What is the test for the defense to argue that a charged offence was committed through misfortune or by accident?

No crime is committed by a person who commits the act charged through misfortune or by accident, "when it appears that there was no evil design, intention, or culpable negligence." ( 26.) "The defense appears in CALCRIM No. 3404, which explains a defendant is not guilty of a charged crime if he or she acted 'without the intent required for that crime, but acted instead accidentally.'" (People v. Anderson (2011) 51 Cal.4th 989, 996, quoting CALCRIM No. 3404.)

"'"[W]hen a defendant presents evidence to attempt to negate or rebut the prosecution's proof of an element of the offense, a defendant is not presenting a special defense invoking sua sponte instructional duties. While a court may well have a duty to give a 'pinpoint' instruction relating such evidence to the elements of the offense and to the jury's duty to acquit if the evidence produces a reasonable doubt, such 'pinpoint' instructions are not required to be given sua sponte and must be given only upon request."' [Citation.]" (People v. Anderson, supra, 51 Cal.4th at pp. 996-997.) The claim that a charged offense "'was committed through misfortune or accident "amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime."'" (Id. at p. 997.) Where a defendant presents substantial evidence of accident, the trial court is obligated "to provide an appropriate pinpoint instruction upon request by the defense." (Id. at p. 998.)

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