CALCRIM No. 3404. Accident (Pen. Code, § 195)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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3404.Accident (Pen. Code, § 195)
<Give this paragraph when instructing on general or specific intent crimes>
[The defendant is not guilty of <insert crime[s]> if (he/she)
acted [or failed to act] without the intent required for that crime, but
acted instead accidentally. You may not find the defendant guilty of
<insert crime[s]> unless you are convinced beyond a
reasonable doubt that (he/she) acted with the required intent.]
<Give this paragraph when instructing on criminal negligence crimes>
[The defendant is not guilty of <insert crime[s]> if (he/she)
acted [or failed to act] accidentally without criminal negligence. You may
not find the defendant guilty of <insert crime[s]> unless
you are convinced beyond a reasonable doubt that (he/she) acted with
criminal negligence. Criminal negligence is defined in another
instruction.]
New January 2006; Revised April 2008, August 2012, September 2017
BENCH NOTES
Instructional Duty
The court has no sua sponte duty to instruct on accident. (People v. Anderson
(2011) 51 Cal.4th 989, 997-998 [125 Cal.Rptr.3d 408].)
Related Instructions
If murder is charged, see CALCRIM No. 510, Excusable Homicide: Accidental.
AUTHORITY
• Instructional Requirements. Pen. Code, §§ 26(5), 195.
• Burden of Proof. People v. Black (1951) 103 Cal.App.2d 69, 79 [229 P.2d 61];
People v. Frye (1992) 7 Cal.App.4th 1148, 1154-1155 [10 Cal.Rptr.2d 217].
• Misfortune as Accident. People v. Gorgol (1953) 122 Cal.App.2d 281, 308
[265 P.2d 69].
RELATED ISSUES
Misfortune Defined
“ ‘Misfortune’ when applied to a criminal act is analogous [to] the word
‘misadventure’ and bears the connotation of accident while doing a lawful act.”
(People v. Gorgol (1953) 122 Cal.App.2d 281, 308 [265 P.2d 69].)
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 273.
931
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.01[5] (Matthew Bender).
CALCRIM No. 3404 DEFENSES AND INSANITY
932

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