People v. Thompson (2000)

[Modification fn. * of Opinion ( 79 Cal. App. 4th 40 ) on denial of petition for rehearing.]

THE PEOPLE, Plaintiff and Respondent, v. DEBORAH LYNETTE THOMPSON, Defendant and Appellant.

WUNDERLICH, J.-

It is ordered that the opinion filed herein on March 16, 2000, be modified as follows:

1. Under section III. Instructional Claims concerning GVMI, subpart C. Committing a Lawful Act in an Unlawful Manner, page 10 of the filed opinion replace the 8th and 9th paragraph which begins "From these cases we glean . . ." with the following paragraphs:

From these cases we glean the following: committing a lawful act in an unlawful manner simply means to commit a lawful act with negligence, that is, without reasonable caution and care. It follows, then, that in the context of vehicular manslaughter, a killing is unlawful either when one commits a misdemeanor or infraction (an unlawful act, not amounting to a felony) or when one commits a negligent act (a lawful act in an unlawful manner). Indeed, CALJIC No. 8.93 uses the phrase "negligently commits an ordinarily lawful act," instead of commits a lawful act in an unlawful manner, to define "unlawful killing."

In light of our discussion, it is clear why the phrase "in an unlawful manner" and the word "negligently" are absent from the enumeration of elements in the court's instruction and CALJIC No. 8.93. Both instructions require the jury to find that the lawful act was committed with gross negligence. Such a finding would necessarily include a finding of simple negligence. Accordingly, the Supreme Court in People v. Wells (1996) 12 Cal. 4th 979, stated, albeit in dicta, that even if the prosecution fails to prove that the defendant committed a Vehicle Code violation (i.e., unlawful act), the jury may still convict the defendant of GVM "if it finds that the defendant drove in a grossly negligent manner and, that this conduct was the proximate cause of a death." (Id. at p. 990, fn. 9.) [80 Cal. App. 4th 56b]

Under the circumstances, the failure to include the phrase "unlawful manner" or the word "negligently" in enumerating the elements of the offense was not error. And although the court should have included one or the other in defining an "unlawful killing," the error was harmless under any standard of review.

Appellant's petition for rehearing is denied. There is no change in the judgment.

Bamattre-Manoukian, Acting P.J., and Mihara, J., concurred.

FN *. This modification requires movement of text affecting pages 54-61 of the bound volume report.