Section 510 | CALCRIM (Jury Instructions)

AUTHORITY
•
Excusable Homicide. Pen. Code, § 195, subd. 1; People v. Garnett (1908) 9
Cal.App. 194, 203–204 [98 P. 247], disapproved on other grounds by People v.
Collup (1946) 27 Cal.2d 829, 838–839 [167 P.2d 714] and People v. Bouchard
(1957) 49 Cal.2d 438, 441–442 [317 P.2d 971].
•
Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,
1154–1155 [10 Cal.Rptr.2d 217].
•
Instructing With Involuntary Manslaughter. People v. Velez (1983) 144
Cal.App.3d 558, 566–568 [192 Cal.Rptr. 686].
RELATED ISSUES
Traditional Self-Defense
In People v. Curtis (1994) 30 Cal.App.4th 1337, 1358–1359 [37 Cal.Rptr.2d 304],
the court held that the claim that a killing was accidental bars the defendant from
relying on traditional self-defense not only as a defense, but also to negate implied
malice. However, in People v. Elize (1999) 71 Cal.App.4th 605, 610–616 [84
Cal.Rptr.2d 35], the court reached the opposite conclusion, holding that the trial
court erred in refusing to give self-defense instructions where the defendant testified
that the gun discharged accidentally. Elize relies on two Supreme Court opinions,
People v. Barton (1995) 12 Cal.4th 186 [47 Cal.Rtpr.2d 569, 906 P.2d 531], and
People v. Breverman (1998) 19 Cal.4th 142 [77 Cal.Rptr.2d 870, 960 P.2d 1094].
Because Curtis predates these opinions, Elize appears to be the more persuasive
authority.
SECONDARY SOURCES
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Defenses, § 274.
3 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 73,
Defenses and Justifications, §§ 73.01[5], 73.16 (Matthew Bender).
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.04[1][c] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes
Against the Person, § 142.01[1][b] (Matthew Bender).
CALCRIM No. 510
HOMICIDE
242

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. 510, Excusable Homicide: Accident.
CALCRIM No. 3471, Right to Self-Defense: Mutual Combat or Initial Aggressor.
CALCRIM No. 570, Voluntary Manslaughter: Heat of Passion—Lesser Included
Offense.
AUTHORITY
•
Excusable Homicide if Committed in Heat of Passion. Pen. Code, § 195, subd. 2.
•
Burden of Proof. Pen. Code, § 189.5; People v. Frye (1992) 7 Cal.App.4th 1148,
1154–1155 [10 Cal.Rptr.2d 217].
•
Deadly Weapon Defined. See People v. Aguilar (1997) 16 Cal.4th 1023,
1028–1029 [68 Cal.Rptr.2d 655, 945 P.2d 1204].
•
Inherently Deadly Defined. People v. Perez (2018) 4 Cal.5th 1055, 1