Ochoa

*1202 Opinion

Alberto Ochoa was convicted of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and one count of hit-and-run driving (Veh. Code, § 20001). He argued on appeal, among other contentions, that irrelevant and prejudicial evidence of his prior conviction for driving under the influence, his probationary status, and his attendance at an alcohol awareness class, was improperly admitted at trial, and that there was insufficient evidence of his gross negligence. The Court of Appeal, by a two-to-one vote, agreed with defendant, reversed defendant’s gross vehicular manslaughter convictions and remanded for resentencing for the less serious offense of vehicular manslaughter (Pen. Code, § 192, subd. (c)(3)). We disagree and will remand to the Court of Appeal for resolution of certain unresolved appellate issues.

Facts

The following facts, with minor modifications, are adopted from the Court of Appeal opinion in this case. On Sunday, September 2, 1990, defendant and his family attended a barbecue at his sister-in-law’s house in Corona. They brought three 12-packs of beer, which were consumed by four adults during the course of the…

I concur in the decision to reverse the judgment of the Court of Appeal because, in my view, the *1209 evidence supports the trial court’s finding of gross negligence. However, I disagree with the majority’s conclusion that evidence of the defendant’s subjective awareness of the risk was admissible on that issue.

The majority acknowledges, as it must (People v. Bennett (1991) 54 Cal.3d 1032, 1036 [ 2 Cal.Rptr.2d 8 , 819 P.2d 849 ]; People v. Watson (1981) 30 Cal.3d 290, 296 [ 179 Cal.Rptr. 43 , 637 P.2d 279 ]), that gross negligence has an objective definition. To be precise, gross negligence is conduct that, when judged by the standards of an objectively reasonable person, reflects so slight a degree of care as to warrant the presumption that the actor was indifferent to the welfare of others. (People v. Watson, supra, 30 Cal.3d at p. 296 ; see also People v. Bennett, supra, 54 Cal.3d at p. 1036 .)

Having thus tipped its hat to precedent, the majority then essentially ignores it by redefining the objectively reasonable person as one who shares the defendant’s subjective knowledge. The majority attempts to justify this by misinterpreting language in People v. Bennett (supra, 54…

Alberto Ochoa was convicted of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and one count of hit-and-run driving (Veh. Code, § 20001). He argued on appeal, among other contentions, that irrelevant and prejudicial evidence of his prior conviction for driving under the influence, his probationary status, and his attendance at an alcohol awareness class, was improperly admitted at trial, and that there was insufficient evidence of his gross negligence. The Court of Appeal, by a two-to-one vote, agreed with defendant, reversed defendant's gross vehicular manslaughter convictions and remanded for resentencing for the less serious offense of vehicular manslaughter (Pen. Code, § 192, subd. (c)(3)). We disagree and will remand to the Court of Appeal for resolution of certain unresolved appellate issues.

The following facts, with minor modifications, are adopted from the Court of Appeal opinion in this case. On Sunday, September 2, 1990, defendant and his family attended a barbecue at his sister-in-law's house in Corona. They brought three 12-packs of beer, which were consumed by four adults during the course of the…