Return to CALJIC Part 5-8 – Contents
F 5.00a
Excusable Homicide: Explanation Of The Degree Of
Care And Caution Required
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 5.00 was amended, adopting FORECITE’s recommendation that the standard of care for excusable homicide is not ordinary civil negligence, but criminal negligence.
*Add to CJ 5.00:
The standard of care for an excusable homicide is criminal negligence. Criminal negligence means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care.
Hence, even if the homicide was the result of the defendant’s failure to exercise ordinary or reasonable care, you may not find the defendant criminally liable for the homicide unless the defendant’s negligence rose to the level of criminal negligence.
[Insert full definition of criminal negligence (e.g., CJ 3.36).]
Points and Authorities
People v. Mayfield (97) 14 C4th 668, 781 [60 CR2d 1] recognized that CJ 5.00 should be modified to explain that the standard of care required for an excusable homicide is not ordinary civil negligence, but criminal negligence. The distinction between ordinary and criminal negligence in paragraph one of the above instruction is adapted from CJ 3.36.
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).]
F 5.00b
Modification When Crime Involves Fetal Victim
*Modify CJ 5.00 in paragraphs which include “human being(s)” as follows [added language is capitalized]:
…human being [OR] [FETUS]
Points and Authorities
In cases involving charges arising from death or injury to a fetus the CALJIC instruction should be modified as set forth above. (See FORECITE F 8.11e.)