Accidental ActAccidental Act Explained
by San Diego Defense Attorneys

Accident provides a complete defense to a crime where the defendant acted without the intent required for that crime, but instead acted accidentally.  Essentially, the defense of Accident negates the mental state element of the crime charged.  The defense is also codified in Penal Code § 26(5) which says in pertinent part “All persons are capable of committing crimes except… Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.”


  • Where a person shuts a door behind him and the door swings and hits another, such act is not Battery, because it was an accident.
  • Where a person trips and falls while holding a gun and the gun fires and the bullet hits another, there is no criminal act because of accident.
  • Where a husband turns around and unwittingly elbows his wife in the face, no domestic violence occurs because of Accident.

Burden of Proof

If substantial evidence exists for Accident Defense, the burden is on the prosecution to prove beyond a reasonable doubt that the act was not done because of accident or misfortune.  This is because the mental state element of the crime must be proven by the prosecution.  Thus, if there is evidence negating that element, then they must overcome that evidence with proof beyond a reasonable doubt.  (See People v. Black (1951) 103 Cal.App.2d 69, 79.)

Case Law

” ‘Misfortune’ when applied to a criminal act is analogous [to] the word ‘misadventure’ and bears the connotation of accident while doing a lawful act.” (People v. Gargol (1953) 122 Cal.App.2d 281.)

Trial judge, in prosecution for attempted murder arising out of shooting of defendant’s lover, had sua sponte duty to give amplifying or clarifying instructions for term “culpable negligence” as used in CALJIC instruction on accident and misfortune, as it had technical meaning peculiar to law not commonly understood by average person.  (People v. Thurmond (App. 2 Dist. 1985) 175 Cal.App.3d 865.)

Jury Considerations

What a jury considers when determining whether Accident applies depends on whether the crime charged is an Intent Crime or a Negligence Crime.  A crime that has no mental state requirement (Strict Liability Crimes) is not justified by Accident.

  • If a crime is a General Intent or Specific Intent Crime, the jury must find defendant “Not Guilty” because of accident where the defendant acted without the required intent and instead acted accidentally.
  • If a crime is a Criminal Negligence Crime, the jury must find the defendant “Not Guilty” because of Accident where the defendant was not negligent, but instead committed the crime out of accident.

Learn More …

If you or a loved one are accused of a San Diego Criminal Offense and the Crime was committed because of an Accident, give our Criminal Defense Attorneys a call for a Free Analysis by calling 619-708-2073 or emailing us at

Why Our Firm?

On all criminal cases we offer a Free initial consultation. This is your chance to gain candid advice on potential outcomes and implications of your criminal charge. You will meet with our attorneys, go over the facts of your case, relevant law and San Diego procedures. You will leave with a checklist of items we feel will take your case to a successful outcome.

Scott Hullinger, Esq.

Scott Hullinger, Esq.

San Diego Criminal & Civil Attorney

Request A Free Consultation