There was sufficient evidence to sustain defendant’s involuntary manslaughter conviction although no expert testimony was presented regarding the standard of care applicable to construction sites. A jury convicted Luo of involuntary manslaughter (Pen. Code, § 192, subd. (b)) and safety code violations after an unsupported excavation at a construction site collapsed, killing a worker. On appeal Luo argued the evidence was insufficient because there was no expert testimony presented to establish the standard of care with which he was required to act, or the manner in which he breached that duty. Held: Affirmed. To prove involuntary manslaughter, the prosecution was required to show Luo unintentionally killed the victim either (1) in the commission of an unlawful act that is not a felony; or, (2) in the commission of a lawful act which might cause death, in an unlawful manner, without due caution and circumspection. Here, the prosecution was based on the second theory, which required proof of criminal negligence (i.e., a disregard for human life or an indifference to the consequences of one’s conduct). Criminal negligence is defined in terms of objective foreseeability; it does not require that a defendant subjectively appreciate the risk of harm. Expert testimony is only appropriate where the subject of the testimony is “beyond the common experience.” (Evid. Cod, § 801, subd. (a).) It is not required to determine whether a person of ordinary prudence would foresee a risk of death in certain conduct. Luo was a supervisor at the construction site. He ignored a Stop Work Notice, did not advise workers of the notice or the dangerous condition, and directed them to work in the dangerous area. The conviction was amply supported.
The trial court was not required to instruct sua sponte on what acts were included within “construction of a residence.” The prosecution’s theory was that Luo committed involuntary manslaughter by performing a lawful act, construction of a residence, with criminal negligence. Luo argued the trial court was required to define for the jury what distinct acts were included within “construction of a residence.” There was no sua sponte duty to define the term, because it is not a general principle of law. The instruction given (CALCRIM No. 581) correctly stated the law on involuntary manslaughter and Luo never proposed an additional or alternative instruction. He therefore forfeited any claim of error.
The trial court did not abuse its discretion by sustaining the prosecution’s hearsay objection during cross-examination of a prosecution witness. During cross-examination of the property owner, the defense attempted to elicit from him a statement made by Luo regarding the Stop Work Notice. The prosecution’s hearsay objection was sustained over defense argument that this question sought evidence regarding the witness’ state of mind under the “state of mind” exception to the hearsay rule (Evid. Code, § 1250). However, this exception only applies to statements offered to show the state of mind of the declarant, not the listener. While evidence that Luo told the property owner about the Stop Work notice would be admissible for the non-hearsay purpose of showing that Luo took some action to inform others of the notice and was therefore arguably less negligent, Luo did not articulate this basis for admissibility at trial, so he forfeited the claim. In any event, the exclusion of this evidence resulted in no prejudice based on proof of Luo’s criminal negligence, including his failure to tell any of the workers about the notice.
Defendant was provided adequate notice of the charges against him and the doctrine of election did not apply in this case. Luo argued he was not notified which of his acts the prosecution claimed were criminally negligent, resulting in inadequate notice of the charges. Due process requires that an accused be advised of the charges against him to afford him a reasonable opportunity to prepare a defense. Notice of the particular circumstances of an alleged crime is provided via a preliminary hearing or grand jury transcript, not by a factually detailed information. Luo was adequately apprised of the nature of the charges and the prosecution’s theory of the case through the grand jury proceedings and pretrial discovery. The doctrine of election, which requires the prosecution to select the criminal act on which it seeks conviction, or requires the trial court to instruct the jury on unanimity, only applies when the evidence suggests more than one discrete crime. Here, there was only one offense. There was disagreement as to how it was committed, but the jury need not agree on the “theory” whereby a defendant is guilty. In any event, the jury was instructed it had to unanimously agree on the acts giving rise to Luo’s criminal liability.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H042668.PDF