Opinion
Review Granted June 6, 1991.
Previously published at 228 Cal.App.3d 788, 235 Cal.App.3d 117
Diane E. Berley, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Sr. Asst. Atty. Gen., William T. Harter, Supervising Deputy Atty. Gen., and Cindy M. Lopez, Deputy Atty. Gen., for plaintiff and respondent.
ARLEIGH M. WOODS, Presiding Judge.
Steven Joseph Smith (defendant) was charged in a five count complaint with gross vehicular manslaughter while intoxicated (count 1; Pen.Code, § 191.5, subd. (a)), vehicular manslaughter without gross negligence (count 2; Pen.Code, § 192, subd. (c)(3)), driving under the influence of alcohol or drugs causing injury (count 3; Veh.Code, § 23153, subd. (a)), driving with a .10 percent blood alcohol level (count 4; Veh.Code, § 23153, subd. (b)), and driving with a suspended license (count 5; Veh.Code, § 14601.1, subd. (a)). Defendant pled guilty to count 5 and was convicted by a jury of counts 1 through 4. He appeals from his conviction of count 1, gross vehicular manslaughter, and from sentencing on counts 3 and 4. We stay his sentence as to those latter counts, but otherwise affirm.
We refer to these statutes throughout the opinion as they existed at the time defendant was charged. Subsequently, Vehicle Code sections 23152 and 23153 have been amended, lowering the requisite blood alcohol level to .08 percent.
This case arises from a fatal accident that occurred on February 15, 1989, at about 1:50 p.m. in the City of Burbank. Prior to the date of the accident, defendant had been drinking for two days. On the previous evening he had begun drinking at 8 p.m. and stopped at 2 a.m., but did not go to sleep. He resumed drinking at 11 a.m. on the day of the accident, consuming two shots of vodka. He then got behind the wheel of his pickup truck and drove to a meeting of Alcoholics Anonymous. He left the meeting at about 1:30 p.m., and drove to a liquor store where he purchased a bottle of vodka. Leaving the liquor store, he drove onto Olive Street, stopping at a stop sign at the intersection of Olive and Orchard Streets. There was a crosswalk at the intersection. A second car, driven by Ingrid Yacoon, also stopped as it approached Orchard from Olive because Yacoon saw that defendant had stopped. Ms. Yacoon saw a woman wearing brightly colored clothes, later identified as the victim, Dolores Allen, step down from the curb in front of the stopped cars, into the crosswalk.
Ms. Allen was also visible to the driver of a third car, driven by Carroll Woods, who was directly behind defendant at a distance of two or three car lengths. Ms. Woods saw the victim through the rear and front windows of defendant's truck.
Defendant did not see Ms. Allen and started through the crosswalk at 10 to 15 miles per hour, hitting her. She was thrown 31 feet from the point of impact. Defendant stopped and got out of his car. Paramedics and the police were called to the scene.
When defendant was asked by a policeman for his driver's license, he replied that it was suspended. He also told the officers he was on his way home from an Alcoholics Anonymous meeting. When the officer asked if he had been drinking, defendant replied, "Yes, just take me to jail."
A second officer then asked defendant to submit to a field sobriety test. Defendant stated, "I am drunk, just take me to jail." The officer also observed several symptoms of intoxication, including the smell of alcohol emanating from defendant, bloodshot eyes and slurred speech. Defendant failed the field sobriety test. He was taken to the Burbank jail where he was given a breath test on an intoxilyzer to determine his blood alcohol level. The test showed his blood alcohol to be between .17 and .18 percent.
Six vodka bottles were recovered from defendant's truck, five of them empty and one half full. In addition, a probation document dated October 21, 1988, was found on the floorboard of the truck. The document indicated that defendant was on probation for a drunk driving conviction. As a condition of probation, defendant was to refrain from driving a motor vehicle with any measurable amount of alcohol in his blood. He was also required to attend meetings of Alcoholics Anonymous. Additionally, a court card recording his attendance at Alcoholics Anonymous meetings was found in the pocket of a shirt on the bed of defendant's pickup truck.
The victim, Dolores Allen, died within 24 hours of the accident as a result of her injuries.
As noted previously, defendant was charged in a five count information. Initially, he pled not guilty to all charges. Just prior to trial, however, he pled guilty to count 5, driving on a suspended license. Trial commenced on the remaining counts. Over defendant's repeated objections, the court admitted into evidence the probation card of defendant's previous drunk driving arrest. The jury ultimately, returned verdicts of guilty as to all remaining counts.
Additional facts relevant to defendant's challenge to the admission of the probation card and claim of jury coercion are set forth in the body of the opinion.
Defendant was sentenced to 10 years on count 1, 4 years on count 2, 3 years on each of counts 3 and 4, and 6 months on count 5, all sentences to run concurrently with count 1 and with each other. He was also ordered to pay restitution.
This appeal ensued.
I
Defendant first contends that the court committed reversible error by admitting into evidence a card containing the terms and conditions of his probation for his prior drunk driving conviction and a court card documenting his attendance at Alcoholics Anonymous meetings as well as evidence that his license was suspended. This evidence necessarily alerted the jury both to his prior conviction and the fact that he was on probation. It set forth the conditions of probation required of him and the court card provided evidence that he had been attending the meetings of Alcoholics Anonymous.
The trial court's rationale for admitting the evidence is extensively documented in the record. The prosecution argued that the evidence "goes to the totality of the circumstances [of defendant's intoxication], which ... the jury is to consider when deciding whether or not the defendant was driving with gross negligence." The defense maintained that gross negligence could only be shown by the manner in which the defendant operated his vehicle on the day of the accident. The court agreed with the prosecution. It pointed out that the mere fact defendant was intoxicated, and even the degree of his intoxication "isn't per se evidence of gross negligence." The court admitted the evidence because it tended to demonstrate an awareness on defendant's part, prior to the accident, that he was "dangerous at the wheel and ... a dangerous alcoholic" for the purposes of showing gross negligence.
Indeed, the jury was instructed that the "mere fact that the defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. You must determine from the overall circumstances of the defendant's intoxication or the manner in which he drove, or both, whether his conduct constitutes gross negligence." Defendant attacks this instruction, a point we take up in part II of this opinion.
On appeal, defendant again challenges the trial court's ruling, claiming that the court abused its discretion by admitting this evidence because it allowed the prosecution to cast its net too widely to show that the overall circumstances of his intoxication were consistent with gross negligence. We disagree.
Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. Furthermore, gross negligence is found by applying an objective test, i.e., whether a reasonable person in the defendant's position would have been aware of the risk involved. (People v. Watson (1981) 30 Cal.3d 290, 296-297, 179 Cal.Rptr. 43, 637 P.2d 279.) Under this standard, proof of gross negligence necessarily requires some evidence of state of mind. "The state of mind of the person who acts with conscious indifferences to the consequences is simply, 'I don't care what happens.' " (People v. Olivas (1985) 172 Cal.App.3d 984, 988, 218 Cal.Rptr. 567.)
The fact that a person drives under the influence of alcohol and violates traffic laws is insufficient to show gross negligence; "something in addition" is required. (People v. McNiece (1986) 181 Cal.App.3d 1048, 1058, 226 Cal.Rptr. 733.) This "something in addition" can be shown by the manner in which the defendant operated the vehicle, "that is, the overall circumstances (rather than the mere fact) of the traffic law violation," including the circumstances of the defendant's intoxication. (People v. Von Staden, supra, 195 Cal.App.3d at pp. 1427, 1428, 241 Cal.Rptr. 523; People v. Stanley (1986) 187 Cal.App.3d 248, 253, 232 Cal.Rptr. 22.) The issue before us is whether evidence pertaining to defendant's prior drunk driving conviction is admissible as part of the proof of the overall circumstances of intoxication including preexisting awareness of the dangerous consequences of drinking and driving. We conclude that such evidence is admissible for this purpose.
Otherwise, Penal Code section 191.5, gross vehicular manslaughter, would simply be duplicative of Penal Code section 192, subdivision (c)(3), which defines vehicular manslaughter while intoxicated, but without gross negligence. (People v. Von Staden (1987) 195 Cal.App.3d 1423, 1426-1427, 241 Cal.Rptr. 523.)
Evidence that a defendant was specifically warned not to drive while intoxicated is admissible for the purpose of showing gross negligence. (People v. Von Staden, supra, 195 Cal.App.3d at p. 1428, 241 Cal.Rptr. 523.) More generally, in People v. Costa (1953) 40 Cal.2d 160, 252 P.2d 1, the Supreme Court concluded that evidence that defendant had been warned to obey traffic laws was admissible for this purpose.
In Costa, the intoxicated defendant was caught speeding by a highway patrolman and warned not to speed. A half hour later, defendant was involved in a fatal accident while traveling at a high rate of speed. On appeal from his conviction for gross vehicular manslaughter, he argued that the court had improperly admitted evidence of the officer's earlier warning. The Supreme Court rejected this argument, concluding that the evidence was relevant to disclosing his state of mind for the purpose of showing gross negligence. (40 Cal.2d at p. 166, 252 P.2d 1.)
Additionally, although defendant conceded that the warning did not amount to a previous violation of law, the Supreme Court stated: "[E]ven if it tended to show a previous crime, it would not have been inadmissible for the purposes for which it was introduced." (People v. Costa, supra, 40 Cal.2d at p. 167, 252 P.2d 1.) Quoting an earlier decision, People v. Woods (1950) 35 Cal.2d 504, 509, 218 P.2d 981, the court explained: " '[E]xcept when it shows merely criminal disposition, evidence which tends logically and by reasonable inference to establish any fact material for the prosecution, or to overcome any material fact sought to be proved by the defense, is admissible although it may connect the accused with an offense not included in the charge.' [Citations.]" (People v. Costa, supra, 40 Cal.2d at p. 167, 252 P.2d 1.)
While not binding, this dicta is certainly persuasive on the issue before us. Whether a defendant has been warned of the consequences of driving while intoxicated by a friend, a police officer, or by virtue of a prior drunk driving conviction involves a difference of degree, not kind; and there is no principled reason why the latter evidence should be per se inadmissible. Certainly, a defendant can argue that such evidence is prejudicial but this does not necessarily render it inadmissible if it is otherwise probative. (Evid.Code, § 352; People v. McCarnes (1986) 179 Cal.App.3d 525, 532-533, 224 Cal.Rptr. 846.)
Defendant argues that admission of his prior conviction was error because the jury may have used this evidence of his prior bad acts as proof that he committed the charged offense, in violation of Evidence Code section 1101. He concedes that the evidence was not introduced for this purpose. Moreover, the prosecutor specifically argued that the evidence was relevant to gross negligence. It was admissible for this purpose. (People v. Costa, supra, 40 Cal.2d at pp. 166-167, 252 P.2d 1.) Nothing in the record suggests that the jury used this evidence for the impermissible purpose suggested by defendant.
Our conclusion is strengthened further by those decisions which have permitted the use of evidence of prior drunk driving convictions for the purpose of determining implied malice in prosecutions for second degree murder arising out of vehicular manslaughter. (People v. Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279; People v. Olivas, supra, 172 Cal.App.3d 984, 218 Cal.Rptr. 567; People v. McCarnes, supra, 179 Cal.App.3d 525, 224 Cal.Rptr. 846; People v. Brogna (1988) 202 Cal.App.3d 700, 248 Cal.Rptr. 761.)
In vehicular murder cases where implied malice is an element "malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.]" (People v. Watson, supra, 30 Cal.3d at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279, italics deleted.) Prior "convictions ... are probative on the issue of whether the defendant possessed a subjective awareness of the life threatening risks associated with drinking and driving...." (People v. Brogna, supra, 202 Cal.App.3d at p. 708, 248 Cal.Rptr. 761.) If such evidence is probative of the issue of a defendant's subjective awareness of the consequences of drinking and driving, then it should also be admitted on the issue of whether a reasonable person, who had suffered such previous conviction, would be aware of these risks, for the purposes of determining gross negligence. As the court explained in Brogna, "the criminal act underlying vehicular murder is not the traffic violation which may precede an accident, but driving under the influence with conscious disregard for life. [Citation.]" (202 Cal.App.3d at p. 708, 248 Cal.Rptr. 761.) Similarly, the criminal act underlying gross vehicular manslaughter is not driving under the influence plus a traffic violation, but driving under the influence with an awareness of and conscious indifference to the consequences of that conduct. Thus, evidence should be admitted which tends to show the requisite state of mind. As was also said in Brogna: "[W]e cannot believe that any person of average intelligence who has suffered a 'drunk driving' conviction would be oblivious to the risks caused by driving while intoxicated." (202 Cal.App.3d at p. 709, 248 Cal.Rptr. 761.)
Defendant argues that because these cases have allowed evidence of prior convictions for the purposes of showing implied malice, a more culpable state of mind than that required for gross negligence, such evidence should be limited to vehicular murder cases. In essence, defendant is saying that if the same evidence is relevant to two offenses, one greater and one lesser, it should only be admitted as to the greater offense.
Evidence of a prior conviction and resulting probation would tend to show that a reasonable person in defendant's position, having suffered such conviction as a result of which he gained an appreciation of the risks associated with drinking and driving, and who still chose to drink and drive, did so with conscious indifference to the consequences of his conduct. Accordingly, we conclude that the court did not err by admitting the challenged evidence.
Defendant claims that the court erred by admitting evidence of his suspended license because it was not a cause of the accident. Plainly, however, this evidence was not introduced as having been a cause of the accident but, rather, as part of the prosecution's evidence of the circumstances of intoxication going to defendant's state of mind. It appears from the record that defendant's license was suspended as a consequence of his prior drunk driving conviction. It was the prosecution's position that the fact that defendant chose to drive knowing that he was not licensed to do so, along with other circumstances of his intoxication, went to a showing of gross negligence. The evidence was admissible for this purpose. Cases cited by defendant, People v. Spragney (1972) 24 Cal.App.3d 333, 100 Cal.Rptr. 902 and People v. Taylor (1986) 179 Cal.App.3d Supp. 1, 225 Cal.Rptr. 430, are factually inapposite.
II
Defendant claims that an instruction given to the jury about which circumstances they could consider to determine whether his conduct constituted gross negligence misstated the law. The argument is without merit.
The instruction in question is CALJIC No. 8.94 which states: "The mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. You must determine from the overall circumstances of the defendant's intoxication or the manner in which [he] [she] drove, or both, whether [his] [her] conduct constituted gross negligence." Defendant claims that instead of being allowed to consider whether either intoxication or driving were consistent with gross negligence, the jury should have been required to find that both were. For this proposition he cites the decisional law upon which the instruction is based. (People v. Von Staden, supra, 195 Cal.App.3d 1423, 241 Cal.Rptr. 523; People v. McNiece, supra, 181 Cal.App.3d 1048, 226 Cal.Rptr. 733.)
In People v. McNiece, supra, 181 Cal.App.3d 1048, 226 Cal.Rptr. 733, the Court of Appeal reversed defendant's conviction for gross vehicular manslaughter because the court failed to give a sua sponte instruction that intoxication alone was insufficient to support a finding of gross negligence. The prosecution's argument had equated the two. (Id. at pp. 1057-1058, 226 Cal.Rptr. 733.) The court stated: "[G]ross negligence requires something in addition" to a finding of driving under the influence and violating a traffic law. (Id. at p. 1058, 226 Cal.Rptr. 733.)
McNiece was followed by People v. Stanley, supra, 187 Cal.App.3d 248, 232 Cal.Rptr. 22. In Stanley, the prosecutor had argued that the defendant's high level of intoxication at the time of his fatal accident was evidence of gross negligence. The Court of Appeal reversed defendant's conviction, characterizing as erroneous the prosecutor's argument. (Id. at p. 254, 232 Cal.Rptr. 22.) Rather, the court concluded that the jury "must find that in addition to being intoxicated the defendant was negligent or grossly negligent in the manner of his operation of the vehicle." (Id. at p. 253, 232 Cal.Rptr. 22, italics deleted.)
Stanley was followed by People v. Von Staden, supra, 195 Cal.App.3d 1423, 241 Cal.Rptr. 523, from which the challenged instruction is derived. In Von Staden, the defendant appealed his conviction for gross vehicular manslaughter on grounds of insufficiency of the evidence to show gross negligence.
At the outset of its opinion the court announced its holding: "[W]e hold that the 'gross negligence' element required for a conviction of gross vehicular manslaughter while intoxicated cannot be shown by the mere fact of driving under the influence or violating the traffic laws. The trier of fact must determine, considering the overall circumstances of the defendant's intoxication or the manner in which he drove, or both, whether there was gross negligence ...." (People v. Von Staden, supra, 195 Cal.App.3d at p. 1425, 241 Cal.Rptr. 523, italics added.)
In reaching this conclusion, the court agreed with McNiece that driving under the influence and a violation of the traffic laws did not equal gross negligence. (Id. at p. 1427, 241 Cal.Rptr. 523.) It also agreed with Stanley to the extent that it held that gross negligence could be shown "by the manner in which the defendant operated the vehicle, that is, the overall circumstances (rather than the mere fact) of the traffic law violation." (People v. Von Staden, supra, 195 Cal.App.3d at p. 1427, 241 Cal.Rptr. 523, original italics.) It disagreed, however, with the Stanley court's conclusion "that gross negligence cannot be shown by the level of the defendant's intoxication." (195 Cal.App.3d at p. 1428, 241 Cal.Rptr. 523.) The court pointed out that if gross negligence could not be shown by the circumstances of intoxication (as opposed to the mere fact of intoxication), then by the same logic it could not be shown by the circumstances of the traffic violation, "and hence would be impossible to prove." (Ibid.)
In other words, the something in addition required to establish gross negligence, beyond the mere fact of driving while intoxicated, and violating traffic laws, could be supplied by the overall circumstances of either intoxication or driving. Indeed, the Von Staden court proposed a revision of the relevant CALJIC jury instruction: "We believe that CALJIC No. 8.92 should be revised [in part] as follows: 'The mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence. You must determine from the overall circumstances of the defendant's intoxication or the manner in which he drove, or both, whether his conduct constituted gross negligence.' " (People v. Von Staden, supra, 195 Cal.App.3d at p. 1429, 241 Cal.Rptr. 523.) (Italics added.) This language was incorporated word-for-word (with a modification for gender) in CALJIC No. 8.94, the jury instruction that defendant now argues is not supported by Von Staden.
In making this claim, he fastens upon a passage in Von Staden in which the court restates its holding using the conjunctive: "[W]e hold that gross negligence ... can be shown by the overall circumstances of the defendant's intoxication and the manner in which the defendant drove." (195 Cal.App.3d at p. 1428, 241 Cal.Rptr. 523.) This formulation can be explained by the fact that in Von Staden there was evidence of both. (Ibid.) Contrary to defendant's argument, this restatement of the holding pertains to the specific facts of Von Staden and is not the holding. The holding is reflected in the language used by the court at the outset of its opinion and restated in the proposed jury instruction: "the overall circumstances of the defendant's intoxication or the manner in which he drove, or both...." (Id. at pp. 1425, 1429, 241 Cal.Rptr. 523, italics added.)
Indeed, it would be completely inconsistent with the reasoning of Von Staden to read it, as defendant suggests, as requiring that gross negligence be shown by overall circumstances of both intoxication and operation of the vehicle. This interpretation would preclude charging, with gross vehicular manslaughter, a person whose blood alcohol level was just at the minimum of the legal limit for intoxication and yet whose driving was egregious, on the grounds that his blood alcohol level was not sufficiently excessive to constitute gross negligence. Alternatively, a defendant with a very high blood alcohol level but whose violation of a traffic law resulting in a fatal accident constituted only ordinary negligence would likewise be immune. We do not believe that this result was envisioned either by Von Staden or the Legislature.
We conclude that CALJIC No. 8.94 correctly states the law. Necessarily, we reject defendant's further contention that the court erred by failing to give his "clarifying" instruction that would have required findings of gross negligence on both circumstances of his intoxication and driving.
III
Defendant next contends that the jury's verdict on the gross negligence manslaughter charge was the result of coercion by the trial court which sent the jury back to deliberate after the foreman indicated it had reached an impasse on that count. We find no merit in this contention.
Equally without merit is defendant's contention that, in reaching this impasse, after rendering verdicts on the other counts with which he was charged the jury impliedly acquitted him of count 1. Defendant cites People v. Kurtzman (1988) 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572, in support of this proposition but Kurtzman is inapposite. In Kurtzman, the Supreme Court held that the jury should be instructed not to return a verdict on a lesser offense "unless it has agreed beyond a reasonable doubt that defendant is not guilty of the greater crime charged." (Id. at p. 329, 250 Cal.Rptr. 244, 758 P.2d 572.) Nothing in the holding or the discussion supports the proposition that a court should imply a verdict of acquittal from a deadlocked jury which has found defendant guilty of the other charged crimes.
In the event of a deadlocked jury, "the determination whether there is reasonable probability of agreement rests in the sound discretion of the trial court. [Citation.]" (People v. Rodriguez (1986) 42 Cal.3d 730, 775, 230 Cal.Rptr. 667, 726 P.2d 113; People v. Miller (1990) 50 Cal.3d 954, 994, 269 Cal.Rptr. 492, 790 P.2d 1289.) Whether coercion has occurred "is essentially a factual determination, dependent upon varying circumstances." (People v. Duran (1983) 140 Cal.App.3d 485, 501, 189 Cal.Rptr. 595.)
In the instant case, the jury returned its verdict leaving blank count 1, the charge of gross vehicular manslaughter. The foreman described the jury as at an "impasse" as to this count and revealed, in response to inquiry by the court, that the jury was split 10 to 2. Although the foreman indicated the jury was unable to resolve the issue, a second juror disagreed and said that further deliberations would help. A third juror read a note regarding gross negligence which was apparently the issue that the jury was having difficulty resolving. In response to the court's question, a fourth juror indicated that further deliberations would help. When the court asked if anyone disagreed that further deliberations would help, there was no response. The jury was then sent to lunch.
After lunch, the court re-read CALJIC No. 8.94 (see part II, supra, at pp. 190-192), and asked whether any of the jurors felt it would be pointless to deliberate further. Four jurors raised their hands. The court suggested that the four jurors who expressed doubt whether a verdict could be reached listen to the views of the other jurors "just for a short period of time [and] you might get through to each other. [p] Now, I am not telling you to change your mind. I am just telling you all to listen to each other. Listen carefully to each other and reread." The court added: "If you are still at the same hopeless impasse, buzz me." The jury was sent back to deliberate and returned an hour and a half later with a guilty verdict.
These circumstances do not support a claim of coercion by the court. The case chiefly relied on by defendant, People v. Carter (1968) 68 Cal.2d 810, 69 Cal.Rptr. 297, 442 P.2d 353, involved the singling out of a lone dissenting juror by the court to explain his position, an expression by the court that the case was not complicated, . carrying the inference that the jury should reach a verdict, and a threat to lock up the jury overnight if it failed to reach a verdict within a half hour after it was sent back to deliberate. (Id. at pp. 813-814, fn. 1, p. 819, 69 Cal.Rptr. 297, 442 P.2d 353.) Plainly, Carter is inapposite.
Other factors which defendant cites as demonstrating coercion are based on his claims of error which we have rejected or are otherwise unpersuasive. Taken as a whole, the circumstances under which the jury was sent back to deliberate do not show coercion.
For instance, defendant's claim that the court should have examined each juror individually about the probability of agreement was addressed in People v. Rojas (1975) 15 Cal.3d 540, 125 Cal.Rptr. 357, 542 P.2d 229. In Rojas, the court concluded that inquiry made to the foreman and the jury as a group satisfied the requirement of individual questioning. (Id. at p. 546, 125 Cal.Rptr. 357, 542 P.2d 229.) Here, the court asked one individual juror and then addressed the panel as a whole whether further deliberations would help, and there were no dissenters.
IV
Defendant contends that the trial court abused its discretion when it denied his post-trial motion to modify or reduce his conviction for gross vehicular manslaughter. He maintains that there was insufficient evidence that he drove his vehicle with gross negligence.
The premise of defendant's argument, that gross negligence can be shown only in the manner in which a vehicle is operated, was, as previously discussed, rejected by People v. Von Staden, supra, 195 Cal.App.3d 1423, 241 Cal.Rptr. 523. Gross negligence can be shown by either the overall circumstances of the defendant's intoxication or the manner in which he drove, or both. (Id. at p. 1425, 241 Cal.Rptr. 523; CALJIC No. 8.94.)
In the case before us, there was evidence of defendant's prior drunk driving conviction and the conditions of his probation. These facts were relevant to the overall circumstances of his intoxication as were the facts that he had been drinking for two days and was on his way home from an Alcoholics Anonymous meeting at the time of the accident. In light of these circumstances, which would clearly have alerted a reasonable person to the serious consequences of drinking and driving, a trier of fact could easily have concluded that defendant's conduct in choosing to drink and drive constituted gross negligence.
The cases cited by defendant, in which gross negligence was found in the manner of the defendant's driving, accurately apply the law to the facts of those cases. The implicit conclusion which he draws from them, that without grossly negligent driving there can be no gross negligence, misapprehends the law and ignores the substantial evidence in this case regarding the circumstances of his intoxication.
V
Defendant argues that the concurrent sentences given him on count 3 (driving under the influence of alcohol with injury) and count 4 (driving with a .10 percent blood alcohol level) were improper because they involved the same acts which necessarily established count 2 (vehicular manslaughter without gross negligence), for which he was sentenced separately. Under Penal Code section 654, "[a]n act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one...." (Pen.Code, § 654.) A comparison of the three counts here involved supports defendant's claim that proof of the same acts was necessary as to each. (Compare Penal Code, § 192, subd. (c)(3) with Veh.Code, §§ 23152 and 23153.) The People concede the impropriety of the sentencing on these counts. The sentences imposed for counts 3 and 4 are stayed.
As thus modified, the judgment is affirmed.
GOERTZEN and EPSTEIN, JJ., concur.
Neither law nor logic supports this contention. None of the vehicular murder cases discussed above purport to limit evidence of prior convictions to cases in which vehicular murder is the charge. Indeed, to do so would require a repudiation of the Supreme Court's opinion in People v. Costa, supra, 40 Cal.2d 160, 252 P.2d 1, which implies such evidence could be admissible where the charge is gross vehicular manslaughter. Nor is defendant's conclusion compelled by logic. To the extent that knowledge is an issue in both types of cases, there is no logical reason why evidence of prior convictions, deemed relevant to knowledge in one kind of case, is not also relevant to the other.
Equally unpersuasive is defendant's claim that such evidence should be limited to vehicular murder cases because in such cases, and unlike gross vehicular manslaughter cases, a defense of voluntary intoxication is available. The availability of this defense reflects the differences in the degree of culpability in states of mind between the two charges, not the relevance of evidence of past convictions to each.