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F 3.40 n1 Proximate Cause: “Substantial Factor” Test.
In Mitchell v. Gonzales (91) 54 C3d 1041, 1048-54 [1 CR2d 913], the Supreme Court held that the “but for” definition of proximate cause (BAJI 3.75) should no longer be given in civil trials. Instead BAJI 3.76 which utilizes the “substantial factor” test should be given.
In criminal cases the “but for” test (CJ 3.40) is used (People v. Armitage (87) 194 CA3d 405, 420 [239 CR 515]) except when there are concurrent causes in which case proximate cause is defined in terms of the “substantial factor” test. (See People v. Superior Court (Bennett) (90) 223 CA3d 1166 [273 CR 71]; People v. Caldwell (84) 36 C3d 210, 220 [203 CR 433].) Hence, the civil “substantial factor” test enunciated in Mitchell should not be used to determine the outcome in criminal cases where different factors and interests come into play. (See Perkins and Boyce, Criminal Law (3d Ed. 1982) pp. 776-77; 1 La Fave & Scott, Substantive Criminal Law (1986) § 3.12, pp. 397-98.)
[Research Note: See FORECITE BIBLIO 3.40, et al.]
F 3.40 n2 The Term “Proximate” Is Unduly Confusing.
In People v. Roberts (92) 2 C4th 271, 313 [6 CR2d 276], the Supreme Court suggested that former CJ 3.40 – which defined proximate cause – may be subject to challenge under Mitchell v. Gonzales (91) 54 C3d 1041, 1048-54 [1 CR2d 913]. In Roberts the court observed that “the civil instruction’s infirmity is equally great in criminal cases.” However, the court found no error in Roberts because the record contained no evidence establishing a “possibly supervening cause of … death.” (Roberts 2 C4th at 313; but see People v. Bland (2002) 28 C4th 313, 338 [121 CR2d 546] [correct definition of proximate causation is broader, not narrower, than jurors might assume and, therefore, any confusion on the jury’s part could only benefit the defendant].)
PRACTICE NOTE: CALJIC has modified CJ 3.40 in light of Mitchell by deleting the term “proximate” but appellate practitioner’s should be alert to cases which used the old version.
[Research Note: See FORECITE BIBLIO 3.40, et al.]
F 3.40 n3 Pre-1992 Causation Instructions Created Improper Mandatory Presumption.
The pre-1992 versions of CJ 3.40 and CJ 8.55 merely informed the jury that if it found a natural and continuous sequence, then the defendant’s act was, as a matter of law, the proximate cause of death. This is not a correct statement of the law because it precludes the jury from considering intervening causes and was disapproved in both People v. Roberts (92) 2 C4th 271, 311-13 [6 CR2d 271] and Mitchell v. Gonzales (91) 54 C3d 1041, 1048-54 [1 CR2d 913]. These cases held that for criminal liability to be found, the harm must not only be the direct result of the act, but also not so remote as to fail to constitute the natural and probable consequences of defendant’s act. (See Use Note to CJ 3.40 (1992 revision).)
The instruction also suffers from another infirmity not addressed in Mitchell or Roberts. The instruction includes a conclusive mandatory presumption regarding the finding of proximate cause. Such a presumption is invalid because it removes from the jury’s consideration other factors that must be considered in determining proximate cause. This mandatory presumption is unconstitutional because it conflicts with the presumption of innocence and relieves the prosecution of its burden to prove every element beyond a reasonable doubt. (See People v. Hedgecock (90) 51 C3d 395, 407 [272 CR 803].) Accordingly, the instruction implicates the 14th Amendment due process principles of the federal constitution. [Additional briefing on this issue is available to FORECITE subscribers. Search for B-961.]
[Research Note: See FORECITE BIBLIO 3.40, et al.]
F 3.40 n4 Sua Sponte Duty To Instruct On Causation.
In People v. Bismillah DEPUBLISHED (94) 21 CA4th 1525, 1530 [26 CR2d 746], the court held that it was reversible error for the court to fail to instruct sua sponte upon the meaning of the term “proximate cause.” [Briefing on this issue is available to FORECITE subscribers. Search for B-961.]
[Research Note: See FORECITE BIBLIO 3.40, et al.]
F 3.40 n5 Causation: Specific Reference To Foreseeability Not Necessary.
In People v. Temple (93) 19 CA4th 1750, 1756 [24 CR2d 228], the court held that CJ 3.40 sufficiently informs the jury as to foreseeability by requiring that the criminal act be a direct, natural and probable consequence of the defendant’s act. Hence, the trial court properly refused defense instructions which specifically referred to the principles of foreseeability and intervening causes.
However, this holding is difficult to square with cases such as People v. Carter (93) 19 CA4th 1236, 1251-53 fn 11 [23 CR2d 888] (see also FORECITE PG III(A)) which have allowed instructions amplifying specific aspects of general legal issues.
[Research Note: See FORECITE BIBLIO 3.40, et al.]
F 3.40 n6 Subsequent Medical Treatment As Intervening Cause.
Inadequate medical treatment is not an independent intervening cause, while “grossly improper” medical treatment may constitute an independent intervening cause if it is the sole cause of death and was unforeseeable. (People v. Funes (94) 23 CA4th 1506, 1524, n 9 [28 CR2d 758].) Accordingly, where the decision to withhold antibiotics was “a normal and reasonably foreseeable result of the defendant’s original act,” it is not an independent intervening cause. (Funes, 23 CA4th at 1523.) In such case, it is not error to refuse a requested instruction upon independent intervening causation.
The instruction offered in Funes provided as follows: “A person who has injured another is not responsible for the other’s death, even though the death would not have occurred but for the injury, if the death is the result of some other independent intervening cause. ¶ In this case you must decide from the evidence whether the acts of the doctors treating Jorge Sanchez constituted an independent intervening cause, so that those acts, rather than any act by the defendant were the proximate cause of Sanchez’ death. ¶ Whether an intervening cause is independent, and is therefore regarded as the proximate cause of a death, depends on whether it is a normal and reasonably foreseeable result of the defendant’s original act. An intervening cause need not be unlawful or a violation of a duty in order to be independent within the meaning of this instruction. ¶ If after considering all of the evidence, you have reasonable doubt as to whether an act of the defendant was the proximate cause of Sanchez’ death, you must give the defendant the benefit of that doubt and find that his act was not the proximate cause.” (Funes, 23 CA4th at 1523, n 8.) [Note that use of the term “proximate” is no longer appropriate. See FORECITE F 3.40 n2.]
RESEARCH NOTES
See FORECITE BIBLIO 3.40, et al. See also Annotation, Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 ALR5th 467, and Later Case Service.
F 3.40 n7 Negligence Of Third Party Is Not Intervening Cause.
An intervening or superseding cause is one which relieves the criminal actor of responsibility by breaking the chain of causation after the defendant’s original act. Therefore, the negligent failure of a third party to take preventive steps which might have prevented the natural and probable consequences of the defendant’s conduct does not constitute an intervening or superseding cause. (See People v. Autry (95) 37 CA4th 351, 360-63 [43 CR2d 135].) However, a dangerous preexisting condition may cutoff the defendant’s liability if the preexisting condition is the sole cause of the injury or death. (Ibid.; see also, People v. Glass (68) 266 CA2d 222, 226 [71 CR 858]; FORECITE F 2.50 n17.)
F 3.40a
Causation: Objective Reasonableness Element
*Add to CJ 3.40:
To determine whether the [death] [injury] was a natural and probable consequence of an act [omission] committed by the defendant, you must find the following beyond a reasonable doubt:
1. The defendant committed an act [omission] which set in motion a chain of events which produced the [death] [injury] and without which the [death] [injury] would not have occurred; and
2. At the time such act [omission] was committed, a reasonable person in the defendant’s situation would have known that the [death] [injury], as it occurred, would be a natural and probable consequence of the act committed.
If you have a reasonable doubt as to whether (1) the defendant committed the act [omission] or (2) a reasonable person in the defendant’s situation would have known that the [death] [injury], as it occurred, would be a natural and probable consequence of the act committed, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Points and Authorities
Neither CJ 3.40 nor CJ 3.41 includes the objective reasonableness element of causation. CJ 3.40 does contain the requirement that the consequence be “direct, natural and probable ….” However, this language does not require a finding that the consequence was objectively foreseeable to a reasonable person in the defendant’s position. Yet, such objective reasonableness is an essential element of causation. (People v. Nguyen (93) 21 CA4th 518, 535 [26 CR2d 323] [foreseeability in aiding and abetting context “is objective; it is measured by whether a reasonable person in the defendant’s position would have or should have known that the charged offense was a reasonably foreseeable consequences of the act aided and abetted.”]; see also, Sturgeon v. Curnutt (94) 29 CA4th 301, 306 [34 CR2d 498] [foreseeability supports a duty only to the extent the foreseeability is reasonable”].)
Accordingly, CJ 3.40 should be modified as set forth above to require the jury to find foreseeability based on the objective reasonable person standard.
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(C).]
NOTES
See also, FORECITE F 3.02a [Natural And Probable Consequences: Objective Standard.]
F 3.40b
Causation/Natural and Probable Consequences:
Permits Consideration Only Of Circumstances Known To The Defendant
*Add to CJ 3.40:
In determining whether a reasonable person in the defendant’s situation would have known that the [death] [injury], as it occurred, would be a natural and probable consequence of the act committed, you may consider only those circumstances which the defendant knew to exist when [he] [she] committed the act.
Points and Authorities
In determining reasonable foreseeability, it is necessary to find that a reasonable person in the same position as the defendant would have known the consequence to be a reasonably foreseeable result of the act committed. (See FORECITE F 3.40a.) Hence, to make this determination, the jury must consider only those circumstances which the defendant knew at the time he or she committed the act. (See People v. Nguyen (93) 21 CA4th 518, 531-32 [26 CR2d 323].)
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).]
