PEOPLE v. BENNETT (1990)

This appeal from a conviction of gross vehicular manslaughter while intoxicated concerns the legality of CALJIC No. 8.94 which tells the jury to consider the overall circumstances of a defendant's intoxication, the manner of driving, or both, in deciding whether the defendant's conduct constituted gross negligence.¹  We conclude the instruction is lawful and affirm the judgment but remand for resentencing because the trial court failed to give reasons for selecting a consecutive term for the related offense of driving under the influence and causing bodily injury.

I. BACKGROUND

Eighteen-year-old Johnathan Altimori died on December 11, 1988, as a result of multiple injuries incurred in a motor vehicle accident.   Late that afternoon Clark Neeley visited Altimori at his trailer in Guerneville.   Altimori was drinking beer from a “party ball” with John Bennett (appellant), age 30.²  About an hour or so later they decided to drive over to the coast.   Appellant drove to Salmon Creek in his Datsun truck.

Gabriell Case, a high school friend of Altimori and Neeley, was surfing at Salmon Creek.   He went up to his car around sunset, noticed a truck drive by without its lights on, and flashed his lights.   The driver (appellant) turned around and came back, and Case joined them for a beer or two.   At the beach the others continued drinking beer from the “party ball,” each consuming five or six beers.

Case described appellant as “pretty drunk.”   He “spilled beer on himself” and was “not standing up very straight.”   Neeley, who acknowledged he was intoxicated himself, said appellant “looked drunk,” but “it wasn't bothering me at the time.”   By the time they decided to leave there was a “little bit left” in the “party ball,” Neeley admitting they “pretty well killed the entire thing.”

Appellant, Altimori and Neeley left together after sunset, around 6 p.m.  Appellant drove and Case followed in his own car.

Neeley said appellant was driving fast and passing cars.   Altimori mentioned they were driving fast, but did not tell appellant to slow down.   Case observed appellant crossing the center line four or five times and drifting off the side of the road at least two or three times.   He honked his horn and flashed his lights but appellant continued driving the same way.

On a downgrade, as they approached a blind curve, appellant crossed the double yellow line and passed three cars.   No cautionary signs were posted at the time.   Case estimated appellant was traveling 60 to 65 miles per hour by the time he got to the bottom of the hill.

At the bottom of the hill the truck went off the pavement and onto the left gravel shoulder of the road;  appellant braked, the truck came back onto the roadway in front of the three cars and rolled over five or six times.   At one point the truck went ten feet in the air.   All three passengers were ejected from the truck.   Neeley sustained a “road rash” on his back and a bigger scratch on his upper shoulder.   Appellant was disoriented and bleeding.   Altimori apparently never regained consciousness before he died.

After the accident, investigators measured and analyzed the skid marks at the scene.   California Highway Patrol Sergeant Terrill Morris testified that based on these measurements, the truck was traveling 66.5 miles per hour near the center of the curve when it was on the gravel surface.

Tests from a sample of appellant's blood drawn at approximately 7:50 p.m. revealed that his blood alcohol level was 0.20 percent.

The jury convicted appellant as charged of gross vehicular manslaughter while intoxicated, driving under the influence with bodily injury, and driving with blood alcohol level at 0.10 percent or more and causing bodily injury.   It also found true the allegation that appellant had a blood alcohol level of .20 percent or more.   The court sentenced appellant to the lower term of four years on the manslaughter count plus a consecutive eight month term for the driving under the influence count, staying a sixteen-month sentence for the third count.

II. DISCUSSION

A. CALJIC No. 8.94 Correctly States the Law

Appellant maintains CALJIC No. 8.94 incorrectly states the law and the court erred to his prejudice in delivering this instruction.   He proceeds on several fronts.

 First, appellant contends the instruction erroneously tells the jury it can consider the circumstances of defendant's intoxication when deciding whether defendant exhibited gross negligence when committing the manslaughter.   He explains that the “plain language” of Penal Code 3 section 191.5 ⁴ sets forth gross negligence and driving under the influence as separate, distinct elements of the crime.   He further argues there is no statutory requirement that the driver's drunkenness relate causally to gross negligence (referring to People v. Stanley (1986) 187 Cal.App.3d 248, 253, fn. 5, 232 Cal.Rptr. 22 [interpreting former section 192, subdivision (c)(3), the substance of which carried over into section 191.5] ).

We agree with both propositions.   However, we cannot accept appellant's conclusion that therefore proof of gross negligence can only be established by evidence of defendant's manner of driving, never by evidence of the level or other circumstances of intoxication.   True, under the statute, the reckless conduct need not stem from the circumstances of intoxication.   But we see nothing in the plain language of section 191.5, subdivision (a), mandating that these circumstances can never account for gross negligence.

Similarly, appellant submits that the syntax of the statute—locating the driving under the influence, proximate cause and gross negligence elements after the key clause “in the driving of the vehicle,” and separating each element with “and”—supports the construction that all these elements modify the main clause and, thus, pertain to the manner of driving.   We also agree with this assertion:  section 191.5 describes a crime that always entails the act of driving a vehicle and, thus, by logic the gross negligence element will always relate to the conduct of driving.   But again it does not follow that the circumstances of intoxication are irrelevant to the question of whether the person is driving in a grossly negligent manner.   On some level, the manner of driving cannot be divorced from the driver's condition.   Thus there can be egregious cases where the circumstances of intoxication, including a high level of intoxication, can demonstrate the level of recklessness or conscious indifference beyond mere driving under the influence which would sustain a finding of gross negligence “in the driving of a vehicle.”   Such a conclusion is not inconsistent with the language of section 191.5.

The reviewing court in People v. Von Staden (1987) 195 Cal.App.3d 1423, 241 Cal.Rptr. 523 reached just this same conclusion.   In parting ways with the decision in People v. Stanley, supra, 187 Cal.App.3d 248, 232 Cal.Rptr. 22 wherein that court held that evidence of intoxication can never satisfy the gross negligence element,⁵ the court in Von Staden reasoned:  “First, nothing in the history of sections 191.5 and 192 suggests the Legislature intended such a restriction.   Second, if gross negligence could not be shown by the circumstances of intoxication, then by the same logic it could not be shown by the circumstances of the traffic law violation (despite years of contrary case law), and hence would be impossible to prove.   Third, 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 limit by 5 miles per hour.  [¶] Accordingly, we hold that gross negligence cannot be shown by the mere fact of driving under the influence or violating the traffic laws, but can be shown by the overall circumstances of the defendant's intoxication and the manner in which the defendant drove.”   (People v. Von Staden, supra, 195 Cal.App.3d at p. 1428, 241 Cal.Rptr. 523.)

Von Staden went on to suggest that the pertinent CALJIC instruction be revised to include the very language that now appears in CALJIC No. 8.94.  (195 Cal.App.3d at p. 1429, 241 Cal.Rptr. 523.)

Appellant prevails on us to reject Von Staden and embrace the holding of People v. Stanley.   He first raises variations to his plain language and syntax arguments already discussed.   He also criticizes Von Staden for failing to acknowledge that drinking by itself does not cause traffic deaths, given the court's conclusion that a highly intoxicated driver is more culpable than one who drives near the legal limit.   Of course drinking in and of itself cannot cause a traffic death because you need a driver driving a vehicle to commit vehicular manslaughter.   But the level and other circumstances of intoxication can be pertinent to whether the driver's conduct was grossly negligent.   In Von Staden the relevant circumstances of intoxication included ignoring the host's urging that he not drive while intoxicated, and a blood alcohol content of .16 percent tested approximately three hours after the accident, with an expert opinion that the level would be around .22 percent at the time of the accident.

 Assuming for purposes of argument that intoxication is relevant to the gross negligence question, appellant further challenges CALJIC No. 8.94 on grounds that its disjunctive phrasing erroneously permits the jury to make the finding solely from the circumstances of intoxication without regard to the manner of defendant's driving.   As we explain, we believe the alternative phrasing, taken directly from the instruction proposed in Von Staden, correctly presents the array of circumstances which a jury can consider when deciding whether the driver's conduct constituted gross negligence.

The court defined gross negligence as a negligent act which is “aggravated, reckless and gross and which is 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 act.   The facts must be such that the consequences of the negligent act could reasonably have been foreseen and it must appear that the death was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or grossly negligent act.” ⁶

In a section 191.5 situation such as presented here, the underlying negligent conduct entails driving under the influence and violating a traffic law.   These acts define the lesser included offense of vehicular manslaughter while intoxicated, without the “gross negligence” factor (§ 192, subd. (c)(3)).   To elevate these acts to a gross level, CALJIC No. 8.94 cautions that the evidence must show something more than these two predicate acts.   The definition of gross negligence tells the jury that the evidence must demonstrate a quality of behavior that is aggravated, reckless and which indicates indifference to the consequences of the driver's conduct.   CALJIC No. 3.35, in turn instructs that “there must exist a union or joint operation of act or conduct and gross negligence.”  (CALJIC No. 3.35 (5th ed. 1988 bound vol., as paraphrased to the jury.)   Thus the heightened quality of recklessness and indifference must coincide with the specific underlying negligent conduct (driving while intoxicated and committing a traffic violation).   In our mind it is entirely consistent with the crime described in section 191.5 to tell the jury it can glean the gross negligence element from the overall circumstances of intoxication, manner of driving, or both.

 Finally, appellant claims CALJIC No. 8.94 is vague and confusing because it does not define the “overall circumstances” relating to intoxication.   He worries that without further detail, the instruction would allow the jury to guess that the overall circumstances include the irrelevant facts of drinking beer from a “party ball” with minors at the beach.   To begin with, the term “overall circumstances” does not have a technical, legal meaning requiring special explanation.   It conveys to the jury the need to consider the importance of all attending facts.   There is no reason to circumscribe the circumstances because they will vary among cases.   The instruction was legally correct and not misleading.

B. Reasons for Imposing the Consecutive Term **

The judgment of conviction is affirmed.   The case is remanded for resentencing.

FOOTNOTES

1.   The instruction reads:  “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] [she] drove, or both, whether [his] [her] conduct constituted gross negligence.”  (CALJIC No. 8.94 (5th ed. 1988 bound vol.)

2.   Neeley described a “party ball” as about one- and one-half foot wide and one foot long with a pump on the top.

FN3. Unless otherwise indicated, all further statutory references are to the Penal Code..  FN3. Unless otherwise indicated, all further statutory references are to the Penal Code.

4.   Section 191.5, subdivision (a), defines the particular version of “gross vehicular manslaughter while intoxicated” charged in this case:  “Gross vehicular manslaughter while intoxicated is 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 [driving under the influence] or 23153 [causing bodily injury while driving under the influence] of the Vehicle Code, and the killing was ․ the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence․”

5.   Stanley followed on the heels of People v. McNiece (1986) 181 Cal.App.3d 1048, 226 Cal.Rptr. 733 wherein the court concluded that the gross negligence factor requires “something in addition” to mere findings of driving under the influence and violating a traffic law.  (At p. 1058, 226 Cal.Rptr. 733.)   Reversing Stanley's conviction, the court held:  “As written, the statute requires evidence of intoxication as one of two predicates for liability.   It cannot, however, be used again to satisfy the second predicate as evidence of the defendant's negligence or gross negligence.   We thus agree ․ the jury must find that in addition to being intoxicated the defendant was negligent or grossly negligent in the manner of his operation of the vehicle.”  (People v. Stanley, supra, 187 Cal.App.3d at p. 253, 232 Cal.Rptr. 22, original emphasis.)

6.   From CALJIC No. 3.36 (5th ed. 1988 bound vol.)

FOOTNOTE.   See footnote *, ante.

ANDERSON, Presiding Justice.

POCHÉ and PERLEY, JJ., concur.