Updated October 2026 | The Bulldog Law | California Criminal Defense

Criminal negligence is the lowest mental state that will support a criminal conviction in California. Penal Code 20 provides that in every crime there must be a union of act and intent, or criminal negligence, and the jury instructions define the term as acting in a reckless way that creates a high risk of death or great bodily injury, where a reasonable person would have known that acting that way would create such a risk. It is more than ordinary carelessness, inattention, or a mistake in judgment; it is a gross departure from how a reasonably careful person would act in the same situation. The standard is objective: the question is what a reasonable person would have appreciated, not what the defendant actually did. It is the mental state for involuntary manslaughter, vehicular manslaughter, child endangerment, elder abuse, negligent discharge of a firearm, and a set of other offenses, and the line between it and ordinary negligence is the line between a lawsuit and a prosecution.

The Bulldog Law's attorneys defend criminal negligence cases that began as accidents: a fatal crash, a child injured in a home, a parent who left a loaded gun where it could be reached, a caregiver whose patient was found with pressure sores, a construction foreman whose crew member fell, a driver who was tired rather than drunk. In each, no one intended harm, and the prosecution's theory is that the carelessness was bad enough to be a crime. The defense is that it was not, that the conduct was negligent in the civil sense but not grossly so, or that it was not the cause of the harm, or that there was no duty at all. What follows is how California defines the standard, where it sits on the spectrum from civil negligence to intent, the offenses that use it, and how it is contested. Call (888) 928-1609 or message our team.

The definition

Penal Code 20 sets the baseline: in every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence. Penal Code 7 defines neglect, negligence, negligent, and negligently as importing a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns. The statutes do not define criminal negligence directly; the courts and the jury instructions do.

CALCRIM 580, the involuntary manslaughter instruction, states it this way: criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when he or she acts in a reckless way that creates a high risk of death or great bodily injury, and a reasonable person would have known that acting in that way would create such a risk. In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act. The California Supreme Court's formulation in People v. Penny, which the instruction follows, requires 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.

Two features of the definition decide cases. The standard is objective: the defendant's actual awareness of the risk is not an element, and a defendant who did not appreciate the danger is still criminally negligent if a reasonable person would have. And the departure must be gross: the instruction's own words, more than ordinary carelessness, inattention, or mistake in judgment, are the defense in most cases, because most harmful carelessness is ordinary.

The spectrum: from civil negligence to intent

The civil end of the spectrum is covered on our page on the elements of negligence in personal injury cases, and the same facts frequently produce both a lawsuit and a prosecution. The top of the spectrum, the distinction between implied malice murder and manslaughter, is covered on our page on murder versus manslaughter, and the general treatment of mens rea and criminal intent explains how California classifies the mental states for every offense. The point of the table is that criminal negligence occupies the band between a tort and a conscious disregard for life: the defendant need not have known, but the conduct must have been bad enough that an ordinary person would have.

The offenses built on criminal negligence

Involuntary manslaughter, Penal Code 192(b). An unlawful killing without malice, in the commission of an unlawful act not amounting to a felony, or of a lawful act that might produce death done in an unlawful manner or without due caution and circumspection. The without-due-caution prong is criminal negligence, and the charge covers deaths from a fistfight, a fall during an argument, a workplace accident, a reckless act with a weapon, and a caregiver's neglect. Two, three, or four years. Our page on negligent homicide covers the offense, and our page on Penal Code 192 covers all three forms of manslaughter.

Vehicular manslaughter, Penal Code 192(c). Driving a vehicle with gross negligence that causes death is a wobbler with up to six years; with ordinary negligence, a misdemeanor with up to a year. The gross-negligence prong is criminal negligence by another name, and the two-tier structure, the same death charged as a felony or a misdemeanor depending on whether the negligence was gross, is the clearest illustration in the code of what the standard decides. With intoxication, the offense becomes gross vehicular manslaughter while intoxicated under Penal Code 191.5, four, six, or ten years, and with a prior DUI warning, implied malice murder. Our DUI and reckless driving pages cover the driving offenses, and felony hit and run the aftermath.

Child endangerment, Penal Code 273a. Willfully causing or permitting a child to suffer, or placing a child in a situation where their person or health is endangered, under circumstances likely to produce great bodily harm or death, is a wobbler with up to six years; without those circumstances, a misdemeanor. Criminal negligence is the required mental state for the permitting and placing prongs, and the cases are about leaving children unattended, in hot cars, around weapons, drugs, or dangerous people, and in homes with hazards. The question in each is whether a reasonable parent would have seen the risk.

Elder and dependent adult abuse, Penal Code 368. The same structure as 273a for victims 65 and older or dependent adults, reaching caregivers, family members, and facility staff whose neglect caused injury. The medical-neglect cases, a patient who developed bedsores, dehydration, or an untreated infection, are prosecuted under this section on a criminal negligence theory, and the defense is often that the standard of care was met or that the decline was the disease.

Negligent discharge of a firearm, Penal Code 246.3. Willfully discharging a firearm in a grossly negligent manner that could result in injury or death, a wobbler with up to three years; celebratory gunfire and warning shots are the usual facts. Firearm storage offenses under Penal Code 25100 and following, leaving a loaded firearm where a child is likely to access it, are criminal negligence offenses with penalties that rise with the harm, and our page on firearm prohibitions covers the related restrictions.

Reckless endangerment and others. California has no general reckless endangerment statute, as our page on reckless endangerment explains; the conduct is charged under the specific sections above or under assault and battery. Other negligence-based offenses include negligent operation of a vessel, certain fire-setting offenses under Penal Code 452, and the professional negligence provisions in the Business and Professions Code. The list of California felonies shows where the felony versions sit.

How the standard is contested

Not gross. The central defense. The prosecution must prove a departure from reasonable care so serious that it amounts to disregard for human life, and most accidents, including fatal ones, involve ordinary carelessness: a moment of inattention, a misjudgment, a failure to anticipate an unusual event. Expert testimony on industry standards, driving conditions, medical practice, or safe firearm handling establishes what reasonable care required and whether the defendant's conduct was merely short of it or far outside it. A jury that finds negligence but not gross negligence acquits on the criminal charge, and in vehicular manslaughter convicts of the misdemeanor rather than the felony.

Not the cause. Criminal negligence offenses require that the negligent act be a substantial factor in causing the harm, and intervening causes, the victim's own conduct, another person's act, a medical complication, are litigated. A death that would have occurred regardless of the defendant's conduct is not the defendant's crime.

No duty. The permitting and neglect prongs of the endangerment statutes require a duty of care toward the victim, as a parent, guardian, caregiver, or person with custody. A visitor, a neighbor, or a relative who had no responsibility for the child or the elder is not criminally liable for failing to protect them, however tragic the result.

Lawful act, lawful manner. Involuntary manslaughter's second prong requires either an unlawful act or a lawful act done without due caution. A lawful act performed as a reasonable person would, with an unforeseeable result, is neither.

The reasonable person in the defendant's situation. The objective standard asks what a reasonable person would have known in the same situation, and the situation includes what the defendant could perceive: a hazard that was hidden, a risk that was not apparent, information the defendant did not have. The standard does not excuse a defendant's unusual ignorance, but it does account for what was actually knowable.

A prosecution that rests on a bad outcome rather than on a gross departure from care has the weakness that most negligence cases have, which is that the outcome is not the standard, and our attorneys build the defense around the conduct as it looked before the harm occurred rather than after.

Frequently asked questions

What is criminal negligence?

Conduct so reckless that it amounts to a gross departure from how an ordinarily careful person would act in the same situation, creating a high risk of death or great bodily harm, by a person who either knew of the risk or should have. California's jury instructions define it as more than ordinary carelessness, inattention, or mistake in judgment. It is the mental state for involuntary manslaughter, child endangerment, elder abuse, and several other offenses where no intent to harm is required.

What is the difference between negligence and criminal negligence?

Degree. Ordinary negligence, the standard in a personal injury lawsuit, is a failure to use reasonable care, and it supports a claim for money damages. Criminal negligence requires a gross or aggravated departure from reasonable care, amounting to a disregard for human life or indifference to consequences, and it supports a conviction. A driver who glances at a phone and rear-ends someone is negligent; a driver who texts for a mile at 90 miles per hour in traffic may be criminally negligent.

What is the difference between recklessness and criminal negligence?

Awareness. Recklessness, in the Model Penal Code sense, means consciously disregarding a known risk. Criminal negligence in California does not require that the person actually knew of the risk, only that a reasonable person would have, which is why California treats the two as nearly the same for most purposes and instructs juries on criminal negligence using the language of recklessness. Conscious disregard of a risk to life goes further still: that is implied malice, and it turns a death into murder.

Is culpable negligence the same as criminal negligence?

Yes, in substance. Culpable negligence is the term some states and older cases use for the same concept: negligence serious enough to be blameworthy and punishable rather than merely compensable. California statutes and instructions use criminal negligence, and Penal Code 7 defines the related terms neglect, negligence, and negligent as importing a want of such attention to the nature or probable consequences of the act as a prudent person usually exercises.

Can you go to jail for negligence?

Not for ordinary negligence. Criminal liability requires at least criminal negligence under Penal Code 20, which says that in every crime there must exist a union of act and intent, or criminal negligence. Where the negligence rises to that level and a statute attaches, involuntary manslaughter, vehicular manslaughter, child endangerment, elder abuse, negligent discharge of a firearm, the answer is yes, with sentences ranging from misdemeanor probation to several years in prison depending on the offense and the harm.

Related reading from our attorneys

• Mens rea: criminal intent and its role in criminal law
• Negligent homicide: an overview
• Child endangerment under Penal Code 273a

Charged after an accident? Whether carelessness was a crime is the whole case

The Bulldog Law's defense attorneys handle involuntary and vehicular manslaughter, child endangerment, elder neglect, and firearm negligence cases across California, with the gross-negligence standard, causation, and the duty element contested in every case. Visit our criminal defense page, call (888) 928-1609, or reach us online.