Criminal Defense of Immigrants
§ 6.4 A. Working with Immigration Counsel
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In general, criminal defense counsel should be working from the very beginning of the case with immigration counsel experienced with criminal issues. See § § 3.42, ff., supra.
CAL CRIM DEF " PRACTICE ADVISORY " GROSS NEGLIGENCE IN CALIFORNIA
Penal Code 191.5(a), gross vehicular manslaughter while intoxicated, arguably involves insufficient intent to qualify as a crime of violence aggravated felony, crime of domestic violence, or crime of moral turpitude. Penal Code 191.5, by its terms, and in CALCRIM 590, requires the prosecution prove the following elements: The defendant drove under the influence While driving UI the defendant also committed a misdemeanor, infraction, or otherwise lawful act that might cause death With gross negligence, and The grossly negligent conduct caused the death of another. Because there is a strong argument that this offense involves conduct that is grossly negligent, as opposed to intentional, this offense may not qualify as a crime of violence aggravated felony, crime of domestic violence, or crime of moral turpitude. The relevant jury instruction, CALCRIM 590 defines gross negligence as follows: Gross negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with gross negligence when: He or she acts in a reckless way that creates a high risk of death or great bodily injury; and A reasonable person would have known that acting in that way would create such a risk. (Emphasis added). In other words, a person acts with gross negligence when the act creates a high risk of death or GBI, but was unaware of it, even though a reasonable person would have known of the risk. See People v. Thompson (2000) 79 Cal. App. 4th 40 (drivers conduct in using drugs and alcohol, speeding and driving unsafely on a mountain road, swerving into an oncoming lane, and failing to have the passenger wear a seatbelt, amounted to gross negligence); People v. Hansen (1992) 10 Cal. App. 4th 1065 (gross negligence found where driver ignored requests to slow down and a request by a passenger for help in finding the seatbelt); People v. Bennett (1991) 54 Cal.3d 1032 (gross negligence may be based upon the overall circumstances of the drivers intoxication, and the level of intoxication is an integral aspect of the driving conduct). Thanks to Daniel G. DeGriselles.