SERIES 500 HOMICIDE
F 511 EXCUSABLE HOMICIDE: ACCIDENT IN THE HEAT OF PASSION
TABLE OF CONTENTS
F 511.1 TITLES AND IDENTIFICATION OF PARTIES
F 511.1 Inst 1 Excusable Homicide: Accident In The Heat Of Passion— Title
F 511.1 Inst 2 Identification Of Prosecution And Defendant
F 511.1.1 Inst 1 Delete “Excusable” From Title
F 511.2 EXCUSABLE HOMICIDE: ACCIDENT IN THE HEAT OF PASSION—TAILORING TO FACTS: PERSONS, PLACES, THINGS AND THEORIES
F 511.2 Inst 1 Modification Of Burden Shifting Language
F 511.2 Inst 2 Accident: Expression Of Prosecution Burden In Terms Of “Accident” Rather Than “Excuse”
F 511.2 Inst 3 Modification Of Burden Shifting Language Re: Provocation
F 511.5 EXCUSABLE HOMICIDE: ACCIDENT IN THE HEAT OF PASSION – ELEMENTS AND DEFINITIONS
F 511.5 Inst 1 “Serious Bodily Harm” As Plain Language Paraphrase Of “Great Bodily Injury”
F 511.5 Inst 2 Definition Of Passion
Return to Series 500 Table of Contents.
F 511.1 Titles And Identification Of Parties
F 511.1 Inst 1 Excusable Homicide: Accident In The Heat Of Passion—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 511.1 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 511.1.1 Inst 1 Delete “Excusable” From Title
*Modify CC 511 title as follows [deleted language is stricken]:
ExcusableHomicide: Accident in the Heat of Passion
Points and Authorities
See FORECITE F 500.2 Inst 3.
F 511.2 Excusable Homicide: Accident In The Heat Of Passion—Tailoring To Facts: Persons, Places, Things And Theories
F 511.2 Inst 1 Modification Of Burden Shifting Language
*Modify CC 511, 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 did not kill _________________ <name of decedent/alleged victim> accidentally by accident while acting in the heat of passion. Such a killing is excused, and therefore not unlawful, if, at the time of the killing:
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 acting in the heat of passion;
2. The defendant was not (suddenly provoked by __________<insert name of decedent>/ [or] suddenly drawn into combat by __________<insert name of decedent>);
3. The defendant did not take took undue advantage of __________<insert name of decedent>;
4. The defendant did not used a dangerous weapon;
5. The defendant did not killed __________<insert name of decedent> in a cruel or unusual way;
6. The defendant did not intend to kill __________<insert name of decedent> and did not acted with conscious disregard of the danger to human life;
AND OR
7. The defendant did not acted with criminal negligence.
Points and Authorities
See FORECITE F 505.2 Inst 2.
F 511.2 Inst 2 Accident: Expression Of Prosecution Burden In Terms Of “Accident” Rather Than “Excuse”
*Modify CC 511, paragraph 10, sentence 1 as follows [added language is underlined; deleted language is stricken]:
The People have the burden of proving beyond a reasonable doubt that the killing was not excused accidental.
Points and Authorities
See FORECITE F 510.2 Inst 2.
F 511.2 Inst 3 Modification Of Burden Shifting Language Re: Provocation
*Modify CC 511, paragraphs 4 & 5 as follows [added language is underlined; deleted language is stricken]:
In order for the prosecution to prove that the killing to be excused on this basis was not accidental while in the heat of passion, the prosecution must prove beyond a reasonable doubt that the defendant must have did not acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time.
It is not enough that the defendant simply was provoked. The defendant is not allowed to set up (his/her) own standard of conduct. YouThe prosecution must decide whether prove that the defendant was not provoked and whether the provocation was not sufficient. In deciding, if you can, whether the provocation was insufficient, consider whether a person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts.
Points and Authorities
See FORECITE F 404.2 Inst 1; F 505.2 Inst 2.
F 511.5 EXCUSABLE HOMICIDE: ACCIDENT IN THE HEAT OF PASSION – ELEMENTS AND DEFINITIONS
F 511.5 Inst 1 “Serious Bodily Harm” As Plain Language Paraphrase Of “Great Bodily Injury”
See FORECITE F 505.6 Inst 6.
F 511.5 Inst 2 Definition Of Passion
*Modify Paragraph 5, sentence 3 as follows [added language is underlined]:
In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted rashly and without due deliberation, that is, from passion rather than judgment.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request – [See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency – The April 2011 Revision to paragraph 5, sentence 3, of CC 511 was apparently made without circulating it for comment or obtaining direct Judicial Council approval. (See 4/29/11 report, page 2, fn 2.) However, the revision fails to fully incorporate the definition of passion included in paragraph 2, sentence 2. The above modification to paragraph 5, sentence 3, should be made to maintain consistency between the two paragraphs.
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.
