THE CALIFORNIA SUPREME COURT KILLED MISDEMEANOR MANSLAUGHTER ?

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    People v. Wells (96) 12 C4th 979, 984-89 [50 CR2d 699] affirmed a conviction for vehicular manslaughter (PC 192(c)). The Supreme Court reversed the appellate determination that violation of the speed limit (VC 22349) is an inherently dangerous violation. However, instead of determining whether or not the violation was inherently dangerous, the court rejected the use of inherent dangerousness in the abstract as the predicate for involuntary manslaughter. Thus, it may be argued that Wells abolished the concept of misdemeanor (unlawful act) manslaughter under both PC 192(b) and PC 192(c). (The definition of unlawful act set forth in Wells for PC 192(c) is equally applicable to PC 192(b). (See Wells, 12 C4th at 986 ["... use of the same phrase - unlawful act not amounting to felony - in sections [PC] 192(b) and [PC] 192(c) suggest that the legislature intended that the phrase be given the same meaning in both sections"].)

    In People v. Stuart (56) 47 C2d 167, 173 [302 P2d 5], the Supreme Court held that "[t]o be an unlawful act within the meaning of section 192 ... the act in question must be dangerous to human life or safety andmeet the conditions of [PC] section 20." [Emphasis added.]

    Subsequent Court of Appeal cases suggested that the dangerousness requirement of Stuart was satisfied by commission of a misdemeanor or infraction which is determined by the trial court to be "inherently dangerous in the abstract." (See cases discussed in People v. Wells (96) 12 C4th 979, 984-89 [50 CR2d 699].)

    This construction of Stuart resulted in illogical application of the statute. On the one hand, an act which was grossly negligent and extremely dangerous in its commission could be excluded from the scope of PC 192(c) if the misdemeanor predicate for the conviction was not determined to be inherently dangerous. (See Wells, 12 C4th at 988.) On the other hand, an act not necessarily dangerous in its commission (e.g., going 1 mile per hour over the speed limit) could be the basis for conviction of involuntary manslaughter. (Compare CJ 8.97 [violation of maximum speed law is inherently dangerous misdemeanor or infraction] with People v. Hammond DEPUBLISHED (92) 9 CA4th 1523 [12 CR2d 205] [basic speed law (CJ 8.95) and running a stop sign are not inherently dangerous]; see also, People v. (Van) Wells DEPUBLISHED (95) 36 CA4th 25, 33-34 [37 CR2d 894] (issue not decided on review People v. Wells (96) 12 C4th 979 [50 CR2d 699].) [A copy of the Hammondand pertinent portion of the (Van) Wells opinion are available to FORECITE California subscribers. Opinion Bank # O-201 a/b.]

    Because of such illogical results, the modern trend has been to abolish altogether unlawful-act involuntary manslaughter in favor of defining the crime in terms of criminal or gross negligence. (See LaFave & Scott, Substantive Criminal Law (1986) § 7.13, p. 287.) "There is no logical reason for inflicting manslaughter punishment on one who unintentionally kills another simply because he is committing a traffic violation ...." (Id. at p. 298.)

    In Wells, the California Supreme Court moved towards this modern approach. Wells rejected the view that an unlawful act should be defined by whether or not it is inherently dangerous in the abstract. The court held that liability for involuntary manslaughter must be governed "not [by] the misdemeanor itself in the abstract, but [by] the conduct of the defendant in the circumstances in which the violation occurred. To support a conviction of violating [PC] 192(c) the circumstances of the violation, not the offense in the abstract must be dangerous to human life and safety." (Wells, 12 C4th at 988 [emphasis added].) The logical import of this analysis is that involuntary manslaughter should be defined by the defendant's gross negligence under the circumstances rather than by abstract consideration of the act committed. Hence, so long as the defendant caused death by a grossly negligent act, it shouldn't matter whether or not the act was inherently dangerous in the abstract or even whether it was lawful or unlawful. (See Wells, 12 C4th at 989-90, and fn 8.)

    Moreover, the inherently dangerous act concept adds unnecessary complexity and uncertainty to the law of involuntary manslaughter. In theory, commission of an inherently dangerous crime or infraction encompasses gross negligence because it can only be committed in a dangerous manner. However, in practice it has been difficult to satisfactorily determine inherent dangerousness from abstract, statutory elements.

    For example, it is still uncertain whether or not a violation of the maximum speed law (VC 22349) is inherently dangerous. CJ 8.97 (5th Ed. 1988) has long stated that it is. The trial court in Wells agreed with CALJIC's position (Wells, 12 C4th at 989); but the Court of Appeal in Wellsdisagreed with CALJIC (see above) and the Supreme Court failed to definitively resolve the issue one way or the other. (Wells, 12 C4th at 989 ["[T]he trial court may have erred in instructing the jury that Vehicle Code section 22349 is an offense which constitutes an inherently dangerous act in the abstract ..."].) Hence, the question of whether speeding is inherently dangerous is literally up in the air.

    Nor is this just an isolated example. So long as the inherently dangerous concept is utilized, trial and appellate courts will continually be grappling with the difficult determination of whether a particular statute can be violated in a non-dangerous manner (see discussion of Hammond, above), thus fostering continued uncertainty in the law.

    In sum, both the literal language of Wells, as well as the logic and policy considerations behind it, teach that involuntary manslaughter pursuant to PC 192(b) should be determined by whether the defendant committed an act in a grossly negligent manner. A sample instruction encompassing the Wellsruling could be the following:

    A killing is unlawful within the meaning of this instruction if it occurred during the commission of an act which was:

    1. Committed in a manner which was dangerous to human life and safety,

    2. Committed with gross negligence as defined in these instructions, and

    3. A cause of the killing as defined in these instructions.

    An act is dangerous to human life and safety if, under the circumstances of its commission it involved a high degree of risk of death or great bodily injury to another person.

    A similar instruction may be used for vehicular manslaughter under PC 191.5, PC 192(c) or PC 192.5, except that ordinary negligence rather than gross negligence should be substituted when a violation of PC 192(c)(2), PC 192(c)(3), PC 192.5(b) or PC 192.5(c) is charged.

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