Brief Bank # B-712 (Re: F 8.94a [Jury To Consider Overall Circumstances: Subjective Awareness Of The Defendant (PC 191.5; PC 192(c)(3))].)
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B. GROSS VEHICULAR MANSLAUGHTER REQUIRES EVIDENCE OF AN “I DON’T CARE” ATTITUDE WHICH DOES NOT EXIST IN THIS CASE.
Vehicular manslaughter cases involving driving under the influence can be charged under one of two statutes, Penal Code Section 191.5 or 192(C)(3). The first six elements of each offense are identical: 1) Unlawful killing of a human being; 2) Without malice: 3) In the driving; 4) Of a vehicle; 5) In violation of Vehicle Code §§ 23140. 23152 or 23153; 6) Proximately caused by the commission of (A) an unlawful act not amounting to a felony OR (B) a lawful act which might produce death, in an unlawful manner.
The seventh element in 192(C)(3): Without gross negligence.
The seventh element in 191.5: With gross negligence.
Since negligence of any sort is, because of its amorphous and ambiguous qualities. a rare standard in the criminal law, its application in a criminal prosecution must be scrutinized with particular care — and caution. When deciding whether someone was “ordinarily negligent” or “grossly negligent” the task is one requiring extraordinary care.
This was made plain in People v. McNeice (1986) 181 CA3d 1048, when these two offenses were defined by different subsections of 192(C) alone: “The differences in these types of vehicular manslaughter involve only the element of gross negligence and the applicable lengths of imprisonment. The difference in punishment between the two subdivisions of section 192 is impressive.” (181 CA3d at 1055) It is even more impressive under 191.5. the current law. “The question,” the Court continued, ” of whether gross negligence existed [is] a complicated one and difficult to resolve.” (Id at 1056)
McNeice made clear that under the then existing legislative scheme, “If the legislature had intended that the elements required to support a finding of driving under the influence and violating the traffic law were sufficient in themselves to support a finding of gross negligence, the two subdivisions would become a duplication. Obviously, gross negligence requires something in addition. It is essential that the jury understand what the distinction is.” (Id. at 1058) This point has been distilled into CALJIC instruction 8.94:
“The mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. You must determine gross negligence from the level of the defendant’s intoxication, the manner of driving, and other relevant aspects of the defendant’s conduct resulting in the fatal accident.”
The 1986 legislative creation of Penal Code §191.5 did not affect this analysis.
The bill, AB 2558, made only one substantive change: Under the then entitled P.C. § 192 (C)(3), a conviction was punishable by a prison term of 4, 6, or 8 years; under AB 2558 the upper term, only, was increased by two years to 10 years. [P. C. § 192 (C)(3) is now the “ordinary” negligence level manslaughter statute.]
The primary change wrought by AB 2558 was cosmetic. Through a series of amendments, a new, separate, statute was created, P.C. §191.5: Originally entitled “Gross Vehicular Homicide,” the title of the offense was eventually amended to what was enacted, “Gross Vehicular Manslaughter while Intoxicated”.
The impact of this legislation on judicial interpretations of the definition of “gross negligence” is nil: The subject was never discussed in the legislative history reviewed by counsel, and was only mentioned once in Agency continents on the pending legislation: The California Highway Patrol’s Enrolled Bill Report, dated August 28, 1986, concludes that the amount of negligence involved should warrant prosecution as a special offense.”
There is no disagreement that for “gross negligence” to exist, much more than driving under the influence of alcohol and violating traffic laws must be present. Those factors are not present in this case.
In the leading case of People v. Bennett (1991) 54 C.3d 1032, the Supreme Court made clear that “Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [citations] ‘The state of mind of a person who acts with conscious indifference to the consequences is simply, “I don’t care what happens.’ The test is objective: Whether a reasonable person in the defendant’s position would have been aware of the risk involved.” (54 C.3d at 1036)
Though the test may be declared to be “objective,” Bennett and later cases, make clear that evidence of the defendant’s subjective state of mind plays a vital role in distinguishing “gross” from “ordinary” negligence.
Bennett in effect created a “totality of the circumstances” standard for this determination: “The jury should therefore consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence. (See, e.g., People v. Costa (1953) 40 C.2d 160. 166 . . . [evidence that defendant was specifically warned not to speed a half-hour prior to fatal accident]; People v. Leffel (1988) 203 CA3d 575, 584. . . [evidence that defendant had not slept for three nights]; Von Staden . . . 195 CA3d 1423, 128 [evidence that defendant was specifically warned not to drive while intoxicated]; People v. Roerman (1961) 189 CA2d 150, 159 . . . [evidence that defendant drove to heavily trafficked area with cast on her right foot.)” 54 C.3d at 1038.
The subjective nature of the inquiry became explicit in Chief Justice Lucas’ opinion in People v. Ochoa (1993) 6 C.4th 1199. The issue on appeal was “the sufficiency of the evidence regarding the requisite element of gross negligence.” (Id. at 1204)
Preliminary to deciding that question the Court had to address specific admissibility issues: “. . . [Tlhe prosecutor elicited evidence of defendant’s prior conviction for driving under the influence of alcohol, his subsequent probation, and his attendance at traffic school, including an alcohol awareness class discussing the dangers of drinking and driving. This evidence was admitted to show defendant was previously aware of these dangers.” (Id. at 1204-05, italics added)
Mr. Ochoa took the position, expressed as well by the Magistrate in our preliminary hearing at RT: 44:6 – 45:5, that such evidence of the subjective state of mind would only be admissible in the even more aggravated prosecution for vehicular murder “based on implied malice, to show the accused’s subjective awareness of the risks.” (Id. at 1205) The Court disagreed: “In determining whether a reasonable person in defendant’s position would have been aware of the risks, the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks.” (Id; italics in original)
Justices Panelli and Mosk, concurring and dissenting, objected to the intrusion of such subjective evidence. but did make it yet more explicit what the reality of the decision was: The factors differentiating gross and ordinary negligence include subjective evidence of the defendant’s state of mind and state of knowledge. The Justices went on to state an understanding which is of importance in the instant case: . .(B]ecause the majority has declared that a defendant’s subjective awareness of the risk is relevant to a charge of vehicular manslaughter with gross negligence, it necessarily follows that a defendant may introduce evidence to show that he was not subjectively aware. To deny the defendant the right to present relevant evidence would create serious problems under the due process clause.” (6 C.4th at 1211, citations omitted)
Thus the law of vehicular homicide involving persons driving under the influence has been transformed into a single continuum — ordinary negligence, gross negligence, implied malice — with only the most vague, distinctions differentiating the offenses. In such a situation it is imperative that the Court’s scrutinize these prosecutions with extraordinary care for both objective and subjective evidence to support the more aggravated charges and avoid an abuse of the criminal justice system.
The evidence presented at the Preliminary Hearing in this case does not support a finding of “gross negligence” as required by law. There is no evidence that Mr. Doe had any prior experience with the law concerning driving under the influence or was doing any of the things that would indicate a “conscious disregard” for the safety of others. There was no evidence that he was dropping his keys, stumbling over his feet, slurring over his words or ignoring the advice of others not to drive.
In short, none of the indications required by the Courts of the “something more” than driving under the influence and violating traffic laws were presented to support the most essential element of the crime charged.