Filed 7/8/14 P. v. Heinzel CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063503

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN299323)

KATHERINE HEINZEL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Daniel B.

Goldstein, Judge. Reversed and remanded for further proceedings.

         George L. Schraer, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Lynne G. McGinnis and Eric A.

Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
                                              I.

                                    INTRODUCTION

       A jury found Katherine Heinzel guilty of gross vehicular manslaughter while

intoxicated (Pen. Code, § 191.5, subd. (a))1 (count 1); driving under the influence

causing injury (Veh. Code, § 23153, subd. (a)) (count 2); and driving while having an

elevated blood alcohol level causing injury (Veh. Code, § 23153, subd. (b)) (count 3).

With respect to all three counts, the jury found that Heinzel inflicted great bodily injury

within the meaning of section 12022.7, subdivision (a) against two different victims, and

that she caused bodily injury to more than one victim within the meaning of Vehicle

Code section 23558.

       The trial court sentenced Heinzel to an aggregate term of nine years in prison. As

to count 1, the trial court imposed the middle term of six years on the substantive offense,

and a consecutive term of three years for one of the two great bodily injury (§ 12022.7,

subd. (a)) enhancements. The court stayed imposition of sentence on the other great

bodily injury enhancement and the multiple victim enhancement. As to counts 2 and 3,

the trial imposed several additional terms of imprisonment to run concurrently with the

sentence imposed on count 1.

       In order to find Heinzel guilty of gross vehicular manslaughter while intoxicated

(§ 191.5, subd. (a)) (count 1), the jury was required to find that Heinzel drove under the

1      All subsequent statutory references are to the Penal Code, unless otherwise
specified.

                                              2
influence (or drove with an elevated blood alcohol level) and that she committed a

separate unlawful act, among other elements. Similarly, in order to find Heinzel guilty

of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) (count 2),

the jury was required to find that Heinzel drove under the influence and that she either

committed a separate illegal act or neglected to perform any duty imposed by law.

Likewise, in order to find Heinzel guilty of driving while having an elevated blood

alcohol level causing injury (Veh. Code, § 23153, subd. (b)) (count 3), the jury was

required to find that Heinzel drove with an elevated blood alcohol level and that she

committed a separate illegal act or neglected to perform any duty imposed by law.

       Despite the statutory requirement that the jury find that Heinzel committed a

separate unlawful act,2 other than driving under the influence or driving with an elevated

blood alcohol level, in order to find her guilty on counts 1, 2 and 3, the trial court

instructed the jury in a manner that permitted the jury to find that Heinzel's driving under

the influence and/or driving with an elevated blood alcohol level satisfied the unlawful

act element of the offenses charged in those counts.3 Heinzel claims that the trial court

committed reversible error in so instructing. We agree and reverse the judgment.4



2      For ease of reference, we refer to the requirement in counts 2 and 3 that Heinzel
have committed a separate illegal act or neglected to perform any duty imposed by law as
a requirement that Heinzel have committed a separate unlawful act.

3       In her opening brief, Heinzel raised a claim of instructional error only as to count
1. We determined that Heinzel's instructional argument appeared to be equally applicable
to her convictions on counts 2 and 3, and requested supplemental briefing from the
                                              3
                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The People's evidence

       1.     The collision

       On November 19, 2011, at approximately 1:50 a.m., Davionne Kelly was driving a

Toyota sedan northbound on Interstate 15 (I-15) in northern San Diego County. Brian

Morast and Kris Walker were passengers in Kelly's car. Heinzel was driving a Nissan

sedan in the same direction. As the vehicles approached a curve, Heinzel's car struck

Kelly's car from behind.

       The impact caused both vehicles to careen into a guardrail, which gave way,

sending them over a cliff. Heinzel's car rolled a few times as it went down the

embankment, and came to rest about 75 feet from the top. Kelly's car also rolled several

times and came to rest approximately 294 feet down the cliff.

       Kelly died at the scene from blunt force injuries that he sustained as a result of the

collision. Morast suffered serious, life threatening injuries, including bleeding in his



parties. In her supplemental letter brief, Heinzel argued that the court committed
reversible instructional error with respect to counts 2 and 3. The People contended in
their supplemental letter brief that the trial court did not err in instructing the jury on
counts 2 and 3, and in the alternative, that any instructional error was harmless.

4       Heinzel also contends that her convictions on counts 2 and 3 must be reversed
because they are lesser included offenses of the offense charged in count 1, and that the
trial court was required to strike the great bodily injury enhancements (§ 12022.7, subd.
(a)) on count 1. In light of our reversal of the judgment, we need not consider these
additional contentions.
                                               4
brain, multiple fractures, and punctured lungs. Walker also suffered injuries, including a

cut to his head that required 17 stitches.

       2.     Accident reconstruction testimony

       Scott Parent, a California Highway Patrol officer and an investigator for the

Multidisciplinary Accident Investigation Team (MAIT), performed an accident

reconstruction analysis as part of his investigation. Parent's investigation included taking

measurements at the crash site and analyzing damage to the vehicles. Parent also

attempted to estimate the likely speeds of the vehicles just prior to the crash by

performing an analysis of the impact of the vehicles to the guardrail, as well as by

conducting skid testing.

       In Parent's opinion, just prior to the crash, Kelly was traveling at between 58 and

68 miles per hour, and Heinzel was traveling between 91 and 101 miles per hour. Parent

concluded that Heinzel's car was straddling two lanes when it struck Kelly's car from

behind, causing both vehicles to rotate in a clockwise manner, hit the guardrail, and then

roll down the embankment. According to Parent, Heinzel violated at least three traffic

infractions: straddling lanes (Veh. Code, § 21658, subd. (a)); driving on a freeway in

excess of 70 miles per hour (Veh. Code, § 22356, subd. (b)); and driving faster than the

posted speed limit (Veh. Code, § 22348, subd. (a)).

       Ernest Phillips, an accident reconstruction specialist employed by the County of

San Diego, also performed an accident reconstruction analysis of the collision. Phillips

reviewed various reports, including the MAIT report, as part of his investigation. In

                                              5
addition, Phillips conducted a form of computer analysis called "simulation modeling"

that relies on "physical evidence from the ground" including information about the

vehicles involved in the collision and tire markings, to generate a model of the locations

and speeds of the vehicles just prior to the crash. Phillips estimated that Heinzel's Nissan

was traveling at a rate of 90 miles per hour just prior to the crash, and that Kelly's car was

going 70 miles per hour. Phillips further concluded that tire marking evidence

demonstrated that Heinzel's car was straddling two lanes just before it struck the left rear

side of Kelly's car.

       3.     Heinzel's intoxication

       Several individuals who encountered Heinzel just after the accident, including a

responding police officer and a paramedic, stated that Heinzel smelled of alcohol. A

sample of Heinzel's blood taken nearly two hours after the collision revealed a blood

alcohol level of between 0.10 and 0.11 percent. Another sample, taken nearly an hour

later, showed a blood alcohol content of .09 percent. Raegan Carter, a criminalist with

the San Diego County Sheriff's Department, testified that at the time of the collision,

Heinzel's blood alcohol level could have been as high as 0.14 percent.




                                              6
       4.     Heinzel's awareness of the risks of driving under the influence

       Heinzel was a Newport Beach police officer from 1986 until 1994. During that

time, she received training on Vehicle Code violations, alcohol violations, traffic accident

investigations, driving under the influence of alcohol, and vehicle operation generally.

B.     The defense

       California Highway Patrol Officer Mark Latulippe was responsible for preparing a

diagram of the accident scene. Latulippe's diagram depicted tire markings on the

roadway made by the vehicles involved in the collision. Officer Latulippe acknowledged

that he transposed the labeling of the vehicles on the diagram's legend, such that tire

markings on the diagram that he attributed to Heinzel's car were in fact made by the

victims' car, and vice versa.

       Stephen Plourd, a defense investigator, took a radar speed survey between 1:18

a.m. and 2:19 a.m. on September 15, 2012, at a location on I-15 near the site of the

collision. Plourd testified that the average speed of the vehicles in his survey was 79.61

miles per hour, that 23 percent of the vehicles in his survey were traveling at speeds in

excess of 80 miles per hour, and that 15 percent of those vehicles were traveling at speeds

in excess of 85 miles per hour.




                                             7
                                             III.

                                       DISCUSSION

    The trial court committed reversible error in instructing the jury in a manner that
 permitted the jury to find that Heinzel's conduct in driving under the influence (and/or
 driving with an elevated blood alcohol level) satisfied the "unlawful act" element of the
                           offenses charged in counts 1, 2 and 3

       Heinzel claims that the trial court committed reversible error in instructing the jury

with respect to counts 1, 2 and 3, in a manner that permitted the jury to find that her

driving under the influence or driving with an elevated blood alcohol level satisfied the

unlawful act element of each of the charged offenses.

A.     Standard of review and general principles of law governing jury instruction
       claims

       We review de novo a defendant's claim that the trial court's jury instructions did

not correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the

adequacy of instructions is based on whether the trial court 'fully and fairly instructed on

the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

In determining whether error has been committed in giving jury instructions, we consider

the instructions as a whole and assume that jurors are intelligent persons, capable of

understanding and correlating all jury instructions that are given. (Ibid.)




                                              8
B.     The charged offenses

       1.      Gross vehicular manslaughter while intoxicated (§ 191. 5, subd. (a))
               (count 1)

       Section 191.5, subdivision (a) provides:

            "Gross vehicular manslaughter while intoxicated is the unlawful
            killing of a human being without malice aforethought, in the driving
            of a vehicle, where the driving was in violation of Section 23140
            [driving with an elevated blood alcohol level as a minor], 23152
            [driving under the influence or driving with an elevated blood
            alcohol level], or 23153 [driving under the influence or driving with
            an elevated blood alcohol level and causing injury] of the Vehicle
            Code, and the killing was either the proximate result of the
            commission of an unlawful act, not amounting to a felony, and with
            gross negligence, or the proximate result of the commission of a
            lawful act that might produce death, in an unlawful manner, and with
            gross negligence." (Italics added.)

       In People v. Soledad (1987) 190 Cal.App.3d 74, 81 (Soledad), the defendant was

convicted of three counts of vehicular manslaughter with gross negligence involving

alcohol (counts I, II and III) pursuant to former section 192, subdivision (c)(3),5 as well

as driving while under the combined influence of alcohol and a drug causing injury (Veh.

Code, § 23153, subd. (a)) (count IV) and driving with a blood alcohol level of 0.10

percent causing death and bodily injury (Veh. Code, § 23153, subd. (b)). With respect to

the counts charging gross vehicular manslaughter while intoxicated, the Soledad court

noted that "[former] Section 192, subdivision (c)(3) requires the driving of a vehicle in




5      The statute at issue in Soledad (former § 192, subd. (c)(3)) did not differ in any
material respect from section 191.5, subdivision (a). (See Soledad, supra, 190
Cal.App.3d at pp. 79-80, quoting former § 192, subd. (c)(3).)
                                             9
violation of Vehicle Code section 23152 or 23153 and the commission of an 'unlawful

act' not amounting to a felony." (Soledad, supra, 190 Cal.App.3d at p. 82.)

       The trial court in Soledad instructed the jury that in order to find the defendant

guilty of vehicular manslaughter with gross negligence involving alcohol, it had to find,

among other elements, that the defendant " 'committed an unlawful act, to wit, a violation

of Section 23153. . . .' " (Soledad, supra, 190 Cal.App.3d at p. 81.) In describing another

element of the crime, the trial court "duplicated the unlawful act" set forth above and

instructed the jury as follows: " '[A]nd four, that the driver of the vehicle also violated

Vehicle Code Section 23153.' " (Soledad, supra, at p. 81.) The Soledad court concluded

that by referring to Vehicle Code section 23153 rather than another "unlawful act" as

required by the statute, "the trial court erroneously omitted the 'unlawful act' element of

vehicular manslaughter." (Ibid; see People v. Thompson (2000) 79 Cal.App.4th 40, 64

["the [Soledad] court concluded that such dual use was error because, in effect, it

eliminates the 'unlawful act' element of gross vehicular manslaughter"].)

       The Soledad court "reject[ed] the People's contention the instructional error was

harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24

[(Chapman)])." (Soledad, supra, 190 Cal.App.3d at p. 82.) Specifically, the court

rejected the People's contention that the jury's guilty verdict on count IV demonstrated




                                             10
that the jury had found that the defendant had committed the unlawful act of speeding. 6

The Soledad court reasoned:

          "To begin, the People's argument fails upon a mere reading of the
          record before us. While count IV of the information did allege that
          defendant violated section 23153, subdivision (a), of the Vehicle
          Code by driving a vehicle under the influence of an alcoholic
          beverage and speeding, the information was not reread to the jury at
          the time of instruction and argument. The instruction read to the jury
          as to count IV (and V), CALJIC No. 12.60, 'Felony Driving Under
          the Influence,' did not refer to speeding as the necessary additional
          'act forbidden by law,' and the verdict form signed by the jury
          foreman as to count IV read as follows: 'We, the jury in the above
          entitled matter, find the defendant, Timothy Ray Soledad, guilty of
          driving under the influence and causing death, a violation of Section
          23153(a) of the Vehicle Code as charged in Count Four of the
          Information on file herein.' " (Soledad, supra, 190 Cal.App.3d at p.
          82.)

       After rejecting the People's harmless error argument, the Soledad court concluded

that the trial court's instructional error required reversal of the vehicular manslaughter




6 Specifically, the People argued:
          " 'There is no question that the jury found that appellant was
          speeding, in violation of Vehicle Code section 22350, because they
          found him guilty on Count IV, which alleged that appellant was
          speeding while under the influence of alcohol . . . . Thus, although
          CALJIC No. 8.90.1 did not properly specify that the unlawful act
          involved was that of speeding, the instructions read as a whole did
          convey to the jury that the unlawful act inherently dangerous to
          human life and safety required for vehicular manslaughter, was the
          act of speeding. The evidence was undisputed that appellant was
          speeding as he entered the curve and drove off through the guardrail.
          The jury in fact found that appellant was speeding while driving
          while under the influence. Thus, any instructional error was
          harmless beyond a reasonable doubt.' " (Soledad, supra, 190
          Cal.App.3d at pp. 81-82.)
                                             11
with gross negligence involving alcohol counts (counts I, II, and III). In reaching this

conclusion, the court reasoned:

            "Here, the trial court neglected to properly instruct the jury as to the
            necessary elements of [former] section 192, subdivision (c)(3) and
            failed to require the jury to find the defendant committed an
            'unlawful act, not amounting to a felony' while driving a vehicle in
            violation of Vehicle Code section 23152 or 23153 (counts I, II and
            III). In addition, the trial court failed to include in its verdict forms
            as to counts I through V any reference to or requirement of the
            commission of an 'unlawful act' or 'any act forbidden by law' as
            required by the relevant Vehicle Code sections before a finding of
            'guilty' could be returned. Thus, the jury was neither instructed nor
            advised at anytime that it must make a finding on the unlawful act
            element of vehicular manslaughter. Upon these facts, we cannot
            find the instructional error was harmless beyond a reasonable doubt
            and the convictions as to counts I, II and III must be reversed."
            (Soledad, supra, 190 Cal.App.3d at pp. 82-83.)

       2.      Driving a vehicle under the influence and causing injury (Veh. Code,
               § 23153, subd (a))(count 2) and driving a vehicle with an elevated blood
               alcohol level causing injury (Veh. Code, § 23153, subd. (b))(count 3)

       Vehicle Code section 23153 provides in relevant part:

            "(a) It is unlawful for a person, while under the influence of any
            alcoholic beverage to drive a vehicle and concurrently do any act
            forbidden by law, or neglect any duty imposed by law in driving the
            vehicle, which act or neglect proximately causes bodily injury to any
            person other than the driver.

            "(b) It is unlawful for a person, while having 0.08 percent or more,
            by weight, of alcohol in his or her blood to drive a vehicle and
            concurrently do any act forbidden by law, or neglect any duty
            imposed by law in driving the vehicle, which act or neglect
            proximately causes bodily injury to any person other than the
            driver." (Italics added.)




                                               12
       In People v. Minor (1994) 28 Cal.App.4th 431, 436 (Minor), this court held that

"the trial court committed reversible error by failing to explicitly instruct the jury that it

had to find [the defendant] committed a legal infraction other than driving under the

influence to convict him of violating [Vehicle Code] sections 23153, subdivision (a), and

23153, subdivision (b)." (Italics added.) The Minor court noted that the law was clear

that in order to establish a violation of either Vehicle Code section 23153, subdivision (a)

(driving under the influence causing injury) or Vehicle Code section 23153, subdivision

(b) (driving with an elevated blood alcohol level and causing injury), "the evidence must

show an unlawful act or neglect of duty in addition to driving under the influence."

(Minor, supra, at p. 438.)

       The Minor court explained the trial court's instructional error as follows:

           "[W]ith respect to the felony drunk driving charges, the trial court
           read CALJIC No. 12.60, which includes only the phrase 'did some
           act which violated the law or failed to perform some duty required
           by law . . . .' Because the trial court did not reference the applicable
           Vehicle Code violations with respect to Minor's felony drunk driving
           counts, the jury very well may have concluded it did not have to find
           any Vehicle Code violation to convict him on these counts.
           Inasmuch as the jury could have convicted Minor without finding all
           of the requisite elements under this instructional charge, we are
           compelled to find error in this case." (Minor, supra, 28 Cal.App.4th
           at p. 438, fn. omitted.)

       In considering whether the error required reversal, the Minor court applied

Chapman and concluded that the jury could have had a reasonable doubt as to whether

the defendant committed a Vehicle Code violation other than driving under the influence

"based upon problems with the credibility of the prosecution's eyewitness." (Minor,

                                               13
supra, 28 Cal.App.4th at p. 438, fn. 3.) The Minor court also concluded that a suggestion

made by the prosecutor in closing argument, "that felony drunk driving requires Vehicle

Code violations" (id. at p. 439), did not "render the instructional error harmless in the

face of the lengthy instructions by the trial court." (Ibid.) Accordingly, the Minor court

concluded, "we cannot say the error was harmless beyond a reasonable doubt.

(Chapman[, supra,] 386 U.S. [at p. 24].)" (Ibid.)

C.     The challenged jury instructions

       1.      Gross vehicular manslaughter while intoxicated (count 1)

       The trial court instructed the jury with respect to the charged offense of gross

vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) (count 1) pursuant to a

modified version of CALCRIM No. 590, in relevant part as follows:

            "[T]he defendant is charged in count 1 with gross vehicular
            manslaughter while intoxicated, in violation of Penal Code section
            191.5[, subdivision] (a).

            "To prove the defendant is guilty of the crime, the People must
            prove that: One, the defendant drove under the influence of an
            alcoholic beverage or drove while having a blood alcohol level of
            .08 or higher; two, while driving a vehicle under the influence of an
            alcoholic beverage, the defendant also committed a misdemeanor or
            infraction, or otherwise lawful act that might cause death; three, the
            defendant committed the misdemeanor or infraction, or otherwise
            lawful act that might cause death with gross negligence; and four,
            the defendant's gross[ly] negligen[t] conduct caused the death of
            another person.

            "The People allege that the defendant committed the following
            misdemeanors or infractions: Vehicle Code section 23152[,
            subdivision] (a), driving under the influence of alcohol; Vehicle
            code section 23152[, subdivision] (b), driving while having a blood

                                              14
alcohol level of 0.08 or higher; Vehicle Code section 22348[,
subdivision] (a), driving faster than the posted speed limit; Vehicle
Code section 22356[, subdivision] (b), driving over 70 miles an
hour; Vehicle Code section 21658, driving not entirely within a
single lane and moving from the lane without reasonable safety.

"Instruction 2110 tells you what the People must prove in order to
prove that the defendant committed [a violation of] Vehicle Code
section 23152[, subdivision] (a), driving under the influence of
alcohol.

"Instruction 2111 tells you what the People must prove in order to
prove that the defendant committed [a violation of] Vehicle Code
section 23152[, subdivision] (b), driving while having a blood
alcohol [level] of 0.08 or [higher].

"Instruction 595 tells you what the People must prove in order to
prove that the defendant committed [a violation of] Vehicle Code
section 22348[, subdivision (a)], driving faster than the posted speed
limit; [Vehicle Code section] 22356[, subdivision] (b), driving over
70 miles an hour; Vehicle Code section 21658, driving not entirely
within a single lane and moving from the lane without reasonable
safety.

"[¶] . . . . [¶]

"The combination of driving a vehicle while under the influence of
[an] alcoholic beverage and violating a traffic law is not enough, by
itself, to establish gross negligence. In evaluating whether the
defendant was acting with gross negligence, consider the level of the
defendant's intoxication, if any; the way the defendant drove, and
any other relevant aspects of the defendant's conduct.

"[¶] . . . . [¶]

"The People allege that the defendant committed the following
misdemeanors or infractions: driving under the influence of alcohol;
driving with a measurable blood alcohol level; driving faster than
the posted speed limit; driving over 70 miles an hour; driving not
entirely within the lane and moving when not safe to do so. You may
not find the defendant guilty unless all of you agree that the People

                                  15
           have proved that the defendant committed at least one of those
           alleged misdemeanors or infractions and you all agree on which
           misdemeanor or infraction." (Italics added.)

      2.       Driving a vehicle under the influence and causing injury (count 2)
               and driving a vehicle with an elevated blood alcohol level (count 3)

      The trial court instructed the jury with respect to the charged offense of driving a

vehicle under the influence and causing injury (Veh. Code, § 23153, subd. (a)) (count 2)

pursuant to a modified version of CALCRIM No. 2100 in relevant part as follows:

           "To prove that the defendant is guilty of this crime, the People must
           prove that: One, the defendant drove a vehicle; two, when she drove
           a vehicle, the defendant was under the influence of an alcoholic
           beverage; three, while driving a vehicle under influence, the
           defendant also committed an illegal act or neglected to perform a
           legal duty; and four, the defendant's illegal act or failure to perform a
           legal duty caused bodily injury to another person.

           "[¶] . . . .[¶]

           "The People . . . allege that the defendant failed to perform the
           following legal duty while driving the vehicle: the duty to exercise
           ordinary care at all times and to maintain proper control of the
           vehicle.

           "The People . . . allege that the defendant committed the following
           misdemeanors or infractions: Vehicle code section 23152[
           subdivision] (a), driving under the influence of alcohol; Vehicle
           code section 23152[, subdivision] (b), driving under the influence of
           alcohol, .08 or higher; Vehicle Code section 22348[, subdivision]
           (a), driving faster than the posted speed limit; Vehicle Code section
           22356[, subdivision] (b), driving over 70 miles an hour; Vehicle
           Code section 21658, driving not entirely within a single lane and
           moving from the lane without reasonable safety.

           "You may not find the defendant guilty unless all of you agree that
           the People have proved the defendant committed at least one illegal


                                              16
          act or failed to perform at least one duty. You must all agree on
          which act the defendant failed to perform." (Italics added.)

       The trial court provided a nearly identical instruction with respect to the charged

offense of driving a vehicle with an elevated blood alcohol level and causing injury (Veh.

Code, § 23153, subd. (b)) (count 3), with the exception that the court referred to driving

with a "blood alcohol level [of] 0.08 percent or more by weight" rather than driving

"under the influence" in describing the elements of count 3.

D.     The trial court committed reversible error in instructing the jury with respect to
       the charged offense of gross vehicular manslaughter while intoxicated (count 1)

       In order to find Heinzel guilty of the offense of gross vehicular manslaughter

while intoxicated, the jury was required to find that she committed both: (1) a violation of

Vehicle Code section 23152 (driving under the influence); and a separate (2) "unlawful

act, not amounting to a felony, and with gross negligence." (§ 191.5, subd. (a); see

People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159 (Verlinde) ["The elements of

Penal Code section 191.5 are: (1) driving a vehicle while intoxicated; (2) when so

driving, committing some unlawful act, such as a Vehicle Code offense with gross

negligence, or committing with gross negligence an ordinarily lawful act which might

produce death; and (3) as a proximate result of the unlawful act or the negligent act,

another person was killed"].)

       Despite the existence of these separate elements, the portion of the trial court's

instruction on gross vehicular manslaughter while intoxicated italicized above (see pt.

III.C.1., ante) permitted the jury to find that Heinzel's alleged violations of Vehicle Code

                                             17
section 23152 satisfied the unlawful act element of section 191.5, subdivision (a). Thus,

"the trial court neglected to properly instruct the jury as to the necessary elements of

[gross vehicular manslaughter while intoxicated]." (Soledad, supra, 190 Cal.App.3d at p.

82; see also 1 CALCRIM (2014) Related Issues to CALCRIM No. 590, p. 343 ["The

Vehicle Code driving-under-the-influence offense of the first element cannot do double

duty as the predicate unlawful act for the second element," citing Soledad, supra, at p.

81].) Accordingly, we conclude that the trial court committed clear instructional error.

       The People do not contend otherwise. Instead, the People argue that the error was

harmless beyond a reasonable doubt.7 (See Soledad, supra, 190 Cal.App.3d at p. 82

[applying Chapman standard of prejudice].) We reject each argument that the People

offer in support of this contention. First, the People note that the trial court did mention

several proper predicate offenses within the challenged instruction (e.g. driving faster

than the posted speed limit, driving over 70 miles an hour, driving not entirely within a


7       The People did not dispute in their briefing on appeal that the Chapman standard
of prejudice applies in reviewing the asserted instructional error with respect to count 1.
Instead, the People argue, "Even assuming it was error for the trial court to instruct the
jury that a violation of Vehicle Code section 23152, subdivision (a) or (b) could serve as
one of appellant's unlawful predicate acts, under the circumstances presented by this case
the error was harmless under any standard."
        However, in their supplemental letter brief, the People contend that the standard of
prejudice in People v. Watson (1956) 46 Cal.2d. 818 (Watson) applies to the court's
instructional error as to counts 2 and 3. We reject the People's argument that Watson
applies with respect to the instructional error as to counts 2 and 3. (See pt. III.E.2.a.,
post.) To the extent that the People contend that the Watson standard of prejudice applies
to the instructional error as to count 1, we reject the People's argument for the same
reasons that we provide for rejecting this argument in connection with the instructional
error as to counts 2 and 3.
                                               18
single lane and moving when not safe to do so). The fact remains that the instruction

permitted the jury to find the second element of the offense—committing an unlawful act

while driving under the influence—based on either of two improper predicate offenses

(e.g. driving under the influence of alcohol, driving with a measurable blood alcohol

level). Further, the jury may very well have improperly relied on one of the alcohol-

related predicate offenses to satisfy the second element of gross vehicular manslaughter

while intoxicated, given that the jury was required to unanimously agree that Heinzel had

committed an alcohol-related offense to satisfy the first element of the offense. As

Heinzel argues in her brief:

           "It is reasonable to conclude that the jury approached the elements in
           order. Once they found a violation of Vehicle Code [section] 23152,
           subdivision (a) or (b) for purposes of the 'drunk driving' element,
           they simply could have used that same finding as the basis for the
           unlawful act element. There would have been no reason to make
           any findings with respect to the three proper unlawful acts since the
           instruction told them that a finding with respect to any one of the
           five unlawful acts was all that was required."

       This likelihood was increased by the fact that the improper alcohol-related

predicate offenses were listed first in the list of predicate offenses in the instruction.

       The People contend that the instructional error was harmless because the evidence

"was undisputed that [Heinzel] also committed all three of [the] traffic infractions" on

which the jury could have properly based a finding that Heinzel committed an unlawful

act in addition to driving under the influence. To begin with, we reject the People's

argument that the evidence that Heinzel committed the predicate traffic offenses was


                                              19
undisputed. There was no eyewitness testimony that Heinzel had been speeding or that

she had made an improper lane change, and the defense challenged the People's accident

reconstruction experts' conclusions that Heinzel committed such violations, both through

cross-examination and in closing argument.

       With respect to cross-examination, defense counsel subjected both of the People's

accident reconstruction experts to vigorous cross-examination in an attempt to raise a

reasonable doubt as to the experts' conclusions that Heinzel had been speeding and had

made an unsafe lane change. For example, with respect to Heinzel's speed, defense

counsel questioned Phillips about a report that suggested that the roadway was wet at the

time of the accident, a factor that Phillips acknowledged could have affected his

calculation of the speed at which the vehicles were travelling before the accident.8


8      California Highway Patrol Officer Michael Zappia, Jr., responded to the scene of
the collision. Officer Zappia testified that he prepared a January 2012 report that
described the highway at the time of accident as " 'wet from a previous rain.' " At trial,
Zappia testified that he recalled there being "moisture in the center of each lane and then
not moisture toward the outer portion of each lane."
       Phillips testified that Zappia had been incorrect in stating that the highway was
wet at the time of the accident.
       Parent also acknowledged the significance of wetness of the highway for purposes
of calculating the vehicles' speeds prior to impact:

          "The initial report that we received had the roadway marked as being
          dry. So my entire analysis was based upon a dry roadway.

          "After the investigating officer completed his report, he had
          mentioned in his report that the roadway was wet from a previous
          rain. So that's very concerning because my entire analysis was based
          upon a dry roadway. Obviously, if you have a wet roadway, some of
          those speeds I calculated are not going to be correct."
                                             20
Defense counsel questioned Officer Parent with respect to factors that may have affected

the guardrail impact analysis that he conducted to estimate the vehicles' speeds before

impact.9 Parent acknowledged that this case was the first case in which he had

performed a guardrail analysis. As to the unsafe lane change, defense counsel engaged in

a line of questioning that prompted Phillips to acknowledge, "We don't have physical

evidence on the ground to tell us where these vehicles are prior to impact."10 Phillips

also acknowledged during cross-examination that he had "switched the lanes" in his

report in describing the location of Heinzel's car just before the crash.

       During closing argument, after noting the absence of any direct evidence as to how

the crash had occurred, defense counsel argued, "How is that we have two experts . . .



9     The People's other accident reconstruction expert, Phillips, stated that guardrail
impact analysis is "not a common form of analysis in our field," and that he "wasn't
comfortable using that specifically as a separate form of analysis."

10     In describing the basis for his conclusion that Heinzel had been straddling two
lanes just prior to impact, Phillips stated:

          "The tire mark evidence plotted on the ground shows us where
          [Kelly's car] was . . . during the time it was struck. The same is true
          for [Heinzel's car]. So at impact, we know that [Kelly's car] is in the
          number 2 lane and [Heinzel's car] is straddling between the 2 and the
          1. Mostly in the 2. [¶] However, the question is: Where is
          [Heinzel's car] before that? Is it in the 2 going to the 1 or is it in the
          1 going into the 2 or driving down the two lanes? [¶] The most
          logical seems to be . . . [Heinzel's car is] in the number 1 and then
          drifts . . . over into the 2. That would be—the most expected from a
          curve to the left when you [are] traveling in a curve to the left. But
          we can't be completely dogmatic about that because we don't have
          physical evidence."
                                               21
who came to substantially the same conclusion about how the accident occurred, but they

contradicted each other drastically in their analysis of how they got there?" Defense

counsel also argued, "How are we supposed to accept that these experts got it right on the

speeds of these cars that are traveling on this road, where all they have left really to

reconstruct it, [are] these skid marks? How can we accept that their speeds . . . pre-

impact are correct when they're basing them, in part, on flawed and contradictory

arguments?" In light of defense counsel's cross-examination of the People's expert

witnesses and closing argument, we reject the People's contention that it was undisputed

that Heinzel committed an unlawful act in addition to driving under the influence.

       More importantly, even assuming that the jury found that Heinzel committed an

unlawful act in addition to driving under the influence, the jury was required to find that

she committed that unlawful act with gross negligence. (See Verlinde, supra, 100

Cal.App.4th at p. 1159 ["when so driving, committing some unlawful act, such as a

Vehicle Code offense with gross negligence" (italics added)].) Whether Heinzel

committed an unlawful act with gross negligence was the central issue in the case.

Defense counsel made this clear when she began her closing argument as follows:

          "Good afternoon, ladies and gentlemen.

          "This is not a gross negligence case. . . . [¶] . . . You'll recall that
          [the prosecutor] indicated, in her remarks to you, that if you are
          impaired by alcohol [and commit a traffic infraction] . . . it is not
          enough to establish gross negligence . . . .[11]

11    Defense counsel was referring to the portion of the trial court's jury instruction in
which the court stated:
                                          22
          "Gross negligence takes more than that. And I'm going to submit to
          you, ladies and gentlemen, that even on the People's theory of how
          this accident occurred, between a .09 and .14 blood alcohol level, on
          that particular stretch of freeway, in the middle of the night, on a
          downward turn, that the People's theory is that is how the accident
          happened, it does not rise to the level of gross negligence.

          "What types of things would it take to turn this case into a gross
          negligence case? It would take the things that you've probably seen
          and experienced in your life; weaving in and out of lanes, passing
          cars on the freeway. In a non-freeway case, running a red light,
          prior D.U.I., prior moving violations. These are not things that we
          have in this case. So on the question of what is the other relevant
          conduct that would rise to the level of gross negligence, we have
          nothing, other than under the People's theory, speed and
          intoxication."




          "The combination of driving a vehicle while under the influence of
          [an] alcoholic beverage and violating a traffic law is not enough, by
          itself, to establish gross negligence. In evaluating whether the
          defendant was acting with gross negligence, consider the level of the
          defendant's intoxication, if any; the way the defendant drove, and
          any other relevant aspects of the defendant's conduct."

        In their supplemental letter brief, the People contend that this portion of the trial
court's jury instruction rendered the trial court's instructional error harmless because it
directed the jury to consider the manner by which Heinzel drove in determining whether
she acted with gross negligence. We are not persuaded. Instructing the jury to consider
"the way the defendant drove" did not inform the jury that it had to find that Heinzel
committed a separate unlawful act in order to find her guilty of gross vehicular
manslaughter while intoxicated, as was required. At best, this portion of the instruction
rendered the entire instruction confusing and contradictory, since the portion of the
instruction that outlined the gross negligence element of the offense stated that the People
were required to prove that Heinzel "committed the misdemeanor or infraction . . . with
gross negligence," and listed driving while under the influence of alcohol and driving
with an elevated blood alcohol level as among the predicate offenses.
                                               23
          By instructing the jury in a manner that permitted the jury to find that Heinzel's

alleged act in driving under the influence satisfied the unlawful act element of section

191.5, subdivision (a), the court's instruction improperly permitted the jury to find that

Heinzel's act in driving under the influence was grossly negligent. This was potentially

prejudicial because, as noted, in order to find Heinzel guilty of gross vehicular

manslaughter while intoxicated, the jury was required to find that, while driving under

the influence, Heinzel committed a separate unlawful act with gross negligence. (See

Verlinde, supra, 100 Cal.App.4th at p. 1159.) Yet the jury was never instructed to this

effect.

          The People also note that the prosecutor stated during closing argument,

"[Heinzel] committed an infraction; same one, either failing to drive within the two lane

[lines], in this particular case, or driving over the posted speed limit of 70 miles an hour."

The prosecutor's reference to these proper predicate offenses in her argument did not

render harmless the trial court's inclusion of improper predicate offenses in its instruction

on the elements of the charged offense. (See Minor, supra, 28 Cal.App.4th at p. 439

[prosecutor's suggestion that charged offense required finding of separate Vehicle Code

violation did not render trial court's listing of improper predicate offenses harmless].)

          Finally, the People note that in addition to finding Heinzel guilty of gross

vehicular manslaughter while intoxicated (count 1), the jury also found her guilty of

driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) (count 2) and

driving while having an elevated blood alcohol level causing injury (Veh. Code, § 23153,

                                                24
subd. (b)) (count 3). The People further observe that the jury was required to find that

Heinzel committed a separate unlawful act while driving under the influence in order to

find her guilty of counts 2 and 3, and that the jury instructions for counts 2 and 3 referred

to the same three proper predicate offenses referred to in the court's gross vehicular

manslaughter while intoxicated instruction.

       This argument is unpersuasive because the trial court's instructions on counts 2

and 3 suffered from the same defect as contained in its instruction on gross vehicular

manslaughter while intoxicated. (See pt. III.E., post.) As with its gross vehicular

manslaughter while intoxicated instruction, the trial court's instructions on both driving

under the influence causing injury (Veh. Code, § 23153, subd. (a)) (count 2) and driving

while having an elevated blood alcohol level causing injury (Veh. Code, § 23153, subd.

(b)) (count 3) permitted the jury to find the separate unlawful act element of each offense

based on Heinzel's alleged alcohol-related Vehicle Code violations. Thus, the

instructions and the jury verdicts on counts 2 and 3 do not demonstrate that the trial

court's error on count 1 was harmless.

       Accordingly, we conclude that the trial court committed reversible error in

instructing the jury in a manner that permitted the jury to find that Heinzel's alleged

violation of Vehicle Code section 23152, subdivision (a) and/or Vehicle Code section

23152, subdivision (b) satisfied the unlawful act element of gross vehicular manslaughter

while intoxicated (count 1).



                                              25
E.      The trial court committed reversible error in instructing the jury with respect to
        the charged offenses of driving a vehicle under the influence and causing injury
        (count 2) and driving a vehicle with an elevated blood alcohol level and causing
        injury (count 3)

        1.     The trial court committed clear instructional error in instructing the jury
               on counts 2 and 3

        In order to find Heinzel guilty of either driving a vehicle under the influence and

causing injury (count 2) or driving a vehicle with an elevated blood alcohol level and

causing injury (count 3), the jury was required to find that Heinzel drove under the

influence (or drove with an elevated blood alcohol level) and that she committed a

separate unlawful act. (Minor, supra, 28 Cal.App.4th 431.)

        Despite the existence of these separate statutory elements, by listing Heinzel's

violation of Vehicle Code section 23152 (drinking and driving) as among the illegal acts

that the People contended Heinzel had committed, the trial court's instructions on both

driving a vehicle under the influence and causing injury (count 2) and driving a vehicle

with an elevated blood alcohol level and causing injury (count 3), improperly permitted

the jury to find that Heinzel's alleged violations of section 23152 (drinking and driving),

alone, satisfied the separate unlawful act element of each offense. (See pt. III.C.2., ante.)

As in Minor, the "the jury could have convicted [appellant] without finding all of the

requisite elements under this instructional charge." (Minor, supra, 28 Cal.App.4th at p.

438.)

        We are not persuaded by the People's suggestion in their supplemental letter brief

that the trial court did not "run afoul of Minor's holding," because the trial court's

                                              26
instructions did refer to Vehicle Code violations that the jury might have properly found

satisfied the unlawful act element. Minor makes clear that in order to find a defendant

guilty of either driving a vehicle under the influence and causing injury (Veh. Code,

§ 23153, subd. (a)) or driving a vehicle with an elevated blood alcohol level and causing

injury (Veh. Code, § 23153, subd. (b)), the People must present evidence that the

defendant committed "an unlawful act or neglect of duty in addition to driving under the

influence." (Minor, supra, 28 Cal.App.4th at p. 438.) By instructing the jury in this case

in a manner that permitted the jury to find that Heinzel's driving under the influence (or

driving with an elevated blood alcohol level) itself satisfied the unlawful act element, the

trial court violated Minor by failing to properly describe the elements of the charged

offenses.

       Accordingly, we conclude that the trial court committed clear instructional error

with respect to counts 2 and 3.

       2.     The error requires reversal

              a.     The proper standard of prejudice

       "Instructions . . . misdescribing an element of an offense are subject to harmless

error analysis under the test of Chapman v. California, supra, 386 U.S.18." (People v.

Breverman (1998) 19 Cal.4th 142, 194; see People v. Larsen (2012) 205 Cal.App.4th

810, 829 (Larsen) ["An instructional error that . . . improperly describes . . . an element of

an offense, violates the defendant's rights under both the United States and California



                                             27
Constitutions, and is subject to Chapman review"]; Minor, supra, 28 Cal.App.4th at p.

439 [applying Chapman standard of prejudice].)

       "The beyond-a-reasonable-doubt standard of Chapman 'requir[es] the beneficiary

of a [federal] constitutional error to prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.' [Citation.] 'To say that an error

did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to

everything else the jury considered on the issue in question, as revealed in the record.'

[Citation] Thus, the focus is on what the jury actually decided and whether the error

might have tainted its decision. That is to say, the issue is 'whether the . . . verdict

actually rendered in this trial was surely unattributable to the error.' [Citation.]" (People

v. Neal (2003) 31 Cal.4th 63, 86; see People v. Wilkins (2013) 56 Cal.4th 333, 350,

quoting People v. Hudson (2006) 38 Cal.4th 1002, 1013 ["In deciding whether a trial

court's misinstruction on an element of an offense is prejudicial to the defendant, we ask

whether it appears ' " 'beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained' " ' "].)

       We are unpersuaded by the People's suggestion that the Watson standard of

prejudice applies because the trial court's instructional error affected only an "aspect of an

element" of an offense. (Citing Larsen, supra, 205 Cal.App.4th at p. 829 ["A distinction

is drawn 'between instructional error that entirely precludes jury consideration of an

element of an offense and that which affects only an aspect of an element.' (People v.

Cummings (1993) 4 Cal.4th 1233, 1315 [(Cummings)]"].) In Cummings, the Supreme

                                               28
Court was drawing a distinction between a type of instructional error that is reversible per

se (i.e. instructional error that entirely precludes jury consideration of an element of an

offense) and instructional error that is subject to the Chapman standard of prejudice

(error affects only an aspect of an element). (Cummings, supra, at pp. 1311-1315.)12

       In short, Cummings, and therefore Larsen,13 do not support the proposition that a

trial court's misinstruction on an aspect of the element of an offense is subject to the

Watson standard of prejudice. Further, other California Supreme Court case law makes

clear that instructional error that affects an "aspect of an element" of an offense is subject

to the Chapman standard of prejudice. (See, e.g., People v. Avila (1995) 35 Cal.App.4th

642, 651 ["the Chapman standard applies to the failure to instruct on a single aspect of a

multi-element offense in this case"]; People v. Harris (1994) 9 Cal.4th 407, 425 [stating

that the Chapman standard applies "where the jury has been misinstructed on some aspect

of an element of the charged offense"].)

              b.     The error cannot be deemed harmless beyond a reasonable doubt

       As with the trial court's instruction on count 1, the instructions on counts 2 and 3

permitted the jury to find an element of the offenses—committing an unlawful act while


12      In Cummings, the People argued that the Chapman standard applied to review of
the trial court's failure to instruct on four of the five elements of robbery, but the
Cummings court concluded that the error was reversible per se. (Cummings, supra, 4
Cal.4th at p. 1315.)

13     While we do not read Larsen as suggesting that the Watson standard of prejudice
applies to instructional error that affects only an aspect of an element of an offense, to the
extent that Larsen may be read to so hold, we decline to follow it.
                                               29
driving under the influence—based on two improper predicate offenses (e.g. driving

under the influence of alcohol, driving with a measurable blood alcohol level). Further,

the error may well have contributed to the jury's verdicts given that the jury was required

to find that Heinzel had committed the improper alcohol-related predicate offenses in

order to find that the People had proven the drunk driving elements of counts 2 and 3, and

the improper alcohol-related predicate offenses were first in the instruction's list of

predicate offenses.

       We reject the two arguments that the People offer in support of their contention

that any error committed by the trial court was harmless beyond a reasonable doubt.

First, while the People note that the jury also found Heinzel guilty of gross vehicular

manslaughter while intoxicated (count 1), we have concluded that the trial court

committed reversible error in instructing the jury on count 1. (See pt. III.D., ante.) Thus,

the jury's verdict on count 1, does not demonstrate that the trial court's error on counts 2

and 3 was harmless. Second, for the reasons stated in part III.D., ante, we reject the

People's contention that the instructional error was harmless because it was undisputed

that Heinzel committed all three of the traffic infractions upon which the jury could have

properly based a finding that she committed an unlawful act in addition to drinking and

driving.

       Accordingly, we conclude that the People have not demonstrated beyond a

reasonable doubt that the trial court's instructional errors pertaining to the offenses of

driving a vehicle under the influence and causing injury (count 2) and driving a vehicle

                                              30
with an elevated blood alcohol level and causing injury (count 3) did not contribute to the

jury's verdicts on these counts. We therefore conclude that the trial court committed

reversible error in instructing the jury on both counts.

                                             IV.

                                       DISPOSITION

       The judgment is reversed and the matter is remanded to the trial court for further

proceedings.


                                                                               AARON, J.

WE CONCUR:


               NARES, Acting P. J.



                         IRION, J.




                                             31
