SERIES 200 POST-TRIAL: INTRODUCTOR
F 240 CAUSATION
TABLE OF CONTENTS
F 240 Inst 1 Causation: Clarification Of Language
F 240 Inst 2 Causation: Applies To Act Or Omission
F 240 Inst 3 Causation: Objective Reasonableness Element
F 240 Inst 4 Causation/Natural and Probable Consequences: Permits Consideration Only Of Circumstances Known To The Defendant
F 240 Inst 5 Causation: Intervening Cause
F 240 Inst 6 Intervening Cause: Negligence Of Third Party
F 240 Inst 7 General Instructions: Definitions—”Substantially” Or “Substantial”
F 240 NOTES
F 240 Note 1 Sua Sponte Duty To Instruct On Causation
F 240 Note 2 Subsequent Medical Treatment As Intervening Cause
F 240 Note 3 Negligence Of Third Party Is Not Intervening Cause
F 240 Note 4 Superseding Cause: Prejudicial Effect Of Omission
F 240 Note 5 Intervening Cause: Need Not Be Committed By Third Party
F 240 Note 6 CACI Should Be Used To Define “Superseding Cause”
Return to Series 200 Table of Contents.
F 240 Inst 1 Causation: Clarification Of Language
*Modify CC 240, paragraph 1, sentence 3 as follows [deleted language is stricken]:
In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
Points and Authorities
Use of the phrase “established by the evidence” could be improperly interpreted to imply a duty on the part of the defense to establish its defensive theory as to causation. (See generally FORECITE F 100.1 Inst 1.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 4.2 [Defendant Has No Burden To Prove Defense Theory Which Negates Element Of Charge]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 240 Inst 2 Causation: Applies To Act Or Omission
*Modify CC 240 as follows [added language is underlined]:
An [act] [or] [omission] causes (injury/__________ <insert other description>) if the (injury/__________ <insert other description>) is the direct, natural, and probable consequence of the [act] [or] [omission] and the (injury/__________ <insert other description>) would not have happened without the [act] [or] [omission]. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.
<Give if multiple potential causes.>
[There may be more than one cause of (injury/__________<insert other description>). An [act] [or] [omission] causes (injury/__________ <insert other description>), only if it is a substantial factor in causing the (injury/__________ <insert other description>). A substantial factor is more than a trivial or remote factor. However, it does not have to be the only factor that causes the (injury/__________ <insert other description>).]
Points and Authorities
Causation principles are equally applicable when liability is based on an omission. (See CALJIC 3.40.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
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.
F 240 Inst 3 Causation: Objective Reasonableness Element
*Add to CC 240:
To prove that the [death] [injury] was a natural and probable consequence of an [act] [or] [omission] committed by the defendant, the prosecution must prove the following beyond a reasonable doubt:
1. The defendant committed an [act] [or] [omission] which set in motion a chain of events which produced the [death] [injury]; and
2. The [death] [injury] would not have occurred without the [act] [or] [omission];
AND
3. At the time such [act] [or] [omission] was committed, a reasonable person in the defendant’s situation, and knowing what the defendant knew, would have known that the [death] [injury], as it occurred, was a natural and probable consequence of the [act] [or] [omission].
If you have a reasonable doubt as to any of the above requirements, you must give the defendant the benefit of that doubt and find [him] [her] not guilty.
Points and Authorities
CALCRIM 240 includes the objective reasonableness element of causation and contains 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 situation. Such objective reasonableness is an essential element of causation. (People v. Nguyen (1993) 21 CA4th 518, 535 [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 consequence of the act aided and abetted” ]; see also, Sturgeon v. Curnutt (1994) 29 CA4th 301, 306 [foreseeability supports a duty only to the extent the foreseeability is “reasonable” ].)
Accordingly, CALCRIM 240 should be modified to require the jury to find foreseeability based on the objective reasonable person standard.
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
FORECITE CG 3.6 [Failure To Specifically Enumerate One Or More Elements]
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.
NOTES
See also, FORECITE F 3.02a [Natural And Probable Consequences: Objective Standard].
CALJIC NOTE: See FORECITE F 3.40a.
F 240 Inst 4 Causation/Natural and Probable Consequences: Permits Consideration Only Of Circumstances Known To The Defendant
*Add to CC 240:
In determining whether a reasonable person in the defendant’s situation would have known that the [death] [injury], as it occurred, was a natural and probable consequence of the [act] [or] [omission] committed, you may consider only those circumstances which the defendant knew to exist when [he] [she] committed the [act] [or] [omission].
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 240 Inst 3].) 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 (1993) 21 CA4th 518, 531-32.)
Identification Of Parties—See FORECITE F 100.2 Note 1.
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 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
FORECITE CG 3.12 [Requirement Of Criminal Mens Rea]
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 3.40b.
F 240 Inst 5 Causation: Intervening Cause
See FORECITE F 240 Note 2, Note 3, Note 4, Note 5.
F 240 Inst 6 Intervening Cause: Negligence Of Third Party
See FORECITE F 240 Note 3.
F 240 Inst 7 General Instructions: Definitions— “Substantially” Or “Substantial”
*Add to last sentences of CC 240 [added language is underlined]:
A substantial factor is more than a trivial or remote factor. “Substantial”means essential or important. However, it does not have to be the only factor that causes the (injury/__________ <insert other description>).]
Points and Authorities
CALCRIM does not provide a general definition of “substantially” or “substantial” in its section on general instructions dealing with definitions. The definition above is taken from the common dictionary definition of the term.
However, it will have to be determined whether instruction upon the term is necessary since it may be argued that it is within the realm of the jurors’ common understanding. (But see FORECITE F 200.5 Inst 3.)
The above definition of “substantially” contained in CJ 16.185 is attributed in the comment to the case of Universal Engineering Co. v. State Board of Equalization (1953) 118 CA2d 36, 42.
Identification Of Parties— See FORECITE F 100.2 Note 1.
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 3.5 [Failure To Fully, Clearly and Accurately Instruct On An Element]
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 1.30a.
F 240 NOTES
F 240 Note 1 Sua Sponte Duty To Instruct On Causation
The judge should sua sponte define “proximate case” if causation is an element of the crime. (California Mandatory Criminal Jury Instruction Handbook (CJER) (2013) § 2.150; see also People v. Bismillah DEPUBLISHED (1994) 21 CA4th 1525, 1530 [reversible error for the court to fail to instruct sua sponte upon the meaning of the term “proximate cause”].) But see People v. Fiu (2008) 165 CA4th 360, 373-77 [no sua sponte duty to instruct on supervening cause]. [See CALCRIM Brief Bank # B-961 for briefing on this issue.]
[Research Note: See FORECITE BIBLIO 3.40, et al.]
CALJIC NOTE: See FORECITE F 3.40 n4.
F 240 Note 2 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 (1994) 23 CA4th 1506, 1524, n 9.) 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’s 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’s 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.
CALJIC NOTE: See FORECITE F 3.40 n6.
F 240 Note 3 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 (1995) 37 CA4th 351, 360-63.) 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 (1968) 266 CA2d 222, 226; FORECITE F 375 Note 7.)
CALJIC NOTE: See FORECITE F 3.40 n7.
F 240 Note 4 Superseding Cause: Prejudicial Effect Of Omission
See People v. Hansen (1997) 59 CA4th 473, 482 [holding failure to instruct on superseding cause to be harmless].
CALJIC NOTE: See FORECITE F 3.41 n2.
F 240 Note 5 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 (1996) 44 CA4th 38, 49, fn 6), 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.) [See Opinion Bank # O-249 forthe unpublished opinion in a case reaching this result under facts analogous to the above hypothetical.
CALJIC NOTE: See FORECITE F 3.41 n3.
F 240 Note 6 CACI Should Be Used To Define “Superseding Cause”
See People v. Brady (2005) 129 CA4th 1314, 1328 [Judicial Council’s California Civil Jury Instructions (CACI) 431 and 432 should be used to define “superseding cause”].
