criminal negligence standard in California

2023(Valdez, at pp. 786-787; Flores, at p. 874.) Criminal negligence “‘“must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences.”’” (Valdez, at p. 788; accord, Stark v. Superior Court (2011) 52 Cal.4th 368, 399 .) “‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test: “[I]f a reasonable person in de

2021The court correctly instructed the jury using CALCRIM No. 1004 that the prosecution had to prove “defendant knew or reasonably should have known that the woman had a developmental or physical disability that prevented her from legally consenting.” The instruction’s “reasonably should have known” language tracked both the rape statute and the criminal negligence standard, which is “ ‘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.” ’ ” (People v. Valdez (2002) 27 Cal.4th 77

2026(People v. Valdez, supra, 27 Cal.4th at p. 789 .) Under a criminal negligence standard, “‘defendant’s conduct must amount to a reckless, gross, or culpable departure from the ordinary standard of due care; it must be such a departure from what would be conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life. . . . [¶] [M]ere inattention or mistake in judgment is insufficient to support a criminal 3 Steele does not claim that the trial court committed an instructional error. 13 conviction.’” (People v. Lee (1991) 234 Cal.App

2023(Valdez, supra, 27 Cal.4th at p. 787 .) However, the criminal negligence standard is the same for indirect abuse under either the third branch of child abuse (permitting the child’s person or health to be injured) or the fourth branch (permitting the child’s person or health to be endangered).

2016(Walker v. Superior Court (1988) 47 Cal.3d 112, 135 [ 253 Cal.Rptr. 1 , 763 P.2d 852 ]; People v. Penny (1955) 44 Cal.2d 861, 879 [ 285 P.2d 926 ].) Our Supreme Court has defined criminal negligence as “ ‘ “aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life ....”’ [Citation.] ‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test: “[I]f a reasonable perso

2016(Walker v. Superior Court (1988) 47 Cal.3d 112, 135 [ 253 Cal.Rptr. 1 , 763 P.2d 852 ]; People v. Penny (1955) 44 Cal.2d 861, 879 [ 285 P.2d 926 ].) Our Supreme Court has defined criminal negligence as “ ‘ “aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life ....”’ [Citation.] ‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test: “[I]f a reasonable perso

2023“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.’ ” (Valdez, supra, 27 Cal.4th at p. 783 , internal quotation marks omitted; ibid. [further stating “there can be no criminal negligence without actual or constructive knowledge of the risk”]; see also Walker v. Superior Court (1988) 47 Cal.3d 112 , 136–137.) Next, the trier must decide whether defendant’s act or omission so grossly departed from w

2016(Walker v. Superior Court (1988) 47 Cal.3d 112, 135 [ 253 Cal.Rptr. 1 , 763 P.2d 852 ]; People v. Penny (1955) 44 Cal.2d 861, 879 [ 285 P.2d 926 ].) Our Supreme Court has defined criminal negligence as “ ‘ “aggravated, culpable, gross, or reckless . . . conduct . . . [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life ....”’ [Citation.] ‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test: “[I]f a reasonable perso

2026As long as the trier of fact determines that the defendant was unreasonable in that belief, the defendant’s actual subjective belief is irrelevant.” (People v. Rippberger (1991) 231 Cal.App.3d 1667, 1682 .) Here, Steele was stumbling, slurring his words, and smelled of alcohol.

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2026(People v. Valdez, supra, 27 Cal.4th at p. 789 .) Under a criminal negligence standard, “‘defendant’s conduct must amount to a reckless, gross, or culpable departure from the ordinary standard of due care; it must be such a departure from what would be conduct of an ordinarily prudent person under the same circumstances as to be incompatible with a proper regard for human life. . . . [¶] [M]ere inattention or mistake in judgment is insufficient to support a criminal 3 Steele does not claim that the trial court committed an instructional error. 13 conviction.’” (People v. Lee (1991) 234 Cal.App

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2002(See, e.g., People v. Kinkead (2000) 80 Cal.App.4th 1113, 1116-1117, 1119-1121 [ 96 Cal.Rptr.2d 121 ] (Kinkead) [the defendant fell asleep next to his three-year-old daughter, after ingesting methamphetamine, marijuana, and alcohol and being up for days, and asphyxiated her]; People v. Toney (1999) 76 Cal.App.4th 618, 620-622 [ 90 Cal.Rptr.2d 578 ] [child living in home where three-gallon pail of a caustic chemical that could melt the skin on contact was on kitchen floor and there were other hazards]; People v. Hansen (1997) 59 Cal.App.4th 473, 476-478,481-482 [ 68 Cal.Rptr.2d 897 ] [34-year-o

2025“As this court noted in People v. Atkins, supra, 31 Cal.App.5th 963, 979 , the analysis used in Lopez to arrive at the knowledge standard for section 148, subdivision (a) is ‘somewhat elliptical.’ Lopez appears to have adopted a criminal negligence standard from the language of Penal Code section 834a, a statute imposing a generalized duty to not resist arrest: ‘If a person has knowledge, or by the exercise of reasonable care, should have knowledge, that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest.’ But

2019Code, § 69.) The intent element specified by the Legislature--knowingly-- "requires actual knowledge on the part of the defendant that the person being resisted is an executive officer and that the officer is engaged in the performance of his/her duty." ( People v. Hendrix (2013) 214 Cal.App.4th 216 , 237, 153 Cal.Rptr.3d 740 ; see also People v. Atkins (2019) 31 Cal.App.5th 963 , 974, 243 Cal.Rptr.3d 283 .) Actual knowledge, unlike constructive knowledge under a criminal negligence standard, means a person is subjectively aware of the necessary facts.

2023(Valdez, at pp. 786-787; Flores, at p. 874.) Criminal negligence “‘“must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences.”’” (Valdez, at p. 788; accord, Stark v. Superior Court (2011) 52 Cal.4th 368, 399 .) “‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test: “[I]f a reasonable person in de

2014Criminal negligence “goes beyond that required for civil liability.” (People v Peabody (1975) 46 Cal.App.3d 43, 47 ) “‘The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what 13 would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.’” (People v. Penny (1955) 44 Cal.2d 861, 879 ; Williams v. Garcetti (1993) 5 Cal.4th 561, 573-574 .) “‘Under th

2001The decision in Toney, supra, 76 Cal.App.4th 618 , 90 Cal. Rptr.2d 578 (from the Second Appellate District and decided after Sargent ) states that section 273a(a) requires the prohibited conduct to be willful, and that cases involving "`indirect abuse'" require a showing of criminal negligence. ( Id. at p. 622, 90 Cal.Rptr.2d 578 .) For the criminal negligence point, Toney cites to the passage in Sargent that lists the indirect abuse cases that impose a criminal negligence requirement, that is, Peabody and its progeny. ( Ibid.; Sargent, supra, 19 Cal.4th at pp. 1218-1219, 81 Cal.Rptr.2d 835 ,

2001The decision in Toney, supra, 76 Cal.App.4th 618 , 90 Cal. Rptr.2d 578 (from the Second Appellate District and decided after Sargent ) states that section 273a(a) requires the prohibited conduct to be willful, and that cases involving "`indirect abuse'" require a showing of criminal negligence. ( Id. at p. 622, 90 Cal.Rptr.2d 578 .) For the criminal negligence point, Toney cites to the passage in Sargent that lists the indirect abuse cases that impose a criminal negligence requirement, that is, Peabody and its progeny. ( Ibid.; Sargent, supra, 19 Cal.4th at pp. 1218-1219, 81 Cal.Rptr.2d 835 ,

2001The decision in Toney, supra, 76 Cal.App.4th 618 , 90 Cal. Rptr.2d 578 (from the Second Appellate District and decided after Sargent ) states that section 273a(a) requires the prohibited conduct to be willful, and that cases involving "`indirect abuse'" require a showing of criminal negligence. ( Id. at p. 622, 90 Cal.Rptr.2d 578 .) For the criminal negligence point, Toney cites to the passage in Sargent that lists the indirect abuse cases that impose a criminal negligence requirement, that is, Peabody and its progeny. ( Ibid.; Sargent, supra, 19 Cal.4th at pp. 1218-1219, 81 Cal.Rptr.2d 835 ,

2001The decision in Toney, supra, 76 Cal.App.4th 618 , 90 Cal. Rptr.2d 578 (from the Second Appellate District and decided after Sargent ) states that section 273a(a) requires the prohibited conduct to be willful, and that cases involving "`indirect abuse'" require a showing of criminal negligence. ( Id. at p. 622, 90 Cal.Rptr.2d 578 .) For the criminal negligence point, Toney cites to the passage in Sargent that lists the indirect abuse cases that impose a criminal negligence requirement, that is, Peabody and its progeny. ( Ibid.; Sargent, supra, 19 Cal.4th at pp. 1218-1219, 81 Cal.Rptr.2d 835 ,

1996Mere inattention or mistake in judgment resulting even in death of another is not criminal unless the quality of the act makes it so.' (Ibid.) 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.' (People v. Watson (1981) 30 Cal.3d 290, 296 .) The amendment thus punishes only parents who know or reasonably should know that their child is at risk of delinquency.

1993Mere inattention or mistake in judgment resulting even in death of another is not criminal unless the quality of the act makes it so.” (Ibid.) 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.” (People v. Watson (1981) 30 Cal.3d 290, 296 [ 179 Cal.Rptr. 43 , 637 P.2d 279 ].) The amendment thus punishes only parents who know or reasonably should know that their child is at risk of delinquency.

2021(See People v. Moon (2005) 37 Cal.4th 1, 29 (Moon).) Moreover, as observed in Linwood, “[t]he jury was instructed that [defendant] was required to commit an intentional act . . . ; in other words, mere negligence would not suffice.” (Linwood, supra, 105 Cal.App.4th at p. 71 .) “There being no error, we also reject defendant’s claim that the alleged instructional error[s] violated his due process rights under the United States Constitution.” (Moon, supra, 37 Cal.4th at p. 30 .) C.

2021(See People v. Moon (2005) 37 Cal.4th 1, 29 (Moon).) Moreover, as observed in Linwood, “[t]he jury was instructed that [defendant] was required to commit an intentional act . . . ; in other words, mere negligence would not suffice.” (Linwood, supra, 105 Cal.App.4th at p. 71 .) “There being no error, we also reject defendant’s claim that the alleged instructional error[s] violated his due process rights under the United States Constitution.” (Moon, supra, 37 Cal.4th at p. 30 .) C.

2020(Valdez, supra, 27 Cal.4th at p. 781 ; see CALCRIM No. 821.) “Criminal negligence is ‘ “aggravated, culpable, gross, or reckless ... conduct ... [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life ….” ’ [Citation.]” ( Valdez, supra, at p. 783 ; see also People v. Sargent (1999) 19 Cal.4th 1206, 1215 .) “ ‘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 h

2000(Sargent, supra, 19 Cal.4th at p. 1222 [“We note this inquiry, as a practical matter, will in most cases not differ significantly from the imposition of a criminal negligence mens rea element into the language ‘under circumstances or conditions likely to produce great bodily harm or death.’ ” (Italics added.)].) That is not to say, however, that criminal negligence is irrelevant to the crime, as Kinkead urges.

2002It does not require any intent to violate [the] law, or to injure another, or to acquire any advantage.” (§ 7, subd. 1.) “We have observed that the meaning of the term ‘willfully’ varies depending on the statutory context.” (People v. Garcia (2001) 25 Cal.4th 744, 753 [ 107 Cal.Rptr.2d 355 , 23 P.3d 590 ] (Garcia); id. at p. 752 [“willful[]” failure to register as a sex offender requires actual knowledge of duty to register].) As construed to contain a criminal negligence requirement, section 273a, subdivision (a) sets forth a standard of conduct that is rigorous.

2002It does not require any intent to violate [the] law, or to injure another, or to acquire any advantage.” (§ 7, subd. 1.) “We have observed that the meaning of the term ‘willfully’ varies depending on the statutory context.” (People v. Garcia (2001) 25 Cal.4th 744, 753 [ 107 Cal.Rptr.2d 355 , 23 P.3d 590 ] (Garcia); id. at p. 752 [“willful[]” failure to register as a sex offender requires actual knowledge of duty to register].) As construed to contain a criminal negligence requirement, section 273a, subdivision (a) sets forth a standard of conduct that is rigorous.

2019In re Jorge M. decided that Penal Code section 12280, subdivision (b), a statute prohibiting possession of assault weapons, is violated when a person knows or reasonably should know that a particular firearm is an "assault weapon" as defined by the law. ( In re Jorge M. (2000) 23 Cal.4th 866 , 887, 98 Cal.Rptr.2d 466 , 4 P.3d 297 .) The analysis in Jorge M. does not support grafting a criminal negligence standard onto Penal Code section 148, subdivision (a)(1).

2019In re Jorge M. decided that Penal Code section 12280, subdivision (b), a statute prohibiting possession of assault weapons, is violated when a person knows or reasonably should know that a particular firearm is an "assault weapon" as defined by the law. ( In re Jorge M. (2000) 23 Cal.4th 866 , 887, 98 Cal.Rptr.2d 466 , 4 P.3d 297 .) The analysis in Jorge M. does not support grafting a criminal negligence standard onto Penal Code section 148, subdivision (a)(1).

2014Criminal negligence “goes beyond that required for civil liability.” (People v Peabody (1975) 46 Cal.App.3d 43, 47 ) “‘The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what 13 would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.’” (People v. Penny (1955) 44 Cal.2d 861, 879 ; Williams v. Garcetti (1993) 5 Cal.4th 561, 573-574 .) “‘Under th

2014Criminal negligence “goes beyond that required for civil liability.” (People v Peabody (1975) 46 Cal.App.3d 43, 47 ) “‘The negligence must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what 13 would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.’” (People v. Penny (1955) 44 Cal.2d 861, 879 ; Williams v. Garcetti (1993) 5 Cal.4th 561, 573-574 .) “‘Under th

2023(Valdez, at pp. 786-787; Flores, at p. 874.) Criminal negligence “‘“must be aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life . . . or an indifference to consequences.”’” (Valdez, at p. 788; accord, Stark v. Superior Court (2011) 52 Cal.4th 368, 399 .) “‘Under the criminal negligence standard, knowledge of the risk is determined by an objective test: “[I]f a reasonable person in de

2022(See, e.g., People v. Butler, supra, 187 Cal.App.4th at p. 1013, fn. 9 [no instructional error where instruction as a whole conveyed the criminal negligence standard by stating, “ ‘[t]he defendant committed involuntary manslaughter if . . . [¶] the defendant committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed’ ”].) We thus agree with defendant the modified involuntary manslaughter instruction was given in error.

2022(People v. Merritt (2017) 2 Cal.5th 819, 821 [an instruction which omits a necessary element of the offense is clearly erroneous].) We nevertheless find defendant was not prejudiced by the instructional error.

2020(See People v. King (2006) 38 Cal.4th 617, 621-628 [weapon possession statute required knowledge because silent as to intent and not public welfare offense]; see also In re Jennings (2004) 34 Cal.4th 254, 268 [finding public welfare offense after concluding statute silent regarding mens rea].) Our Supreme Court has not had occasion to interpret 5 While the appellate court concluded a defendant must know he or she is in possession of an assault weapon, our Supreme Court concluded the criminal negligence standard of knew or reasonably should have known was appropriate.