I respectfully dissent. I agree the trial court erred in instructing the jury a violation of the basic speed law is an act inherently dangerous to human life, thereby relieving the People of their burden to prove beyond a reasonable doubt one of the factual elements for a finding of implied malice necessary to support the conviction of Jose Raul Vanegas for second degree murder. (See People v. Flood (1998) 18 Cal.4th 470, 482 [76 Cal.Rptr.2d 180, 957 P.2d 869] [instruction that individuals in motor vehicle pursuing defendant were “peace officers” in prosecution under Vehicle Code section 2800.3 violated defendant’s due process right to have the jury determine each element of the charged offense].) However, when viewed in light of the evidence and in context with all other instructions given in this case, I do not believe the error was prejudicial. (Flood, at pp. 502-503, 507 [instructional error that improperly describes or omits an element of an offense or that raises an improper presumption falls within the broad category *606of error subject to harmless error review under Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]; such instructional error may be found harmless when “there is no possibility that the error affected the result”].)
The trial court instructed the jury, pursuant to CALJIC No. 8.31, that the unlawful killing of a human being is murder of the second degree when “1. The killing resulted from an intentional act, [][] 2. The natural consequences of the act are dangerous to human life, and [][] 3. The act was deliberately performed with knowledge of the danger to, and conscious disregard for, human life.” The court further instructed the jury, pursuant to CALJIC No. 8.90, that vehicular manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)) was a lesser included offense of second degree murder and that this offense required proof Vanegas, while driving, had unintentionally caused the death of another human being by “committing] with gross negligence an unlawful act not amounting to a felony, which under the circumstances of its commission was dangerous to human life, namely a violation of Vehicle Code Section 22350 [the basic speed law].”1 Because the jury convicted Vanegas of second degree murder rather than vehicular manslaughter with gross negligence, it necessarily found Vanegas had acted intentionally with both knowledge of and conscious disregard for the danger to human life created when he drove through the alley while intoxicated and at an excessive speed. Notwithstanding the erroneous instruction regarding the effect of violating the basic speed law, therefore, the jury must have made its own independent determination that Vanegas’s driving in fact endangered the safety of others and that he was actually aware of or consciously disregarded that danger.
Overwhelming evidence supports the jury’s finding. The criminalist testified, based on Vanegas’s blood-alcohol level following his arrest, that at the time he struck Murillo, Vanegas had a blood-alcohol level between .21 and .26 percent—two-and-one-half to three times the legal limit. Although the defense’s accident reconstruction expert opined that Vanegas had been driving only 15 or 16 miles per hour down the narrow alley, in itself a violation of the basic speed law, one of the eyewitnesses to the incident testified Vanegas was driving at a much greater speed. A second eyewitness, Rosa Oliva, testified she saw Vanegas enter the alley in his pickup truck, accelerate as he drove up an incline and force Sifredo Murillo against a utility pole as the *607truck veered left. Vanegas then reversed the truck and accelerated once again, continuing to press Murillo against the pole as he did so. Moreover, on leaving the alley, Vanegas drove wildly and almost struck a police car.
Under these circumstances I believe there is no possibility the court’s erroneous instruction affected the outcome of the trial. (People v. Flood, supra, 18 Cal.4th at pp. 505, 507 [“in view of the actual verdict returned by the jury in this case there is no reasonable or plausible basis for finding that the instructional error affected the jury’s verdict”]; see People v. Frazier (2001) 89 Cal.App.4th 30, 38 [107 Cal.Rptr.2d 100] [“the issue under Chapman is whether the jury actually rested its verdict on evidence establishing beyond a reasonable doubt the presumed fact . . . independently of the presumption .... [Citation.] We approach this inquiry by asking whether the force of the evidence considered by the jury in accordance with its instructions ‘is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption.’ ”].) Accordingly, I would affirm the judgment.
A petition for a rehearing was denied February 25, 2004, and respondent’s petition for review by the Supreme Court was denied April 28, 2004. Werdegar, J., did not participate therein. Baxter, J., was of the opinion that the petition should be granted.
The trial court also instructed the jury, pursuant to CALJIC No. 8.90, that negligent vehicle manslaughter (Pen. Code, § 192, subd. (c)(2)) was a lesser included offense to vehicle manslaughter with gross negligence and explained that to prove this crime the People were required to prove Vanegas had unintentionally killed another person by committing an unlawful act not amounting to a felony that “under the circumstances of its commission was dangerous to human life, namely a violation of Vehicle Code Section 22350, the Basic Speed Law.”