In gross vehicular manslaughter prosecution, trial court properly admitted evidence of defendant’s drug use and lack of sleep to prove a continuous course of conduct reflecting gross negligence. Defendant was convicted of vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)) and reckless driving with great bodily injury (Veh. Code, § 23104, subd. (b)). On appeal she challenged the trial court’s admission of evidence she had consumed drugs and alcohol and stayed up the night before the crash to prove her gross negligence. Held: Affirmed. Gross vehicular manslaughter is the driving of a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence. Gross negligence requires proof that a defendant acted in a reckless way that created a high risk of death or great bodily injury and a reasonable person would have known the act would create such a risk. As gross negligence may be shown from all the relevant circumstances, evidence of the manner in which defendant operated her vehicle, of her level of intoxication, and that she stayed up all night before the crash, was admissible. Further, the probative value of the evidence was not outweighed by its prejudicial effect.
The instruction given on gross vehicular manslaughter (CALCRIM No. 592) did not omit an element of the offense. The jury was instructed with the elements of gross vehicular manslaughter as follows: (1) the defendant drove a vehicle; (2) while driving the vehicle defendant committed an otherwise lawful act that might cause death; (3) the act was committed with gross negligence; and (4) the defendant’s grossly negligent conduct caused the death of another person. The “otherwise lawful act” was identified as driving a motor vehicle. Defendant argued the offense requires proof of an “otherwise lawful act” other than driving. However, the prosecution’s theory was that defendant’s grossly negligent operation of a motor vehicle caused the accident, not that defendant was guilty based on her violation of any specific Vehicle Code section. Thus, the trial court was not required to instruct on the elements of any predicate Vehicle Code offenses.
The trial court was not required to give a unanimity instruction. The prosecution argued that defendant’s use of drugs and alcohol and staying up the night before the crash, as well as her driving speed, were evidence of her gross negligence. There was no reason for the jury to choose one of the cited factors and not the other, as a basis for finding gross negligence, especially where the prosecution argued it was the collective circumstances that reflected gross negligence. The trial court was not required to instruct on unanimity.
There was no error with respect to the instruction given on reckless driving (CALCRIM No. 2200). The jury was instructed that reckless driving with great bodily injury requires proof that (1) the defendant drove a vehicle on the highway; (2) defendant intentionally drove with wanton disregard for the safety of persons and property; and (3) in so doing, the defendant proximately caused great bodily injury to another person. Defendant argued the trial court erred by omitting from the instruction optional language she requested that driving faster than the legal speed limit, by itself, does not establish a wanton disregard for safety. However, the defendant failed to object to this omission in the trial court. Even if error occurred, it was not prejudicial as there is no reasonable likelihood the jury based its verdict solely on evidence that defendant was driving 65 to 75 miles per hour.