1

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,

v.

TOM SHELTON DOANE,

Defendant and Appellant.

 A153709

 (San Mateo County

 Super. Ct. No. 16-SF-003726)

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 vehicularmanslaughter 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. 
2

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. 
3

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 

2 Evidence 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.” 
4

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 headon.” 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 
5

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 
6

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 
7

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 
8

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. 
9

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 
10

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.
11

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. 
12

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 
13

“ ‘ “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. 
14

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.)
15

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.”
16

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. 
17

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 
18

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.
19

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].” 
20

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.” 
21

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 
22

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 
23

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 
24

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 
25

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 
26

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 
27

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 
28

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 postcrash 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.
29

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.)
30

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–
31

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
32

“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 postcrash 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 
33

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 
34

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.

6 Although Doane did not request a separate instruction on 

unconsciousness, he did request that bracketed language involving 

unconsciousness be given with CALCRIM No. 2140, the instruction on 
35

“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.
36

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, 
37

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.) 
38

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 
39

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.
40

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Sanchez, J.

People v. Doane A153709
41

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