Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2024) Homicide CALCRIM No. 591. Vehicular Manslaughter While Intoxicated - Ordinary Negligence (Pen. Code, § 191.5(b))

CALCRIM No. 591. Vehicular Manslaughter While Intoxicated - Ordinary Negligence (Pen. Code, § 191.5(b))

Judicial Council of California Criminal Jury Instructions (2024 edition)

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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.>

[The defendant is charged [in Count ] with vehicular

manslaughter with ordinary negligence while intoxicated [in violation of

Penal Code section 191.5(b)].]

[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 more

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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, March 2021

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 an

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].

LESSER INCLUDED OFFENSES

• Vehicular Manslaughter With Ordinary Negligence Without Intoxication. Pen.

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Code, § 192(c)(2); see People v. Miranda (1994) 21 Cal.App.4th 1464,

1466-1467 [26 Cal.Rptr.2d 610].

• Injury to Same Victim While Driving Under the Influence of Alcohol or Drugs.

Veh. Code, § 23153; People v. Machuca (2020) 49 Cal.App.5th 393, 400-401

[263 Cal.Rptr.3d 52]; 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.

SECONDARY SOURCES

1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the

Person, §§ 263-271.

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).

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Page last reviewed May 2024