1.      The defendant was doing a lawful act in a lawful way;

2.      The defendant was acting with usual and ordinary caution; AND

3.      The defendant was acting without any unlawful intent.

A person acts with usual and ordinary caution if he or she acts in a way that a reasonably careful person would act in the same or similar situation.

The People have the burden of proving beyond a reasonable doubt that the killing was not excused. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter).

BENCH NOTES

Instructional Duty

The trial court has a sua sponte duty to instruct on lawful acts that excuse homicide when there is evidence supporting that defense. (See People v. Hampton (1929) 96 Cal.App. 157, 159–160 [273 P. 854] [court erred in refusing defendant’s requested instruction]; People v. Slater (1943) 60 Cal.App.2d 358, 369 [140 P.2d 846]; People v. Bloyd (1987) 43 Cal.3d 333, 353–354 [233 Cal.Rptr. 368, 729 P.2d 802] [instruction not required when defendant argued the victim killed herself by accident].)

When this instruction is given, it should always be given in conjunction with CALCRIM No. 581, Involuntary Manslaughter: Murder Not Charged or CALCRIM No. 580, Involuntary Manslaughter: Lesser Included Offense, unless vehicular manslaughter with ordinary negligence is charged. (People v. Velez (1983) 144 Cal.App.3d 558, 566–568 [192 Cal.Rptr. 686].) A lawful act can be the basis of involuntary manslaughter, but only if that act is committed with criminal negligence (“in an unlawful manner or without due caution and circumspection”). (Pen. Code, § 192(b).) The level of negligence