Return to CALJIC Part 5-8 – Contents
F 8.93 n1 Vehicular Manslaughter: Research Notes (PC 191.5).
See Annotation, Homicide by Automobile as Murder, 21 ALR3d 116 and Later Case Service.
F 8.93 n2 Definition Of Vehicular Manslaughter While Intoxicated (PC 191.5 & PC 192(c)(3)).
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 8.93 n3 Vehicular Manslaughter: Prosecution Burden To Prove No Irreversible Cessation Of Circulatory, Respiratory And Brain Functions (PC 191.5).
An infant who is indisputably alive during the birth process is a human being within the meaning of the homicide statutes. (People v. Flores (92) 3 CA4th 200, 208 [4 CR2d 120].) However, it is the prosecution’s burden to establish that the infant was alive. To do so it must be established that there was (1) no irreversible cessation of circulatory and respiratory functions and (2) no irreversible cessation of all functions of the entire brain, including the brain stem. (Id. at 210; HS 7180(a).) While the lack of evidence of some form of brain activity does not establish that the fetus/infant was born dead, it does not establish that it was born alive either. Under such circumstances the prosecution has failed to meet its burden. (Flores 3 CA4th at 211.)
F 8.93 n4 Vehicular Manslaughter: Multi-Victim Enhancement (PC 191.5).
If a multi-victim enhancement is alleged pursuant to VC 23558 (former VC 23182), a special enhancement instruction and finding requiring juror unanimity should be given. (See FORECITE F 12.60d.)
F 8.93 n5 Vehicular Manslaughter: Driver Has Duty To Assure Passenger’s Seatbelts Are Fastened (PC 191.5).
A driver’s failure to assure that the passengers were restrained by seatbelts may be sufficient to satisfy the gross negligence elements of PC 191.5. (People v. Hansen (92) 10 CA4th 1065, 1076-78 [12 CR2d 884]; but see People v. Thompson (2000) 79 CA4th 40 [93 CR2d 803] [instruction that defendant’s failure to wear seat belt in violation of VC 27315 could serve as unlawful act was erroneous since there was no evidence that defendant’s failure to wear seat belt caused the victim’s death; court erred in failing to instruct that such conduct had to be a cause of death].)
F 8.93 n6 Vehicular Manslaughter: Constitutional Challenge Based On Overly Broad Language (PC 191.5).
PC 191.5 predicates culpability upon the commission of “a lawful act which might produce death, in an unlawful manner ….” In the context of driving a vehicle this language is overly broad and does not give adequate notice of the acts which it prohibits. Almost any act of driving a car, even backing up slowly, “might” produce death. The qualifier “in an unlawful manner” does not remedy the defects since an unlawful act has already been delineated as a separate basis for creating criminal liability. Whereas “unlawful act” gives notice; a “lawful act which might cause death” does not. Hence, this language violates state (Article 1, Section 7 and 15, and Federal (5th and 14th Amendments) due process principles. (See People v. Superior Court (Caswell) (88) 46 C3d 381, 389 [250 CR 515].) The requirement that a criminal statute must be certain in its wording and set forth the charged offense is well settled. (Clingenpeel v. Municipal Court (80) 108 CA3d 394, 397 [166 CR 573].)
F 8.93 n7 Vehicular Manslaughter: Intoxication As Proof Of Gross Negligence (PC 191.5).
See FORECITE F 8.94a.
F 8.93 n8 Vehicular Manslaughter While Intoxicated: DUI With Injury And Vehicular Manslaughter As Lesser Offenses (PC 191.5).
If the defendant is charged with gross vehicular manslaughter while intoxicated (PC 191.5(a)), then driving under the influence with bodily harm (VC 23153(a)) and gross vehicular manslaughter (PC 192(c)(1)) are lesser included offenses. (People v. Miranda (94) 21 CA4th 1464, 1468 [26 CR2d 610]; People v. Verlinde (2002) 100 CA4th 1146, 1166 [123 CR2d 322] and People v. Ortega (1998) 19 C4th 686, 692 [80 CR2d 489] [PC 192(c)(3) is included in PC 191.5].)
F 8.93 n9 Reasonableness Of Pursuing Officer’s Conduct Not Relevant To Causation In Vehicular Manslaughter Charge.
A rule violation by a police officer in chasing the defendant may give rise to civil liability or disciplinary action against the officer, but it is not relevant to the foreseeability of the officer’s conduct. The question for the jury to resolve is whether the officer’s actions were foreseeable, not whether they were unreasonable or in violation of police policies. (People v. Schmies (96) 44 CA4th 38 [51 CR2d 185].)
F 8.93 n10 Vehicular Manslaughter as LIO Of Murder (PC 191.5).
(See FORECITE F 8.10 n4.)
F 8.93 n11 Vehicular Manslaughter While Intoxicated: Differing Blood Alcohol Levels Required For Conviction Based On Age Does Not Violate Equal Protection And Is Not Vague.
People v. Goslar (99) 70 CA4th 270, 278 [82 CR2d 558] held that PC 191.5(a) does not deny equal protection in making liable drivers under 21 who drive with a BAC of 0.05 and all other drivers only liable when they drive with a 0.08 BAC. The Goslar court also rejected the argument that the term “or affected by” as used in VC 23140 was vague. “VC 23140 states as an element that the driver be ‘under the influence of’ or ‘affected by’ an alcoholic beverage. Thus whatever ‘affected by’ may mean, the section places persons under 21 years of age clearly on notice they will be liable under the section if they drive while ‘under the influence’…” (Goslar, 70 CA4th at 279.)
F 8.93 n12 Vehicular Manslaughter: Elements.
See People v. Thompson (2000) 79 CA4th 40, 64 [93 CR2d 803] [lengthy opinion discussing, in detail, the elements of gross vehicular manslaughter while intoxicated].
F 8.93 n13 Vehicular Manslaughter: VC 20001(c) Enhancement Inapplicable To Person Who Does Not Personally Commit The Underlying Offense.
(See FORECITE F 12.70 n10.)
F 8.93a
Modification When Crime Involves Fetal Victim
*Modify CJ 8.93 in paragraphs which include “human being(s)” as follows:
(See FORECITE 5.00b.)