California Criminal Jury Instructions (CALCRIM) (2017)

590. Gross Vehicular Manslaughter While Intoxicated

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(iii) Vehicular
590.Gross Vehicular Manslaughter While Intoxicated (Pen. Code,
§ 191.5(a))
The defendant is charged [in Count ] with gross vehicular
manslaughter while intoxicated [in violation of Penal Code section
191.5(a)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (drove under the influence of (an alcoholic
beverage/ [or] a drug) [or under the combined influence of an
alcoholic beverage and a drug]/drove while having a blood
alcohol level of 0.08 or higher/drove under the influence of (an
alcoholic beverage/ [or] a drug) [or under the combined influence
of an alcoholic beverage and a drug] when under the age of 21/
drove while having a blood alcohol level of 0.05 or higher when
under the age of 21);
2. While driving that vehicle under the influence of (an alcoholic
beverage/ [or] a drug) [or under the combined influence of an
alcoholic beverage and a drug], the defendant also committed
(a/an) (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful
act that might cause death);
3. The defendant committed the (misdemeanor[,]/ [or] infraction[,]/
[or] otherwise lawful act that might cause death) with gross
negligence;
AND
4. The defendant’s grossly negligent conduct caused the death of
another person.
[The People allege that the defendant committed the following
(misdemeanor[s]/ [and] infraction[s]): <insert
misdemeanor[s] /infraction[s]>.
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant committed <insert
misdemeanor[s]/infraction[s]>.]
[The People [also] allege that the defendant committed the following
otherwise lawful act(s) that might cause death: <insert
act[s] alleged>.]
Instruction[s] tell[s] you what the People must prove in
order to prove that the defendant (drove under the influence of (an
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alcoholic beverage/ [or] a drug) [or under the combined influence of an
alcoholic beverage and a drug]/drove while having a blood alcohol level
of 0.08 or higher/drove under the influence of (an alcoholic beverage/
[or] a drug) [or under the combined influence of an alcoholic beverage
and a drug] when under the age of 21).
Gross negligence involves more than ordinary carelessness, inattention,
or mistake in judgment. A person acts with gross negligence when:
1. He or she acts in a reckless way that creates a high risk of death
or great bodily injury;
AND
2. A reasonable person would have known that acting in that way
would create such a risk.
In other words, a person acts with gross 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 combination of driving a vehicle while under the influence of (an
alcoholic beverage/ [and/or] a drug) and violating a traffic law is not
enough by itself to establish gross negligence. In evaluating whether the
defendant acted with gross negligence, consider the level of the
defendant’s intoxication, if any; the way the defendant drove; and any
other relevant aspects of the defendant’s conduct.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
[A person facing a sudden and unexpected emergency situation not
caused by that person’s own negligence is required only to use the same
care and judgment that an ordinarily careful person would use in the
same situation, even if it appears later that a different course of action
would have been safer.]
[An act causes death if the death is the direct, natural, and probable
consequence of the act and the death would not have happened without
the act. A natural and probable consequence is one that a reasonable
person would know is likely to happen if nothing unusual intervenes. In
deciding whether a consequence is natural and probable, consider all of
the circumstances established by the evidence.]
[There may be more than one cause of death. An act causes death only
if it is a substantial factor in causing the death. A substantial factor is
more than a trivial or remote factor. However, it does not need to be the
only factor that causes the death.]
[The People allege that the defendant committed the following
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(misdemeanor[s][,]/ [and] infraction[s][,]/ [and] otherwise lawful act[s]
that might cause death): <insert alleged predicate acts when
multiple acts alleged>. You may not find the defendant guilty unless all
of you agree that the People have proved that the defendant committed
at least one of these alleged (misdemeanors[,]/ [or] infractions[,]/ [or]
otherwise lawful acts that might cause death) and you all agree on
which (misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act that
might cause death) the defendant committed.]
[The People have the burden of proving beyond a reasonable doubt that
the defendant committed gross vehicular manslaughter while
intoxicated. If the People have not met this burden, you must find the
defendant not guilty of that crime. You must consider whether the
defendant is guilty of the lesser crime[s] of <insert lesser
offense[s]>.]
New January 2006; Revised June 2007
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
The court has a sua sponte duty to specify the predicate misdemeanor(s) or
infraction(s) alleged and to instruct on the elements of the predicate offense(s).
(People v. Milham (1984) 159 Cal.App.3d 487, 506 [205 Cal.Rptr. 688]; People v.
Ellis (1999) 69 Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].) In element 1,
instruct on the particular “under the influence” offense charged. In element 2,
instruct on either theory of vehicular manslaughter (misdemeanor/infraction or
lawful act committed with negligence) as appropriate. The court must also give the
appropriate instruction on the elements of the driving under the influence offense
and the predicate misdemeanor or infraction.
If causation is at issue, the court has a sua sponte duty to instruct on proximate
cause. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590–591 [35 Cal.Rptr.
401].) If the evidence indicates that there was only one cause of death, the court
should give the “direct, natural, and probable” language in the first bracketed
paragraph on causation. If there is evidence of multiple causes of death, the court
should also give the “substantial factor” instruction in the second bracketed
paragraph on causation. (See People v. Autry (1995) 37 Cal.App.4th 351, 363 [43
Cal.Rptr.2d 135]; People v. Pike (1988) 197 Cal.App.3d 732, 746–747 [243
Cal.Rptr. 54].)
There is a split in authority over whether there is a sua sponte duty to give a
unanimity instruction when multiple predicate offenses are alleged. (People v. Gary
(1987) 189 Cal.App.3d 1212, 1218 [235 Cal.Rptr. 30] [unanimity instruction
required, overruled on other grounds in People v. Flood (1998) 18 Cal.4th 470, 481
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[76 Cal.Rptr.2d 180 957 P.2d 869]; People v. Durkin (1988) 205 Cal.App.3d Supp.
9, 13 [252 Cal.Rptr. 735] [unanimity instruction not required but preferable];
People v. Mitchell (1986) 188 Cal.App.3d 216, 222 [232 Cal.Rptr. 438] [unanimity
instruction not required]; People v. Leffel (1988) 203 Cal.App.3d 575, 586–587
[249 Cal.Rptr. 906] [unanimity instruction not required, harmless error if was
required].) A unanimity instruction is included in a bracketed paragraph for the
court to use at its discretion.
If there is sufficient evidence and the defendant requests it, the court should instruct
on the imminent peril/sudden emergency doctrine. (People v. Boulware (1940) 41
Cal.App.2d 268, 269–270 [106 P.2d 436].) Give the bracketed sentence that begins
with “A person facing a sudden and unexpected emergency.”
If the defendant is charged with one or more prior conviction (see Pen. Code,
§ 191.5(d)), the court should also give CALCRIM No. 3100, Prior Conviction:
Nonbifurcated Trial, unless the defendant has stipulated to the prior conviction or
the court has granted a bifurcated trial. (See Bench Notes to CALCRIM No. 3100.)
AUTHORITY
• Gross Vehicular Manslaughter While Intoxicated. Pen. Code, § 191.5(a).
Unlawful Act Dangerous Under the Circumstances of Its Commission. People
v. Wells (1996) 12 Cal.4th 979, 982 [50 Cal.Rptr.2d 699, 911 P.2d 1374].
• Specifying Predicate Unlawful Act. People v. Milham (1984) 159 Cal.App.3d
487, 506 [205 Cal.Rptr. 688].
• Elements of the Predicate Unlawful Act. People v. Ellis (1999) 69
Cal.App.4th 1334, 1339 [82 Cal.Rptr.2d 409].
• Unanimity Instruction. People v. Gary (1987) 189 Cal.App.3d 1212, 1218
[235 Cal.Rptr. 30], overruled on other grounds in People v. Flood (1998) 18
Cal.4th 470, 481 [76 Cal.Rptr.2d 180, 957 P.2d 869]; People v. Durkin (1988)
205 Cal.App.3d Supp. 9, 13 [252 Cal.Rptr. 735]; People v. Mitchell (1986) 188
Cal.App.3d 216, 222 [232 Cal.Rptr. 438]; People v. Leffel (1988) 203
Cal.App.3d 575, 586–587 [249 Cal.Rptr. 906].
• Gross Negligence. People v. Penny, (1955) 44 Cal.2d 861, 879–880 [285 P.2d
926]; People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr. 863].
• Gross Negligence—Overall Circumstances. People v. Bennett (1992) 54
Cal.3d 1032, 1039 [2 Cal.Rptr.2d 8, 819 P.2d 849].
• Causation. People v. Rodriguez (1960) 186 Cal.App.2d 433, 440 [8 Cal.Rptr.
863].
• Imminent Peril/Sudden Emergency Doctrine. People v. Boulware (1940) 41
Cal.App.2d 268, 269 [106 P.2d 436].
• This Instruction Upheld. People v. Hovda (2009) 176 Cal.App.4th 1355, 1358
[98 Cal.Rptr.3d 499].
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Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
Person, §§ 238–245.
4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 85,
Submission to Jury and Verdict, § 85.02[2][a][i] (Matthew Bender).
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.04, Ch. 142, Crimes Against the Person,
§ 142.02[2][c], [4], Ch. 145, Narcotics and Alcohol Offenses, §§ 145.02[4][c],
145.03[1][a] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Vehicular Manslaughter With Gross Negligence Without Intoxication. Pen.
Code, § 192(c)(1); People v. Miranda (1994) 21 Cal.App.4th 1464, 1466–1467
[26 Cal.Rptr.2d 610].
• Vehicular Manslaughter With Ordinary Negligence While Intoxicated. Pen.
Code, § 192(c)(3); People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165–1166
[123 Cal.Rptr.2d 322].
• Vehicular Manslaughter With Ordinary Negligence Without Intoxication. Pen.
Code, § 192(c)(2); People v. Rodgers (1949) 94 Cal.App.2d 166, 166 [210 P.2d
71].
• Injury to Someone While Driving Under the Influence of Alcohol or
Drugs. Veh. Code, § 23153; People v. Miranda (1994) 21 Cal.App.4th 1464,
1466–1467 [26 Cal.Rptr.2d 610].
Gross vehicular manslaughter while intoxicated is not a lesser included offense of
murder. (People v. Sanchez (2001) 24 Cal.4th 983, 992 [103 Cal.Rptr.2d 698, 16
P.3d 118].)
RELATED ISSUES
DUI Cannot Serve as Predicate Unlawful Act
The Vehicle Code driving-under-the-influence offense of the first element cannot do
double duty as the predicate unlawful act for the second element. (People v.
Soledad (1987) 190 Cal.App.3d 74, 81 [235 Cal.Rptr. 208].) “[T]he trial court
erroneously omitted the ‘unlawful act’ element of vehicular manslaughter when
instructing in . . . [the elements] by referring to Vehicle Code section 23152 rather
than another ‘unlawful act’ as required by the statute.” (Id. at p. 82.)
Predicate Act Need Not Be Inherently Dangerous
“[T]he offense which constitutes the ‘unlawful act’ need not be an inherently
dangerous misdemeanor or infraction. Rather, to be an ‘unlawful act’ within the
meaning of section 192(c)(1), the offense must be dangerous under the
circumstances of its commission. An unlawful act committed with gross negligence
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would necessarily be so.” (People v. Wells (1996) 12 Cal.4th 979, 982 [50
Cal.Rptr.2d 699, 911 P.2d 1374].)
Lawful Act in an Unlawful Manner: Negligence
The statute uses the phrase “lawful act which might produce death, in an unlawful
manner.” (Pen. Code, § 191.5.) “[C]ommitting a lawful act in an unlawful manner
simply means to commit a lawful act with negligence, that is, without reasonable
caution and care.” (People v. Thompson (2000) 79 Cal.App.4th 40, 53 [93
Cal.Rptr.2d 803].) Because the instruction lists the negligence requirement as
element 3, the phrase “in an unlawful manner” is omitted from element 2 as
repetitive.
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