There was sufficient evidence to support a police officer’s conviction for involuntary manslaughter because he drew and fired his handgun instead of his taser. The defendant, a BART officer, killed Oscar Grant when he pulled out his handgun instead of his taser. On appeal, he contended that there was insufficient evidence of the requisite criminal negligence to sustain his conviction for involuntary manslaughter. The court found that there was sufficient evidence that his conduct of mistakenly drawing and firing his handgun instead of his taser constituted criminal negligence under the second prong of involuntary manslaughter. He committed a lawful act in an unlawful manner, or without due caution and circumspection because he believed he was tasing an arrestee but mistakenly, and criminally negligently, drew and fired his handgun instead, killing Grant. The defendant also argued that a new, higher standard for involuntary manslaughter should apply to police officers who kill in the line of duty. The court rejected this argument because established California law defines criminal negligence and makes no exceptions for particular occupations. California follows the objective “reasonable person” standard of criminally negligent conduct, not a “reasonable police officer.” The court declined to follow a Maryland decision that incorporated “wantonness” into its definition of criminal negligence and a standard of “extraordinary and outrageous” conduct. Civil rights cases arising under federal law were also inapplicable because they involved standards that are different from those of the general criminal law.

Exclusion of defense evidence that BART subsequently changed its taser policy was proper under Evidence Code section 352 and did not infringe on the constitutional right to present a defense. Following the Grant shooting, BART suspended the use of tasers for a time and then instituted new requirements for holstering the taser. The defense argued this policy change showed that BART recognized that the manner in which defendant holstered his taser could lead to handgun/taser confusion. The trial court properly excluded the evidence pursuant to Evidence Code section 352. The state of the defendant’s taser training was of doubtful relevance and it was speculation that BART changed its policy because it concluded the defendant experienced handgun/taser confusion. The trial court was also well within its discretion to prevent a minitrial on BART’s administrative decisions when this was not the main issue at trial. The Court of Appeal also rejected the defendant’s contention that he was denied his right to present a defense because the exclusion of evidence on a minor and subsidiary point does not interfere with that constitutional right. The court noted that remedial measures are generally inadmissible under Evidence Code section 1151 but declined to decide the issue of the precise application of the statute in this case.

It was not error to deny a new trial motion based on newly discovered evidence of two other instances of handgun/taser confusion. At trial, the defense presented evidence of handgun/taser confusion in six instances between 2001 and 2006. In each instance, the taser was holstered on the officer’s dominant side. After the defendant’s trial ended, the defense discovered two instances of handgun/taser confusion in which the taser was holstered on the nondominant side, as in this case. The defense filed a motion for a new trial motion on various grounds, including newly discovered evidence. The Court of Appeal concluded that the trial court did not abuse its discretion in denying the motion because the new evidence would have added little to the trial and would not have rendered a different result probable on retrial. There was ample evidence that the defendant was criminally negligent when he drew and fired his gun instead of his taser under the circumstances of the case. The fact that other officers had made a similar mistake was largely irrelevant to the defendant’s conduct and cumulative on the issue of guilt. The defendant also had ample opportunity to present his defense that he drew his handgun by mistake and not negligently. The jury, however, rejected this defense and found the defendant acted with criminal negligence.