TABLE OF CONTENTS
F 510.1 TITLES AND IDENTIFICATION OF PARTIES
F 510.1 Inst 1 Excusable Homicide: Accident—Title
F 510.1 Inst 2 Identification Of Prosecution And Defendant
F 510.1.1 Inst 1 Delete “Excusable” From Title
F 510.2 EXCUSABLE HOMICIDE: ACCIDENT—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 510.2 Inst 1 Modification Of Burden Shifting Language
F 510.2 Inst 2 Accident: Expression Of Prosecution Burden In Terms Of “Accident” Rather Than “Excuse”
F 510.2 Inst 3 Excusable Homicide: Explanation Of The Degree Of Care And Caution Required
Return to Series 500 Table of Contents.
F 510.1 Titles And Identification Of Parties
F 510.1 Inst 1 Excusable Homicide: Accident— Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 510.1 Inst 2 Identification Of Prosecution And Defendant
See generally FORECITE F 100.2 Note 1and CALCRIM Motion Bank # CCM-005 and CALCRIM Motion Bank # CCM-006.
F 510.1.1 Inst 1 Delete “Excusable” From Title
*Modify CC 510 title as follows [deleted language is stricken]:
Excusable Homicide: Accident
Points and Authorities
See FORECITE F 500.2 Inst 3.
F 510.2 Excusable Homicide: Accident—Tailoring To Facts: Persons, Places, Things And Theories
F 510.2 Inst 1 Modification Of Burden Shifting Language
*Modify CC 510, paragraph 1 as follows [added language is underlined; deleted language is stricken]:
The defendant is not guilty of (murder/ [or] manslaughter) if unless the prosecution proves beyond a reasonable doubt that (he/she) killed someone as a result of accident or misfortune did not kill _________________ <name of decedent/alleged victim> accidentally. Such a killing is excused, and therefore not unlawful, if:
Alternative a:
To decide, if you can, whether the prosecution has met this burden, the following definition of an accidental killing applies:
A person kills accidentally when the killing resulted from:
1. The doing of a lawful act in a lawful way;
2. While acting with usual and ordinary caution;
AND
3. While acting without any unlawful intent.
Alternative b:
To meet its burden of disproving accident the prosecution must prove at least one of the following beyond a reasonable doubt:
1. The defendant was not doing a lawful act in a lawful way;
2. The defendant was not acting with usual and ordinary caution;
AND OR
3. The defendant was acting without any unlawful intent.
Points and Authorities
See FORECITE F 505.2 Inst 2.
F 510.2 Inst 2 Accident: Expression Of Prosecution Burden In Terms Of “Accident” Rather Than “Excuse”
*Modify CC 510, paragraph 3, sentence 1 as follows [added language is underlined; deleted language is stricken]:
The People have prosecution has the burden of proving beyond a reasonable doubt that the killing was not excused accidental.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Definition Should Be Included In Element—For purposes of this instruction, the deletion of “excused“ is “accidental.“ Therefore, the term A accidental should be used in the elemental language. See FORECITE F 417.5 Inst 2; see also F 510.2 Inst 3.
No Reference To “The People “—The defendant objects to use of the term “the People” in this instruction and throughout this trial. [See FORECITE F 100.2 Note 1; CALCRIM Motion Bank # CCM-006.]
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 4.1 [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 510.2 Inst 3 Excusable Homicide: Explanation Of The Degree Of Care And Caution Required
*Add to CC 510:
[Insert full definition of criminal negligence (e.g., CJ 3.36 or CC 511).]
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Necessity Of Adding Criminal Negligence Language—People v. Mayfield (1997) 14 C4th 668, 781 recognized that CJ 5.00 (now CC 510) 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.
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 4.1 [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 5.00a.
