People v. McNiece

• Decision Date: 30 May 1986
• Citation: 226 Cal.Rptr. 733,181 Cal.App.3d 1048
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Bryan McNIECE, Defendant and Appellant. F004998.

Page 733

226 Cal.Rptr. 733

181 Cal.App.3d 1048

The PEOPLE, Plaintiff and Respondent, v. James Bryan McNIECE, Defendant and Appellant.

F004998.

Court of Appeal, Fifth District, California.

May 30, 1986.

Review Denied Sept. 11, 1986.

Myron Moskovitz, Berkeley, Wilson, Altschule & Sigmund, James T. Wilson, Visalia, for defendant and appellant

John K. Van de Kamp, Atty. Gen., Eddie T. Keller, Susan Rankin Bunting, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

STATEMENT OF THE CASE

PAULINE DAVIS HANSON, Acting Presiding Justice.

An information charged appellant with vehicular manslaughter with gross negligence in count I (Pen.Code, § 192, subd. (c)(3)), ¹ driving under the influence of alcohol with injury in count II (Veh.Code, § 23153, subd. (a)), and driving with a blood alcohol level of .10 or above causing injury in count III (Veh.Code, § 23153, subd. (b)).

After a seven-day trial, the jury returned a verdict of guilty on all counts.

Appellant was sentenced to a six-year term on count I and an eight-month consecutive term on count II. The sentence on count III was stayed pursuant to section 654.

FACTS

On January 21, 1984, appellant, the owner and president of California Gun Specialties, hosted an annual sales meeting at the Lamp Liter Inn in Visalia. A cocktail party and dinner were held. Testimony is conflicting as to the amount of alcohol consumed by appellant. Various people testified that appellant did not appear to be intoxicated.

At approximately 11:30 p.m., appellant left the Lamp Liter Inn; around midnight, appellant traveled on Country Center Drive toward the Caldwell Avenue intersection. The speed limit on Country Center Drive is 30 mph; the speed limit on Caldwell Avenue is 45 mph. The traffic on Caldwell Avenue has the right of way; a stop sign is at the Caldwell intersection. Experts for the prosecution and eyewitnesses testified appellant was traveling at a speed of about 50 to 55 mph; he failed to slow down or stop at the stop sign. When he entered the intersection, appellant, driving a Ford Bronco vehicle, struck a Volkswagen automobile traveling on Caldwell Avenue carrying Karen Wonacott and Russell Bitney. Bitney was seriously injured in the accident; Wonacott was killed.

When Officer Jeff Goodwin of the Visalia Police Department arrived, he saw Bitney and Wonacott lying on the ground away from the vehicle. Although he felt no pulse, Goodwin administered CPR to Wonacott until an ambulance arrived. When Goodwin turned his attention to appellant, he noticed the smell of alcohol and that appellant was unstable in his coordination. Appellant's conduct during a field sobriety test administered by another officer led Goodwin to believe appellant was under the influence of alcohol. A blood test taken about an hour later showed appellant's blood alcohol level to be .155.

DISCUSSION

I

Felony vehicular manslaughter is defined in this manner:

"Manslaughter is the unlawful killing of a human being without malice....

"...

"(c) 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.

"(4) 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, but without 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, but without gross negligence." ( § 192, emphasis added.)

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. Subdivision (c)(3) involves a penalty of four, six, or eight years in state prison, while the finding of vehicular manslaughter without gross negligence (subd. (c)(4)) supports a prison penalty of only sixteen months, two or four years ( § 193). Appellant argues it was crucial the jury was not instructed clearly that a finding of gross negligence may not be based solely on the fact of driving under the influence of alcohol. Because no such instruction was given, appellant contends he was deprived of a fair trial.

The instructions regarding vehicular manslaughter and gross negligence stated:

"The Defendant is charged in Count I of the Information with the commission of the crime of vehicular manslaughter involving alcohol, a violation of Section 192 Paragraph III, (C) and (D) of the Penal Code. The crime of vehicular manslaughter involving alcohol is the unintentional but unlawful killing of a human being in the driving of a vehicle in violation of Vehicle Code Section 23152 or Vehicle Code Section 23153.

"A killing is unlawful when a person commits an act inherently dangerous to human life or safety, amounting to a misdemeanor or an infraction as will be later defined, or negligently commits an act ordinarily lawful which might produce death.

"In order to prove the commission of the crime of such vehicular manslaughter, each of the following elements must be proved: First, that a human being was killed; secondly, that the driver of the vehicle committed an unlawful act, to wit a violation of Section 22450, 21802(a), or 22350 of the Vehicle Code, or negligently committed an act ordinarily lawful which might cause death; third, that such unlawful act or negligent conduct was the proximate cause of the death of the person killed; and, fourth, that the driver of the vehicle also violated Vehicle Code Section 23152 or Vehicle Code Section 23153.

"A proximate cause of a death is a cause which, a natural and continuance sequence produces the death and without which the death would not have occurred.

"If you find the Defendant is guilty of manslaughter as thus defined to you, you must also find whether the act causing the death was done with or without gross negligence, and you must declare your finding in your verdict. If you find the Defendant was guilty of manslaughter in the driving of a vehicle, but entertain a reasonable doubt as to whether the act causing the death was committed with gross negligence, it would then be your duty to find it was committed without gross negligence.

"Now, negligence is the doing of something which a reasonably prudent person would not do or the failure to do something which a reasonably prudent person would do under similar circumstances. It is the failure to use ordinary or reasonable care.

"Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under similar circumstances.

"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 to the welfare of others."

No further instructions on the distinctions between ordinary negligence and gross negligence were given. The jury was never informed that the fact appellant was under the influence of alcohol was insufficient in itself to support a finding of gross negligence. The question of whether gross negligence existed was a complicated one and difficult to resolve. The jury was entitled to know what could not be considered on this point. (See People v. Hebert (1964) 228 Cal.App.2d 514, 519-520 [the jury was entitled to a clear statement on the doctrine of proximate cause].)

" 'It is settled that in criminal cases, even when not requested, the court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the evidence adduced before the court which are necessary for the jury's proper consideration of the case. [Citations.] At a minimum, it is the court's duty to ensure the jury is adequately instructed on the law governing all elements of the case submitted to it to the extent necessary for a proper determination in conformity with the applicable law. [Citation.]' (People v. Iverson (1972) 26 Cal.App.3d 598, 604-605 [102 Cal.Rptr. 913].)" (People v. Sheffield (1985) 168 Cal.App.3d 158, 163-164, 214 Cal.Rptr. 40.)

Although the general definition of gross negligence was given, a statement made by the prosecuting attorney during closing argument could have greatly misled the jury:

"Do you feel based on the evidence in this case and what took place at the intersection that the alcohol did not cause the accident? Are we talking about a stone cold sober person driving a vehicle down Country Center? No. Did it cause the accident? That is what gross negligence deals with, facts. Did it cause the accident? Absolutely, alcohol caused this accident."

No one contested that appellant's use of alcohol was a cause of the accident, but gross negligence deals with much more than intoxication. The People continued and argued further:

"No reasonable person can look at the accident, the circumstances of this case, and tell me or anyone that alcohol was not responsible for the death of Karen Wonacott. That is what this case is all about. That is what we have legislature [sic ] for. That is why we have drunk driving laws. Alcohol causes accidents.

"...

"... He chose to get into the vehicle. He chose to drink. He chose to be intoxicated to that extent. He chose to drive down Country Center."

Under the circumstances, the definition of gross negligence was improperly presented to the jury. It was not made clear...