PEOPLE v. CONLIN

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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Christopher CONLIN, Defendant and Appellant.

No. H006665.

Decided: June 25, 1991

Laurance S. Smith, Newcastle, in association with Sixth Dist. Appellate Program, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald S. Mathias and Jeremy Friedlander, Deputy Attys. Gen., for plaintiff and respondent.

Appellant Christopher Conlin was convicted, following a jury trial, of three counts as charged:  driving under the influence and causing bodily injury (Veh.Code, § 23153, subd. (a)), driving with a blood alcohol level of .10 percent or more and causing bodily injury (Veh.Code, § 23153, subd. (b)) and gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5), with multiple victims (Veh.Code, § 23182).   Only the judgment of conviction on the third count, for gross vehicular manslaughter while intoxicated, is at issue here.

This appeal focuses upon CALJIC No. 8.94, a jury instruction patterned upon People v. Von Staden (1987) 195 Cal.App.3d 1423, 241 Cal.Rptr. 523.   CALJIC No. 8.94 tells the jury it must “determine from the overall circumstances of the defendant's intoxication or the manner in which [he] [she] drove, or both, whether [his] [her] conduct constituted gross negligence.”   Appellant contends CALJIC No. 8.94 incorrectly states the gross negligence element necessary to a violation of Penal Code section 191.5.   In his view the gross negligence finding must be limited to the manner of defendant's driving only.

Appellant also challenges the exclusion of certain evidence that he had not intended to drive the night of the accident.

We affirm the judgment.

FACTS

On the morning of July 4, 1989, appellant drove his car, a 1977 Oldsmobile, into Watsonville from his home near Las Lomas in Monterey County.   He met up with his friend Danny and the two spent the morning together.   Appellant was 18 years old at the time and Danny was around the same age.   Danny was going to a barbecue later that afternoon and invited appellant to come along.   While Danny went home to get ready, appellant drove to the home of another friend, Jeff, who lived nearby.   There, some time after noon, he drank “a shot or a shot and a half” of Jack Daniels whiskey.   He decided not to drive any more that day because he knew he would be drinking.   He made arrangements on the telephone with Danny that Danny would pick him up at Jeff's and drive to and from the barbecue.   Appellant would either spend the night at Danny's house or Danny would drive him home later that evening.   Appellant, however, kept his car keys in his pocket.

Appellant, Danny and Danny's girlfriend Sonia drove to the barbecue, approximately 10 miles outside of town, in Danny's car.   They arrived sometime in the late afternoon.   The host of the party, Michael Dakiwag, thought that the three had brought some beer with them and believed they had been drinking before they arrived.   Tammy Yoro, Sonia's stepmother, was also a guest at the barbecue.   She testified that when she arrived around 6 p.m., appellant, Danny and Sonia were already there.   About an hour later, appellant informed her that he and Danny were going to “get some brews.”   They returned shortly with some beer.   Appellant and Danny were both drinking beer at the party.1

Yoro disapproved of appellant's drinking, especially since he was underage.   She told him “you shouldn't be drinking, I think that you know you shouldn't do this.”   Defendant just “shrugged it off.”   Dakiwag also remembered someone telling appellant to take it easy, he'd had enough to drink.   Yoro, who knew appellant's family, had seen appellant drinking before, a couple of times “to excess.”

At approximately 9 p.m. the people at the party decided to go watch the fireworks at the nearby county fairgrounds.   By that time, according to Yoro, appellant was “definitely drunk.”   Everyone rode to the fairgrounds in the back of a pickup truck.   Shortly after they arrived at the fairgrounds, before the fireworks started, appellant and Danny got into an argument and wanted to leave.   Dakiwag drove them and Sonia back to his house.   He saw them get into Danny's car with Danny in the driver's seat.

According to Dakiwag, appellant had been drinking “more than he probably should have.”   Dakiwag would not have allowed appellant to drive in his condition.   Yoro also testified that she would not have allowed appellant to drive a car that night.   She did not believe that he was going to drive.   The court excluded testimony that she heard Danny say that he, Danny, would be driving that night.

That same 4th of July, Nelson Owen, his wife Bobbie, and their two children Lisa and Vernon, spent the afternoon and evening with friends in Hollister.   At approximately 10 p.m. they left to return home to Santa Cruz.   Owen was driving the family car, a Pontiac Catalina.   His wife was in the front seat beside him and the children were in the back.   Owen was heading west on San Juan Road, a two-lane highway, when he saw the headlights of an approaching car come into his lane.   He assumed the car was attempting to pass and would pull back into its own lane;  instead it headed straight towards him.   He braked hard and swerved to the left in an attempt to avoid the oncoming car, but it was too late.   The two cars collided head-on.   Owen was knocked unconscious and sustained injuries.   His wife and children were killed in the collision.

California Highway Patrolman Scott Mansfield was on road patrol duty that night.   He arrived on the scene at 10:49 p.m.   He found that appellant was the only occupant of the eastbound car, a 1977 Oldsmobile.   He noticed a smell of alcohol on appellant.   A crushed Budweiser can was sitting on top of the Oldsmobile windshield, which was lying next to the vehicle.   The can still contained a small quantity of alcohol.

Appellant was taken to Watsonville Community Hospital.   A blood sample was drawn at approximately 12 midnight.   Appellant's blood alcohol was .23 percent.   That level indicated approximately eleven drinks in appellant's system at the time.   A blood sample was drawn from Owen at 12:41 a.m.   Owen's blood alcohol was .00 percent.

Appellant was interviewed at 2:22 in the morning at the hospital.   He was conscious but at times nonresponsive.   He stated that he had not been driving the car and didn't know who had been but he knew he had been on his way home.   When asked what he had been drinking he said “[a] little bit of everything,” and complained that “they didn't want to share it.”   When asked when he had stopped drinking he said “Noon to 9.”   He said he had had “too much” to drink.   He indicated he had been drinking in a car at a 7–Eleven store.   He remembered nothing about the accident.

California Highway Patrol Officer Haupt reconstructed the accident.   The accident occurred at a point on San Juan Road where the road bends to the right for eastbound traffic.   There was a solid yellow line for eastbound traffic heading into the curve.   Appellant's Oldsmobile had crossed that line and collided head-on with Owen's Pontiac in the westbound lane.2  Skid marks showed that Owen had braked the last 40 feet before the collision and had attempted to swerve to the left to avoid impact.   There was no evidence of braking or any other evasive action taken by the Oldsmobile.   The speed limit was 55 miles per hour.   Appellant's Oldsmobile was travelling at approximately 55–58 miles per hour.   Owen's vehicle was travelling at approximately 51 miles per hour before he began to brake, and approximately 43–45 miles per hour at the point of impact.   There were no visual obstructions on the highway and no mechanical problems with either car.   Traffic was moderate to heavy.

Appellant testified that he had no recollection of events of the evening after he ate dinner at the barbecue.   He remembered drinking beer at the party and knew that he was intoxicated at the party but he didn't remember going out to get more beer.   He knew that drinking and driving “doesn't mix.”   That is why he decided to leave his car at his friend Jeff's house.

ISSUES

1. The Gross Negligence Element of Penal Code Section 191.5

At the outset, we note that to the extent that appellant asks us to interpret the meaning of Penal Code section 191.5, we conduct an independent review.   We examine the language of the statute and construe it to comport as closely as possible with legislative intent, so as to effectuate the purpose of the law.   (California Teachers' Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 170 Cal.Rptr. 817, 621 P.2d 856.)   To the extent that appellant claims the evidence was insufficient to support a finding of gross negligence, we review the record in light of the substantial evidence rule, presuming in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.  (People v. Reilly (1970) 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649.)

The Penal Code 3 defines four types of vehicular manslaughter, and assigns varying degrees of punishment.   Until 1987, all four were contained in section 192, subdivision (c)(1) through (4).   The elements common to all four offenses are:  1) the unlawful killing of a human being without malice aforethought, 2) while driving a vehicle, and 3) in the commission of an unlawful act not amounting to a felony (or in the commission of a lawful act which might produce death in an unlawful manner.)   Subdivisions (c)(1) and (2) do not involve intoxication.   Subdivision (c)(1) requires an element of gross negligence, while (c)(2) is simple vehicular manslaughter without gross negligence.   Subdivisions (c)(3) and (c)(4) formerly carried this same distinction while adding the element of intoxication.   In other words, former subdivision (c)(3) defined gross vehicular manslaughter while intoxicated and subdivision (c)(4) defined vehicular manslaughter while intoxicated but in the absence of gross negligence.

In 1986 the Legislature enacted new section 191.5 in place of former section 192(c)(3).4  Former section 192, subdivision (c)(4) is now 192(c)(3).   The new statute applies to offenses committed after January 1, 1987.   While the substance of section 191.5 and former section 192(c)(3) is the same, section 191.5 increased the upper term for gross vehicular manslaughter while intoxicated from eight to ten years in state prison.5

The nature of the gross negligence element of gross vehicular manslaughter while intoxicated has been addressed by several courts of appeal, whose opinions on the subject are in some conflict.   A review of these reported cases will provide a useful background for the issue before us.

In People v. McNiece (1986) 181 Cal.App.3d 1048, 226 Cal.Rptr. 733, disapproved on another point in People v. McFarland (1989) 47 Cal.3d 798, 805, 254 Cal.Rptr. 331, 765 P.2d 493, defendant left a dinner party shortly before midnight.   He drove through a stopsign without stopping or slowing, travelling at 50–55 miles per hour in a 30 mile per hour zone, and struck the victim's car broadside.   Defendant had a blood alcohol level of .155 percent.   A fifth district panel reversed a conviction under former section 192(c)(3) on the ground that the definition of gross negligence was improperly presented to the jury.   The jury had been given a standard instruction distinguishing ordinary from gross negligence, but the prosecutor had argued, without objection, that the fact of defendant's intoxication was itself sufficient to constitute gross negligence.

The panel reasoned that if there is to be any distinction between gross and simple vehicular manslaughter while intoxicated, the mere facts of driving under the influence and committing a traffic violation cannot be sufficient in themselves to support a finding of gross negligence.   Otherwise, the two crimes would be identical crimes with different punishments.   Therefore, gross negligence must require “something in addition.”  (People v. McNiece, supra, 181 Cal.App.3d at p. 1058, 226 Cal.Rptr. 733.)   Under the circumstances in McNiece, the jury could easily have been misled regarding the correct standard.   Therefore, the court concluded, the trial court had a duty to instruct the jury sua sponte that defendant's intoxication alone was insufficient to support a finding of gross negligence.

Shortly after McNiece was decided, a fourth district panel reversed a conviction under former section 192(c)(3) in People v. Stanley (1986), 187 Cal.App.3d 248, 232 Cal.Rptr. 22.   In Stanley defendant and his friends had been drinking all day and were drinking in the car on their way home in the early evening.   Defendant failed to negotiate a curve and lost control of the car, which went over an embankment, killing a passenger.   Although defendant was travelling at or near the speed limit of 55 miles per hour, the posted speed limit for the particular curve was 40 miles per hour.   Defendant's blood alcohol at the time of the accident was between .18 and .23 percent.  (Id. at p. 251, 232 Cal.Rptr. 22.)

Relying on McNiece, the court in Stanley interpreted section 192(c)(3) to mean that no evidence regarding defendant's intoxication may be used to support a finding of gross negligence.   The Stanley court determined that the statute required two separate predicates for liability:  driving while intoxicated and committing a grossly negligent act while driving.   Based upon that premise, the court concluded the gross negligence element related only to the manner of the operation of the vehicle, without regard to the circumstances of defendant's intoxication.   Since the prosecutor had argued to the jury that the excessive amount of alcohol consumed by defendant throughout the day was a factor to be taken into consideration in a determination of gross negligence, the jury could have been misled and the conviction had to be reversed.

The first district next took up the issue in People v. Von Staden, supra, 195 Cal.App.3d 1423, 241 Cal.Rptr. 523.   In that case defendant left a party at around 2:00 in the morning, after consuming alcohol and despite the host's urging that he not drive.   He lost control of his car on a curve, killing his passenger.   The speed limit in the area was 40 miles per hour, and at the curve it was posted for 35 miles per hour.   Defendant was travelling 50 to 60 miles per hour when he entered the curve.   His blood alcohol at the time was approximately .22 percent.  (Id. at p. 1426, 241 Cal.Rptr. 523.)

The panel in Von Staden agreed with McNiece that gross negligence may not be shown simply by the fact that defendant drove under the influence and/or violated traffic laws.  “Something in addition” was necessary.   But it disagreed with the Stanley court's view that the gross negligence element of former section 192(c)(3) referred only to defendant's manner of driving.   According to Von Staden, the essential elements of gross vehicular manslaughter while intoxicated are driving under the influence, a violation of traffic laws, and gross negligence.   The court found nothing in the history of either former section 192(c)(3) or its replacement, section 191.5, to indicate the Legislature intended that gross negligence could not be shown by the circumstances of defendant's intoxication.   Moreover, the court reasoned, “one who drives with a very high level of intoxication is indeed more negligent, more dangerous, and thus more culpable than one who drives near the legal limit of intoxication, just as one who exceeds the speed limit by 50 miles per hour exhibits greater negligence than one who exceeds the speed limit by 5 miles per hour.”  (People v. Von Staden, supra, 195 Cal.App.3d at p. 1428, 241 Cal.Rptr. 523.)

The Von Staden panel suggested that CALJIC No. 8.92, which had been given at trial, be modified.   That jury instruction defined “Vehicle Manslaughter—‘Gross Negligence’ ” as follows:  “The term ‘gross negligence’, as used in the definition of manslaughter given in these instructions, means the failure to exercise any care, or the exercise of so little care that you are justified in believing that the person whose conduct is involved was wholly indifferent to the consequences of his conduct and to the welfare of others.”   In 1987, based upon People v. McNiece, the following sentence had been added:  “The fact that the defendant drove a motor vehicle while under the influence of alcohol is not sufficient in itself to constitute gross negligence.”   The Von Staden court was of the view that “[t]his instruction was incomplete in that it did not explain to the jury that gross negligence can be established from the totality of circumstances surrounding the defendant's intoxication and his driving.”  (People v. Von Staden, supra, 195 Cal.App.3d at p. 1429, 241 Cal.Rptr. 523.)

The instruction suggested in Von Staden was this:  “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 from the overall circumstances of the defendant's intoxication or the manner in which he drove, or both, whether his conduct constituted gross negligence.”  (People v. Von Staden, supra, 195 Cal.App.3d at p. 1429, 241 Cal.Rptr. 523.)   The following year, in 1988, this exact instruction was added to CALJIC as No. 8.94 and former No. 8.92 was deleted.   CALJIC No. 8.94 was the instruction given in our case, over defendant's objection.

The fifth district revisited the issue in People v. Leffel (1988) 203 Cal.App.3d 575, 249 Cal.Rptr. 906.   There the court clarified its previous ruling in McNiece.  McNiece, it stated, was reversed because the prosecutor's argument could have misled the jury to believe that driving under the influence could, by itself, constitute gross negligence.   In light of the prosecutor's argument, former CALJIC No. 8.92 was not adequate to explain that something in addition to being under the influence of alcohol was necessary to establish gross negligence.   In Leffel, while the trial court had given the same pre–1987 CALJIC No. 8.92 instruction, the jury could not reasonably have been misled because the prosecutor did not explicitly equate intoxication with gross negligence, instead focusing on defendant's pattern of driving.   In the view of the Leffel court the “unlawful act,” i.e., the traffic violation, rather than the defendant's intoxication, was the proper focus for determining whether the manslaughter was committed with ordinary or gross negligence.  (People v. Leffel, supra, at p. 584, 249 Cal.Rptr. 906;  see also People v. Pike (1988) 197 Cal.App.3d 732, 740–742, 243 Cal.Rptr. 54.)   While Leffel discussed, and appeared to follow, People v. Stanley, it made no mention whatsoever of the later case of People v. Von Staden.6

 We agree with the principles expressed in McNiece and Von Staden and we reject the holding in Stanley.   While the facts that defendant drives under the influence of alcohol and violates traffic laws are insufficient alone to show gross negligence, the “something in addition” required by McNiece can be shown by the overall manner in which the defendant operated the vehicle, including the circumstances of the defendant's intoxication.   We believe this interpretation is consistent with legislative intent.

When the Legislature enacted section 191.5 as a separate code section in 1986, it stated certain findings and declarations regarding the high occurrence of alcohol-related traffic deaths, concluding as follows:  “In view of the severe threat to public safety which is posed by the intoxicated driver, there is a compelling need for more effective methods to identify and penalize those who voluntarily consume alcoholic beverages to the point of legal intoxication and thereafter operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of exerting great force and speed and causing severe damage and death.”  (Stats.1986, ch. 1106, p. 3880.)

In addition to setting section 191.5 apart as a separate crime, the Legislature raised the penalties for its violation.   Plainly these are indications that the Legislature has taken a strong line on the crime of gross vehicular manslaughter while intoxicated.7  The Legislature's findings emphasize that it is the combination of the two factors—the impairment of physical and mental faculties caused by voluntary alcohol consumption and the operation of a potentially dangerous instrumentality—which poses the threat to public safety.   The interpretation espoused by Stanley, which would restrict the jury's consideration of gross negligence only to the manner of defendant's driving, is thus at odds with the Legislature's stated intent.

 Appellant argues that “the last antecedent” rule of statutory construction requires that the term gross negligence modifies “an unlawful act,” which in turn refers only to the traffic violation itself.  (See fn. 4, ante.)   For reasons stated above we do not believe the Legislature intended so narrow a reading.   Moreover, the language does not compel such a result.   Section 191.5 defines gross vehicular manslaughter while intoxicated as “the unlawful killing of a human being without malice aforethought, in the driving of a vehicle ․”   All of the elements which follow, including a violation of Vehicle Code section 23153, proximate cause, an unlawful act, and gross negligence logically relate back to the act of “killing ․ in the driving of a vehicle.”   We conclude that evidence of the driver's condition which tends to show recklessness is as relevant to the question of gross negligence in the driving of the vehicle as is evidence of the driver's conduct behind the wheel.

Appellant's next contention is that the reading of section 191.5 advocated by Von Staden, and followed by the trial judge in our case, establishes a strict liability standard, compelling a guilty verdict in every case where defendant's blood alcohol substantially exceeded the legal limit.   We do not agree.   CALJIC No. 8.94 does not instruct the jury to find that every defendant whose blood alcohol substantially exceeds the legal limit has been grossly negligent.   Instead it instructs them to consider the overall circumstances in determining whether defendant's conduct constituted gross negligence.8

 Appellant also argues that section 191.5, as we interpret it, is impermissibly vague in that it does not inform the public with certainty what constitutes gross negligence.   He claims the statute may be susceptible to discriminatory application.   Again, we disagree.   Gross negligence or criminal negligence is by no means an uncommon concept in the law.   The jurors here were instructed on gross negligence and were told that gross negligence could not be based solely on the facts that defendant was driving drunk and violated traffic laws.   We believe these instructions adequately distinguished section 191.5 from the other forms of vehicular manslaughter.   Gross negligence will necessarily be a factual finding, depending on the circumstances of each case.   We do not agree that this provides a basis for invidious discrimination, as appellant suggests.

Finally, appellant contends that the prosecutor's closing argument equated the mere fact of appellant's intoxication to gross negligence, as in McNiece, and that the prosecutor also confused ordinary with gross negligence in the minds of the jurors.   As to the first point, appellant has not referred to any specific statements he finds offensive and we have searched the record in vain for remarks of the type the court in McNiece found might mislead the jury.   In any case, the jury here was given the clarifying instruction suggested by McNiece, namely, that “[t]he mere fact that the Defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence.”

 With regard to appellant's contention that the prosecutor deliberately confused the jury as to the difference between ordinary and gross negligence, we are satisfied that the prosecutor did not misstate the law.   Appellant takes the prosecutor's references to actions “that an ordinary prudent person would not do” out of context.   In each case the prosecutor was attempting to distinguish ordinary negligence from aggravated or gross negligence.   Moreover, the prosecutor discussed at length each element of gross negligence as set forth in the jury instruction.  (CALJIC No. 3.36.)   We do not believe the jury could reasonably have been misled.

 We turn now to the question whether substantial evidence supported the jury's verdict.   Gross negligence, as the jury was instructed in our case, refers to negligent acts which are “such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or to constitute indifference to the consequences of such acts.”   Germane to this determination is evidence which would tend to show defendant's indifference to the risks involved in his or her actions.  (See, e.g., People v. Von Staden, supra, 195 Cal.App.3d at p. 1428, 241 Cal.Rptr. 523 [evidence that defendant was specifically warned not to drive while intoxicated is admissible for purposes of showing gross negligence];  People v. Leffel, supra, 203 Cal.App.3d at p. 584, 249 Cal.Rptr. 906 [evidence that defendant had not slept for three nights and had been up all night drinking before driving tended to show that he “exhibit[ed] a reckless or careless attitude or mind set.”]

 The test to be applied is whether a reasonable person in defendant's position would have been aware of the risks involved in his actions.   (People v. Watson (1981) 30 Cal.3d 290, 296–297, 179 Cal.Rptr. 43, 637 P.2d 279.)   In our case, there was evidence to support a finding of gross negligence both in the manner of defendant's drinking and his driving.   He deposited his car at a friend's house in the early afternoon and consciously began drinking, intending to continue drinking at the party.   Although only 18 years old, defendant apparently had a history of drinking such that a witness who knew his family had seen him drink to excess several times.   While defendant made plans to be driven home, he kept his car keys with him.   Although he testified he was aware that drinking and driving “doesn't mix,” he apparently had been drinking in the car with friends on the day of the accident, as he told an officer later that night.   A beer can with some alcohol still in it was found next to his car at the scene of the accident.   At the party he shrugged off warnings about his drinking and continued to drink to excess.   And at some point he obviously made the decision to get in his car and drive home.   He was not simply intoxicated.   His blood alcohol was .23 percent, over twice the legal limit.9

Appellant argues that his driving was not grossly negligent since he merely violated a traffic law.   We disagree with that characterization of his driving.   Not only did defendant pull into a lane of oncoming traffic when it was unsafe to do so, he also crossed a solid yellow line on a curve (violations of Veh.Code, §§ 21658, subd. (a) & 21751).   He did not inadvertently swerve into the wrong lane and correct his course, as counsel has suggested.   Rather he drove his car completely into the other lane, without any attempt whatsoever to slow down, return to his lane or avoid colliding with oncoming traffic.   Particular caution would have been indicated by the fact that it was dark, late on the night of a popular holiday, and defendant's car was one of a line of cars proceeding around a curve in a country road.   Instead of exercising any caution, however, defendant was driving at or over the speed limit at the moment of impact.

 The jury's verdict was fully supported by the evidence.   Thus even if we were to decide that the jury was improperly instructed on the element of gross negligence, and we do not, there was no “miscarriage of justice” in view of the entire record.  (Cal. Const. art. VI, § 13;  People v. Leffel, supra, 203 Cal.App.3d at p. 585, 249 Cal.Rptr. 906.)

2. The Evidentiary Ruling

 Appellant's friend Danny did not testify.   In the course of the testimony of Tammy Yoro, defense counsel sought to bring in evidence that Danny had assured Yoro and others who had assembled at the fairgrounds to watch the fireworks, that he Danny (and not appellant) would be driving that night.   The prosecutor raised a hearsay objection and defense counsel argued that the statement was relevant to appellant's state of mind that he had not intended to drive that night, and was also relevant to show that other people at the party understood that appellant was not going to drive.   The court excluded the evidence.

We find no error in this ruling.   The challenged evidence had little, if any, probative value, and was redundant in any case.  (Evid.Code, § 352.)   The fact that other people at the party understood that Danny was driving did not bear on any disputed issue.   Moreover both Yoro and Dakiwag supplied this evidence, testifying that they believed appellant would not be driving that night.

 Furthermore, even though Danny's statement may have been evidence of Danny's intent to drive, thus tending to prove that he later acted in conformance with his expressed intent (Evid.Code, § 1250), Danny's state of mind was not at issue.   Danny's statement does not amount to a statement of appellant's intent unless appellant was present at the conversation and acquiesced.   And even if this statement was relevant, as appellant argues, to show there was a mutual understanding between Danny and appellant that Danny was the designated driver, its exclusion was entirely harmless.   As mentioned above, the fact that Danny was supposed to be the driver that night was not disputed and was confirmed by two witnesses, in addition to appellant himself.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Although counsel states in his opening brief that alcohol was served to appellant by the host of the barbecue, we find nothing in the record to substantiate this assertion.   Appellant himself and two other witnesses testified that beer was not served to the young people at the party.

2.   Again we wish to clarify what appears to be a misstatement of the record in counsel's opening brief.   Counsel asserts that appellant had “returned to his own side of the road” and that Owen's car pulled into appellant's lane.   To the contrary, Officer Haupt clearly testified that appellant's Oldsmobile was entirely in the westbound lane at the point of impact.

3.   All further statutory references are to the Penal Code unless otherwise indicated.

4.   Gross vehicular manslaughter while intoxicated is defined in section 191.5, subdivision (a), as “the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23152 or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.”

5.   Former section 192(c)(3) read as follows:  “Manslaughter is the unlawful killing of a human being without malice.   It is of three kinds:  ․ [¶] Vehicular— ․ [¶] (3) Driving a vehicle in violation of Section 23152 or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, and with gross negligence;  or driving a vehicle in violation of Section 23152 or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.”

6.   It appears that a resolution of these conflicting appellate opinions will be forthcoming from our Supreme Court.   We note that two recent cases on the subject have been accepted for review.  (People v. Bennett (1990) 224 Cal.App.3d 1097, 274 Cal.Rptr. 353, rev. granted February 14, 1991;  People v. Smith (1991) 228 Cal.App.3d 788, 279 Cal.Rptr. 184, rev. granted June 6, 1991.)

7.   This sentiment is reflected in the legislative history, which reveals that Assembly Bill 2558, which added section 191.5 to the Penal Code, sought in its original form to add the crime of gross vehicular manslaughter while intoxicated to Penal Code section 187.   A defendant convicted of that crime would have been guilty of second degree murder, punishable by a term of 15 years to life.

8.   The comment to CALJIC No. 8.94 explains that “Circumstances to be considered by the jury include:  the level of defendant's intoxication;  the urging of another that defendant not drive because of intoxication;  the prevailing highway conditions, i.e. straight, curved, smooth or rough, wet or dry road;  weather conditions, i.e., fog, rain, clear, light or dark;  the maximum safe speed;  defendant's actual speed and how much it exceeded the safe speed limit.”  (Com. to CALJIC No. 8.94 (5th ed. 1988 bound vol.) p. 426.)

9.   Now, since January 1, 1990, it would be nearly three times the legal limit of .08 percent.  (Veh.Code, § 23153;  Stats. (1989) ch. 479, p. 1531.)

BAMATTRE–MANOUKIAN, Associate Justice.

AGLIANO, P.J., and CAPACCIOLI, J., concur.