Filed 2/23/17




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                         G052512

        v.                                            (Super. Ct. No. 12WF0170)

JORENE YPANTO NICOLAS,                                OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg, Judge. Reversed.
                  Sylvia W. Beckham, under appointment by the Court of Appeal, for
Defendant and Appellant.
                  Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.


                                  *            *            *
              A jury found defendant Jorene Ypanto Nicolas guilty of vehicular
manslaughter with gross negligence. Essentially, defendant was on her phone and texting
while driving on the freeway. The deceased victim had been in her car, stalled in a traffic
jam. Defendant crashed into the rear of the victim’s car at about 80 miles per hour.
              In this appeal, defendant claims: a) there was insufficient evidence of gross
negligence; b) the trial court committed three separate instructional errors; and c) the
court abused its discretion by imposing an upper term sentence (six years).
              We agree with defendant that the trial court committed three separate
instructional errors. Indeed, one of the errors requires automatic reversal because it had
the effect of lowering the prosecution’s burden of proof. We need only address that
particular issue in this opinion, but we will also discuss the remaining claims to give
guidance to the trial court (and perhaps the parties) in any further proceedings.
                                                I
                     FACTUAL AND PROCEDURAL SUMMARY
              On the morning of April 27, 2011, defendant was driving northbound on
the Interstate 405 freeway. Defendant was driving at a speed of about 80 miles per hour
in her Prius when she crashed directly into the rear of a Hyundai. At the time of the
collision, the traffic had been at a complete stop for about 20 to 30 seconds, but may have
been just starting to move forward. The force of the collision caused the Hyundai to
strike the vehicle in front of it, then the center divider. The driver of the Hyundai,
Deanna M., died as a result of the collision.
              The first 911 call regarding the collision came in at 10:59 a.m. In the
preceding 17 minutes, defendant had sent eight text messages (10:42:11; 10:48:09;
10:52:16; 10:54:50; 10:55:46; 10:56:31; 10:56:57; 10:59:10), received six text messages
(10:47:27; 10:49:13; 10:50:29; 10:53:46; 10:55:08; 10:55:23), and answered two phone
calls (10:52:18, duration 27 seconds; 10:57:24, duration 20 seconds). After defendant
was pulled from the passenger side of her vehicle by another driver, she asked, “What

                                                2
happened?” The other driver told defendant that she had “hit somebody incredibly fast,
and they’re not doing well.” Defendant said that she had been in a “big hurry” to meet
her boyfriend for lunch.
                As she stood near the center divider, defendant asked the other driver to
retrieve her cell phone from her car. The other driver went to defendant’s car, noticed
that the phone was damaged on the floorboard, and offered to let defendant use his own
phone. Another person who spoke to defendant said that “any question I asked her she
would answer, ‘Where is my phone?’” Defendant eventually retrieved her phone from
her car and made calls at 11:08 and 11:09 a.m. Defendant was on her phone when a
California Highway Patrol Officer arrived on the scene. When the officer asked
defendant for her license and registration, she glanced at the officer and “kept talking on
the phone.” Another person noticed defendant yelling, “Oh, my God, my car.”
                On March 27, 2013, the prosecution filed an information charging
defendant with vehicular manslaughter with gross negligence. (Pen. Code, § 192, subd.
         1
(c)(1).) After 12 jurors were unable to reach a verdict (11 voted for conviction and one
for acquittal), a second jury convicted defendant as charged. The court sentenced
defendant to an upper term of six years in prison.
                                              II
                                        DISCUSSION
A. The jury’s finding of gross negligence is supported by substantial evidence.
                In a sufficiency of the evidence claim, a reviewing court determines
whether a rational fact finder could have concluded defendant was guilty beyond a
reasonable doubt. (People v. Rowland (1992) 4 Cal.4th 238, 269.) “Reversal on this
ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin

1
    Further undesignated statutory references will be to the Penal Code.

                                               3
(1998) 18 Cal.4th 297, 331.) Evidence is substantial when it is reasonable in nature,
credible, and of solid value. (People v. Ramsey (1988) 203 Cal.App.3d 671, 682.) We
consider the evidence, including the reasonable inferences drawn from the evidence, in
the light most favorable to the judgment. (People v. Valdez (2004) 32 Cal.4th 73, 104.)
              Gross vehicular manslaughter is defined as “driving a vehicle in the
commission of an unlawful act, not amounting to felony, and with gross negligence; or
driving a vehicle in the commission of a lawful act which might produce death, in an
unlawful manner, and with gross negligence.” (§ 192, subd. (c)(1).) “The finding of an
operator’s gross negligence in driving a motorcar, when supported by substantial
evidence, is conclusive upon the reviewing court and can be reversed only when that
court becomes convinced by the evidence that freedom from gross negligence was so
clearly established that reasonable minds could not differ upon the question.” (People v.
Flores (1947) 83 Cal.App.2d 11, 14.)
              “Gross negligence is the exercise of so slight a degree of care as to raise a
presumption of conscious indifference to the consequences. [Citation.] ‘The state of
mind of a person who acts with conscious indifferences to the consequences is simply, “I
don’t care what happens.”’ [Citation.] The test is objective: whether a reasonable
person in the defendant’s position would have been aware of the risk involved.
[Citation.]” (People v. Bennett (1991) 54 Cal.3d 1032, 1036.) “Gross negligence
involves more than ordinary carelessness, inattention, or mistake in judgment.”
(CALCRIM No. 592.)
              In determining what constitutes gross negligence, the case of People v.
Leitgeb (1947) 77 Cal.App.2d 764 (Leitgeb), is instructive: “[D]efendant was driving his
car at 40 miles an hour, veered across a corner of, and struck decedent in, the safety zone.
According to his own testimony, he did not see decedent until the instant he struck him.
There was no evidence whatever as to any circumstance that would have made it
necessary for defendant to invade the safety zone, nor was there any evidence of any

                                             4
obstruction in the street, or other condition which would have prevented defendant’s
seeing decedent standing in the safety zone.” (Id. at p. 769.) The court noted the
defendant, “was not slowing down, nor did he have control of the car that would have
enabled him to stop quickly if it should become necessary to do so in order to avoid an
accident.” (Ibid.) The court found that: “Not only was the conclusion of the jury a
reasonable one, but in our opinion it was the more reasonable. There is not the least
doubt in our minds that upon the state of facts which formed the basis of the verdict,
appellant was guilty of gross negligence.” (Ibid.)
              Here, similar to Leitgeb, we have no doubt that substantial evidence
supports the jury’s finding of gross negligence. This was not a case of ordinary
carelessness or a momentary lapse of attention. The evidence disclosed defendant was
using her cell phone and texting for 17 minutes leading up to the collision. Defendant
was driving at about 80 miles per hour and approaching a typical freeway traffic jam.
But there was no evidence defendant took any evasive actions prior to the impact, which
suggests she was oblivious to what was right in front of her. Further, immediately
following the collision, defendant was preoccupied with her phone and was indifferent to
the consequences of her actions. This evidence supports a reasonable inference that
defendant displayed that same indifference just prior to the collision.
              Defendant suggests that her postcrime actions and statements were not
relevant. She is mistaken. “‘Relevant evidence’ means evidence . . . having any
tendency in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210, italics added; see, e.g., People v.
Thompson (2010) 49 Cal.4th 79, 113 [evidence of a “defendant’s postcrime actions and
statements . . . can support a finding that defendant committed a murder for which his
specific mental state is established by his actions before and during the crime”].)
              In sum, the jury’s finding of gross negligence was supported by substantial
evidence.

                                             5
B. The trial court imprecisely instructed the jury regarding general criminal intent.
              In criminal law, there are two descriptions of criminal intent: general intent
and specific intent. “A crime is characterized as a ‘general intent’ crime when the
required mental state entails only an intent to do the act that causes the harm; a crime is
characterized as a ‘specific intent’ crime when the required mental state entails an intent
to cause the resulting harm.” (People v. Davis (1995) 10 Cal.4th 463, 518-519, fn. 15.)
“General criminal intent thus requires no further mental state beyond willing commission
of the act proscribed by law.” (People v. Sargent (1999) 19 Cal.4th 1206, 1215.)
If a crime is defined as a general criminal intent crime, the trial court has a sua sponte
duty to instruct on the requirement of a union between the act and a defendant’s general
intent. (People v. Jeffers (1996) 41 Cal.App.4th 917, 920-923; CALCRIM No. 250.)
              Criminal negligence is a separate mental state that is distinct from either
general or specific intent. “In every crime or public offense there must exist a union, or
joint operation of act and intent, or criminal negligence.” (§ 20, italics added.) “Under
section 20, criminal negligence ‘may be sufficient to make an act a criminal offense,
without a criminal intent.’” (People v. Sargent, supra, 19 Cal.4th at p. 1215.)
Accordingly, when the prosecution is charging a crime of criminal negligence, the trial
court should instruct the jury on the union between the act and a defendant’s criminal
negligence. (Judicial Council of Cal. Crim. Jury Instns. (2016) Bench Notes to
CALCRIM No. 253, p. 71.)
              Here, the court properly instructed the jury regarding the elements of gross
vehicular manslaughter (CALCRIM No. 592): “To prove that the defendant is guilty of
gross vehicular manslaughter, the People must prove that: [¶] “1. The defendant drove a
vehicle; [¶] 2. While driving that vehicle, the defendant committed an infraction or
otherwise lawful act that might cause death; [¶] 3. The defendant committed the
infraction, or otherwise lawful act that might cause death with gross negligence; [¶]
AND [¶] 4. The defendant’s grossly negligent conduct caused the death of another

                                              6
person. [¶] The People allege that the defendant committed the following infraction[]:
Speeding. [¶] A later instruction tells you what the People must prove in order to prove
that the defendant committed the infraction of Speeding. [¶] The People also allege that
the defendant committed the following otherwise lawful acts that might cause death:
Driving with Inattention.”
              Gross vehicular manslaughter has been characterized as a general intent
crime. (People v. Butler (1986) 184 Cal.App.3d 469, 474.) But the crime more precisely
entails the confluence of two different mental states: general intent in the driving of the
vehicle, and gross negligence while committing a traffic violation (in this case
“Speeding”) or gross negligence in the commission of a lawful act not amounting to a
traffic violation (in this case “Driving with Inattention”). (See People v. Jones (1985)
164 Cal.App.3d 1173, 1182.)
              The trial court imprecisely instructed the jury regarding general criminal
intent: “The crime charged in this case requires proof of the union, or joint operation, of
act and wrongful intent. [¶] For you to find a person guilty of the crime of Gross
Vehicular Manslaughter as charged in Count 1 or the lesser included offense of
Misdemeanor Vehicular Manslaughter, that person must not only commit the prohibited
act, but must do so with wrongful intent. A person acts with wrongful intent when he or
she intentionally does a prohibited act; however, it is not required that he or she intend to
break the law.” (CALCRIM No. 250.)
              It is true that in other instructions, the trial court more precisely informed
the jury that gross vehicular manslaughter also requires a finding of gross negligence
(CALCRIM No. 592), and that misdemeanor vehicular manslaughter also requires a
finding of ordinary negligence (CALCRIM No. 593). But the modified version of
CALCRIM No. 250 used by the court to explain general criminal intent imprecisely
identified gross vehicular manslaughter and misdemeanor vehicular manslaughter as



                                              7
                                                   2
crimes involving only general criminal intent.
              In sum, there was an instructional error. But we will not analyze the
prejudicial impact of this particular instructional error, if any, due to a separate
instructional error that requires automatic reversal.


C. The trial court inaccurately instructed the jury regarding criminal negligence.
               The term “criminal negligence” is synonymous with the term “gross
negligence.” (People v. Penny (1955) 44 Cal.2d 861, 877-879; see People v. Mehserle
(2012) 206 Cal.App.4th 1125, 1141, quoting People v. Watson (1981) 30 Cal.3d 290,
296-297 [“‘Implied malice contemplates a subjective awareness of a higher degree of risk
than does gross [i.e., criminal] negligence’”].) And again, gross negligence (or criminal
negligence) is defined as “the exercise of so slight a degree of care as to raise a
presumption of conscious indifference to the consequences. [Citation.]” (People v.
Bennett (1991) 54 Cal.3d 1032, 1036.)
              On the other hand, the term “ordinary negligence” is a lower standard of
negligence that is distinct from either “criminal negligence” or “gross negligence.” (In re
Dennis B. (1976) 18 Cal.3d 687, 696-697.) Ordinary negligence is defined as “acts or
omissions which are not compatible with the standard of care exercised by an abstract
man of ordinary prudence.” (People v. Young (1942) 20 Cal.2d 832, 836.) “Ordinary
negligence . . . is the failure to use reasonable care to prevent reasonably foreseeable
harm to oneself or someone else. A person is negligent if he or she does something that a
reasonably careful person would not do in the same situation . . . .” (CALCRIM No.
593.)

2
  It should be noted that defendant’s proposed instruction concerning general intent,
which the court rejected, was inaccurate as well. That instruction characterized “the
infraction of speeding” as a general intent crime. It is not. (In re Jennings (2004) 34
Cal.4th 254, 267 [certain “‘public welfare offenses’” such as minor traffic violations do
not require proof of wrongful intent].)

                                               8
              Here, the prosecution charged defendant with felony vehicular
manslaughter, which requires a finding of gross negligence. (§ 192, subd. (c)(1).) A
necessarily lesser included offense is misdemeanor vehicular manslaughter, but that
crime only requires a finding of ordinary negligence. (§ 192, subd. (c)(2).) As to these
two distinct crimes, the trial court correctly instructed the jury on the elements the
prosecution was required to prove, including the required level of negligence for each
offense: gross negligence for the felony charge (CALCRIM No. 592) and ordinary
negligence for the misdemeanor offense (CALCRIM No. 593).
              However, in two other jury instructions, CALCRIM Nos. 253 and 3404, the
trial court used the term “criminal negligence,” when it should have used the term
“ordinary negligence.” The Attorney General concedes the error and describes it
concisely: “The trial court treated criminal negligence as a ‘catch-all’ term that
encompassed both gross [felony] negligence and ordinary misdemeanor negligence.”
              As to CALCRIM No. 253, the trial court instructed the jury: “For you to
find a person guilty of the crime of Gross Vehicular Manslaughter, a person must do an
act or fail to do an act with gross negligence. Gross negligence is defined in the
instructions on that crime. [¶] For you to find a person guilty of the lesser included
crime of Misdemeanor Vehicular Manslaughter, a person must do an act or fail to do an
act with criminal negligence. Criminal negligence is defined in the instructions on that
crime.” (Italics added.) Instead of using the term “criminal negligence,” the court should
have more accurately used the term “ordinary negligence.” Indeed, “criminal
negligence” was never defined in any other instruction.
              As to CALCRIM No. 3404, the trial court instructed the jury: “The
defendant is not guilty of Gross Vehicular Manslaughter or the lesser included offense of
Misdemeanor Vehicular Manslaughter if she acted or failed to act accidentally without
criminal negligence. You may not find the defendant guilty of Gross Vehicular
Manslaughter or the lesser included offense of Misdemeanor Vehicular Manslaughter

                                              9
unless you are convinced beyond a reasonable doubt that she acted with criminal
negligence. Criminal negligence is defined in another instruction.” (Italics added.)
Instead of using the term “criminal negligence,” the court should have more accurately
used the terms “gross negligence” or “ordinary negligence” as appropriate. And again,
the term “criminal negligence” was never defined in any other jury instruction.
              In sum, the trial court inaccurately equated the term “criminal negligence”
with “ordinary negligence” in CALCRIM Nos. 253 and 3404. Therefore, there was
instructional error as the Attorney General concedes. However, we will not analyze the
prejudicial impact of this error, if any, or the Attorney General’s claim of invited error,
because the next instructional error to be addressed requires automatic reversal.


D. The trial court committed instructional error by lowering the standard of proof for
the alleged acts (phone use) that were part of the charged crime of vehicular homicide
with gross negligence. This instructional error requires automatic reversal.
              Generally, public policy prohibits a prosecutor from introducing evidence
concerning a defendant’s uncharged conduct or offenses in order to prove a defendant’s
character or propensity to commit a crime. (People v. Cottone (2013) 57 Cal.4th 269,
285.) “Except as provided . . . , evidence of a person’s character or a trait of his or her
character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his or her
conduct on a specified occasion.” (Evid. Code, § 1101.) The purpose of this evidentiary
rule “is to assure that a defendant is tried upon the crime charged and is not tried upon an
antisocial history.” (People v. Aeschlimann (1972) 28 Cal.App.3d 460, 473.)
              However, a well-established exception to the general rule is that a
defendant’s uncharged conduct may be admitted “‘not to prove a person’s predisposition
to commit such an act, but rather to prove some other material fact, such as that person’s
intent or identity.’” (People v. Rocha (2013) 221 Cal.App.4th 1385, 1393.) “Nothing in

                                              10
this section prohibits the admission of evidence that a person committed a crime, civil
wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his
or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).) Two other
more recent statutory exceptions allow for the introduction of “other acts” evidence to
show a defendant’s actual “propensity” to commit a crime when that defendant is accused
of either a sexual or a domestic violence offense. (Evid. Code, §§ 1108, 1109.)
              A defendant’s uncharged offenses or conduct may constitute “highly
inflammatory” evidence. (People v. Davis (2009) 46 Cal.4th 539, 602.) Thus, whenever
an exception for such “uncharged acts” evidence applies, a trial court must determine
whether its probative value may be “substantially outweighed by the probability that its
admission would create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.” (Ibid.; Evid. Code, § 352.)
              If evidence of a defendant’s uncharged conduct is admitted, a jury may
consider that evidence if the jury “finds ‘by a preponderance of the evidence’ that the
defendant committed” the uncharged acts. (Alcala v. Superior Court (2008) 43 Cal.4th
1205, 1224, fn. 14.) Proof by a “preponderance of the evidence” for an uncharged
offense is a considerably lower burden of proof than the due process requirement of proof
beyond a reasonable doubt for a charged offense. (See People v. Johnson (2004) 119
Cal.App.4th 976, 985.) Upon request, the trial court has an obligation to instruct the jury
concerning the “limited purpose” of considering evidence admitted under Evidence Code
section 1101, subdivision (b). (People v. Carpenter (1997) 15 Cal.4th 312, 382.)
Further, the court must instruct the jury on precisely what issue or issues that evidence
has been admitted to prove (e.g., intent, knowledge, lack of mistake or accident, etc.).
(People v. Swearington (1977) 71 Cal.App.3d 935, 949.)
              Here, after the close of evidence, defendant filed a motion seeking to
restrict the prosecutor’s closing arguments concerning her texting and phone calls prior to

                                             11
the collision. Defendant argued: “In seeking their introduction, the prosecution’s theory
was that [the evidence of texting and phone calls] somehow established conduct on that
particular day that was their basis for alleging gross negligence.” Defendant was
concerned that the evidence would also be used “to show propensity” and to “inflame the
jury.” As such, defendant moved “that there be no argument that in any way improperly
argues propensity evidence . . . .”
              The prosecutor responded by asking the trial court to instruct the jury
concerning the use of “propensity” evidence under Evidence Code section 1101,
subdivision (b). The prosecutor said that the instruction was needed: “Just because it has
a cautionary protection for the defendant that it can’t be considered for any other purpose,
in light of the defense motion.”
              Over defendant’s objection, the court gave the jury a modified version of
CALCRIM No. 375, concerning evidence introduced under Evidence Code section 1101,
subdivision (b). The court instructed the jury as follows: “The People presented
evidence of other behavior by the defendant that was not charged in this case, that the
defendant used her cell phone by phone call and text. [¶] You may consider this
evidence only if the People have proved by a preponderance of the evidence that the
defendant in fact committed the uncharged acts. Proof by a preponderance of the
evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is
proved by a preponderance of the evidence if you conclude that it is more likely than not
that the fact is true. [¶] If the People have not met this burden, you must disregard this
evidence entirely. [¶] If you decide that the defendant committed the uncharged acts,
you may, but are not required to, consider that evidence for the limited purpose of
deciding . . . .” (CALCRIM No. 375, italics added.)
              The jury instruction then went on to tell the jurors that they could consider
the “uncharged acts” for three limited purposes: 1) to show intent; 2) to show
knowledge; and 3) to determine whether “defendant’s alleged actions were not the result

                                             12
of mistake or accident[.]” The instruction concluded with its standard admonitions: “Do
not conclude from this evidence that the defendant has a bad character or is disposed to
commit a crime. [¶] If you conclude that the defendant committed the uncharged acts,
that conclusion is only one factor to consider along with all the other evidence. It is not
sufficient by itself to prove that the defendant is guilty of Gross Vehicular Manslaughter
or the lesser included offense of Misdemeanor Vehicular Manslaughter. The People must
still prove the charge beyond a reasonable doubt.” (CALCRIM No. 375, italics added.)
               During closing argument, the prosecutor relied, in part, on the “uncharged
acts” jury instruction: “And the law tells you -- not the D.A, the law says you can use
those texts, that conduct, to infer conduct and behavior as to [defendant’s] mental state.
That’s not the D.A. trying to do that and putting it into a box for you, that’s the law
saying that goes to her intent, knowledge, and lack of accident or mistake. You can look
at that evidence for that purpose.”
               The trial court plainly committed error by instructing the jury regarding
uncharged acts using CALCRIM No. 375; there were, in fact, no uncharged acts admitted
into evidence. Once again, the Attorney General concedes the instructional error and
concisely describes it: “[T]he evidence of appellants’ text messages in the moments
leading up to the collision were not the type of prior acts evidence contemplated under
Evidence Code section 1101. Given that the text messages and phone calls were a
continuous back-and-forth conversation leading up to time of the collision, they were an
indivisible part of the offense itself.”
               While conceding the instructional error, the Attorney General argues in the
alternative that: 1) defendant forfeited the error; 2) defendant invited the error; or 3) the
error was harmless. As to the forfeiture and invited error claims, the trial court asked
defendant’s attorney: “Have you had a chance to look at 375?” The attorney responded,
“Yes.” The court asked, “Any objection?” The attorney responded, “Well, I would
object to it being given.” In short, the Attorney General’s arguments concerning

                                              13
forfeiture and invited error are not well taken.
              The Attorney General’s remaining argument, that the error was harmless,
would ordinarily be a matter that we would be constitutionally required to consider. (Cal.
Const., art. VI, § 13; Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) Generally, California appellate courts
apply either one of two standards for assessing harmless error: (1) the Chapman test
(harmless beyond a reasonable doubt); and (2) the Watson test (a reasonable probability
the error was harmless). (See Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46
Cal.2d at p. 836.) The more stringent Chapman test applies in cases where federal
constitutional errors are made; the less stringent Watson test applies in other cases.
              But the instructional error at issue here is the rare type of error that requires
reversal per se. “Under article VI, section 13 of our state Constitution, trial error does not
merit reversal of a judgment unless ‘the error complained of has resulted in a miscarriage
of justice.’ . . . As we have explained, however, ‘under the California constitutional
harmless-error provision some errors . . . are not susceptible to the “ordinary” or
“generally applicable” harmless-error analysis . . . and may require reversal of the
judgment notwithstanding the strength of the evidence contained in the record . . . .’
[Citiation.] ‘[T]he kinds of errors that, regardless of the evidence, may result in a
“miscarriage of justice” because they operate to deny a criminal defendant the
constitutionally required “orderly legal procedure” . . . all involve fundamental “structural
defects” in the judicial proceedings . . . .’” (People v. Lightsey (2012) 54 Cal.4th 668,
699 [denial of assistance of counsel].)
              “An instruction that effectively lowers the prosecution’s burden of proving
guilt beyond a reasonable doubt is structural error because it ‘vitiates all the jury’s
findings’ and its effect on the verdict is ‘necessarily unquantifiable and indeterminate.’”
(People v. Aranda (2012) 55 Cal.4th 342, 365 (Aranda), quoting Sullivan v. Louisiana
(1993) 508 U.S. 275, 281 (Sullivan).) In Sullivan, the United States Supreme Court

                                              14
found structural error that required automatic reversal because the trial court had read an
instruction to the jury that referred to the prosecution’s burden of proof in terms of
““‘grave uncertainty”’” and ““‘substantial doubt.”’” (Aranda, supra, 55 Cal.4th at pp.
364-365 [referring to similar instruction given in Cage v. Louisiana (1990) 498 U.S. 39,
40].) “Harmless error analysis was not possible, Sullivan . . . explained, because the
misdescription of the prosecution’s burden of proof ‘vitiate[d] all the jury’s findings.’
[Citation.] In describing the illogic of conducting a harmless error review . . . Sullivan
observed that the ‘proper role’ [citation] of the appellate court is to look to ‘the basis on
which “the jury actually rested its verdict.” [Citation.]’ [Citation.] The premise of
Chapman was ‘simply absent’ . . . , Sullivan explained, because there was ‘no jury verdict
of guilty-beyond-a-reasonable doubt . . . upon which harmless-error scrutiny [could]
operate.’ [Citation.]” (Aranda, at p. 365.)
              The constitutional mandate requiring automatic reversal for an instructional
error that effectively lowers the prosecution’s standard of proof has been discussed and
applied in two fairly recent California cases: Aranda, supra, 55 Cal.4th 342, and People
v. Cruz (2016) 2 Cal.App.5th 1178 (Cruz). The California Supreme Court in Aranda did
not find structural error that required automatic reversal; however, the Court of Appeal in
Cruz found structural error that required automatic reversal.
              In Aranda, the defendant was convicted of voluntary manslaughter, a
substantive gang charge, and related firearm allegations. (Aranda, supra, 55 Cal.4th at
pp. 351-352.) In its predeliberation instructions, the trial court failed to instruct the jury
using “one of the two ‘pattern’ or ‘standard’ reasonable doubt instructions.” (Id. at p.
349.) However, other “instructions specifically referred to the prosecution’s burden of
proof beyond a reasonable doubt.” (Id. at p. 351.) The Supreme Court held that when a
trial court has omitted the standard reasonable doubt instruction, but it has correctly
instructed the jury regarding the prosecution’s burden of proof in other instructions, and
the trial court “has not instructed with a definition of reasonable doubt that effectively

                                              15
lowers the prosecution’s burden of proof, the error is subject to harmless error review.”
(Id. at p. 363, italics added.) Ultimately, in Aranda, the Supreme Court concluded that
“there is no reasonable probability that the outcome of this trial . . . would have been
more favorable to defendant had the trial court defined the reasonable doubt standard of
proof in its predeliberation instructions.” (Id. at p. 376.)
              In Cruz, the defendant was convicted of committing lewd and lascivious
acts against three children. (People v. Cruz, supra, 2 Cal.App.5th at p. 1180.) The trial
court correctly instructed the jury that: “‘In determining whether defendant has been
proved guilty of any sexual crime of which he is charged, you should consider all
relevant evidence, including whether the defendant committed any other sexual crimes,
whether charged or uncharged, about which evidence has been received. The crimes
charged in counts 1, 2, and 3 may be considered by you in that regard.’” (Id. at pp. 1183-
1184, italics added; Evid. Code, § 1108.) But the instruction also told the jury: “‘If you
find, by a preponderance of the evidence, that the defendant committed any such other
sexual offense you may, but are not required to, infer that the defendant had a disposition
to commit sexual offenses. [¶] If you find that the defendant had this disposition you
may, but are not required to, infer that he was likely to commit and did commit the crime
or crimes of which he is accused. [¶] However, even though you find by [a]
preponderance of the evidence that the defendant committed another sexual offense, that
is not sufficient by itself to prove beyond a reasonable doubt that he committed the
charged crimes you are determining. . . .’” (Id. at p. 1184, italics added.) The appellate
court noted that: “Other instructions reiterated that the reasonable-doubt standard applied
to the ultimate question of guilt.” (Ibid.)
              On appeal, the defendant in Cruz argued that the “instruction was erroneous
because it told the jurors they could find charged offenses true by a preponderance of the
evidence and then use those findings to infer that [he] had a disposition to commit other
charged offenses.” (Cruz, supra, 2 Cal.App.5th at p. 1184.) The appellate court agreed

                                              16
and reversed the convictions without conducting a harmless error analysis. “As our
Supreme Court explained in [Aranda], an instructional error that has the effect of
lowering the reasonable-doubt standard for guilt is one of the few errors deemed
‘structural’ and therefore reversible per se.” (Id. at p. 1187.) Cruz held that: “The
instruction given in this case, as we have said, presented the jury with a nearly impossible
task of juggling competing standards of proof during different phases of its consideration
of the same evidence. We think the ultimate effect is to lower the prosecution’s burden
of proving guilt beyond a reasonable doubt. Consequently, we find the error to be
reversible per se and need not conduct a Chapman analysis.” (Ibid., italics added.)
              We are faced with the same type of instructional error that the appellate
court dealt with in Cruz. Here, the trial court gave what the Attorney General concedes
was an erroneous and unnecessary jury instruction. The instruction told the jury that the
evidence concerning defendant’s phone use immediately prior to the collision could be
proven under a preponderance of the evidence standard. This had the effect of lowering
the prosecution’s burden of proof because this was the same evidence that the prosecution
was using to prove gross negligence. Even though the jury was also told (through other
jury instructions and argument) that it needed to find gross negligence (and ultimately
defendant’s guilt) under a reasonable doubt standard, the two competing standards of
proof were addressing the same evidence. The court’s instructional error not only
presented the jury “with a nearly impossible task,” but as a reviewing court, we have
absolutely no way of knowing which of the two competing standards of proof the jury
may have applied to the same evidence.
              In sum, under the rule announced by our Supreme Court in Aranda, supra,
55 Cal.4th at page 363, and appropriately applied by the Court of Appeal in Cruz, supra,
2 Cal.5th at page 1187, we find that the trial court’s erroneous jury instruction concerning
“uncharged offenses” constitutes structural error and is reversible per se.



                                             17
E. The trial court did not abuse its discretion in imposing an upper term sentence.
              “A trial court’s decision to impose a particular sentence is reviewed for
abuse of discretion and will not be disturbed on appeal ‘unless its decision is so irrational
or arbitrary that no reasonable person could agree with it.’” (People v. Jones (2009) 178
Cal.App.4th 853, 860-861.) “In exercising . . . discretion in selecting one of the three
authorized terms of imprisonment . . . , the sentencing judge may consider circumstances
in aggravation . . . .” (Cal. Rules of Court, rule 4.420(b).) “Only a single aggravating
factor is necessary to make it lawful for the trial court to impose” the upper term.
(People v. Jones, supra, at p. 863, fn. 7.) One of the aggravating factors is that “[t]he
victim was particularly vulnerable[.]” (Cal. Rules of Court, rule 4.421(a)(3).)
              As defendant acknowledges, a victim of gross vehicular manslaughter who
“has absolutely no advance warning or ability to attempt to avoid” a car that crashes into
his or her vehicle may be characterized as a “particularly vulnerable” victim. (People v.
Weaver (2007) 149 Cal.App.4th 1301, 1316.) Defendant urges us to disregard the
reasoning of Weaver. We decline.
              Here, among other reasons for choosing the upper term, the trial court noted
the vulnerability of the victim as a factor in aggravation “because she had the expectation
of safety” on the freeway at 11:00 a.m. Based on the totality of the record before us, we
cannot find that the trial court abused its discretion.




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                                        III
                                  DISPOSITION
            The judgment is reversed.




                                              MOORE, ACTING P. J.

WE CONCUR:



IKOLA, J.



THOMPSON, J.




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