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F 8.94 n1 Gross Negligence: Objective Test.
The test for determining gross negligence is objective. Thus, the jury must determine whether “a reasonable person in the defendant’s position would have been aware of the risk involved. [Citation].” (People v. Bennett (91) 54 C3d 1032, 1036 [2 CR2d 8]; see also People v. Ochoa (93) 6 C4th 1199, 1204 [26 CR2d 23].)
F 8.94 n2 Gross Negligence: No Error To Give Pre-1992 Version Of CJ 8.94.
In People v. Andersen (94) 26 CA4th 1241, 1249-50 [32 CR2d 442], the court held that giving the pre-1992 version of CJ 8.94 was not error.
F 8.94 n3 Improper To Instruct That Implied Malice May Be Inferred From Defendant’s Willful Consumption Of Alcohol With Knowledge That He/She Would Be Driving.
(See FORECITE F 8.31 n4.)
F 8.94a
Jury To Consider Overall Circumstances: Subjective Awareness Of The Defendant
(PC 191.5; PC 192(c)(3))
*Add to CJ 8.94:
In making the determination of gross negligence, you may consider relevant aspects of the defendant’s subjective state of mind such as whether, at the time [he] [she] was driving, the defendant was subjectively aware of the risks of drinking and driving.
Points and Authorities
People v. Bennett (91) 54 C3d 1032, 1038-40 [2 CR2d 8] created a “totality of the circumstances” standard for the determination of gross negligence: “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. [Citations.].” (Id. at 1038.) Hence, even though Bennett characterized the standard as “objective” (Bennett, 54 C3d at 1036) this requires the jury to determine “whether a reasonable person in the defendant’s position would have been aware of the risk….” [original emphasis.] (People v. Ochoa (93) 6 C4th 1199, 1205 [26 CR2d 23].) In making such a determination “the jury should be given relevant facts as to what defendant knew, including his actual awareness of those risks.” (Ibid.; see also Ochoa, 6 C4th at 1211 dissenting opinion [recognizing “serious” due process problems if defendant is denied the right to present evidence that he was not subjectively aware].)
Those same constitutional problems are present if the jury is instructed in such a way that it does not consider relevant aspects of the defendant’s subjective mental state in determining gross negligence. Because CJ 8.94 focuses upon “conduct” and not the defendant’s subjective mental state, it should be modified as set forth above. [See Brief Bank # B-712 for additional briefing on this issue.]
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).]
