Return to CALJIC Part 5-8 – Contents
F 8.90 n1 Non-Intoxication: Research Notes (PC 192(c)(1) & PC 192(c)(2)).
See Annotation, Homicide by Automobile as Murder, 21 ALR3d 116 and Later Case Service.
F 8.90 n2 Non-Intoxication: Sua Sponte Instruction On Legal Definition Of Death (PC 192(c)(1) & PC 192(c)(2)).
In common usage, a person is killed only when he or she is totally lifeless, i.e., when both heart and brain have ceased to operate. (See Barber v. Superior Court (83) 147 CA3d 1006, 1013 [195 CR 484] [noting that death has historically been defined to require cessation of heart as well as respiratory functions].) But, because California law now defines death as cessation of brain or cardiac activity (see “definition of viable fetus” above), the term “killing” has a technical meaning different from the common usage upon which the trial court must instruct sua sponte when appropriate. For example, when the acts which are relied upon to prove the defendant’s mental state (e.g., premeditation, deliberation, torture, malice) may have occurred after the cessation of the heart or respiratory system then there is a danger that the jury will not make a proper determination of concurrence of act and intent without an adequate definition of “death.” [See Brief Bank # B-534 for additional briefing on this issue.]
F 8.90 n3 Non-Intoxication: Definition Of Viable Fetus (PC 192(c)(1) & PC 192(c)(2)).
See FORECITE F 8.10a.
F 8.90 n4 Non-Intoxication Vehicular Manslaughter: Act Must Be Dangerous As Committed.
SUBSEQUENT HISTORY: CJ Instruction Modified To Comport With FORECITE. In the CALJIC 6th Edition, CJ 8.90 was amended to include the definition of an unlawful killing previously identified in FORECITE [unlawful act which must be dangerous under the circumstances of its commission].
People v. Wells (96) 12 C4th 979 [50 CR2d 699] held that there is no requirement of an act “inherently dangerous in the abstract” for any form of manslaughter. Instead, the statute requires that the unlawful act causing death be committed “through criminal negligence. [Citation.]” (Wells, 12 C4th at 988.) Accordingly, it is sufficient that the offense be dangerous under the circumstances of its commission. This requirement is satisfied by a finding that the act was committed “through conduct that qualifies as gross negligence.” (Wells, 12 C4th at 989; see also, FORECITE F 8.45c.)
F 8.90 n5 Vehicular Manslaughter – Non-Intoxication: Violation Of Basic Speed Law Not Inherently Dangerous.
[See FORECITE F 8.90 n4]
F 8.90 n6 Vehicular Manslaughter Inapplicable To Death Of Fetus.
Because the manslaughter statutes (PC 191.5 and PC 192) do not include death of a fetus as does the murder statute (PC 187) the defendant, obviously, cannot be convicted of vehicular manslaughter based on the death of a fetus. (See People v. Flores (92) 3 CA4th 200, 208-09 [4 CR2d 120].)
F 8.90a
Vehicular Manslaughter: Dangerousness And Negligence Elements
(PC 192(c))
*Modify CJ 8.90 as follows:
[CJ 8.90 should be modified to replace reference to inherent dangerousness with a requirement that the act be dangerous in its commission]
Points and Authorities
[See FORECITE F 8.45c]
F 8.90b
Gross Negligence Requires More Than Violation Of A Traffic Law
*Add to CJ 8.90:
The mere fact that a defendant drives a motor vehicle and violates a traffic law is insufficient in and of itself to constitute gross negligence. You must determine from the overall circumstances of the manner in which defendant drove whether [his] [her] conduct constituted gross negligence.
Points and Authorities
In People v. Wells (96) 12 C4th 979, 990, fn 8 [50 CR2d 699], the court noted that the above instruction helped to “ensure[] that the jury necessarily found all elements of vehicular manslaughter in returning its verdict.” Moreover, in the context of gross vehicular manslaughter while intoxicated, CALJIC does include an instruction based on People v. Bennett (91) 54 C3d 1032, 1039 [2 CR2d 8] which similarly informs the jury that gross negligence requires more than the “mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law….” Accordingly, the above instruction should be given when the defendant is charged with vehicular manslaughter not involving drugs or alcohol per PC 192(c)(1). (See also, People v. McNiece (86) 181 CA3d 1048, 1058 [226 CR 733].)
Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]
F 8.90c
Modification When Crime Involves Fetal Victim
*Modify CJ 8.90 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)
F 8.90d
Vehicular Manslaughter Involving Drugs Or Alcohol But Not Intoxication
*Modify CJ 8.90 title as follows [added language is capitalized:
Vehicular Manslaughter [With Gross Negligence] Not Involving INTOXICATION AS A RESULT OF Drugs or Alcohol
*Modify CJ 8.90, and paragraph 2, as follows [added language is capitalized]:
Every person who drives a vehicle [in a grossly negligent manner] and unintentionally but unlawfully kills another human being is guilty of the crime of Vehicular Manslaughter [not involvingINTOXICATION AS A RESULT OF drugs or alcohol] [with gross negligence] in violation of Penal Code section [192, subdivision (c)(1)] [192, subdivision (c)(2)].
Points and Authorities
Vehicular manslaughter whether with or without gross negligence under PC 192(c)(1) and (2) is a lesser included offense of vehicular manslaughter while intoxicated under PC 191.5(a) and 192(c)(3). (See People v. Miranda (94) 21 CA4th 1464, 1468 [26 CR2d 610].) Accordingly, when the defendant has consumed alcohol and/or drugs but there is a factual issue as to whether the defendant was intoxicated, the jury should be instructed on both the greater offense of vehicular manslaughter while intoxicated (CJ 8.93) and vehicular manslaughter while not intoxicated (CJ 8.90).
However, CJ 8.90 improperly suggests to the jury that vehicular manslaughter not involving driving while intoxicated, applies only to cases “not involving drugs or alcohol.” This is not so because the involvement of drugs or alcohol does not necessarily satisfy the driving while intoxicated requirements of the vehicle code. (I.e., VC 23152, VC 23153, VC 23140.) Hence, even if the case involves drugs or alcohol (that is, there is evidence that the defendant had consumed drugs or alcohol), unless the quantity of alcohol was sufficient to result in intoxication, the defendant may not be convicted of vehicular manslaughter while intoxicated but may be convicted of the lesser offense described in CJ 8.90. Accordingly, both the descriptive title and paragraph two of CJ 8.90 should be modified so the jury understands that CJ 8.90 may be applicable to cases involving drugs or alcohol.
