People v. Von Staden, A036270

• Decision Date: 04 November 1987
• Docket Number: No. A036270,A036270
• Citation: 241 Cal.Rptr. 523,195 Cal.App.3d 1423
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kurt Dietrich VON STADEN, Defendant and Appellant.

Page 523

241 Cal.Rptr. 523

195 Cal.App.3d 1423

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kurt Dietrich VON STADEN, Defendant and Appellant.

No. A036270.

Court of Appeal, First District, Division 5, California.

Nov. 4, 1987.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Asst. Atty. Gen., David D. Salmon, Supervising Deputy Atty. Gen., John W. Runde, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Charles Bush, San Rafael, for defendant and appellant.

KING, Associate Justice.

In this case we hold that the "gross negligence" element required for a conviction of gross vehicular manslaughter while intoxicated cannot be shown by the mere fact of driving under the influence or violating the traffic laws. The trier of fact must determine, considering the overall circumstances of the defendant's intoxication or the manner in which he drove, or both, whether there was gross negligence because the driver failed to exercise any care or was wholly indifferent to the consequences of his conduct and to the welfare of others.

Kurt Dietrich Von Staden appeals from a judgment of conviction for vehicular manslaughter. He challenges the sufficiency of the evidence to support the judgment and claims instructional error. We affirm.

The offense occurred at around 2:30 a.m. on November 19, 1985. The victim, Tracy Allen White, was a passenger in a car driven by Von Staden. They had both attended a party in Woodacre earlier that night. Von Staden arrived after White, at around 1 a.m. He was already intoxicated, and continued drinking at the party. White consumed both alcohol and cocaine. At around 2 a.m. they left in Von Staden's automobile, despite their host's urging that Von Staden not drive.

Von Staden lost control of his automobile at a curve on Sir Francis Drake Boulevard and crashed into a telephone pole. The automobile entered the curve at 50 to 60 miles per hour, crossed into the oncoming lane, and then rotated in a clockwise direction before crashing. The speed limit in the area was 40 miles per hour; however, a sign just before the curve suggested a maximum speed of 35 miles per hour around the curve. Light to moderate patches of fog were present in the area that morning. A highway patrol officer estimated that the maximum safe speed at the curve under the prevailing conditions at the time of the accident was between 25 and 30 miles per hour.

White was dead when police arrived at the scene. Von Staden had a severe laceration across his throat, and was taken to a local hospital. A blood sample taken from Von Staden at 5:35 a.m. contained a .16 percent blood alcohol content. When asked a hypothetical question a criminalist estimated that Von Staden's blood alcohol level would have been approximately .22 percent at 2:30 a.m.

A jury convicted Von Staden of vehicular manslaughter with gross negligence (former Pen. Code, § 192, subd. (c)(3), now § 191.5), driving under the influence with injury (Veh. Code, § 23153, subd. (a)), driving at .10 percent blood alcohol content or above with injury (Veh. Code, § 23153, subd. (b)), and driving with a revoked or suspended license (Veh. Code, § 14601.2). The court imposed the middle term of six years' imprisonment for vehicular manslaughter, with stayed prison sentences for the drunk driving offenses and a concurrent jail sentence for driving with a revoked or suspended license.

I

Von Staden contends there was insufficient evidence of the gross negligence element of his vehicular manslaughter conviction.

The offense of which Von Staden was convicted--vehicular manslaughter with gross negligence--was formerly set forth in Penal Code section 192, subdivision (c)(3), ¹ and is presently set forth in Penal Code section 191.5 as "gross vehicular manslaughter while intoxicated." ² Under both versions the offense includes, as relevant here, driving under the influence and a violation of traffic laws, with gross negligence.

The Penal Code defines three other types of vehicular manslaughter. Two of these do not involve intoxication. (Pen.Code, § 192, subds. (c)(1) and (c)(2).) The third, which might be termed "simple vehicular manslaughter while intoxicated," includes the elements of driving under the influence and violating the traffic laws, but with simple, not gross, negligence. (Pen.Code, § 192, subd. (c)(3), formerly § 192, subd. (c)(4).) Gross vehicular manslaughter while intoxicated carries substantially greater penalties than simple vehicular manslaughter while intoxicated. (P en.Code, § 191.5, subd. (b); Pen.Code, § 193, subd. (c)(3).)

The nature of the gross negligence element has been explored in two recent decisions, People v. McNiece (1986) 181 Cal.App.3d 1048, 226 Cal.Rptr. 733 and People v. Stanley (1986) 187 Cal.App.3d 248, 232 Cal.Rptr. 22.

McNiece postulated that if there is to be any distinction between gross and simple vehicular manslaughter while intoxicated, the elements of driving under the influence and violating the traffic laws cannot be "sufficient in themselves to support a finding of gross negligence," and thus gross negligence must require "something in addition." (181 Cal.App.3d at p. 1058, 226 Cal.Rptr. 733.) The court held that because the prosecutor in closing argument relied on the mere fact of intoxication to show gross negligence, the court had a sua sponte duty to instruct the jury that the fact of driving under the influence was insufficient in itself to support a finding of gross negligence. (Id. at pp. 1056-1058, 226 Cal.Rptr. 733.)

Thus McNiece held that the prosecutor's reliance on the mere fact of intoxication to prove gross negligence could have misled the jury, creating the need for the sua sponte instruction. Nothing in McNiece suggests a prosecutor cannot show gross negligence based on a high level (as opposed to the mere fact) of intoxication. Nevertheless, the court in Stanley, relying on McNiece, reached that very conclusion. The prosecutor in Stanley asserted "the excess amount of alcohol" (between .18 and .23) as evidence of gross negligence. (187 Cal.App.3d at p. 251, 232 Cal.Rptr. 22.) The court, citing McNiece, concluded that evidence of intoxication cannot be used at all to show gross negligence, and "the jury must find that in addition to being intoxicated the defendant was ... grossly negligent in the manner of his operation of the vehicle." (Id. at p. 253, 232 Cal.Rptr. 22, original emphasis.) Accordingly, the court in Stanley held the trial judge should have given a sua sponte instruction that evidence of the defendant's level of intoxication could not be considered in determining the presence of gross negligence. (Id. at pp. 254-255, 232 Cal.Rptr. 22.)

We agree with McNiece that gross negligence cannot be shown by the mere fact of driving under the influence and violating the traffic laws. Otherwise, gross and simple vehicular manslaughter while intoxicated would be identical crimes with different punishments which would create obvious due process problems.

We also agree with Stanley that gross negligence can be shown by the manner in which the defendant operated the vehicle, that is, the overall circumstances (rather than the mere fact) of the traffic law violation. For many years California's appellate courts have relied on such evidence as substantial evidence of gross negligence. (E.g., People v. Costa (1953) 40 Cal.2d 160, 169, 252 P.2d 1; People v. Markham (1957) 153 Cal.App.2d 260, 275, 314 P.2d 217.)

We disagree with the holding in Stanley that gross negligence cannot be shown by the level of the defendant's intoxication. 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...