Section 3405 | CALCRIM (Jury Instructions)

1. The death was the natural and probable consequence of the act;
2. The act was a direct and substantial factor in causing the death;
AND
3. The death would not have happened without the act.
A natural and probable consequence is one that a reasonable person
would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.
A substantial factor is more than a trivial or remote factor. However, it
does not need to be the only factor that caused the death.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
New January 2006; Revised February 2014, September 2020
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
If there is sufficient evidence, the court has a sua sponte duty to instruct on the
defense of disciplining a child. (People v. Whitehurst (1992) 9 Cal.App.4th 1045,
1049 [12 Cal.Rptr.2d 33].) Give bracketed element 8 and CALCRIM No. 3405,
Parental Right to Punish a Child.
Give the bracketed paragraph about calculating age if requested. (Fam. Code,
§ 6500; In re Harris (1993) 5 Cal.4th 813, 849–850 [21 Cal.Rptr.2d 373, 855 P.2d
391].)
The second sentence of the great bodily injury definition could result in error if the
prosecution improperly argues great bodily injury may be shown by greater than
minor injury alone. (Compare People v. Medellin (2020) 45 Cal.App.5th 519,
533–535 [258 Cal.Rptr.3d 867] [the definition was reasonably susceptible to
prosecutor’s erroneous argument that the injury need only be greater than minor]
with People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [260 Cal.Rptr.3d 86]
[upholding instructions containing great bodily injury definition as written].)
Related Instructions
CALCRIM No. 875, Assault With Deadly Weapon or Force Likely to Produce Great
Bodily Injury.
AUTHORITY
•
Elements. Pen. Code, § 273ab(a); see People v. Malfavon (2002) 102
Cal.App.4th 727, 735 [125 Cal.Rptr.2d 618] [sometimes called “child abuse
homicide”].
CALCRIM No. 820
ASSAULTIVE AND BATTERY CRIMES
538

Someone commits an act willfully when he or she does it willingly or on
purpose.
The phrase likely to produce (great bodily harm/ [or] death) means the
probability of (great bodily harm/ [or] death) is high.
Great bodily harm means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.
A child is any person under the age of 18 years.
[Under the law, a person becomes one year older as soon as the first
minute of his or her birthday has begun.]
[Unjustifiable physical pain or mental suffering is pain or suffering that
is not reasonably necessary or is excessive under the circumstances.]
[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 w