California Criminal Jury Instructions (CALCRIM) (2017)

592. Gross Vehicular Manslaughter

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592.Gross Vehicular Manslaughter (Pen. Code, § 192(c)(1))
<If gross vehicular manslaughter 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 gross vehicular
manslaughter [in violation of Penal Code section 192(c)(1)].]
<Introductory Sentence: Alternative B—Lesser Included Offense>
[Gross vehicular manslaughter is a lesser crime than gross vehicular
manslaughter while intoxicated.]
To prove that the defendant is guilty of gross vehicular manslaughter,
the People must prove that:
1. The defendant (drove a vehicle/operated a vessel);
2. While (driving that vehicle/operating that vessel), the defendant
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.
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 how 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.
[Great bodily injury means significant or substantial physical injury. It is
an injury that is greater than minor or moderate harm.]
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[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
(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>.]
[You may not find the defendant guilty unless all of you agree that the
People have proved that the defendant committed at least one alleged
(misdemeanor[,]/ [or] infraction[,]/ [or] otherwise lawful act 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. 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 February 2015
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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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 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 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
[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
• Gross Vehicular Manslaughter. Pen. Code, § 192(c)(1).
Gross Vehicular Manslaughter During Operation of a Vessel. Pen. Code,
§ 192.5(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 Predicate Unlawful Act. People v. Ellis (1999) 69 Cal.App.4th
1334, 1339 [82 Cal.Rptr.2d 409].
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• 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. Bennett (1992) 54 Cal.3d 1032, 1036 [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].
Secondary Sources
1 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against the
Person, §§ 262–268.
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] (Matthew Bender).
LESSER INCLUDED OFFENSES
• Vehicular Manslaughter With Ordinary Negligence. Pen. Code, § 192(c)(2);
see People v. Verlinde (2002) 100 Cal.App.4th 1146, 1165–1166 [123
Cal.Rptr.2d 322].
• Manslaughter During Operation of a Vessel Without Gross Negligence. Pen.
Code, § 192.5(b).
RELATED ISSUES
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
would necessarily be so.” (People v. Wells (1996) 12 Cal.4th 979, 982 [50
Cal.Rtpr.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, § 192(c)(1).) “[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
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element 3, the phrase “in an unlawful manner” is omitted from element 2 as
repetitive.
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