What is the test for a jury to convict a defendant of gross vehicular manslaughter while intoxicated?

^13. Defendant relies on People v. Soledad (1987) 190 Cal.App.3d 74 (Soledad) but the case has no application here. In Soledad, defendant was convicted of gross vehicular manslaughter while intoxicated, pursuant to Penal Code section 192, subdivision (c)(3) (now defined in Penal Code section 191.5). Penal Code section 192 then defined the offense as driving a vehicle under the influence of alcohol or drugs [in violation of section 23152 or 23153 of the Vehicle Code] and required as elements " '[d]riving a vehicle in violation of [Vehicle Code] section 23152 [influence of alcohol or drugs] or 23153 [influence of alcohol and drugs causing bodily injury to person other than driver] of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in violation of section 23152 or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.' " (Soledad, supra, at p. 80.) The Soledad court noted that to prove the offense the prosecution had to show defendant (1) drove a vehicle in the commission of an "unlawful act" not amounting to a felony with gross negligence and (2) drove the vehicle in violation of Vehicle Code section 23152 or 23153. (Soledad, supra, at pp. 81-82.) Reversing defendant's conviction on the ground of instructional error, the Soledad court concluded "the jury was neither instructed nor advised at anytime that it must make a finding on the unlawful act element of vehicular manslaughter," in addition to finding defendant drove the vehicle in violation of Vehicle Code section 23152 or 23153. (Soledad, supra, at p. 83.) No such omission occurred here. The jury was instructed that to prove defendant guilty of gross vehicular manslaughter, the prosecution had to prove defendant drove the vehicle in the commission of a misdemeanor or infraction (i.e., an unlawful act not amounting to a felony) with gross negligence. Thus, the instruction was free of the defect identified in Soledad because the jury was required to make a finding on the unlawful act element of the offense.