Trial court committed structural error by erroneously instructing jury on uncharged misconduct evidence where the conduct at issue was an indivisible part of the charged offense. Nicolas was talking on her cell phone, texting, and speeding down the I-405. She slammed into the car in front of her, which was stopped in a traffic jam, going 80 miles per hour. The other motorist died. At Nicolas’ trial for vehicular manslaughter with gross negligence, the trial court instructed the jury over a defense objection with a modified version of CALCRIM No. 375, concerning uncharged misconduct evidence. Specifically, the jury was instructed that it could consider the text messages and phone calls Nicolas made immediately preceding the accident to determine whether she possessed the requisite intent and that the misconduct need only be proven by a preponderance of the evidence. Nicolas challenged this and other instructional issues on appeal. Held: Reversed. Uncharged conduct evidence is admissible to prove a number of different things, including intent, and need only be proved by a preponderance of the evidence. (See Evid. Code, § 1101, subd. (b).) The problem with the instruction in this case was not that it misstated the law, but that it was simply inapplicable to the text messages and phone calls, which were an indivisible part of the offense itself and were offered to show that Nicolas was acting with gross negligence. Because the instructional error essentially lowered the prosecutor’s burden to prove the existence of the texts, it required automatic reversal. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 281; People v. Aranda (2012) 55 Cal.4th 342, 365.) The court also agreed with Nicolas’ that the trial court did not correctly instruct the jury regarding general criminal intent and criminal negligence.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/G052512.PDF