California's Legal Definition of "Criminal Negligence"

Criminal negligence refers to a mental state of disregarding known or obvious risks to human life and safety. An example would be leaving a loaded firearm within reach of a small child.

To be guilty of any crime, a person must act with a "mens rea" or "criminal intent." Normally this means intentionally or deliberately pursuing a criminal result.

defendant in court, in front of judge and next to attorney
To be guilty of any crime, a person must act with a "mens rea" or "criminal intent."

But criminal negligence may substitute for criminal intent under very specific circumstances.  When it does, it can subject someone to serious charges such as child endangerment or manslaughter even when the actions are unintentional.

In an effort to help you better understand how and when California's criminal negligence laws are applied, our Los Angeles criminal defense attorneys1 will address the following:

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

To learn how these concepts apply under California's laws on personal injury, please see our articles on "Proving Negligence in a California Injury Case,"  "Gross Negligence in California Personal Injury Law," and "Damages for Recklessness in a California Injury Case."

1. What is Negligence?

A person acting negligently could face civil or criminal liability.

Civil negligence (sometimes referred to as "ordinary" negligence) takes place when someone gets injured as a result of another person's carelessness.  In order to be held civilly negligent, a person's conduct must fall short of how a "reasonable" and prudent person would act in the same or a similar situation.

Criminal negligence (sometimes referred to as "gross" negligence) takes place when an individual behaves in a way that is an extreme departure from the way that a "reasonable" person would act.  Criminal negligence is basically analogous to an "I don't care what happens" type of attitude.

These standards differ largely because of the consequences associated with each.  A person found liable in a civil case only has to pay money damages.  But a person convicted of a crime may go to jail.  As a result, civil cases involve a lesser "burden of proof" than do criminal cases.

In a civil negligence case, the plaintiff (that is, the person doing the suing) must only prove by a preponderance of the evidence that the defendant was negligent.  "Preponderance of the evidence" means that it is "more likely than not" that the defendant acted negligently.

In a criminal negligence case, by contrast, the prosecutor must prove beyond a reasonable doubt that the defendant is guilty.  "Beyond a reasonable doubt" is the highest legal standard of proof.  It basically means that the evidence is so strong that there is no logical explanation other than the fact that the defendant acted with criminal negligence.2

man has hands cuffed in front of judge's gavel
In a criminal negligence case the prosecutor must prove beyond a reasonable doubt that the defendant is guilty.

2. California's Definition of Criminal Negligence

To convict someone of an offense in which the requisite mental state is criminal negligence, the prosecutor generally must prove three things:

    1. that the defendant acted so recklessly that he/she created a high risk of death or great bodily injury,
    2. that the act(s) demonstrated a disregard for human life or indifference to the consequences,
  1. that a reasonable person in a similar situation would have known that the act(s) naturally and probably results in harm to other people.

Mistakes and accidents aren't criminal negligence

Criminal negligence requires more than merely a mistake in judgment, inattention, or simple carelessness.  It only pertains to conduct that is so outrageous and reckless that it marks a clear departure from the way an ordinary careful person would act under similar circumstances.3

And as Long Beach criminal defense attorney John Murray explains4, "It is important to understand that under California law, criminal negligence is only concerned with the act itself, not with the consequences."

This means that

  1. even if no one is hurt, an individual can still be held criminally negligent if his/her underlying behavior is such that it is likely that someone will be seriously hurt or killed, and
  2. even if someone is seriously injured or even killed, criminal negligence exists only if the act itself clearly involves a high degree of danger.  Carelessness, thoughtlessness, or even sheer stupidity do not elevate the conduct to criminal negligence, regardless of the consequences.5
Example: Mary goes to a late-night movie, leaving her four young children (between the ages of 2 and 6) asleep in their beds, home alone.  While she is gone, a fire spreads throughout her house.  A neighbor is able to save two of Mary's children, but the other two die in the fire.

Although Mary exercised poor judgment leaving her small children home alone, such an act doesn't rise to the level of criminal negligence.  Despite the fact that two of her children were killed, Mary's act.that of leaving her sleeping children home alone.didn't create a high risk of death or serious bodily injury.

3. Is Criminal Negligence Applicable to all California Crimes?


Criminal or gross negligence allows a prosecutor to obtain a conviction even when the defendant didn't intend to violate the law.6 As such, it acts as a substitute for criminal intent.  However, it is actually very limited in its application.

In fact, criminal negligence isn't a substitute for criminal intent when the alleged crime:

  1. requires "specific intent" (that is, a crime where you must specifically intend the criminal result, such as Penal Code 459 burglary or Penal Code 487 grand theft7),
  2. requires "general intent" (that is, a crime where you simply intend to do the act that causes the harm.even if you don't necessarily intend the result.such as Penal Code 242 PC, California's battery law8), or
  3. requires some other particular mental state, such as malice (that is, the desire to harm another person, found in crimes such as Penal Code 187 PC murder or Penal Code 451 arson9).

Essentially this means that criminal or gross negligence really only extends to crimes that are based on accidental-type situations or to crimes predicated on a failure to act.  The most common include Penal Code 192(b) involuntary manslaughter, Penal Code 273a child endangerment, and Penal Code 368, California's elder abuse law.

And even in these types of situations, criminal negligence will only attach if the defendant is actually or constructively aware of the dangers of his/her act(s).10

The defendant must have knowledge of the danger

stunt car driving on two left wheels
The defendant must have knowledge of the danger

Actual or constructive knowledge means that either

  1. the defendant actually knew that he/she was involved in behavior that was likely to result in death or serious bodily injury to another person, or
  2. a reasonable person in a similar situation would have appreciated the risk.  When this is the case, that knowledge is imputed to the defendant and is called "constructive" knowledge.

If the defendant doesn't have this knowledge.either actual or constructive.he/she cannot be held criminally negligent.11

Example: Using the same example from above, there is no reason to believe that Mary would have realized that her act of leaving the sleeping children home alone would likely result in death or serious injury from a fire.  It was not a typical result of leaving kids home alone.

If, however, Mary was in some way connected to the fire, this would be a different case.  But it can't be said that Mary.or any other "reasonable" person.would have foreseen a high risk of death.  Without that knowledge, there is no criminal negligence.

Perhaps the best way to explain how California's standard of criminal negligence is actually applied is to look at some more examples.

4. Examples of California Criminal Negligence

The following are a few examples that best illustrate California's criminal negligence standard.

Involuntary manslaughter

Example:  Defendant joined a poker game at a "members only" club.  One of the players, Rypdahl, didn't like defendant and was very vocal about it.  At one point, Rypdahl accused the defendant of stealing $40 from his friend, who had left the game.  After refusing to deal the defendant any more hands, Rypdahl threatened the defendant, saying he would be kicked out of the club "feet first".

As defendant attempted to leave the bar, Rypdahl followed, pursuing his threats.  Although the defendant claimed he only intended to scare Rypdahl, he shot him in the stomach.  Because the defendant recklessly shot at Rypdahl, he was held criminally negligent for Rypdahl's eventual death.

This case is also a good example of how "causation" plays into criminal negligence.  Defendant claimed that it wasn't the gunshot wound that killed Rypdahl, but rather an incompetent surgery which caused a fatal hemorrhage.  Defendant argued that the negligent surgery was an intervening force and that it was responsible for Rypdahl's death.

According to California's criminal negligence law, the contributing negligence of a victim or a third-party will not relieve a defendant of criminal culpability unless it acts as a sole or intervening cause of death.12

Here, defendant put into motion a series of events that lead to Rypdahl's death.  Whether Rypdahl was shot and then bled to death or received inadequate medical treatment is irrelevant.the natural consequence of defendant's act was that Rypdahl would die.  Defendant can't escape that liability by arguing that the surgeon should have been able to save him.13

This type of "contributory negligence" serves as a defense in cases alleging civil negligence. But it rarely excuses a defendant's acts in cases alleging California criminal negligence.

Gross vehicular manslaughter while intoxicated

Penal Code 191.5(a), California's gross vehicular manslaughter while intoxicated law necessarily involves criminal negligence.14 That's what the "gross" refers to.gross or criminal negligence.  In order for prosecutors to convict the defendant of this offense, they must prove that in addition to violating Vehicle Code 23152 VC, California's DUI law, the defendant committed a criminally negligent act that resulted in the death of another.

Example: Defendant consumed between 17 and 22 beers before going to sleep at his sister-in-law's house.  When he woke up about two hours later, he attempted to drive home.  While driving, he drove at unsafe high speeds, wove in and out of traffic, and made dangerous lane changes without signaling or braking. In the midst of this, he crashed into the victim's car.15

The court ruled that the defendant's erratic driving was sufficient to constitute gross negligence.  The court noted that a reasonable person in the defendant's position would have appreciated the risks of drinking and driving (especially since he had suffered a prior DUI conviction and attended a DUI school.the primary purpose of which is to warn students about  the risks involved with drunk driving).16

Elder or child abuse

With respect to child or elder abuse, directly inflicting physical abuse on a child or an elder requires a general intent to inflict unjustifiable pain and suffering.  Under these circumstances, criminal negligence does not come into play.

elderly person with black eye
Criminal negligence only becomes relevant when the defendant is accused of willfully allowing an elder to be placed in a harmful or dangerous situation where the person are likely to be injured

Criminal negligence only becomes relevant when the defendant is accused of willfully allowing a child or elder to be placed in a harmful or dangerous situation where the person are likely to be injured -- not when the defendant is accused of intentionally abusing that individual.17

Example:  Ted drives with his infant baby in the front seat. Ted straps around an adult seat belt rather than placing the baby in his child seat. A collision occurs and the baby is thrust into the windshield.

Under these circumstances, the father could be charged with placing the child in a situation likely to result in great bodily injury or death.  As a result, criminal negligence would be the appropriate standard by which to judge him.  A reasonable person would know that a baby needs to be properly restrained.  Defendant's conduct could appropriately be labeled gross, aggravated, and an extreme departure from how an "ordinary" person would behave.

Criminal negligence may stem from otherwise lawful conduct

Criminal negligence doesn't always involve an illegal act.  The definition of California criminal negligence states that the individual acts recklessly, not unlawfully.  This means that if the defendant commits a legal act under circumstances that are likely to produce great bodily harm or death, he/she can be held criminally negligent.

Example:  A mother was charged with involuntary manslaughter when her child died of meningitis.18 A firm believer in Christian Science, the mother refused to seek medical treatment for her child and instead, relied on the Church's prayers.

Pursuing homeopathic or spiritual remedies for a sick child isn't typically unlawful.  However, the court held that when a child's life is demonstrated by the child's weight loss, irritability, disorientation and irregular, heavy breathing.that lawful conduct becomes criminal.  The defendant was convicted of involuntary manslaughter based on her criminal negligence.19

The defendant must have a duty to act

Prosecutors can only convict you of criminal negligence if you have a legal duty to act.  Without that duty, there is no criminal negligence.

Example: An elderly father, living with his son, was found dead.  His death was due to severe neglect which led to septic shock that was caused by bed sores that covered 1/6 of his body, malnutrition, and dehydration.20 The victim's daughter was one of the defendants charged in the case.  Although she didn't live in the home, she occasionally visited and had reportedly expressed concern about her father's condition. The court dismissed her charges, stating that even though she clearly had a moral duty to report her father's abuse, she was under no legal duty to act.  Since the brother was the actual caretaker -- and she didn't control his actions -- the court ruled that she was not criminally negligent.21

As you can see, California's application of criminal negligence can be technical and complex.  This is just one reason why it is important to consult with a California criminal defense attorney who has expertise in defending clients who are accused of being criminally negligent.

Call us for help...

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Call us for help

If you or loved one is charged with criminal negligence and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Nevada criminal defense attorneys represent clients accused of violating Nevada's criminal negligence laws.  For more information, we invite you to contact our local attorneys at one of our Nevada law offices.22

Legal References:

  • Our Los Angeles criminal defense attorneys have local law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier.

  • California Jury Instructions -- Criminal -- CALJIC 2.90 -- Presumption of Innocence-Reasonable Doubt-Burden of Proof. ("Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.")

  • People v. Odom (1991) 226 Cal.App.3d 1028.  ("["Criminal negligence" refers to negligent conduct which is aggravated, reckless or flagrant and which is such a departure from the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for [human life] [danger to human life] or to constitute indifference to the consequences of that conduct. The facts must be such that the consequences of the negligent conduct could reasonably have been foreseen and it must appear that the [death] [danger to human life] was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of aggravated, reckless or flagrantly negligent conduct.]")

  • Long Beach criminal defense attorney John Murray has been featured on Fox News Channel and practices law throughout the South Bay and Orange County.

  • People v. Rodriguez (1960) 186 Cal.App.2d 433, 440.  ("Whether the conduct of defendant was wanton or reckless so as to warrant conviction of manslaughter must be determined from the conduct itself and not from the resultant harm. ( Commonwealth v. Bouvier, 316 Mass. 489 [55 N.E.2d 913].) Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another. ( People v. Sikes, 328 Ill. 64 [159 N.E. 293, 297].) The act must be one which has knowable and apparent potentialities for resulting in death.  Mere inattention or mistake in judgment resulting even in the death of another is not criminal unless the quality of the act makes it so. The fundamental requirement of fixing criminal responsibility is knowledge, actual or imputed, that the act of the accused tended to endanger life. ( State v. Studebaker, 334 Mo. 471 [66 S.W.2d 877, 881].)")

    See also People v. Peabody (1975) 46 Cal.App.3d 43, 47.  ("Criminal liability cannot be predicated on every careless act merely because its carelessness results in injury to another. [Citation.] The act must be one which has knowable and apparent potentialities for ... death [or great bodily injury]. Mere inattention or mistake in judgment ... is not criminal unless the quality of the act makes it so. The fundamental requirement fixing criminal responsibility is knowledge, actual or imputed, that the act of the accused tended to endanger life."")

  • California Penal Code 20 PC -- Crime; unity of act and intent, or criminal negligence.  ("TO CONSTITUTE CRIME THERE MUST BE UNITY OF ACT AND INTENT. In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.")

    See also People v. Valdez (2002) 27 Cal.4th 778, 783.  ("Under [California Penal Code] section 20, criminal negligence "may be sufficient to make an act a criminal offense, without a criminal intent.")

  • California Penal Code 459 PC -- Burglary.  ("Every person who enters any house, room, apartment, tenement, shop, warehouse, store -- with intent to commit grand or petit larceny or any felony is guilty of burglary.") Italics added.

    See also California Jury Instructions - Criminal (CALJIC 14.02 -- Grand theft).  ("Defendant is accused [in Count[s] ] of having committed the crime of grand theft, a violation of section 487 of the [California] Penal Code.]  Every person who steals, takes, carries, leads, or drives away the personal property of another with the specific intent to deprive the owner permanently of [his] [her] property is guilty of the crime of theft by larceny.") Italics added.

  • People v. Lara (1996) 44 Cal.App.4th 102, 108.  ("As with all general intent crimes, "the required mental state entails only an intent to do the act that causes the harm ...." ( People v. Davis (1995) 10 Cal.4th 463, 519, fn. 15 [41 Cal.Rptr.2d 826, 896 P.2d 119].) Thus, the crime of [California Penal Code 242] battery requires that the defendant actually intend to commit a "willful and unlawful use of force or violence upon the person of another." (242; People v. Colantuono, supra, 7 Cal.4th at p. 217.) In this context, the term "willful" means "simply a purpose or willingness to commit the act ...." (7, subd. 1.)")   .and at 110, ("Where, as here, the defendant is charged with a general intent crime, instruction on "criminal negligence" is erroneous.")

  • California Penal Code 187 PC -- Murder.  ("(a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.")

    See also California Penal Code 451 PC -- Arson.  ("A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property.")

  • People v. Valdez (2002) 27 Cal.4th 778, 783.  (""Under the criminal negligence standard, knowledge of the risk is determined by an objective test: '[I]f a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness.' " ( Williams v. Garcetti (1993) 5 Cal.4th 561, 574 [20 Cal.Rptr.2d 341, 853 P.2d 507], italics omitted [further stating "there can be no criminal negligence without actual or constructive knowledge of the risk"]; Walker v. Superior Court (1988) 47 Cal.3d 112, 136 [253 Cal.Rptr. 1, 763 P.2d 852]")

  • See same.

  • People v. Autry (1995) 37 Cal.App.4th 351, 360.  ("In criminal prosecutions, the contributing negligence of the victim or a third party does not relieve the criminal actor of liability, unless the victim's or third party's conduct was the sole or superseding cause of the death. ( People v. Pike (1988) 197 Cal.App.3d 732, 748, 243 Cal.Rptr. 54; People v. Armitage (1987) 194 Cal.App.3d 405, 420, 239 Cal.Rptr. 515.)")

  • People v. McGee (1947) 31 Cal.2d 229, 243.  ("Defendant, without aiming and without intending to shoot Rypdahl, unlawfully, or "without due caution and circumspection," discharged a pistol which was pointed toward Rypdahl. The immediate result of this unlawful or incautious act was the wounding of Rypdahl. The direct result of the wound was "profuse hemorrhage" which would be "sufficient to cause death" if it was not promptly controlled. Having thus set in motion the events which culminated in Rypdahl's death, defendant departed. The surgeon in whose care Rypdahl was promptly placed neglected for more than 10 hours, grossly contrary to good surgical practice, to control the hemorrhage. We assume further that Rypdahl's life might have been saved by prompt and proper surgical treatment. But defendant cannot complain because no force intervened to save him from the natural consequence of his criminal act. The factual situation is in legal effect the same, whether the victim of a wound bleeds to death because surgical attention is not available or because, although available, it is delayed by reason of the surgeon's gross neglect or incompetence. The delay in treatment is not in fact an intervening force; it cannot in law amount to a supervening cause.")

  • California Penal Code 191.5(a) -- Gross vehicular manslaughter while intoxicated.  ("a) Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of [California Vehicle Code] Section 23140, 23152 [DUI], or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.")

  • These facts were taken from People v. Ochoa (1993) 6 Cal.4th 1199.

  • For more information about DUI alcohol education programs and how they are used in proving DUIs against offenders accused of multiple DUIs, please see our article on California DUI school.

  • People v. Sargent (1999) 19 Cal.4th 1206, 1217.  ("Similarly, in People v. Wright, supra, 60 Cal.App.3d 6, 131 Cal.Rptr. 311, the defendant was convicted of involuntary manslaughter in the beating death of his 29-month-old daughter. ( Id. at p. 9, 131 Cal.Rptr. 311.) On appeal, he asserted that the trial court erred in failing sua sponte to give an instruction regarding "involuntary manslaughter of the criminal negligence variety." ( Id. at p. 12, 131 Cal.Rptr. 311.) The Court of Appeal rejected this contention, stating here, unlike Peabody, "the defendant was charged with personally injuring the child and not with willfully permitting its injury by another. The Peabody [requirement] for an instruction on criminal negligence is inappropriate where the evidence points to direct infliction of injury by the defendant."")

  • Walker v. Superior Court (1988) 47 Cal.3d 112

  • See same at 138.  ("In sum, we reject the proposition that the provision of prayer alone to a seriously ill child cannot constitute criminal negligence as a matter of law.")

  • People v. Heitzman (1994) 9 Cal.4th 189, 194.  ("On December 3, 1990, police were summoned to the house, where they discovered Robert dead in his bedroom. His body lay on a mattress that was rotted through from constant wetness, exposing the metal springs. The stench of urine and feces filled not only decedent's bedroom, but the entire house as well. His bathroom was filthy, and the bathtub contained fetid, green-colored water that appeared to have been there for some time.At the time of his death, decedent had large, decubitus ulcers, more commonly referred to as bed sores, covering one-sixth of  his body. An autopsy revealed the existence of a yeast infection in his mouth, and showed that he suffered from congestive heart failure, bronchial pneumonia, and hepatitis. The forensic pathologist who performed the autopsy attributed decedent's death to septic shock due to the sores which, he opined, were caused by malnutrition, dehydration, and neglect.")

  • See same at 215.  ("Furthermore, given defendant's failure to intercede on her father's behalf under the egregious circumstances presented here, we can well understand the prosecution's decision to charge defendant under [California Penal Code] section 368(a).  Because the People presented no evidence tending to show that defendant had a legal duty to control the conduct of either of her brothers, however, we reverse the judgment of the Court of Appeal with directions to reinstate the trial court's order dismissing the charges against defendant.")

  • Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Mike Castillo for any questions relating to Nevada's criminal negligence standards.  Their Nevada law offices are located in Reno and Las Vegas.

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