Wattier

Brandon Matthew Wattier appeals the judgment sending him to prison for four years for vehicular manslaughter. (See Pen. Code, § 192, subd. (c)(1).) Wattier contends on appeal that the trial court erroneously excluded evidence of the victim’s failure to use a seat belt and then erred by not instructing sua sponte on the lesser included offense of vehicular manslaughter without gross negligence. He also argues the court committed reversible error by ordering the jury to further deliberate after polling revealed that one juror expressed misgivings about the verdict. We affirm.

Facts

Wattier drove a white Mercury Merkur in the evening hours of October 9, 1993, in a dangerous and erratic fashion. He was speeding up to 85 miles an hour, darting between traffic without signaling and tailgating other motorists on the freeway. The traffic was busy and thick, but it still flowed at 65 miles an hour. The weather was clear and dry, and no obstructions existed on the road.

Wattier approached a red Forerunner, driven by Matthew Keene, zoomed in close and began flashing his lights at him. The traffic prevented Keene from moving immediately, and Wattier remained dangerously close to…