SERIES 500 HOMICIDE
F 581 Involuntary Manslaughter: Murder Not Charged
TABLE OF CONTENTS
F 581.1 Titles And Identification Of Parties
F 581.1 Inst 1 Involuntary Manslaughter: Murder Not Charged—Title
F 581.1 Inst 2 Identification Of Prosecution And Defendant
F 581.2 Involuntary Manslaughter: Murder Not Charged—Tailoring To Facts: Persons, Places, Things And Theories
F 581.2 Inst 1 Tailoring To Facts: Criminal Negligence Theory
F 581.2 Inst 2 Tailoring To Facts: Causation
F 581.3 Involuntary Manslaughter: Murder Not Charged—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 581.4 Involuntary Manslaughter: Murder Not Charged—Burden Of Proof Issues
F 581.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
F 581.4 Inst 2 Jurors Not Limited To Consideration Of Circumstance “Established By The Evidence”
F 581.4 Inst 3 (a & b) Modification Of Burden Shifting Language; Tailoring To Facts
F 581.5 Involuntary Manslaughter: Murder Not Charged—Elements And Definitions
F 581.5 Inst 1 Criminal Negligence “Requires” More Than Ordinary Negligence
F 581.6 Involuntary Manslaughter: Murder Not Charged—Defense Theories [Reserved]
F 581.7 Involuntary Manslaughter: Murder Not Charged—Preliminary Fact Issues [Reserved]
F 581.8 Involuntary Manslaughter: Murder Not Charged—Unanimity/Duplicity/Multiplicity
F 581.8 Inst 1 Clarification Of Unanimity Requirement: All Elements Must Be Found
F 581.9 Involuntary Manslaughter: Murder Not Charged—Lesser Offense Issues
F 581.9 Inst 1 Accidental Killing Resulting From Firing Of Weapon With Intent Only To Frighten
Return to Series 500 Table of Contents.
F 581.1 Titles And Identification Of Parties
F 581.1 Inst 1 Involuntary Manslaughter: Murder Not Charged—Title
See generally FORECITE F 200.1.2 Note 2, CALCRIM Motion Bank # CCM-002, CCM-003, and CCM-004.
F 581.1 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 581.2 Involuntary Manslaughter: Murder Not Charged—Tailoring To Facts: Persons, Places, Things And Theories
F 581.2 Inst 1 Tailoring To Facts: Criminal Negligence Theory
*Replace Elements of CC 581 with the following when the prosecution relies solely on a theory of criminal negligence:
To prove that the defendant is guilty of this crime, the prosecution must prove beyond a reasonable doubt that:
1. The defendant committed the following lawful act: _______________ <insert alleged lawful act>;
2. The defendant committed this act in a reckless way that created a high risk of death or great bodily injury to a human being;
3. A reasonable person, under all the circumstances as they were known and appeared to the defendant, would have known that committing the act in the way the defendant is alleged to have done would create a high risk of death or great bodily injury to a human being;
4. The defendant acted in a way that was so different from the way an ordinarily careful person would act in the same situation that his or her act amounted to disregard for human life or indifference to the consequences of that act;
5. The lawful act described in Element 1 above caused the death of _______________ <name of alleged victim>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Necessity Of Tailoring To Facts—By tailoring CALCRIM 581 to the facts, as set forth above, the instruction is clearer and more understandable. (See generally 400.2 Inst 1.)
Necessity Of Incorporating Elements Of Criminal Negligence Into Enumerated Elements Of The Crime—Definitions should be incorporated into the enumerated elements whenever possible. (See CALCRIM User Guide, Titles And Definitions.)
See also FORECITE F 417.5 Inst 2.
Requirement Of Risk To Human Being—CALCRIM erroneously fails to require that the risk of death or great bodily injury be to a human being. (See People v. Cox (2000) 12 C4th 665; People v. Wells (1996) 12 C4th 879; People v. Watson (1981) 30 C3d 290, 296.)
Reasonably Would Have Known: Consideration Of Circumstances As Known To And Appeared To Defendant—See CALCRIM 505; see also FORECITE F 820.5 Inst 3.
Committing The Act In The Way The Defendant Is Alleged To Have Done—The CALCRIM language in Element 2 of the criminal negligence definition—“acting in that way“ —fails to expressly relate the risk to the precise act alleged to have been committed by the defendant. Thus, this language should be modified to assure that the criminal mens rea—i.e., criminal negligence—concurs with the alleged actus reus of the crime. (See PC 20; see also FORECITE F 251 Inst 3.)
Disregard For Human Life Or Indifference To Consequences As Element—See People v. Watson (1981) 30 C3d 290, 296; People v. Evers (1992) 10 CA4th 588, 596).
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.]
Use Of The Term “Defendant“ —The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant“ in this instructional request, the defense does not withdraw the request.
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]
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 581.2 Inst 2 Tailoring To Facts: Causation
*Replace CC 581, Element 2, with the following:
The death of _______________ <name of alleged victim> was the direct, natural and probable consequence of the [_______________ <specific alleged predicate crime>] [ _______________ <specify alleged predicate lawful act>] and (his/her) death would not have happened without the [_______________ <specific alleged predicate crime>] [ _______________ <specify alleged predicate lawful act>].
To prove this element the prosecution must prove beyond a reasonable doubt that:
A. A reasonable person, under all the circumstances as they were known to and appeared to the defendant, would have known that the death of _______________ <name of alleged victim> was likely to result from [_______________ <specific alleged predicate crime>] [ _______________ <specify alleged predicate lawful act>];
AND
B. The [_______________ <specific alleged predicate crime>] [ _______________ <specify alleged predicate lawful act>] was a substantial factor in causing the death of _______________ <name of alleged victim>.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request. [See CALCRIM Motion Bank # CCM-001.]
Necessity Of Tailoring And Incorporating Definitions Into Elements—See FORECITE F 581.2 Inst 1.
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.]
Use Of The Term “Defendant“ —The defense requests that the defendant be referred to by name throughout this trial and in the jury instructions. [See CALCRIM Motion Bank # CCM-005.] By using the term “defendant“ in this instructional request, the defense does not withdraw the request.
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]
FORECITE CG 8.4 [Right To Jury Determination Of Lesser Included Offense]
In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
F 581.3 Involuntary Manslaughter: Murder Not Charged—Language That Is Argumentative, Confusing, Etc. [Reserved]
F 581.4 Involuntary Manslaughter: Murder Not Charged—Burden Of Proof Issues
F 581.4 Inst 1 Relating Prosecution Burden To Enumerated Elements
See FORECITE F 400.4 Inst 1.
F 581.4 Inst 2 Jurors Not Limited To Consideration Of Circumstance “Established By The Evidence“
*Modify CC 581, paragraph 8, sentence 3, as follows [deleted language is stricken]:
… consider all of the circumstances established by the evidence.
Points and Authorities
See FORECITE F 402.4 Inst 2.
F 581.4 Inst 3 (a & b) Modification Of Burden Shifting Language; Tailoring To Facts
See FORECITE F 580.4 Inst 2 (a & b).
F 581.5 Involuntary Manslaughter: Murder Not Charged—Elements And Definitions
F 581.5 Inst 1 Criminal Negligence “Requires“ More Than Ordinary Negligence
See FORECITE F 580.5 Inst 2.
F 581.6 Involuntary Manslaughter: Murder Not Charged—Defense Theories [Reserved]
F 581.7 Involuntary Manslaughter: Murder Not Charged—Preliminary Fact Issues [Reserved]
F 581.8 Involuntary Manslaughter: Murder Not Charged—Unanimity/Duplicity/Multiplicity
F 581.8 Inst 1 Clarification Of Unanimity Requirement: All Elements Must Be Found
*Modify CC 581, last paragraph, sentence 2 as follows [added language is underlined; deleted language is stricken]:
You may not find the defendant guilty unless all of you agree find that the People have prosecution has proved all essential facts and elements of the charged offense including that the defendant committed at least one of these alleged acts and you all agree on which act (he/she) committed.
Points and Authorities
See FORECITE F 415.8 Inst 1.
F 581.9 Involuntary Manslaughter: Murder Not Charged—Lesser Offense Issues
F 581.9 Inst 1 Accidental Killing Resulting From Firing Of Weapon With Intent Only To Frighten
See FORECITE F 580.9 Inst 1.
