California Criminal Jury Instructions (CALCRIM) (2017)

591. Vehicular Manslaughter While Intoxicated - Ordinary Negligence

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591.Vehicular Manslaughter While Intoxicated—Ordinary
Negligence (Pen. Code, § 191.5(b))
<If vehicular manslaughter while intoxicated—ordinary negligence is a
charged offense, give alternative A; if this instruction is being given as a
lesser included offense, give alternative B.>
<Introductory Sentence: Alternative A—Charged Offense>
[The defendant is charged [in Count ] with vehicular
manslaughter with ordinary negligence while intoxicated [in violation of
Penal Code section 191.5(b)].]
<Introductory Sentence: Alternative B—Lesser Included Offense>
[Vehicular manslaughter with ordinary negligence while intoxicated is a
lesser crime than the charged crime of gross vehicular manslaughter
while intoxicated.]
To prove that the defendant is guilty of vehicular manslaughter with
ordinary negligence while intoxicated, 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/operated a vessel under the influence of (an
alcoholic beverage/ [or] a drug) [or a combined influence of an
alcoholic beverage and a drug]/operated a vessel while having a
blood alcohol level of 0.08 or higher);
2. While (driving that vehicle/operating that vessel) 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 ordinary
negligence;
AND
4. The defendant’s negligent conduct caused the death of another
person.
[The People allege that the defendant committed the following
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(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
alcoholic beverage/ [or] a drug) [or a 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 a 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/operated a vessel under the influence
of (an alcoholic beverage/ [or] a drug [or a combined influence of an
alcoholic beverage and a drug])/operated a vessel while having a blood
alcohol level of 0.08 or higher).
[The difference between this offense and the charged offense of gross
vehicular manslaughter while intoxicated is the degree of negligence
required. I have already defined gross negligence for you.]
Ordinary negligence[, on the other hand,] is the failure to use reasonable
care to prevent reasonably foreseeable harm to oneself or someone else.
A person is negligent if he or she (does something that a reasonably
careful person would not do in the same situation/ [or] fails to do
something that a reasonably careful person would do in the same
situation).
[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
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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
(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 vehicular manslaughter with ordinary
negligence 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
Important note: The legislature repealed Penal Code section 192(c)(3) in the form
that was previously the basis for this instruction effective January 1, 2007.
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
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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
[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.”
AUTHORITY
• Vehicular Manslaughter While Intoxicated. Pen. Code, § 191.5(b).
Vehicular Manslaughter During Operation of a Vessel While Intoxicated. Pen.
Code, § 192.5(c).
• 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].
• Ordinary Negligence. Pen. Code, § 7, subd. 2; Rest.2d Torts, § 282.
• 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].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against the
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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[1][a], [2][c], [4], Ch. 145, Narcotics and Alcohol Offenses, § 145.02[4][c]
(Matthew Bender).
LESSER INCLUDED OFFENSES
• Vehicular Manslaughter With Ordinary Negligence Without Intoxication. Pen.
Code, § 192(c)(2); see People v. Miranda (1994) 21 Cal.App.4th 1464,
1466–1467 [26 Cal.Rptr.2d 610].
• 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].
RELATED ISSUES
See the Related Issues section to CALCRIM No. 590, Gross Vehicular
Manslaughter While Intoxicated.
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