California Criminal Jury Instructions (CALCRIM) (2017)

593. Misdemeanor Vehicular Manslaughter - Ordinary Negligence

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593.Misdemeanor Vehicular Manslaughter (Pen. Code,
§ 192(c)(2))
<If misdemeanor vehicular manslaughter—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 [in violation of Penal Code section 192(c)(2)].]
<Introductory Sentence: Alternative B—Lesser Included Offense>
[Vehicular manslaughter with ordinary negligence is a lesser crime than
(gross vehicular manslaughter while intoxicated/ [and] gross vehicular
manslaughter/ [and] vehicular manslaughter with ordinary negligence
while intoxicated.)]
To prove that the defendant is guilty of vehicular manslaughter with
ordinary negligence, the People must prove that:
1. While (driving a vehicle/operating a vessel), the defendant
committed (a misdemeanor[,]/ [or] an infraction/ [or] a lawful act
in an unlawful manner);
2. The (misdemeanor[,]/ [or] infraction/ [or] otherwise lawful act)
was dangerous to human life under the circumstances of its
commission;
3. The defendant committed the (misdemeanor[,]/ [or] infraction/
[or] otherwise lawful act) with ordinary negligence.
AND
4. The (misdemeanor[,]/ [or] infraction/ [or] otherwise lawful act)
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] with ordinary negligence: <insert
act[s] alleged>.]
[The difference between this offense and the charged offense of gross
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vehicular manslaughter 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 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] 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.]
New January 2006; Revised December 2008, October 2010, April 2011
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).
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(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 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. In the definition of ordinary negligence, the court
should use the entire phrase “harm to oneself or someone else” if the facts of the
case show a failure by the defendant to prevent harm to him-or herself rather than
solely harm to another.
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 Without Gross Negligence. Pen. Code, § 192(c)(2).
Vehicular Manslaughter During Operation of a Vessel Without Gross
Negligence. Pen. Code, § 192.5(b).
• 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].
• 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].
• Criminal Negligence Requirement. People v. Butler (2010) 187 Cal.App.4th
998, 1014 [114 Cal.Rptr.3d 696].
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[1][a], [2][c], [4] (Matthew Bender).
RELATED ISSUES
See the Related Issues section to CALCRIM No. 592, Gross Vehicular
Manslaughter.
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