92) 9 CA4th 1523 [12 CR2d 205] [basic speed law (CJ 8.95) and running a stop sign are not inherently dangerous]; see also, People v. (Van) Wells DEPUBLISHED (95) 36 CA4th 25, 33-34 [37 CR2d 894] (issue not decided on review People v. Wells (96) 12 C4th 979 [50 CR2d 699].) [A copy of the Hammond and pertinent portion of the (Van) Wells opinion are available to FORECITE subscribers. Ask for Opinion Bank # O-201 a/b.]

Because of such illogical results, the modern trend has been to abolish altogether unlawful-act involuntary manslaughter in favor of defining the crime in terms of criminal or gross negligence. (See LaFave & Scott, Substantive Criminal Law (1986) § 7.13, p. 287.) “There is no logical reason for inflicting manslaughter punishment on one who unintentionally kills another simply because he is committing a traffic violation ….” (Id. at p. 298.)

In Wells, the California Supreme Court moved towards this modern approach. Wells rejected the view that an unlawful act should be defined by whether or not it is inherently dangerous in the abstract. The court held that liability for involuntary manslaughter must be governed “not [by] the misdemeanor itself in the abstract, but [by] the conduct of the defendant in the circumstances in which the violation occurred. To support a conviction of violating [PC] 192(c) the circumstances of the violation, not the offense in the abstract must be dangerous to human life and safety.” (Wells, 12 C4th at 988 [emphasis added].) The logical import of this analysis is that involuntary manslaughter should be defined by the defendant’s gross negligence under the circumstances rather than by abstract consideration of the act committed. Hence, so long as the defendant caused death by a grossly negligent act, it shouldn’t matter whether or not the act was inherently dangerous in the abstract or even whether it was lawful or unlawful. (See Wells, 12 C4th at 989-90, and fn 8.)

Moreover, the inherently dangerous act concept adds unnecessary complexity and uncertainty to the law of involuntary manslaughter. In theory, commission of an inherently dangerous crime or infraction encompasses gross negligence because it can only be committed in a dangerous manner. However, in practice it has been difficult to satisfactorily determine inherent dangerousness from abstract, statutory elements.

For example, it is still uncertain whether or not a violation of the maximum speed law (VC 22349) is inherently dangerous. CJ 8.97 (5th Ed. 1988) has long stated that it is. The trial court in Wells agreed with CALJIC’s position (Wells, 12 C4th at 989); but the Court of Appeal in Wells disagreed with CALJIC (see above) and the Supreme Court failed to definitively resolve the issue one way or the other. (Wells, 12 C4th at 989 [“[T]he trial court may have erred in instructing the jury that Vehicle Code section 22349 is an offense which constitutes an inherently dangerous act in the abstract …”].) Hence, the question of whether speeding is inherently dangerous is literally up in the air. (But seeHanna v. Riveland (9th Cir. 1996) 87 F3d 1034, 1038-39 [reckless vehicular homicide conviction may not be based solely upon the defendant’s admission to driving slightly in excess of the speed limit].)

Nor is this just an isolated example. So long as the inherently dangerous concept is utilized, trial and appellate courts will continually be grappling with the difficult determination of whether a particular statute can be violated in a non-dangerous manner (see discussion of Hammond, above), thus fostering continued uncertainty in the law.

In sum, both the literal language of Wells, as well as the logic and policy considerations behind it, teach that involuntary manslaughter should be determined by whether the defendant committed an act in a grossly negligent manner.

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 FORECITE PG VII(C).]

NOTES

The definition of unlawful act set forth in Wells for PC 192(c) is equally applicable to PC 192(b). (See Wells, 12 C4th at 986 [“… use of the same phrase – unlawful act not amounting to felony – in sections [PC] 192(b) and [PC] 192(c) suggest that the legislature intended that the phrase be given the same meaning in both sections”].)

F 8.45d

Involuntary Manslaughter: Elements of Unlawful Act Manslaughter

*Replace definition of unlawful act manslaughter in CJ 8.45 with the following:

A killing is unlawful within the meaning of this instruction if it occurred:

1. During the commission of the unlawful act of _____________, as defined elsewhere in these instructions, provided:

a. The act, under the circumstances of its commission, involved a high degree of risk of death or great bodily injury, and;

b. The act was intentionally committed with actual knowledge of such risk or with gross negligence; or

Points and Authorities

Under People v. Wells (96) 12 C4th 979 [50 CR2d 699] and People v. Cox (2000) 23 C4th 665 [97 CR2d 647] unlawful act involuntary manslaughter (PC 192(b) requires proof that the unlawful act is “dangerous under the circumstances of its commission.” This requirement applies even where the unlawful act is a misdemeanor offense committed with general criminal intent. (Cox, 23 C4th at 670.)

F 8.45e

Modification When Crime Involves Fetal Victim

*Modify CJ 8.45 in paragraphs which include “human being(s)” as follows:

(See FORECITE 5.00b.)

F 8.45f

Involuntary Manslaughter–Defined

*Modify 3rd ¶ of CJ 8.45 as follows. Added language is capitalized. Delete remainder of CJ 8.45 after 3rd ¶]:

A killing is unlawful within the meaning of this instruction if it occurred: [UPON SUDDEN QUARREL OF HEAT OF PASSION] [OR] [IN THE ACTUAL BUT UNREASONABLE BELIEF IN THE NECESSITY TO DEFEND ONESELF [AND] [OR] [ANOTHER] AGAINST IMMINENT PERIL TO LIFE OR GREAT BODILY INJURY].

Points and Authorities

See FORECITE F 5.17d.

F 8.45g

Accidental Killing Resulting From Firing Of Weapon With Intent

Only To Frighten

*Add to CJ 8.45:

If the defendant fired the weapon with the intent only to frighten, and not to shoot the deceased, and if the defendant did not act in self-defense as defined in these instruction, then you may convict the defendant of involuntary manslaughter.

Points and Authorities

If a defendant discharges a gun “with intent only to frighten, and not to shoot the deceased, and such act was not done in the exercise of defendant’s right of self-defense, he could be found guilty of involuntary manslaughter. (People v. McGee (47) 31 C2d 229, 238-39 [187 P2d 706]; see also People v. Southack (52) 39 C2d 578, 583-84 [248 P2d 12].) [An unpublished opinion on reversing for failure to instruct on this theory is available to FORECITE subscribers. Ask for Opinion Bank # O-245.]

F 8.45h

Involuntary Manslaughter: Elements Of Lawful Act Manslaughter

*Modify CJ 8.45, Element 2 to provide as follows:

A killing is unlawful within the meaning of this instruction if it occurred during the commission of an act, ordinarily lawful, which involves a high degree of risk of death or great bodily injury, and which act is committed with gross negligence as defined in these instructions.

Points and Authorities

In light of People v. Wells (96) 12 C4th 979 [50 CR2d 699] involuntary manslaughter should be defined in terms of gross negligence and causation. (See FORECITE F 8.45c.)