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People v. Althof10/15/2002
hat the trial court erred in failing to give the complete version of CALJIC No. 4.45, which provides: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [neither] [criminal intent or purpose,] [[criminal] negligence,] does not thereby commit a crime." The court gave a modified version omitting the reference to criminal negligence: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show neither criminal intent nor purpose, he does not thereby commit a crime."
Appellant requested the modified version. "Because it is manifest that [appellant] had a legitimate tactical reason for requesting this instruction, we conclude any error was invited and [appellant] is precluded from challenging the correctness of the instruction on appeal. [Citation.]" (People v. Hardy (1992) 2 Cal.4th 86, 152.)
In any event, the trial court would have erred had it included the reference to criminal negligence. The charge of involuntary manslaughter was based on appellant's commission of a battery, not on criminal negligence. " attery is a general intent crime. [Citations.] This necessarily excludes criminal liability when the force or violence is accomplished with a 'lesser' state of mind, i.e., 'criminal negligence.' [Citation.] . . . he crime of battery requires that the defendant actually intend to commit a 'willful and unlawful use of force or violence upon the person of another.' [Citation.]" (People v. Lara (1996) 44 Cal.App.4th 102, 107.) "Where, as here, the defendant is charged with a general intent crime, instruction on 'criminal negligence' is erroneous." (Id., at p. 110.) In Lara this court recommended that the use note to CALJIC No. 4.45 expressly advise that the reference to criminal negligence be omitted when the defendant is charged with a general intent crime. (Ibid.) The CALJIC committee adopted our recommendation.
IV.
Finally, appellant argues that the trial court committed reversible error because it gave CALJIC No. 2.90 defining "reasonable doubt" in terms of an "abiding conviction." Appellant contends that the court was required to instruct that jurors must be convinced to a "moral certainty" of the defendant's guilt.
Appellant's contention is devoid of merit. " t consistently has been rejected by every [California] appellate district. [Citations.]" (People v. Hearon (1999) 72 Cal.App.4th 1285, 1286.) As our Supreme Court observed, in Victor v. Nebraska (1994) 511 U.S. 1, 14-15, " he high court made clear that the terms 'moral evidence' and 'moral certainty' add nothing to the jury's understanding of reasonable doubt." (People v. Freeman (1994) 8 Cal.4th 450, 504.) "We regard the issue as conclusively settled adversely to [appellant's] position. [Citation.] The time has come for appellate attorneys to take this frivolous contention off their menus." (People v. Hearon, supra, 72 Cal.App.4th at p. 1287.)
Disposition
The judgment is affirmed.
NOT TO BE PUBLISHED.
We concur:
GILBERT, P.J.
PERREN, J.
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