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

Judicial Council of California Criminal Jury Instructions (2025 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 or ordinary negligence
crimes>
[The defendant is not guilty of <insert crime[s]> if (he/she)
acted [or failed to act] accidentally without (criminal/ordinary)
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/ordinary) negligence.
[(Criminal/Ordinary)negligence is defined in another instruction.]
[Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal
negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with criminal negligence when the way he
or she acts is so different from the way an ordinarily careful person
would act in the same situation that his or her act amounts to disregard
for human life or indifference to the consequences of that act.]
[Ordinary negligence is the failure to use reasonable care to prevent
reasonably foreseeable harm to oneself or someone else. A person is
negligent if he or she (does something that a reasonably careful person
would not do in the same situation/ [or] fails to do something that a
reasonably careful person would do in the same situation).]]
New January 2006; Revised April 2008, August 2012, September 2017, March 2022
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].)
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The court should select either “criminal” or “ordinary” based on the words used in
the instruction on the elements of the underlying offense. (See People v. Nicolas
(2017) 8 Cal.App.5th 1165, 1175-1176 [214 Cal.Rptr.3d 467].)
Give the bracketed definition of criminal or ordinary negligence unless the court has
already given the definition in another instruction. In such cases, the court may give
the bracketed sentence stating that the term is defined elsewhere.
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].
• Criminal or Gross Negligence Defined. People v. Penny (1955) 44 Cal.2d 861,
879 [285 P.2d 926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8
Cal.Rptr. 863].
• Ordinary Negligence Defined. Pen. Code, § 7, subd. 2; People v. Nicolas (2017)
8 Cal.App.5th 1165, 1174-1175 [214 Cal.Rptr.3d 467].
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 273.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, § 73.01[5] (Matthew Bender).
CALCRIM No. 3404 DEFENSES AND INSANITY
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