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People v. Calhoun11/2/2004
hter offenses. At his sentencing, Calhoun argued the trial evidence showed his guilt on the two counts of vehicular manslaughter with gross negligence was derivative and imputed to him for aiding and abetting Waller's commission of those offenses. By imposing the section 20001, subdivision (c) enhancements on Calhoun, the trial court implicitly denied Calhoun's Penal Code section 995 motion. [FN5]
FN5. Neither Calhoun nor the People cite any portion of the record showing the trial court expressly denied Calhoun's Penal Code section 995 motion.
B
Section 20001, subdivision (c) provides:
"A person who flees the scene of the crime after committing a violation of Section 191.5 of, paragraph (1) or (3) of subdivision (c) of Section 192 of, or subdivision (a) or (c) of Section 192.5 of, the Penal Code, upon conviction of any of those sections, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision." (Italics added.)
Under Penal Code section 192, manslaughter is defined as the unlawful killing of a human being without malice and consists of three types, including vehicular manslaughter, which includes:
"(c)(1) Except as provided in [Penal Code] Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to 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. [ ] ... [ ]
(3) Driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence." [FN6] (Pen.Code, § 192, subd. (c), italics added.)
FN6. Penal Code section 191.5 defines the offense of gross
vehicular manslaughter while intoxicated.
*1039 In closing argument, the prosecutor argued Calhoun was guilty of the vehicular manslaughter with gross negligence charges because Waller's commission of those offenses was a natural and probable consequence of Waller's commission of an unlawful speed contest that Calhoun aided and abetted. [FN7] The trial court instructed the jury on the principles of aiding and abetting the commission of a crime, including **542 a modified version of CALJIC No. 3.02:
FN7. The prosecutor alternatively argued Calhoun was guilty of vehicular manslaughter with gross negligence because he directly and actively participated in the unlawful speed contest.
"[A]s to defendant Calhoun only, you are instructed as follows:
"One who aids and abets another in the commission of a crime or crimes is not only guilty of that crime or those crimes, but is also guilty of any other crime committed by the principal which is a natural and probable consequence of the crimes originally aided and abetted.
"So, in order to find defendant Lawrence Lamont Calhoun guilty of the [two vehicular manslaughter with gross negligence and other charged offenses] with respect to aiding and abetting, you must be satisfied beyond a reasonable doubt that:
"1. The crime of speed contest, in violation Vehicle Code section 23109 [, subdivision] (a) was committed;
"2. That the defendant aided
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