Trial court need not instruct on mistake of fact in gross vehicular manslaughter case because appellant’s subjective belief he was not intoxicated would not negate an element of the offense. While driving over the speed limit Givan ran a red light and struck another vehicle, killing one of its passengers and injuring the driver. Givan’s blood alcohol level (BAC) was .17 percent. He was charged with gross vehicular manslaughter while intoxicated, driving under the influence causing injury, and driving with a .08 percent or higher BAC. Enhancements and prior serious felonies were charged. He was convicted of all counts; the court found the priors true. He was sentenced to 25 years to life, plus five years. On appeal he claimed the trial court prejudicially failed to instruct on mistake of fact when he relied on such a defense. Held: Affirmed. Givan presented expert testimony that his consumption of Monster Energy drinks, in combination with alcohol, masked his ability to perceive alcohol impairment. A mistake of fact defense requires an actual belief in a set of facts which, if true, would make the act with which a defendant is charged an innocent one. For general intent crimes, the belief must be both actual and reasonable. However, a mistake of fact instruction is required only if the defendant’s mistaken belief negates an element of the offense. Gross vehicular manslaughter while intoxicated requires gross negligence (conscious indifference to consequences) that applies an objective standard—whether a reasonable person in defendant’s position would have been aware of the risk involved (Pen. Code, § 191.5, subd. (a)). Givan’s subjective belief, while a relevant circumstance in determining whether he had a conscious disregard of the consequences of his acts, did not warrant a mistake of fact instruction because the jury could still find that a reasonable person would have appreciated the risks involved in drinking and driving.

Givan suffered no prejudice from the trial court’s failure to instruct on mistake of fact. Even if “intent” was an element of gross vehicular manslaughter while intoxicated, the jury was instructed that gross negligence involves more than a mistake in judgment (CALCRIM No. 592). By finding him guilty, the jury therefore rejected the idea that he was not grossly negligent because he mistakenly believed he was not impaired. Further, there was no prejudice in light of his level of intoxication, his driving at excessive speeds, and running a red light.

Mistake of fact defense does not apply to offenses of driving under the influence causing injury or driving with an excessive BAC. A mistake of fact must be both reasonable and actual before the defense applies. Both subdivisions (a) and (b) of Vehicle Code section 23153, are general intent crimes. Thus, Givan’s subjective belief about his level of intoxication does not negate an element of either charge. Further, a mistake of fact is generally not reasonable when it is due to voluntary intoxication.