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F 3.41 n1 Juror Confusion Over The Meaning Of “Substantial.”
[See FORECITE F 1.30a.]
F 3.41 n2 Superseding Cause: Prejudicial Effect Of Omission.
See People v. Hansen (97) 59 CA4th 473, 482 [holding failure to instruct on superseding cause to be harmless].
F 3.41 n3 Intervening Cause: Need Not Be Committed By Third Party.
While normally an intervening cause is discussed in terms “of a third person or other force” (see People v. Schmies (96) 44 CA4th 38, 49, fn 6 [51 CR2d 185]), there is no reason why the intervening cause cannot be committed by the same person. For example, if A inflicts a blow on B which would not result in death unless left untreated for a matter of days or weeks and two days later A inflicts another wound on B which is the undisputed cause of death, the second wound is an intervening cause and it would be improper for the jury to convict the defendant of homicide based on the first wound. (Cf., LaFave & Scott, Substantive Criminal Law (1986) § 3.12(f)(6), p. 410.) [An unpublished opinion and briefing in a case reaching this result under facts analogous to the above hypothetical is available to FORECITE subscribers. See Brief Bank # B-804 and Opinion Bank # O-249.]
F 3.41a
Causation: Intervening Cause
*Modify CJ 3.41 as follows:
[See FORECITE F 3.40a.]
Points and Authorities
CALJIC contains no instruction regarding the foreseeability of intervening causes. However, an intervening cause may relieve the defendant of liability if it was not “a normal and reasonably foreseeable result of defendant’s original act …” (See People v. Harris (75) 52 CA3d 419, 426 [125 CR 40]; Perkins & Boyce, Criminal Law (3d Ed. 1982) at 791, 809; 1 La Fave & Scott, Substantive Crim. Law (1986) § 3.12 at 397-98; 1 Witkin & Epstein, Cal. Crim. Law (2d Ed. 1988) § 126 at 149-50.) Hence, when appropriate, CJ 3.41 should be modified to include the foreseeability requirement. (See also People v. Acosta DEPUBLISHED (91) 232 CA3d 1375 [284 CR 117].) This modification is supported by the California Supreme Court which held in People v. Roberts (92) 2 C4th 271, 321-22 [6 CR2d 276], that an instruction which removes the question of foreseeability incorrectly states the law of proximate cause. (See also People v. Morse (92) 2 CA4th 620, 642 [3 CR2d 343]; People v. Armitage (87) 194 CA3d 405, 420 [239 CR 515].) Moreover, upon request the defendant has a right to a pinpoint instruction which relates the defense theory to reasonable doubt. (See FORECITE PG III(A).) [Briefing on this issue is available to FORECITE subscribers. See Brief Bank # B-961.]
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
The precise consequence need not have been foreseen so long as the possibility of some harm from the intervening act was foreseeable. (Harris 52 CA3d at 427.)
F 3.41b
Intervening Cause: Negligence Of Third Party
*Modify CJ 3.41 as follows:
Evidence has been presented from which you may find that the defendant’s act was a cause of the [death][injury] but that the immediate cause of the [death][injury] was the negligent conduct of another person. You may not convict the defendant based on such a finding unless you also find that when the defendant committed the act which was a cause of the [death][injury] the intervening negligence of the other person would have been reasonably foreseeable to a reasonable person in the same position as the defendant.
If you have a reasonable doubt whether the intervening negligence would have been reasonably foreseeable to a reasonable person in the same position as the defendant you must give the defendant the benefit of that doubt and find [him][her] not guilty.
Points and Authorities
The principles of causation hold a person liable for an act committed even though the injury was immediately caused by the negligence of another person provided that the negligence of the other person was reasonably foreseeable. (See Pappert v. San Diego Gas & Electric Co. (82) 137 CA3d 205, 209 [186 CR 847]; BAJI 3.79; see also, FORECITE F 3.40 n7.) Accordingly, as with other causation situations, the jury should determine, based on a reasonable person standard, whether the third party’s negligence was a natural and probable consequence of the defendant’s act. (See FORECITE F 3.41a.)
