Conviction reversed where prosecutor misstated the law by telling the jury that “innocence” as used in the instruction on circumstantial evidence (CALCRIM No. 224) refers to actual innocence, not guilt of a lesser included offense. Defendant Doane lost control of his truck and collided head-on with a vehicle, killing the driver. He fled on foot and was apprehended the following day. A jury convicted him of vehicular manslaughter with gross negligence, and a separate count of leaving the scene of an accident. He appealed. Held: Gross vehicular manslaughter conviction reversed. The jury was instructed under CALCRIM No. 224: “If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence.” Doane’s trial counsel argued that if the circumstantial evidence could support the conclusion that Doane drove with ordinary negligence or gross negligence, the jury must conclude he acted with ordinary negligence. The prosecutor responded that “innocence” as used in CALCRIM No. 224 meant “the defendant didn’t do anything wrong, clean hands,” noting “[t]here is no distinction in the instruction between levels of negligence.” This was error. “Innocence” under CALCRIM No. 224 refers to being not guilty of the charged crime, not to being not guilty of the charged crime and any lesser included offenses. Thus, “if the circumstantial evidence supported a reasonable conclusion that Doane acted with gross negligence but also supported a reasonable conclusion that he acted with only ordinary negligence, the jury could find him guilty only of misdemeanor vehicular manslaughter.” There was a reasonable likelihood the jury interpreted the prosecutor’s remarks in an objectionable fashion and believed it could find Doane guilty of gross vehicular manslaughter even if the circumstantial evidence also supported a reasonable conclusion that he acted with only ordinary negligence.

In answering the jury’s question as to whether it could consider post-collision behavior in determining the level of negligence, the trial court erred by partially instructing on flight. During deliberations, the jury sent a note asking if it could “consider the action of fleeing the scene after the accident and those behaviors as gross negligence, even if we consider the accident and conditions leading up to it as ordinary negligence?” Over objection, the trial court re-referred the jury to the instructions on ordinary negligence, gross negligence, and flight, specifically: “If you conclude the defendant fled it is up to you to decide the meaning and importance of that conduct.” This was error. The jury did not ask only whether it could rely on postcrash acts to infer that Doane acted with gross negligence in causing the collision. Instead, it asked whether it could consider Doane’s post-crash behavior to establish gross negligence even if Doane acted with ordinary negligence in causing the crash. The answer to that question is clearly no. “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.” The flight instruction does not address the defendant’s specific mental state at the time of the offenses, or the defendant’s guilt of a particular crime, but advises of circumstances suggesting the defendant’s consciousness of having committed some wrongdoing. Doane’s flight was relevant to prove that he was aware he had done something wrong, but it was not relevant to establish that he acted with gross negligence as opposed to ordinary negligence. There was a reasonable likelihood that the jury interpreted the court’s answer to mean that it could convict Doane of gross vehicular manslaughter based on post-crash behavior, including flight, that it deemed grossly negligent. The errors were cumulatively prejudicial even under People v. Watson (1956) 46 Cal.2d 818, 836.