P. Doane

Filed 7/22/21
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A153709
v.
TOM SHELTON DOANE, (San Mateo County
Super. Ct. No. 16-SF-003726)
Defendant and Appellant.

Defendant Tom Doane lost control of his truck and collided head-on
with a vehicle driven by Francis Jouaux, killing him. Doane fled on foot and
was not apprehended until the following day. A jury convicted him of one
count of vehicular manslaughter with gross negligence, with an enhancement
for fleeing the scene, and a separate count of leaving the scene of an accident.
He was sentenced to 11 years in prison.
At trial, the key disputed issue was whether Doane acted with gross
negligence, as he conceded he acted with ordinary negligence and was thus
liable for the lesser included offense of vehicular manslaughter without gross
negligence, a misdemeanor. On appeal, he claims his vehicular-
manslaughter conviction must be reduced to the lesser offense because of
insufficient evidence, prosecutorial error, and a mistake by the trial court in
answering a jury question. He also claims that both the enhancement and

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
*

opinion is certified for publication with the exception of parts II.A. and II.E.

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conviction for leaving the scene must be reversed because the trial court
erred by failing to instruct sua sponte on the affirmative defense of
unconsciousness.
We conclude that sufficient evidence supported the conviction of gross
vehicular manslaughter and a jury instruction on unconsciousness was
unwarranted. But we agree with Doane that the prosecutor misstated the
law involving circumstantial evidence in closing argument and that the trial
court incorrectly answered a jury question about the use of post-crash
conduct to find gross negligence, and we conclude these two errors were
collectively prejudicial. Accordingly, while we affirm the conviction for
leaving the scene, we reverse the conviction for gross vehicular
manslaughter. The People shall have the option to retry Doane for this
offense. If the People elect not to do so, we direct that the judgment be
modified to the lesser included offense of misdemeanor vehicular
manslaughter, to which the enhancement for fleeing the scene does not
apply.1

1 In light of our disposition, we need not address Doane’s remaining
claims that the trial court erred by (1) precluding his reliance on a traffic
survey report showing prevailing speeds on the highway in question; (2) not
instructing the jury that gross negligence requires more than merely driving
under the influence or violating traffic laws; (3) misinstructing on the intent
requirement for misdemeanor vehicular manslaughter; (4) misinstructing on
the required union of act and intent as it applies to gross vehicular
manslaughter; and (5) imposing the upper term for that crime. We also deny
his request for judicial notice of three traffic-related documents relevant to
the first issue as unnecessary to our decision. To the extent any of these
documents might also be relevant to whether his driving was objectively
unsafe, we conclude it is inappropriate to rely on them in determining
whether there was substantial evidence of gross negligence.

2
 I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Crash
The crash occurred around 7:00 p.m. on Easter Sunday, March 27,
2016. That afternoon, Jouaux, who was in his mid-40’s, and a friend went
kitesurfing at the beach. After a few hours, they left in separate cars to drive
home to La Honda. The friend followed Jouaux, who drove an early 1990’s
Honda Civic, as they proceeded up Highway 1 and then headed east on
Highway 84. It was still light outside, and conditions were clear and dry.
A California Highway Patrol (CHP) officer described the relevant
stretch of Highway 84 as “a windy mountain road,” with “[l]ots of switchbacks
. . . [and] very few straightaways.” Some portions of the road have no
shoulder, including near where the crash occurred. The officer testified that
the area was “a well-known area for motorcycle crashes and crashes in
general.” He also testified that the road was “heavily” used by cyclists on the
weekends.
The collision happened on a “short straightaway” between two curves.
At that point, Highway 84 has one lane in each direction with solid double
yellow lines that indicate no passing. The speed limit is 45 miles per hour,
and a sign advising that upcoming turns should be taken at 30 miles per hour
is located shortly before the scene in the direction Doane was travelling.2 A
CHP sergeant opined that the “safe speed” at that point was “45 miles an
hour, the posted limit there.” He explained that this opinion was also based

2Evidence was presented that although the sign showed two curves
and there are more curves than that between the sign and the scene, the sign
nevertheless applies to all subsequent curves “until [one] see[s] another
advisory sign for a specific curve.”

3
on other “physical facts of the road and the environmental factors around the
road,” including the line of sight as one goes around the curve. He testified
that “200 feet would be about the shortest portion” a driver could see when
doing so.
Jouaux’s friend estimated that at the time of the crash, his and
Jouaux’s cars were travelling around 35 to 40 miles per hour and he was 50
to 100 meters behind Jouaux. As the friend made the turn onto the
straightaway where the collision occurred, he “saw [a] wide pickup truck
sliding around the corner coming in [his and Jouaux’s] direction” at “a
relatively high speed.” The friend testified, “[I]f I had to guess [the speed
was] more than 50, 55, 60 [miles per hour] maybe,” which he deemed a
“conservative estimate.” He also testified that the truck was going “probably
not more than 70” miles per hour.
The friend testified that the truck “was oversteering, meaning that the
rear end was sliding and the driver was compensating . . . , so it was basically
sliding around the corner.” As “the road straightened the truck kept on
turning,” and it “went over into the opposing lane.” The friend saw the truck
hit Jouaux’s car, which had remained in the eastbound lane, “almost head-
on.” After the impact, the truck, which weighed about three times more than
the Honda, continued to move forward while the Honda “bounced back and
spun around up against the eastern embankment of the road.” The truck
then “basically ran over the Honda and flipped,” coming to rest “upside down
on [the eastbound] side of the road.”
After the crash, Jouaux’s friend approached the Honda, which “was
very seriously damaged” and “had no roof . . . on the driver’s side.” Jouaux’s
friend performed CPR on Jouaux until a fire crew arrived, and shortly
afterward Jouaux was pronounced dead. An autopsy showed that he died

4
from extensive internal injuries. No alcohol or drugs were detected in his
blood.
B. Doane’s Post-crash Behavior
The first vehicle travelling eastbound to arrive at the scene after
Jouaux’s friend was driven by Kevin M., who was with his girlfriend and two
sons. Kevin M. got out of his vehicle and approached the truck, a Ford F-250,
to see if anyone was inside. The driver, Doane, indicated that he was stuck
inside, but shortly thereafter he exited the truck without assistance. Doane’s
hand was “mangled” and bleeding, and he seemed “[i]ncoherent, dizzy, [and]
. . . spacey.” Kevin M. guided Doane to the side of the road and went to get
paper towels for his hand.
When Kevin M. returned to Doane, he wrapped Doane’s hand in the
paper towels. Doane began to say, “I need to go off and die. I need to go off
and die.” Several other witnesses who had come upon the crash also heard
Doane make similar statements about needing or wanting to die.
Kevin M. smelled alcohol on Doane’s breath as the other man was
speaking. One of Kevin M.’s sons also testified that Doane had a “strong”
smell of alcohol, and “[i]t didn’t smell like beer or wine or something, it
smelled like hard alcohol.” Kevin M.’s girlfriend, on the other hand, testified
that she did not smell alcohol on Doane and did not observe anything else to
indicate he was under the influence of alcohol.
Kevin M. also testified Doane did not appear “to be unsteady or have an
impaired balance.” Another witness, however, described Doane as appearing
“disoriented, confused, upset,” and “a little off balance.” That witness’s
husband described Doane as “dazed” and “wandering around” in a circle. A
fourth witness testified that Doane “looked like [he was] aware of the

5
situation, kind of like in disbelief, but then also like discombobulated” and
“out of it.”
After Doane said he needed to die, Kevin M. put his hand on Doane’s
chest and said, “No, you don’t want to do that. Sit down.” In a “stern” voice,
Doane, who now seemed “more in control, more aware,” told Kevin M. he
“need[ed] to let him go.” Doane walked away, and Kevin M. did not try to
prevent him from doing so, although other witnesses told Doane to stop.
Kevin M.’s son testified that after Doane walked away from the scene,
he “kind of looked back and stumbled. . . . [H]e wasn’t in the best condition to
be perfectly running off, but he stumbled off into the woods as quickly as he
could.” Another witness also testified that Doane walked away quickly like
he was “in a hurry.” A different witness, however, testified that Doane “kept
on slowly, slowly walking away and into the . . . forest” after being asked to
stop.
After some time passed, Kevin M. and his sons attempted to find Doane
by following his “blood tracks.” They followed the trail to a nearby creek,
where it became “pretty apparent that [Doane] had crossed the creek.” The
sheriff’s department subsequently made a brief attempt to track Doane with
canines, but he avoided detection. Apparently, he was able to walk home to
his San Gregorio apartment, approximately three miles west of the crash
scene, where he had lived for about three years.
The following day, Doane took a taxi to a Redwood City hospital. He
was admitted around 2:00 p.m., approximately 18 hours after the crash. The
taxi driver who transported him testified that he “looked like he was out of it”
and was “moaning in pain” during the ride. Doane had suffered a “degloving
injury” to his hand, meaning that “the skin [was] stripped off exposing
underlying muscle or tendon or bone.” He also had a “deep laceration” on his

6
wrist, which was dislocated, and a fractured finger. Meanwhile, law
enforcement had “dispatch check the local hospitals” for anyone with a
serious hand injury. Shortly after Doane arrived at the hospital, he was
arrested.
C. Evidence Relating to the Causes of the Crash
1. The truck’s condition and operation
Evidence involving the Ford truck’s registration and Doane’s driving
record tended to suggest that Doane, who was employed as an auto mechanic,
had owned and operated the vehicle since at least 2007. The truck’s brakes
were in good working condition, and there were no indications that brake
failure occurred. Given the truck’s condition, the antilock braking system
could not be tested. The brake fluid was dirty, which could indicate
contamination with another material. There were no other indications that
any such contamination affected the braking system, however, and the
contamination could have occurred during the crash. The suspension and
steering systems were working normally.
No data from the truck’s computer was accessible, and it would not
have been helpful given the limits in what it could record. The truck’s
airbags did not deploy during the collision, however, which indicated there
was no more than a 14-miles-per-hour change in velocity at the time of
impact. A defense expert in accident investigation and reconstruction opined
that the vehicle was going about 45 miles per hour at the time of the crash.
The truck had three All Terrain, larger tires of the same type and one
standard-sized tire, the right rear tire. A defense expert testified that the All
Terrain tires were “[a]t least two size[s] bigger” than what Ford
recommended be placed on that vehicle. A label inside the truck’s driver’s
door indicated the recommended size of tire and, as paraphrased by the

7
expert, cautioned that “if you use high performance tires or larger tires[,] . . .
that can affect the handling of the vehicle which ultimately can [lead] to a
loss of control or other issues,” including “roll over and serious injury.”
The three All Terrain tires had a tread depth of 2/32 of an inch and
were “worn down to the wear indicators,” which indicate “that the tires are
nearing [the] end of their useful life and need to be replaced.” The fourth tire
had a tread depth of 12/32 of an inch. Under California law, the minimum
tread depth required for a passenger vehicle is 1/32 of an inch. (Veh. Code,
§ 27465, subd. (b)(1).)
The CHP sergeant testified that worn tire tread could contribute to the
loss of grip on the road when a vehicle travels around a curve, but he also
stated that it was “unlikely” that the different types of tires on the truck and
their condition played a role in the truck’s losing control. A defense expert,
however, opined that the tires’ differences in size, tread wear, and inflation
could contribute to a driver losing control of the vehicle.
The CHP sergeant testified that “a vehicle traveling down the roadway
through a curve should be able to maintain the arch of the curve, unless it’s
going too fast and the tires are simply unable to grip because of the speed and
it travels off the roadway,” which was a scenario consistent with a friction
mark left on the road at the scene. This scenario was also consistent with
Jouaux’s friend’s testimony, as “a speed of 50 to 60 miles an hour . . . would
be enough for a vehicle like [the truck] to not be able to travel through the
curve” and the friction mark could have been left during oversteering. The
sergeant also opined that the steering motion that resulted in the truck
crossing the double yellow lines was unsafe.

8
 2. Doane’s alcohol consumption and the text message
Around 12:30 p.m. on the day of the crash, Doane purchased a few
groceries, including a six-pack of Sierra Nevada beer, at a store east of the
crash site. Doane’s landlord testified that when he cleaned out the
apartment sometime after Doane’s arrest, there were between one and five
bottles of Sierra Nevada beer in the refrigerator. No alcohol containers were
located in Doane’s truck after the collision, however.
Doane did not have a blood sample taken for alcohol testing, given the
amount of time between the crash and his arrest. A forensic toxicologist
testified that the odor of alcohol cannot be reliably correlated with a person’s
blood alcohol level or degree of impairment, meaning that the witness
observations of alcohol on Doane’s breath at the scene could not be used to
determine his level of intoxication.
Phone records showed that a text message was transmitted to Doane’s
cell phone at 6:54 p.m. on the night in question, one minute before the first
911 call was made. The phone did not receive any other text messages or
calls for two hours before that, and the next incoming communication was a
text message around noon the following day. Doane himself did not send any
texts or make any calls during the relevant time period.
D. Procedural History
Doane was charged with one count of gross vehicular manslaughter, a
felony, with an accompanying enhancement for fleeing the scene, and a
separate felony count of leaving the scene of an accident.3 The jury convicted

3 The charges were brought under Penal Code section 192,
subdivision (c)(1) (gross vehicular manslaughter), and Vehicle Code
section 20001, subdivision (a) (leaving the scene). The enhancement
accompanying the vehicular-manslaughter count was alleged under Vehicle

9
him of both counts and found true the allegation that he fled the scene. The
trial court sentenced him to a total term of 11 years in prison, composed of
the upper term of six years for gross vehicular manslaughter and a
consecutive term of five years for the accompanying enhancement. The court
imposed and stayed the midterm of three years for the separate count of
leaving the scene.
II.
DISCUSSION
A. Sufficient Evidence Supported the Conviction for Gross Vehicular
Manslaughter.
Doane claims his conviction for gross vehicular manslaughter must be
reversed because there was insufficient evidence of gross negligence and
proximate causation. We disagree.
1. General legal standards
Doane was convicted of gross vehicular manslaughter under
section 192, subdivision (c)(1), which prohibits “driving a vehicle in the
commission of an unlawful act, not amounting to a 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.” The
required act must either be “a misdemeanor or infraction” or “a negligent
act.” (People v. Thompson (2000) 79 Cal.App.4th 40, 53.) The jury was
instructed on the infractions of violating the basic speed law, making an
unsafe turning movement, and crossing the double yellow lines, as well as the

Code section 20001, subdivision (c). All further statutory references are to
the Penal Code unless otherwise noted.

10
lawful act that might cause death of “driving at a speed not in violation of the
basic speed law.”4
“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 indifference[] to the
consequences is simply, “I don’t care what happens.” ’ ” (People v. Bennett
(1991) 54 Cal.3d 1032, 1036.) In determining whether a defendant acted with
gross negligence, “[t]he test is objective: whether a reasonable person in the
defendant’s position would have been aware of the risk involved.” (Ibid.) A
defendant’s particular mind state, however, can also be relevant. “In
determining whether a reasonable person in [the] defendant’s position would
have been aware of the risks, the jury should be given relevant facts as to
what [the] defendant knew, including [the defendant’s] actual awareness of
those risks.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1205.) Thus, while a
defendant who lacks awareness of the risk may still be grossly negligent “if a
reasonable person would have been so aware,” a defendant who “actually
appreciated the risks involved in a given enterprise, and nonetheless
proceeded with it,” could still be found grossly negligent even if “a reasonable
person in [the] defendant’s position would [not] have recognized the risk.”
(Ibid., italics omitted.)
In a vehicular manslaughter case, “gross negligence cannot be shown
by the mere fact of driving under the influence or violating the traffic laws,
but can be shown by the overall circumstances of the defendant’s intoxication
and the manner in which the defendant drove.” (People v. Von Staden (1987)

4 The infractions were alleged under Vehicle Code sections 22350 (basic
speeding law), 22107 (unsafe turning movement), and 21460 (crossing double
yellow lines). The jury was also instructed that it had to agree on the same
predicate act to find Doane guilty.

11
195 Cal.App.3d 1423, 1428; accord People v. Hansen (1992) 10 Cal.App.4th
1065, 1075 [factfinder must consider “relevant aspects of [the] defendant’s
conduct resulting in the fatal accident”].) The grossly negligent behavior
must be a proximate cause of the victim’s death to support a conviction.
(People v. Pike (1988) 197 Cal.App.3d 732, 748; see § 192, subd. (d).)
A lesser included offense of gross vehicular manslaughter under
section 192, subdivision (c)(1), “is vehicular manslaughter with ordinary
negligence, a misdemeanor that requires only a finding of ordinary
negligence. (§ 192, subd. (c)(2).)” (People v. Kumar (2019) 39 Cal.App.5th
557, 564.) Ordinary negligence, a “lower standard of negligence” than gross,
“ ‘is the failure to use reasonable care to prevent reasonably foreseeable harm
to oneself or someone else. A person is negligent if [the person] . . . does
something that a reasonably careful person would not do in the same
situation.’ ” (Ibid.) As mentioned above, Doane did not contest that he acted
with ordinary negligence. Thus, we agree with him that the relevant issue is
“whether the evidence was sufficient to prove . . . that his negligence was of
the aggravated variety.”
In evaluating a claim that a conviction lacks sufficient evidence, “ ‘we
review the whole record to determine whether . . . [there is] substantial
evidence to support the verdict . . . such that a reasonable trier of fact could
find the defendant guilty beyond a reasonable doubt. [Citation.] In applying
this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence.’ ” (People v.
Manibusan (2013) 58 Cal.4th 40, 87.) “Substantial evidence” is evidence that
is “ ‘ “reasonable . . . , credible, and of solid value” ’ ” (People v. Ortiz (2012)
208 Cal.App.4th 1354, 1363), and a reasonable inference from the evidence

12
“ ‘ “may not be based on suspicion alone, or on imagination, speculation,
supposition, surmise, conjecture, or guess work.” ’ ” (People v. Davis (2013)
57 Cal.4th 353, 360.) Reversal is not required unless “ ‘it appears “that upon
no hypothesis whatever is there sufficient substantial evidence to support
[the conviction].” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 508; see
People v. Nicolas (2017) 8 Cal.App.5th 1165, 1171 (Nicolas).)
2. There was substantial evidence of gross negligence.
Doane identifies several factors on which the prosecutor relied to
establish gross negligence and argues that “[v]iewed individually or
collectively,” they were insufficient. We conclude there was substantial
evidence that Doane was speeding, that the road conditions required a
greater degree of care, that his truck’s tires were unsafe, and that he drank
alcohol before driving, and the jury could have properly determined from
these circumstances that he acted with gross negligence in causing Jouaux’s
death. Accordingly, we do not address whether other evidence, including that
Doane received a text message right before the crash and later fled from the
scene, also constituted substantial evidence of gross negligence.
a. Speed and road conditions
Doane argues that there was insufficient evidence “from which the jury
could have inferred [he] drove the vehicle above the legal or safe speed limit
at the time of the collision.” He claims “there was nothing uniquely
treacherous about the road . . . [or] the curve he took before the collision,” and
the evidence he “was exceeding the speed limit and safe speed for the curve
. . . was speculation.” He also claims that even if he exceeded a safe speed, “a
reasonable person would [not] find exceeding the 45-miles-per-hour speed
limit by 5 or even 10 miles per hour poses a risk of harm to others” such that
doing so was grossly negligent.

13
 We begin by agreeing with Doane that merely exceeding the speed limit
does not establish gross negligence.5 (People v. Von Staden, supra,
195 Cal.App.3d at p. 1428.) There was substantial evidence that he exceeded
the speed limit by significantly more than 10 miles per hour, however. A
CHP officer testified that the speed limit of 30 miles per hour for upcoming
curves applied to the curve where Doane lost control. And Jouaux’s friend
testified that he thought the Ford truck was going “more than 50, 55, 60
maybe, but it could be considerably more.” Thus, even if we agreed with
Doane that any evidence suggesting he was going more than 50 miles per
hour was speculative, there was evidence that he was traveling at least 20
miles per hour over the applicable speed limit.
In addition, there was substantial evidence of road conditions that
made Doane’s speeding more dangerous than it otherwise would have been.
Although, as Doane observes, the light and weather conditions were
favorable, the evidence that the road was only one lane in each direction and
“windy” supported the conclusion that a reasonable driver would exercise
more care, and thus drive more slowly, than might otherwise be necessary
under other circumstances. There was also testimony that cyclists often used
the road, particularly on weekends. As a local, Doane presumably was aware
of this. Thus, even though “there was no evidence of [bicycle] traffic on the
day of or at the time of the collision,” the jury could have concluded that a

5 While Doane admits he committed the non-speeding Vehicle Code
violations on which the prosecutor relied as predicate acts—crossing the
double yellow lines and making an unsafe turn—he argues they were
insufficient to demonstrate gross negligence. Since we conclude that there
was sufficient evidence that he was speeding and this was grossly negligent
under the circumstances, we do not address whether the other violations
were also committed in a grossly negligent manner. (See People v. Cravens,
supra, 53 Cal.4th at p. 508.)

14
reasonable person in Doane’s position would have exercised particular
caution driving on the road on a holiday weekend. In short, the evidence that
Doane exceeded the speed limit by a fair amount in circumstances requiring
particular caution was a sufficient basis on which the jury could find he drove
in a grossly negligent manner.
b. The condition of the truck’s tires
Doane claims there was insufficient evidence that the size and
condition of his truck’s tires posed a danger, much less that “driving with
them constituted gross negligence.” He points out that while the tread was
worn on three tires, it was still “of legal depth,” and the evidence “suggested a
mere possible danger” in having tires of different sizes. Thus, he claims,
driving with these tires did not amount to “an extreme departure from an
ordinary standard of care.”
This argument improperly discounts the evidence presented that both
the worn tread and the tires’ sizes were dangerous. The CHP sergeant
agreed that “tires with worn tread” are a “factor that can contribute to a loss
of grip on the roadway in a curve.” Similarly, a defense expert indicated that
the three worn tires, which he characterized as “in poor condition,” could
have been “a factor that could have contributed or exacerbated [Doane’s] loss
of control” of the truck. As for the evidence that the All Terrain tires
exceeded the manufacturer’s recommended size and the sticker warning
about using oversized tires, we cannot agree with Doane that “[t]his evidence
. . . did not rise to the level of substantial evidence of an actual danger.” As
the Attorney General points out, the sticker cautioned “that using improperly
sized tires could lead to ‘loss of control, roll over[,] and serious injury,’ which
is exactly what happened here.”

15
 Moreover, in arguing that his use of worn and oversized tires was not
grossly negligent, Doane overlooks evidence of other factors that made his
decision to drive with such tires particularly reckless. He was an auto
mechanic, meaning he was in a better position to appreciate the danger of
driving with such tires. The truck was large, making it more likely, as the
sticker cautioned, to cause serious injury in a crash. In addition, Doane had
owned the truck for several years and was presumably familiar with
Highway 84, having lived in San Gregorio for at least three years. Thus,
even if we assume that driving with worn but legal tires or oversized tires is
not negligent standing alone, we agree with the Attorney General that a jury
could reasonably find that driving on worn, oversized tires in a large truck at
a high speed around a curve was grossly negligent.
c. Alcohol consumption
Although Doane admits there was evidence he drank alcohol before the
crash, he claims there was insufficient evidence that it impaired his driving
or rendered his driving grossly negligent. The argument fails.
Doane was charged with gross vehicular manslaughter under
section 192, subdivision (c)(1), not the separate offense of gross vehicular
manslaughter while intoxicated under section 191.5, subdivision (a).
Although the latter offense requires a finding that the defendant was legally
intoxicated, the former does not. Thus, “the relevant question is not whether
[Doane] was impaired at the time of the accident, but whether [he] was acting
with gross negligence.” (People v. Ho (2018) 26 Cal.App.5th 408, 414.)
Although no evidence of Doane’s blood-alcohol level was presented, the jury
could nevertheless rely on the evidence that he had been drinking and that it
affected him to some degree to conclude that he acted with gross negligence.

16
 Specifically, there was substantial evidence that Doane had consumed
both beer and hard alcohol, based on his purchase of beer earlier that day, his
landlord’s testimony about the beer in his apartment, and the testimony of
witnesses at the scene who smelled alcohol on him. There was also
substantial evidence that Doane was impaired, given witness testimony
describing him as “dazed,” “stumbling,” and other similar adjectives. We
agree with the Attorney General that, although such testimony could also
support the conclusion that Doane was impaired because he had just been in
a serious crash, “it was up to the jury to determine the facts, and intoxication
was a reasonable inference.” In turn, the jury could reasonably determine
that driving a vehicle after consuming alcohol was particularly dangerous in
light of the other circumstances discussed above, including the road
conditions. Thus, there was sufficient evidence that Doane acted with gross
negligence by driving after drinking alcohol.
3. Substantial evidence established that Doane’s grossly
negligent conduct caused Jouaux’s death.
Finally, Doane claims that, “to the extent any of his conduct was
grossly negligent, there was no proof that grossly negligent conduct was the
proximate cause of the collision.” He argues that there was insufficient
evidence to prove, among other things, that he “drove onto the shoulder due
to reckless speed as opposed to a momentary lapse of attention or mere
inadvertence”; that “the tires were the proximate cause of the accident”; or
that his “alcohol consumption contributed to the accident or even impaired
his driving in the least.”
Doane misapprehends the concept of causation in this context. Under
section 192, subdivision (d), a defendant cannot be convicted of gross
vehicular manslaughter unless the victim’s death was “a proximate result of
the commission of an unlawful act, not amounting to a felony, or of the

17
commission of a lawful act which might produce death, in an unlawful
manner.” In turn, the predicate act must be committed with gross
negligence. (§ 192, subd. (c)(1).) At least where, as here, the prosecution
relies on numerous circumstances to demonstrate the defendant committed
the act with gross negligence, there is no requirement that each of those
circumstances be proven to have proximately caused the death.
For example, in Ochoa, our state Supreme Court concluded there was
sufficient evidence of gross negligence where the defendant, “(a) having
suffered a prior conviction for driving under the influence of alcohol,
(b) having been placed on probation, (c) having attended traffic school,
including an alcohol-awareness class, and (d) being fully aware of the risks of
such activity,” nevertheless drove while intoxicated, sped, and made other
dangerous driving maneuvers. (People v. Ochoa, supra, 6 Cal.4th at
pp. 1207–1208.) Obviously, the facts that the defendant had a previous DUI
conviction and attended traffic school did not “cause” the victim’s death.
Rather, they demonstrated that in committing the acts that did cause the
death, the defendant was aware of the risks yet “exercised so slight a degree
of care as to exhibit a conscious indifference or ‘I don’t care attitude’
concerning the ultimate consequences of his actions.” (Id. at p. 1208.)
Likewise, the jury here could infer that Doane acted with gross
negligence because, after drinking alcohol, he chose to drive a large truck
with unsafe tires at a significant speed on a twisting, one-lane road,
ultimately losing control of the truck and thereby causing Jouaux’s death.
Substantial evidence supported the conviction for gross vehicular
manslaughter.

18
 B. The Prosecutor Erred in Explaining the Concept of “Innocence” as
Used in the Instruction on Circumstantial Evidence.
Relying on CALCRIM No. 224, Doane’s trial counsel argued that if the
circumstantial evidence could support two reasonable conclusions, that
Doane drove with ordinary negligence or gross negligence, the jury must
conclude he acted with ordinary negligence. Doane argues that the
prosecutor erred by arguing in response that CALCRIM No. 224’s reference
to “innocence” applies only to actual innocence, not guilt of a lesser included
offense. We agree that the prosecutor erred.
1. Additional facts
The jury was instructed in relevant part under CALCRIM No. 224 that,
“before you may rely on circumstantial evidence to find the defendant guilty,
you must be convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant is guilty. If you can draw two
or more reasonable conclusions from the circumstantial evidence, and one of
those reasonable conclusions points to innocence and another to guilt, you
must accept the one that points to innocence.”
In closing argument, Doane’s trial counsel argued to the jury that it
should “take the totality of the evidence surrounding alcohol and take it
through the filter of the circumstantial evidence instruction [i.e., CALCRIM
No. 224]. If you can draw two or more reasonable conclusions from the
circumstantial evidence and one of those reasonable conclusions points to
innocence and another to guilt, you must accept the one that points to
innocence. [¶] . . . [T]he largest circumstantial evidence issue, and really the
heart of this case is whether the circumstantial evidence about everything
shows that Mr. Doane was driving and caused this accident as a result of
ordinary negligence or caused the accident as a result of gross [negligence].”

19
 Subsequently, defense counsel argued, “[I]f you have two reasonable
conclusions and one points to gross negligence and one points to ordinary
negligence [CALCRIM No. 224] requires you to adopt or accept the conclusion
that points to ordinary negligence. Ordinary negligence is innocence for [the]
purpose of making the determination on the gross negligence instruction.”
The prosecutor began her rebuttal by responding to these arguments,
stating, “[W]hat strikes me as one of the most important concepts to []review
with you as the jury is the concept of circumstantial evidence. Strikes me as
odd that at the very end of the defense closing argument you are asked to
follow these instructions exactly as the Court reads them, yet there was an
encouragement to follow an instruction about circumstantial evidence that as
far as I can tell is plucked out of thin air.” After restating the rule that “if
you can draw two or more reasonable conclusions from the circumstantial
evidence, [and] one of those reasonable conclusions to innocence and the
other to guilt, you must accept the one that points to innocence,” she
continued, “[T]his is where I think the defense has asked you to pull a lot
from thin air. First of all, the use of the word innocence. If one of the
reasonable conclusions points to innocence[,] that is the defendant didn’t do
anything wrong, clean hands. This rule does not say if one conclusion points
to the ordinary negligence theory and the other points to the gross negligence
theory you have to pick the ordinary negligence theory conclusion.”
The defense immediately objected that the prosecutor’s argument
“misstate[d] the law,” and the trial court overruled the objection. The
prosecutor then concluded, “[The instruction] doesn’t say that. This says
innocence. So if a conclusion points to both guilt theories, then go with that,
only if a conclusion points to innocence. There is no distinction in this
instruction between the levels of negligence.”

20
 2. Analysis
Prosecutorial error “occurs, as a matter of state law, when a prosecutor
‘engage[s] in deceptive or reprehensible tactics in order to persuade the trier
of fact to convict.’ [Citation.] Federal constitutional error occurs only when
the prosecutor’s actions ‘comprise a pattern of conduct that is serious and
egregious, such that the trial is rendered so unfair that the resulting
conviction violates the defendant’s right to due process of law.’ ” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 853–854.) “ ‘[A] defendant need
not show that the prosecutor acted in bad faith or with appreciation for the
wrongfulness of the conduct, nor is a claim of prosecutorial misconduct
defeated by a showing of the prosecutor’s subjective good faith.’ ” (People v.
Sandoval (2015) 62 Cal.4th 394, 438; Daveggio, at p. 853.)
“ ‘ “[I]t is improper for the prosecutor to misstate the law generally
[citation], and particularly to attempt to absolve the prosecution from its
prima facie obligation to overcome reasonable doubt on all elements.” ’ ”
(People v. Lloyd (2015) 236 Cal.App.4th 49, 62.) When a claim of
prosecutorial error “ ‘focuses upon comments made by the prosecutor before
the jury, the question is whether there is a reasonable likelihood that the jury
construed or applied any of the complained-of remarks in an objectionable
fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960.)
We agree with Doane that the prosecutor misstated the law in
explaining CALCRIM No. 224 to the jury. Specifically, we agree that
“innocence” under CALCRIM No. 224 refers to being not guilty of the charged
crime, not to being not guilty of the charged crime and any lesser included
offenses. (See People v. Wade (1995) 39 Cal.App.4th 1487, 1493
[“ ‘[i]nnocence’ in this jury instruction is used simply to connote a state of
evidence opposing guilt”].) “[W]hen the evidence is sufficient to support a

21
finding of guilt of both the offense charged and a lesser included offense, the
jury must be instructed that if they entertain a reasonable doubt as to which
offense has been committed, they must find the defendant guilty only of the
lesser offense.” (People v. Dewberry (1959) 51 Cal.2d 548, 555; see § 1097.)
As applied here, this principle means that if the circumstantial evidence
supported a reasonable conclusion that Doane acted with gross negligence
but also supported a reasonable conclusion that he acted with only ordinary
negligence, the jury could find him guilty only of misdemeanor vehicular
manslaughter.
In arguing otherwise, the Attorney General misapprehends defense
counsel’s argument below to have been that “if the circumstantial evidence
showed that [Doane] acted with both [ordinary] negligence and gross
negligence,” the jury had to find Doane guilty of only the lesser offense.
(Italics added.) The Attorney General claims that this supposed argument
was incorrect, because by finding that Doane acted with gross negligence, the
jury also necessarily found that he acted with at least ordinary negligence,
but it was still required to return a verdict of guilty on the greater offense.
We agree, of course, that the jury was not required to convict Doane of only
the lesser offense if it concluded beyond a reasonable doubt that he acted
with gross negligence, but that is not what defense counsel urged it to do.
Rather, the more sensible interpretation of defense counsel’s argument—that
the jury should convict of only the lesser offense if it could draw “two
reasonable conclusions and one points to gross negligence and one points to
ordinary negligence”—is that counsel was arguing that the jury could not
convict Doane of gross negligence if it drew one conclusion pointing to gross
negligence and another pointing to only ordinary negligence. As we said
above, this was a correct statement of the law. The prosecutor directly

22
contradicted this correct principle, however, by telling the jury the
instruction “[did] not say if one conclusion points to the ordinary negligence
theory and the other points to the gross negligence theory you have to pick
the ordinary negligence theory conclusion.”
We also conclude that there was a “ ‘reasonable likelihood’ ” the jury
interpreted the prosecutor’s remarks “ ‘in an objectionable fashion.’ ” (People
v. Smithey, supra, 20 Cal.4th at p. 960.) Specifically, it is quite possible that
the jury believed it could find Doane guilty of gross vehicular manslaughter
even if the circumstantial evidence also supported a reasonable conclusion
that he acted with only ordinary negligence. This is because under the
prosecutor’s interpretation of CALCRIM No. 224, a reasonable conclusion
that Doane acted with only ordinary negligence was not a conclusion
“point[ing] to innocence” and therefore not one the jury was required to select
over a reasonable conclusion that he acted with gross negligence. Moreover,
by overruling Doane’s objection to the prosecutor’s argument, the trial court
conveyed to the jury that the prosecutor was correct and the defense
argument to which she was responding was incorrect, increasing the risk that
the jury would accept the prosecutor’s misstatement of the law.
The Attorney General claims that there was no reasonable likelihood
that the jury improperly understood the prosecutor’s argument, because the
parties’ arguments and the trial court’s instructions left no doubt that the
jury’s “main task was to choose between ordinary and gross negligence.”
Thus, the Attorney General argues, “it [was] inconceivable that the jury
thought that the prosecutor was arguing that it could find [Doane] guilty of
gross vehicular manslaughter, or it could find him not guilty, but it could not
find him guilty of the lesser offense of misdemeanor vehicular manslaughter.”
But the problem with the prosecutor’s argument was not that it conveyed

23
that the jury simply could not convict Doane of the lesser offense. Rather, the
problem was that the argument wrongly conveyed that the jury did not need
to convict Doane of only the lesser offense if it concluded that one reasonable
conclusion from the circumstantial evidence was that he acted with only
ordinary negligence. Thus, the jury’s general understanding that it had to
choose between ordinary and gross negligence would not have prevented it
from misapplying the prosecutor’s remarks.
C. The Trial Court Erred in Answering the Jury’s Question Involving
Doane’s Post-collision Behavior.
Doane also claims that the trial court erred in responding to the jury’s
question about whether it could consider his post-crash behavior to establish
gross negligence even if “the accident and conditions leading up to” the crash
constituted only ordinary negligence. We agree.
1. Additional facts
The jury sent the following inquiry to the trial court: “Can we consider
the action of fleeing the scene after the accident and those behaviors as gross
negligence, even if we consider the accident and conditions leading up to it as
ordinary negligence?” Doane’s trial counsel interpreted the question to be
whether the jury could “use . . . the fact there is fleeing and find that [Doane]
was grossly negligent at that point and use that to satisfy the gross
negligence for [the manslaughter count].” Counsel stated he thought the
answer to that question was “no, that the time for assessing the ordinary or
gross negligence for [that count] is the time of the act, not his time of fleeing.”
The prosecutor disagreed that the trial court should answer the jury’s
inquiry in the negative. She proposed that instead, the court should refer the
jury to CALCRIM No. 372 on flight, explaining, “Within that instruction it
tells the jury that [it is] to decide the meaning and importance of the flight
behavior and evidence of flight cannot prove guilt in and of itself. I think if

24
we go beyond that and we start speculating about what the jury’s going to do
with the flight evidence and base [the] instructions to [it] based on our
speculation[,] we’re in dangerous territory.”
Defense counsel responded, “I think that there is a correct legal answer
that we can give . . . beyond just referring [the jurors] to the flight
instruction, and I think it really goes to the [u]nion of [a]ct and [i]ntent issue
and they’re asking whether they can base intent on something that occurred
after the end of the act, and I think the answer to that is clearly no. They’re
saying can we consider the action of fleeing the scene and those behaviors as
gross negligence, and I think the law is that gross negligence or ordinary
negligence is the kind of act.” Counsel argued that if the court merely
referred the jurors to the flight instruction, it would be “inviting them to
consider [the flight] evidence for a purpose it cannot be considered for.”
The prosecutor responded that Doane’s “behavior after the incident
[was] circumstantial evidence of the intent at the time.” Specifically, the
evidence of flight bore on “his regard for human life and the degree to which
he cares about the consequences of his actions,” relevant issues for
determining whether Doane acted with gross negligence. Defense counsel did
not disagree with this point, but he reaffirmed his interpretation of the jury’s
inquiry as “suggest[ing] that [the jurors] . . . already determined the mental
state at the time of the offense and they’re not looking at it for that purpose.
They’re looking at it to judge [Doane’s] mental state after the accident even if
they think he only had ordinary negligence at the time of the accident.”
Ultimately, the trial court decided it was appropriate to re-refer the
jury to the instructions on flight, ordinary negligence, and gross negligence.
Expressing a preference for giving jurors “fairly open-ended answers to
questions like this so that we preserve their right to factually decide what’s

25
happening,” the court stated, “[T]he easy answer would be to say if you
determined the flight occurred it is up to you to decide the meaning and
importance of that conduct, just like the [flight] instruction says, and leave it
at that.” It declined defense counsel’s request to re-refer the jury to the
instruction on the union of act and intent as well, stating, “I don’t think that’s
really what the issue is here. [The jurors are] . . . struggling with how to fit
the flight piece into their analysis in deciding whether the conduct was gross
or ordinary negligence. And so this is a very important question to them
obviously, and important to Mr. Doane and the People, and I don’t want to in
any way tilt the answer toward either side.”
Accordingly, over Doane’s continuing objection, the trial court sent the
following written response to the jury’s inquiry: “The jury must determine if
there was gross or ordinary negligence. See CALCRIM Instructions
[Nos.] 592 [and] 593, and then re-refer to CALCRIM [No.] 372 wherein it
states[,] ‘If you conclude the defendant fled it is up to you to decide the
meaning and importance of that conduct.’ ”
2. Analysis
A trial court is required to “ ‘instruct[] the jury on all the general
principles of law raised by the evidence which are necessary for the jury’s
proper understanding of the case.’ ” (People v. Ramirez (2021) 10 Cal.5th 983,
1035.) A court also has “a general obligation to ‘clear up any instructional
confusion expressed by the jury.’ ” (People v. Dykes (2009) 46 Cal.4th 731,
802 (Dykes).) This obligation arises under section 1138, which provides that
if deliberating jurors “desire to be informed on any point of law arising in the
case, . . . the information required must be given” to them in court.
Thus, “ ‘[w]hen a jury asks a question after retiring for deliberation,
“. . . [s]ection 1138 imposes upon the court a duty to provide the jury with

26
information the jury desires on points of law.” [Citation.] But “[t]his does not
mean the court must always elaborate on the standard instructions.” ’ ”
(People v. Lua (2017) 10 Cal.App.5th 1004, 1016 (Lua).) Rather, if “ ‘the
original instructions are themselves full and complete, the court has
discretion . . . to determine what additional explanations are sufficient to
satisfy the jury’s request for information.’ ” (Dykes, supra, 46 Cal.4th at
p. 802.) On the other hand, “it is generally not acceptable for a trial court to
‘merely repeat for a jury the text of an instruction it has already indicated it
doesn’t understand,’ ” and “the court ‘must at least consider how it can best
aid the jury.’ ” (People v. Franklin (2018) 21 Cal.App.5th 881, 887.)
In general, errors under section 1138 are reviewed for an abuse of
discretion. (Lua, supra, 10 Cal.App.5th at p. 1016.) As Franklin explained,
however, the abuse-of-discretion standard of review applies only to “the
decision to provide [or not provide] further instructions in response to an
inquiry.” (People v. Franklin, supra, 21 Cal.App.5th at p. 887, fn. 4.) “If a
supplemental instruction is given, . . . its correctness presents a question of
law that we review de novo.” (Ibid.; see People v. Posey (2004) 32 Cal.4th 193,
218.) In determining whether the trial court correctly instructed the jury,
“the question is whether there is a ‘reasonable likelihood’ that the jury
understood the charge as the defendant asserts. [Citations.] ‘In addressing
this question, we consider the specific language under challenge and, if
necessary, the charge in its entirety. [Citation.] Finally, we determine
whether the instruction, so understood, states the applicable law correctly.’ ”
(People v. Kelly (1992) 1 Cal.4th 495, 525–526; see Dykes, supra, 46 Cal.4th at
pp. 804–805.)
Doane claims “the trial court committed legal error by permitting the
jury to find that [his] merely negligent driving was grossly negligent based

27
solely on his flight from the scene.” The Attorney General responds that the
instructions given were correct, and the court did not abuse its discretion by
deciding “to refer the jury back to the pattern instructions.” Doane has the
better argument.
To begin with, we agree with Doane that the question at issue
amounted to the jury’s asking whether, “if [the jury] believed the manner in
which [he] drove his truck reflected only ordinary negligence, . . . his
subsequent flight from the scene [could] provide proof of gross negligence so
as to permit a guilty verdict for the felony offense.” Crucially, the jury did
not ask only whether it could “consider the action of fleeing the scene after
the accident and those behaviors as gross negligence,” which might
reasonably be interpreted as a question about whether it could rely on post-
crash acts to infer that Doane acted with gross negligence in causing the
collision. If that had been the jury’s question, we would agree with the
Attorney General that the answer to it was yes. (See Nicolas, supra,
8 Cal.App.5th at p. 1172.) For example, the jury could have relied on Doane’s
failure to aid Jouaux to infer that Doane acted with a conscious disregard for
human life before the crash.
But the jury’s question did not stop there. Instead, the jury went on to
ask whether it could consider Doane’s post-crash behavior to establish gross
negligence “even if [it] consider[ed] the accident and conditions leading up to
it as ordinary negligence.” (Italics added.) In our view, the italicized phrase
is most reasonably interpreted as positing the jury’s premise that Doane
acted with ordinary negligence in causing the crash. Thus, as a whole, the
question asked whether the jury, if it believed that Doane’s actions before the
crash were merely negligent, could nevertheless find Doane guilty of gross
vehicular manslaughter based on his grossly negligent post-crash behavior.

28
 The answer to that question is clearly no. “In every crime or public
offense there must exist a union, or joint operation of act and intent, or
criminal negligence.” (§ 20.) Although “[g]ross vehicular manslaughter has
been characterized as a general intent crime[,] . . . 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 . . . or gross negligence in the commission of a lawful act not
amounting to a traffic violation.” (Nicolas, supra, 8 Cal.App.5th at p. 1173.)
Thus, the unlawful or unsafe act underlying a conviction for gross vehicular
manslaughter must be committed with gross negligence. Here, that meant
the jury had to conclude that when Doane committed the predicate act or
acts—driving at an unlawful or unsafe speed, crossing the double yellow
lines, and/or making an unsafe turning movement—he did so with gross
negligence.
We therefore turn to whether the trial court properly answered the
jury’s question. Doane does not contest that the instructions on flight,
ordinary negligence, and gross negligence to which the court re-referred the
jury were correct as originally given. And we recognize that in many
situations, a court’s decision to re-refer the jury to correct instructions will
not constitute an abuse of discretion under section 1138. (See Dykes, supra,
46 Cal.4th at p. 802; see also People v. Beardslee (1991) 53 Cal.3d 68, 97
[“comments diverging from the standard [instructions] are often risky”].) But
the question at issue suggested that the jury misunderstood the governing
law, and we are not convinced that merely re-referring to instructions already
given in such a circumstance is adequate to “ ‘clear up any instructional
confusion [the jury] expressed.’ ” (Dykes, at p. 802.)

29
 Ultimately, we need not resolve this issue, because the trial court did
not just re-refer the jury to the instructions already given on ordinary
negligence, gross negligence, and flight. Rather, the court directed the jury to
the first two instructions and then re-referred it to only a portion of the flight
instruction. Specifically, the court told the jury to “re-refer to CALCRIM
[No.] 372 wherein it states[,] ‘If you conclude the defendant fled it is up to you
to decide the meaning and importance of that conduct.’ ” In doing so, the
court removed from focus the two other main parts of CALCRIM No. 372 as
given: that flight “may show that [Doane] was aware of his guilt” and that
“evidence that [he] fled cannot prove guilt by itself.”
Those other two parts of CALCRIM No. 372 are crucial, and
particularly so in light of the jury’s question. Our state Supreme Court has
explained that the flight instruction, “ ‘as the jury would understand it, does
not address the defendant’s specific mental state at the time of the offenses,
or [the defendant’s] guilt of a particular crime, but advises of circumstances
suggesting [the defendant’s] consciousness [of having] committed some
wrongdoing.’ [Citation.] We have repeatedly rejected the claim that the
flight instruction ‘permit[s] the jury to draw impermissible inferences about
the defendant’s mind state, or [is] otherwise inappropriate where mental
state, not identity, is the principal disputed issue.’ ” (People v. Loker (2008)
44 Cal.4th 691, 705–707 [interpreting CALJIC 2.52]; see People v. Nicolaus
(1991) 54 Cal.3d 551, 579–580 [“ ‘reasonable juror would understand
“consciousness of guilt” to mean “consciousness of some wrongdoing” rather
than “consciousness of having committed the specific offense charged” ’ ”].) In
addition, the instruction’s caution that flight is not enough to establish guilt
“ ‘clearly impl[ies] that the evidence is not the equivalent of a confession and
is to be evaluated with reason and common sense.’ ” (Nicolaus, at pp. 579–

30
580.) In other words, Doane’s flight from the scene was relevant to prove
that he was aware he had done something wrong, but it was not relevant to
establish that he was aware of or effectively admitted to having acted with
gross negligence as opposed to ordinary negligence.
The trial court recognized this principle in discussing how to answer
the jury’s question, stating that “consciousness of guilt” did not refer to
consciousness of the distinction between gross and ordinary negligence. Yet
when removed from its context, the portion of CALCRIM No. 372 informing a
jury “that it is up to you to decide the meaning and importance of” a
defendant’s flight contradicts this principle, because it reads as broadly
authorizing the jury to rely on evidence of flight for any purpose the jury
deems appropriate. Here, the jury was specifically asking whether it could
convict Doane of gross vehicular manslaughter based on post-crash behavior,
including flight, that it deemed grossly negligent. Under the circumstances,
we conclude there is a reasonable likelihood that the jury interpreted the
court’s answer to mean that it could.
In reaching this conclusion, we reject the Attorney General’s argument
that we “should assume that the jury reviewed the relevant instructions and
realized that gross vehicular manslaughter required [it] to find that [Doane]
committed the act that caused Jouaux’s death ‘with gross negligence.’ ” The
Attorney General relies on the principle that jurors are generally assumed to
be “ ‘ “intelligent persons and capable of understanding and correlating all
jury instructions which are given.” ’ ” (People v. Ramos (2008)
163 Cal.App.4th 1082, 1088.) But here, as the Attorney General recognizes,
the jury’s question signaled that it did not understand a key rule on which it
had already been instructed. Where a jury has expressed confusion about a
legal principle, it is no longer appropriate to assume that the jury can just

31
“figure it out” from the instructions as a whole. Instead, the focus must be on
whether the trial court’s answer was sufficient to dispel the confusion. (See
Dykes, supra, 46 Cal.4th at p. 802.) Here, it was not.
D. The Errors Were Cumulatively Prejudicial.
To summarize, the prosecutor erred in closing argument by incorrectly
explaining the instruction on circumstantial evidence, and the trial court
erred in answering the jury’s question about whether it could rely on post-
crash gross negligence to convict. The cumulative impact of these errors was
prejudicial.
As an initial matter, the parties disagree about the appropriate
standard for assessing prejudice. Doane argues that the prosecutorial error
rendered the trial unfair such that it violated his federal right to due process.
(See People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 854.) He claims
that the trial court’s answer to the jury’s question also violated his federal
rights by presenting the jury with a “legally incorrect” alternate theory of
liability. (See People v. Aledamat (2019) 8 Cal.5th 1, 8, 12–13.) The Attorney
General, on the other hand, argues that the state-law standard for assessing
prejudice applies to both claims, likening the prosecutor’s improper
comments to a failure to instruct on misdemeanor vehicular manslaughter.
(See People v. Breverman (1998) 19 Cal.4th 142, 165 [failure to instruct on
lesser included offense]; Lua, supra, 10 Cal.App.5th at p. 1017 [failure to
answer jury’s question adequately].)
We need not resolve this conflict, because we conclude that the errors
were prejudicial even under the more forgiving state-law standard of People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson). “Under the cumulative error
doctrine, the reviewing court must ‘review each allegation and assess the
cumulative effect of any errors to see if it is reasonably probable the jury

32
would have reached a result more favorable to the defendant in their
absence.’ [Citation.] When the cumulative effect of errors deprives the
defendant of a fair trial and due process, reversal is required.” (People v.
Williams (2009) 170 Cal.App.4th 587, 646.) A cumulative-error analysis is
particularly appropriate in this case because the two errors both made it less
likely the jury would conclude that Doane acted with ordinary negligence.
(See, e.g., People v. Hill (1998) 17 Cal.4th 800, 847; People v. Holt (1984)
37 Cal.3d 436, 458–459; People v. Jandres (2014) 226 Cal.App.4th 340, 361.)
Here, the question is whether it is reasonably probable that, absent the
errors, at least one juror would have voted to acquit Doane of gross vehicular
manslaughter. (See People v. Soojian (2010) 190 Cal.App.4th 491, 520–521
[hung jury more favorable result than guilty verdict under Watson].) In turn,
a vote for acquittal of gross voluntary manslaughter would require a finding
that Doane acted with only ordinary negligence in causing the collision.
The Attorney General claims that the errors were not prejudicial
primarily because there was ample evidence of gross negligence, given
Doane’s “multiple substantive acts of negligence, including intoxication,
speeding, looking at his cell phone while navigating a curve, and oversteering
into the oncoming lane.” As discussed above, we agree there was substantial
evidence of several circumstances that the jury could have relied on to
conclude that Doane acted with gross negligence. But we disagree that the
evidence of gross as opposed to ordinary negligence was particularly strong.
Among other things, there was significant evidence that Doane was not
exceeding the speed limit by much, and there was little evidence that his
alcohol consumption actually impaired his driving.
More importantly, the jury’s question raised a real possibility that it
believed Doane acted with only ordinary negligence in causing the crash. But

33
the errors improperly conveyed to the jury that it (1) did not have to resolve
its doubts between gross and ordinary negligence in favor of ordinary
negligence and (2) could rely on post-crash gross negligence to convict even if
it believed Doane acted with ordinary negligence before the crash. In this
context, we conclude there is a reasonable probability that at least one of the
jurors would have voted to acquit Doane of gross vehicular manslaughter had
the errors not occurred.
Accordingly, Doane’s conviction of gross vehicular manslaughter must
be reversed. Because sufficient evidence supported that conviction, the
People may retry him on this charge. But if they do not elect to do so, the
judgment shall be modified to reflect a conviction of misdemeanor vehicular
manslaughter. Where, as here, “ ‘ “the prejudicial error goes only to the
degree of the offense for which the defendant was convicted, the appellate
court may reduce the conviction to a lesser degree and affirm the judgment as
modified, thereby obviating the necessity for a retrial.” ’ ” (People v.
Millbrook (2014) 222 Cal.App.4th 1122, 1151.) Should the judgment be so
modified, the enhancement for fleeing the scene under Vehicle Code
section 20001, subdivision (c), must also be stricken, because it does not apply
to misdemeanor vehicular manslaughter. (See Veh. Code, § 20001, subd. (c);
§ 192, subd. (c)(1) & (2).)
E. The Trial Court Had No Duty to Instruct Sua Sponte on
Unconsciousness as a Defense to Fleeing the Scene.
Finally, Doane claims that the trial court had a duty to instruct sua
sponte on a defense of unconsciousness as it pertained to the charge of fleeing
the scene after the collision.6 We are not persuaded.

Although Doane did not request a separate instruction on
6

unconsciousness, he did request that bracketed language involving
unconsciousness be given with CALCRIM No. 2140, the instruction on

34
 “Evidence raising a reasonable doubt as to whether the defendant was
conscious at the time of acting is a complete defense to a criminal charge,” so
long as the unconsciousness is not due to voluntary intoxication. (People v.
James (2015) 238 Cal.App.4th 794, 804–805 (James); People v. Halvorsen
(2007) 42 Cal.4th 379, 416 (Halvorsen).) “To constitute a defense,
unconsciousness need not rise to the level of coma or inability to walk or
perform manual movements; it can exist ‘where the subject physically acts
but is not, at the time, conscious of acting.’ ” (Halvorsen, at p. 417.) It is
presumed “that a person who appears to act in an apparent state of
consciousness is conscious. [Citation.] Therefore, the burden is on a criminal
defendant to produce evidence rebutting this presumption of consciousness.”
(James, at p. 804.)
A trial court “must instruct on an affirmative defense, specifically
including unconsciousness, even in the absence of a request, ‘if it appears the
defendant is relying on such a defense, or if there is substantial evidence
supportive of such a defense and the defense is not inconsistent with the
defendant’s theory of the case.’ ” (People v. Boyer (2006) 38 Cal.4th 412, 469.)
A court has no obligation, however, to give an instruction that is not
supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1,
39–40 [“ ‘unsupported theories should not be presented to the jury’ ”].) “In
determining whether the evidence is sufficient to warrant a jury instruction,
the trial court does not determine the credibility of the defense evidence, but
only whether ‘there was evidence which, if believed by the jury, was sufficient
to raise a reasonable doubt.’ ” (People v. Salas (2006) 37 Cal.4th 967, 982.)

leaving the scene under Vehicle Code section 20001. In denying the request,
the trial court stated that “there was no evidence to show [Doane] was
unconscious or disabled” or “in shock.” Doane does not challenge this ruling
on appeal.

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Thus, “[i]f the defense presents substantial evidence of unconsciousness, the
trial court errs in refusing to instruct on its effect as a complete defense.”
(Halvorsen, supra, 42 Cal.4th at p. 417.) We review de novo “a claim that a
court failed to properly instruct on the applicable principles of law.”
(People v. Martin (2000) 78 Cal.App.4th 1107, 1111.)
Although Doane separately argues that (1) he actually relied on an
unconsciousness defense and (2) substantial evidence supported the defense,
the ultimate issue is whether there was sufficient evidence of
unconsciousness. (See People v. Marshall, supra, 15 Cal.4th at pp. 39–40.)
We conclude there was not.
Doane claims that the serious injury to his hand, combined with
witness testimony about his demeanor immediately after the crash,
“permitted the inference that [he] lacked awareness of his conduct in leaving
the scene as a result of both the physical trauma from the accident and the
emotional trauma of witnessing its aftermath.” He also argues that “[e]ven
the manner in which he left [the scene] suggested unconsciousness,” as “[h]e
did not run, as though fleeing the scene, but walked slowly away, more
reminiscent of a robot or zombie-like character than a person cognizant of
what he was doing.”
In our view, the record lacks key evidence that would generally support
an unconsciousness defense. To begin with, there was no expert testimony
relevant to Doane’s mental state after the crash. Indeed, the trial court
excluded the defense’s proffered testimony from an emergency room doctor
who would have opined that Doane could have experienced symptoms of
dissociation after the collision, and the court likewise precluded testimony
that Doane was in “shock.” The court concluded that testimony about
potential conditions the crash may have caused in Doane lacked foundation,

36
because it was not linked to medical evidence about Doane himself, who was
not seen by a doctor until the following day. Doane does not challenge these
rulings on appeal.
Even if we were to agree with Doane that expert testimony is not
always necessary to support an unconsciousness defense, the record also
lacks any statements by Doane himself about his mind state after the
collision. Rather, the only evidence that possibly supported the defense was
the testimony of witnesses who observed Doane’s behavior at the scene.
Although Doane relies on James to suggest that such evidence alone may
require an unconsciousness instruction, the decision does not support this
proposition.
In James, Division Four of this court concluded that an instruction on
the defense was warranted where “ample evidence” suggested the appellant,
who was charged with aggravated mayhem after he bit the victim, acted
unconsciously. (James, supra, 238 Cal.App.4th at pp. 800, 809–810.) The
decision recited that the appellant was seen climbing the building where the
victim lived and “ ‘crashing his head into cars and garbage cans.’ ” (Id. at
p. 810.) In addition, once a police officer arrived, the “appellant was never
responsive to [the officer’s] commands, and was mumbling incoherently.”
(Ibid.) But unlike in this case, there was expert testimony about the
appellant’s mind state, which our colleagues also relied on in concluding the
evidence required an unconsciousness instruction. Specifically, a clinical
psychologist “testified that [the] appellant had suffered from a seizure
disorder since age 17 and was experiencing a severe psychotic episode”
during the incident, during which he “ ‘did not have awareness of what took
place.’ ” (Id. at p. 798.)

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 We cannot agree with Doane that although James cited expert
testimony in concluding there was substantial evidence of unconsciousness,
the decision did not thereby “suggest[] that the instruction would not have
been required but for that testimony.” To the contrary, the James expert
provided crucial testimony that the appellant experienced a medical crisis
during which he was not aware of his actions. Here, in contrast, while
witnesses observed behavior that was consistent with the conclusion that
Doane was unconscious, unconsciousness was hardly the only or even a likely
explanation for such behavior. Without evidence more directly illuminating
Doane’s state of mind, lay testimony about his demeanor at the scene was
insufficient evidence from which to infer that he was, in fact, unconscious.
Moreover, while witnesses observed Doane’s disorientation and
confusion immediately after the crash, the evidence suggested he recovered
somewhat before leaving the scene. Significantly, Kevin M. testified that
when he tried to calm Doane and get him to sit down, Doane was firm in
telling the other man to let him go. In addition, another witness testified
that Doane seemed like “he was going somewhere and wanted to go fast”
when he walked into the woods. The “purposive nature of his conduct”
suggests that by the time Doane left the scene, he was aware of his actions.
(Halvorsen, supra, 42 Cal.4th at p. 418.) Thus, even if lay testimony about a
defendant’s behavior could constitute substantial evidence of unconsciousness
in a given case, the testimony here was insufficient to permit a reasonable
inference that Doane was unconscious when he left the scene.
Even if the evidence had warranted an instruction on unconsciousness,
the omission was harmless beyond a reasonable doubt, and there is no
reasonable probability that the error affected the result. (Chapman v.
California (1967) 386 U.S. 18, 24; Watson, supra, 46 Cal.2d at p. 836; see

38
People v. Watt (2014) 229 Cal.App.4th 1215, 1219–1220 [unsettled which
standard of prejudice applies to failure to instruct on affirmative defense].)
There was no question that Doane left the scene of an accident causing death
without fulfilling the required duties, including rendering reasonable
assistance to the victim. (See Veh. Code, §§ 20001, subd. (a), 20003, subd. (a),
20004.) Thus, as the Attorney General puts it, the only issue “was whether
[Doane] knew what he was doing.” We agree with the Attorney General that
there was strong evidence that Doane did know what he was doing, including
that he communicated clearly with witnesses at the scene, walked
purposefully into the woods, and managed to make it home through rough
terrain. Thus, any error in failing to instruct on unconsciousness was not
prejudicial.
III.
DISPOSITION
The conviction for leaving the scene of an accident under Vehicle Code
section 20001, subdivision (a), is affirmed. The conviction for gross vehicular
manslaughter under Penal Code section 192, subdivision (c)(1), is reversed,
and the sentence is vacated in its entirety. If the People elect not to retry
Doane for gross vehicular manslaughter under Penal Code section 192,
subdivision (c)(1), the judgment shall be modified to (1) reflect Doane’s
conviction for misdemeanor vehicular manslaughter under Penal Code
section 192, subdivision (c)(2), instead of gross vehicular manslaughter and
(2) strike the enhancement for fleeing the scene under Vehicle Code
section 20001, subdivision (c). In the event the judgment is so modified, the
trial court shall resentence Doane accordingly.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Sanchez, J.

People v. Doane A153709

40
Trial Court:

Superior Court of the County of San Mateo

Trial Judge:

Hon. Mark R. Forcum

Counsel for Defendant and Appellant:

David L. Polsky, under appointment by the Court of Appeal

Counsel for Plaintiff and Respondent:

Xavier Bacerra, Attorney General

Lance E. Winters, Chief Assistant Attorney General

Jeffrey M. Laurence, Senior Assistant Attorney General

René A Chacón, Supervising Deputy Attorney General

David M. Baskind, Deputy Attorney General

People v. Doane A153709

41