930 P.2d 131 (1996) 122 N.M. 596

STATE of New Mexico, Plaintiff-Petitioner,
v.
Kenneth YARBOROUGH, Defendant-Respondent.

No. 23218.

Supreme Court of New Mexico.

November 27, 1996.

Tom Udall, Attorney General, M. Anne Wood, Assistant Attorney General, Santa Fe, for Petitioner.

T. Glenn Ellington, Chief Public Defender, Susan Roth, Assistant Public Defender, Santa Fe, for Respondent

Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, P.A. Charles W. Daniels, Albuquerque, for amici curiae NMCDLA, NMTLA, NMDLA, & NACDL.

OPINION

RANSOM, Justice.

1. A van driven by Kenneth Yarborough collided with a parked car, killing one of its occupants, Steven Kumagai, and injuring two other people. Yarborough was charged with homicide by vehicle by reckless driving. NMSA 1978, § 66-8-101 (Repl.Pamp.1994) (homicide by vehicle); NMSA 1978, § 66-8-113 (Repl.Pamp.1994) (reckless driving). He also was charged with two counts of great bodily harm by vehicle. NMSA 1978, § 66-8-101(B) (bodily injury by vehicle); NMSA 1978, § 30-1-12 (Repl.Pamp.1994) (defining "great bodily harm"). He was acquitted of all these charges. However, he was convicted of involuntary manslaughter by careless driving, on which the jury was instructed as a lesser-included offense of homicide by vehicle *132 by reckless driving. NMSA 1978, § 30-2-3(B) (Repl.Pamp.1994) (manslaughter); NMSA 1978, § 66-8-114(B) (Repl. Pamp.1994) (careless driving).

2. Yarborough appealed this conviction to the Court of Appeals, arguing that a showing of criminal negligence, not the mere imprudence of careless driving, is required for a fourth-degree-felony conviction of involuntary manslaughter. He argued, further, that the specific homicide by vehicle statute, under which he was acquitted, precluded prosecution under the general involuntary-manslaughter statute under which he was convicted in this fatal vehicular accident. The Court of Appeals agreed with both arguments and reversed the conviction. State v. Yarborough, 120 N.M. 669, 905 P.2d 209 (Ct.App.), cert. granted, 120 N.M. 636, 904 P.2d 1061 (1995). We granted the State's petition for certiorari pursuant to NMSA 1978, Section 34-5-14 (Repl.Pamp.1990). We now affirm the Court of Appeals.^[1]

3. Facts and proceedings. This case involves a multiple-car accident on Interstate 25 between Santa Fe and Albuquerque. At about one o'clock in the morning, Angelita Castillo entered the southbound lanes of the interstate heading north, apparently under the mistaken impression that she was on a frontage road. She sideswiped the vehicle of Gretchen Bright who was southbound. Castillo's vehicle came to rest in the middle of the southbound lanes, with its headlights pointing north toward oncoming traffic. Bright's vehicle came to rest on the west shoulder. Neither woman was significantly injured, and both exited their vehicles and began to argue.

4. Jill Cornell pulled up and parked her car partially on the west shoulder. John Coriz also arrived on the scene and parked his car off the road. He then tried to calm Castillo and Bright, instructing them not to move their vehicles. Castillo and Coriz argued about whether Castillo's car should be moved from the center of the road. Brenda Kumagai was southbound with her three sons. She saw the accident scene from approximately one mile away, approached with caution, and stopped well short of the scene. Kumagai then slowly moved closer, pulling behind Cornell's car. She parked partially on the west shoulder, and partially in the roadway. Kumagai tried to speak to Coriz, but he immediately began to waive his arms and scream at another approaching vehicle.

5. Kenneth Yarborough and his girlfriend, Victoria Bertch, were traveling south towards Albuquerque in his van. Yarborough testified that he did not see the accident until he was within a couple hundred feet and that he decided not to apply his brakes because he believed he would have more control if they did not lock. He tried to drive through the accident scene and his van struck the back of Kumagai's stationwagon at an estimated speed of fifty-four to sixty-two miles per hour, knocking the stationwagon into Cornell's car. Four-year-old Steven Kumagai was in the back of the Kumagai stationwagon and died shortly after the accident as a result of severe head and neck injuries.

6. Yarborough failed a field sobriety test administered by a police officer. Several witnesses testified that Yarborough appeared intoxicated. A partially filled bottle of vodka and plastic cups filled with ice and vodka were found in the van. Yarborough was indicted on one count of homicide by vehicle, § 66-8-101(A), and, for injuries to Gretchen Bright and Brenda Kumagai, two counts of great bodily harm by vehicle, § 66-8-101(B); § 30-1-12. At his jury trial, Yarborough admitted that he did not "attend to everything" while he was driving. Based on this admission, the State tendered a jury instruction for the offense of involuntary manslaughter by careless driving, arguing that it is a lesser-included offense of homicide by vehicle. After some debate, the trial court gave this instruction, and Yarborough was *133 convicted of involuntary manslaughter by careless driving and was acquitted of all the other charges. Yarborough appealed.

7. Reversing the conviction of involuntary manslaughter by careless driving, the Court of Appeals held that a felony conviction cannot be based upon a misdemeanor traffic violation, careless driving, which requires only a showing of civil negligence. Relying on our opinion in Santillanes v. State, 115 N.M. 215, 222-23, 849 P.2d 358, 365-66 (1993), the Court held that a showing of criminal rather than civil negligence is required. Additionally, the Court held that Yarborough could not be retried for involuntary manslaughter using a criminal-negligence standard because the homicide by vehicle statute, under which Yarborough was acquitted, is a specific statute to the exclusion of the general involuntary-manslaughter statute.

8. Involuntary manslaughter. Under the criminal code, involuntary manslaughter is the "killing of a human being without malice ... in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection." Section 30-2-3(B). As a result of the structure of this section, "[t]here are three separate courses of conduct that constitute involuntary manslaughter: one, the commission of an unlawful act not amounting to a felony; two, the commission of a lawful act that might produce death, in an unlawful manner; and three, the commission of a lawful act that might produce death without due caution and circumspection." State v. Taylor, 107 N.M. 66, 70, 752 P.2d 781, 785 (1988), overruled on other grounds by Gallegos v. Citizens Ins. Agency, 108 N.M. 722, 731, 779 P.2d 99, 108 (1989). This crime is a fourth-degree felony. Section 30-2-3(B).

9. —The State's position. The State alleges that it was proper to convict Yarborough of this felony because his actions amounted to the "commission of an unlawful act not amounting to a felony." It argues that it is improper for the Court of Appeals to have applied the language "without due caution and circumspection" to the "unlawful act" provision of the involuntary-manslaughter statute.^[2] The State asserts that the Court of Appeals cannot engraft one part of a statute onto another, and has noted that we previously have held that

[a] statute must be read and given effect as it is written by the Legislature, not as the court may think it should be or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration.... Courts must take the act as they find it and construe it according to the plain meaning of the language employed.

State ex rel. Helman v. Gallegos, 117 N.M. 346, 352, 871 P.2d 1352, 1358 (1994) (quoting Perea v. Baca, 94 N.M. 624, 627, 614 P.2d 541, 544 (1980) (in turn quoting Burch v. Foy, 62 N.M. 219, 223, 308 P.2d 199, 202 (1957))). Under the statutory construction suggested by the State, "without due caution and circumspection" would modify only the "lawful act" provision of the statute. See § 30-2-3(B). Neither the Court of Appeals in its opinion nor the defendant in his answer suggested differently. We note further that the "unlawful act" provision of the involuntary-manslaughter *134 statute does not contain any language connoting negligence.

10. The State directs this Court to Commonwealth v. Jumper, 511 Pa. 446, 515 A.2d 540, 541 (1986), for the proposition that other jurisdictions have allowed similar convictions for involuntary manslaughter based on civil negligence. In Jumper the defendant was convicted of misdemeanor vehicular homicide when he went through a red light and caused the death of another motorist. Id., 515 A.2d at 540. The Jumper court affirmed the vehicular homicide conviction, stating that

[u]nder the homicide by vehicle statute, culpability is to be determined in each given case in light of the particular facts surrounding the Vehicle Code violation on which the homicide by vehicle charge is predicated, and a determination must be made as to whether death was a probable consequence of the defendant's conduct.

Id. at 541. In other words, the Court apparently looked beyond the requirements of the underlying offense, ordinary negligence, to determine if the death was "a probable consequence" of this particular defendant's action. As we note later, this view has been expressed by a few other jurisdictions, and it represents a minority view that has merit—as long as the jury is properly instructed that the probable consequences of the defendant's actions were obvious. The Pennsylvania Supreme Court in Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575, 579 (1987), decided after Jumper, held the contrary view that a showing of criminal negligence is required for vehicular homicide.

11. —The misdemeanor-manslaughter rule. The "unlawful act" course of conduct embodies the "misdemeanor-manslaughter rule" under which a criminal defendant is guilty of a felony for killing a human being while in the commission of a misdemeanor. Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law § 7.13(a), at 288 (1986); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 108 (3d ed. 1982); Charles E. Torcia, Warton's Criminal Law § 168 (15th ed. 1994). As with the felony-murder rule in New Mexico, the involuntary-manslaughter statute does not contain any mention of a culpable state of mind or culpable degree of conduct. Under an unmodified and traditional misdemeanor-manslaughter rule and a strict reading of Section 30-2-3(B), the violation of any misdemeanor would be a sufficient predicate for involuntary manslaughter. In felony murder, however, we have held that a strict reading of the "any felony" language of that statute, NMSA 1978, § 30-2-1(A)(2) (Repl.Pamp.1994), is inappropriate. E.g., State v. Ortega, 112 N.M. 554, 562-66, 817 P.2d 1196, 1204-08 (1991).

To presume conclusively that one who commits any felony has the requisite mens rea to commit first-degree murder is a legal fiction we no longer can support. In felony murder cases where the felony is a first-degree felony such a presumption is appropriate, but not where the felony is of a lesser degree. This presumption is inappropriate today for lesser-degree felonies where moral, social, and penal considerations dictate that criminal liability should be imposed according to moral culpability. Thus, we now adopt an additional test, the natural and probable cause test... which has today evolved into what is called the inherently or foreseeably dangerous to human life test. Of the lesser-degree felonies only those known to have a high probability of death may be utilized for a conviction of first-degree murder. Assuming the actus reus condition is met, the mens rea of one who is committing a felony which is inherently or foreseeably dangerous to human life is sufficient to justify convicting a defendant of felony murder and sentencing him to death or life imprisonment.

State v. Harrison, 90 N.M. 439, 442, 564 P.2d 1321, 1324 (1977), rev'd by rule on other grounds, Tafoya v. Baca, 103 N.M. 56, 57, 60, 702 P.2d 1001, 1002, 1005 (1985). We look beyond the literal word of the statute to the common-law concept most likely intended by the legislature to be embodied in the statute. See Gilbert v. United States, 370 U.S. 650, 655, 82 S.Ct. 1399, 1402, 8 L.Ed.2d 750 (1962) ("[I]n the absence of anything to the contrary it is fair to assume that [the legislative body] used that word in the statute in its common law sense.").

*135 12. As the Court of Appeals set forth, Yarborough, 120 N.M. at 672, 905 P.2d at 212, this Court was first presented with this question in State v. Harris, 41 N.M. 426, 70 P.2d 757 (1937). The defendant in Harris was convicted of involuntary manslaughter, and argued that his conviction was proper only if he had driven his truck recklessly. Id. at 427-28, 70 P.2d at 757. We stated that

in the case of an accidental death of a pedestrian struck by an automobile, where the proof is sufficient to establish, beyond a reasonable doubt, that under the circumstances of the injury the conduct of the driver of the machine was so reckless, wanton, and willful, as to show an utter disregard for the safety of pedestrians, a conviction for manslaughter will be warranted; but an injury caused by mere negligence, not amounting to a reckless, willful and wanton disregard of consequences, cannot be made the basis of a criminal action.

Id. at 428, 70 P.2d at 757. Similarly, in State v. Sisneros, we held that the involuntary manslaughter statute "contemplates criminal negligence." 42 N.M. 500, 510, 82 P.2d 274, 280 (1938). The defendant in Sisneros had accidentally killed two men as they were pumping air into the tire of a car parked on the shoulder of a country road. Id. at 504-05, 82 P.2d at 276-77. The conviction was reversed because the prosecution failed to prove criminal negligence, an essential element of the crime. Id. at 511-12, 82 P.2d at 281-82. "Mere negligence is not sufficient. It may be sufficient to compel the driver to respond in damages. However, when it comes to responding to an accusation of involuntary manslaughter, with the possibility of a penitentiary sentence, a different rule is called into play." Id. at 513, 82 P.2d at 281 (Zinn, J., specially concurring).

13. We have continued to follow the logic of the Harris case each time the Court has been presented with the issue of the degree of negligence required for an involuntary-manslaughter conviction arising from an automobile accident. See State v. Hayes, 77 N.M. 225, 226, 421 P.2d 439, 439 (1966) (holding that the culpable state of mind for involuntary manslaughter "comprehends evidence of an utter irresponsibility on the part of the defendant or of a conscious abandonment of any consideration for ... safety"); State v. Clarkson, 58 N.M. 56, 60, 265 P.2d 670, 672 (1954) (stating that "[t]he wanton and reckless operation of an automobile which must be shown as the proximate cause of a death in order to secure a conviction for involuntary manslaughter where a human is killed by an automobile being driven by another is not different from that required to be shown under our guest statute"); and City of Raton v. Rice, 52 N.M. 363, 365, 199 P.2d 986, 987 (1948) (stating that "[n]egligence, not amounting to wilful or wanton disregard of consequences [,] cannot be made the basis of a criminal action").

14. The misdemeanor-manslaughter rule, without the qualification of criminal negligence, has fallen into disfavor in many jurisdictions. See Torcia, supra, § 168 ("The misdemeanor-manslaughter rule has been abandoned in England, the Model Penal Code, and in a growing number of states. Manslaughter is now committed in such jurisdiction, whether the act be lawful or unlawful, only if the death is caused recklessly or with criminal negligence.") (footnotes omitted). Several jurisdictions have found fault with and have chosen to abandon the misdemeanor-manslaughter rule. See, e.g., State v. Pray, 378 A.2d 1322, 1323 (Me.1977) (acknowledging that criminal negligence had been required for misdemeanor-manslaughter rule, but choosing to abolish the entire doctrine in Maine); Commonwealth v. Catalina, 407 Mass. 779, 556 N.E.2d 973, 978 (1990) (noting the strong trend away from the misdemeanor-manslaughter rule and holding "that unlawful-act manslaughter should be abandoned in Massachusetts except for appropriate cases which are based on the principle that a battery that causes death is manslaughter"). Other jurisdictions require that the predicate misdemeanor for misdemeanor manslaughter be either inherently dangerous or malum in se. See, e.g., Comber v. United States, 584 A.2d 26, 50 (D.C.1990) (holding that under the misdemeanor-manslaughter rule, "the category of misdemeanors dangerous in and of themselves encompasses misdemeanors which bear an inherent danger of physical injury"); *136 Schlossman v. State, 105 Md.App. 277, 659 A.2d 371, 376 (1994) (holding that the malum in se common-law misdemeanor of intentional battery was a sufficient predicate offense, even though not inherently dangerous, to support a misdemeanor-manslaughter conviction.), cert. granted, 340 Md. 649, 667 A.2d 897 (1995), and cert. dismissed, 342 Md. 403, 676 A.2d 513 (1996).

15. The majority of jurisdictions require that the predicate offense involves criminal negligence or recklessness. See, e.g., State v. Puryear, 121 Ariz. 359, 590 P.2d 475, 479-80 (App.1979) (rejecting the distinction between malum in se and malum prohibitum, and requiring at least criminal negligence for involuntary manslaughter conviction); People v. Stuart, 47 Cal.2d 167, 302 P.2d 5, 9 (1956) (holding that a pharmacist could only be criminally liable under the misdemeanor-manslaughter rule if he "had intentionally or through criminal negligence prepared, compounded, or sold an adulterated or misbranded drug" in violation of the statute); State v. Conner, 292 N.W.2d 682, 686 (Iowa 1980) (holding that the "General Assembly intended to preserve the common law requirement of recklessness in ... involuntary manslaughter" because only then "is the legislative scheme of sanctions commensurate to culpability carried forward"); Commonwealth v. Hawkins, 157 Mass. 551, 32 N.E. 862, 863 (1893) (holding that recklessness, not merely the violation of a city ordinance, must be shown for assault with a firearm conviction); People v. Datema, 448 Mich. 585, 533 N.W.2d 272, 281 (1995) (holding that "[a]n unlawful act committed with the intent to injure or in a grossly negligent manner that proximately causes death is involuntary manslaughter" and that "criminal liability is imposed [in the latter instance] because, although the defendant's acts are not inherently wrong, the defendant has acted or failed to act with awareness of the risk to safety and in wilful disregard of the safety of others"); State v. Hancock, 248 N.C. 432, 103 S.E.2d 491, 494 (1958) (stating that the mere violation of a traffic safety statute is an insufficient predicate for felonious slaying, that it requires "recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision"); State v. Collins, 67 Ohio St.3d 115, 616 N.E.2d 224, 226 (Ohio 1993) (holding that a "minor-misdemeanor," such as the failure to stop at a stop sign, could not be a predicate offence for misdemeanor-manslaughter because it did not show the necessary intent or recklessness); Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575, 579 (1987) (holding that the state must prove criminal negligence for its homicide by vehicle statute, even though the statute specifically states that any traffic violation is sufficient); Commonwealth v. Busler, 445 Pa. 359, 284 A.2d 783, 784 (1971) (concluding that violations of the motor vehicle code are not necessarily the unlawful act contemplated in misdemeanor-manslaughter, and that to sustain a conviction "it must be established that such violation in itself, or together with the surrounding circumstances, `evidence a disregard of human life or an indifference to consequences'" (quoting Commonwealth v. Holman, 160 Pa.Super. 211, 50 A.2d 720, 721 (1947))); Holder v. State, 152 Tenn. 390, 277 S.W. 900 (1925) (holding that the misdemeanor-manslaughter rule requires a showing of intent or the commission of an act "in such a manner as to make the killing of deceased a natural or probable result of such conduct"); State v. Beayon, 158 Vt. 133, 605 A.2d 527, 528-29 (1992) (holding that a careless driving statute could not be used as a predicate for vehicular homicide because careless driving can occur without criminal negligence); but see United States v. Walker, 380 A.2d 1388, 1390 (D.C.1977) (holding that misdemeanor violation of carrying an unlicensed firearm was sufficient, without a showing of recklessness or negligence, for an involuntary manslaughter conviction).

16. Many commentators have noted problems inherent in the misdemeanor-manslaughter rule. In their treatise Substantive Criminal Law, Professors LaFave and Scott suggest a fallacy in the misdemeanor-manslaughter rule when applied to mere traffic violations.

There is no logical reason for inflicting manslaughter punishment on one who unintentionally kills another simply because he is committing a traffic violation, unless it makes sense to punish the one-in-a-thousand traffic violations, which by bad luck *137 produces an unexpected death, far more severely than the nine hundred and ninety-nine violations which happily do not produce any such devastating result....

... If the bad result which happens is actually intended, or if it is recklessly produced (especially by one conscious of the risk), it does not seem too harsh to make the severity of his punishment depend somewhat on the actual result, however accidental. Where, however, the result is both unintended and produced without any consciousness of the risk of producing it, it seems too harsh and illogical.

LaFave & Scott, supra, § 7.13(e).

17. Similarly, Professors Perkins and Boyce comment upon the degree of conscious intent that is implicitly required in misdemeanor manslaughter, and how that mens rea is absent in the violation of basic traffic regulations.

"Knowingly and intentionally to break a statute must ... always be morally wrong" and hence will supply the normal mens rea requirement for true crime, at least if the statute was intended for the protection and safety of person or property. Because manslaughter requires this mens rea whereas an ordinary traffic violation does not, it follows that death resulting from such a violation is not necessarily manslaughter.

Perkins & Boyce, supra, at 110 (quoting The Queen v. Tolson, 23 Q.B. 168, 172 (1889)) (footnotes omitted). Cf. Torcia, supra, § 170 (stating that in vehicular homicide, "whether the offense is made part of manslaughter or not, it is required that the vehicle be operated with recklessness, criminal negligence, culpable negligence, or gross negligence and that such operation be the proximate cause of the homicide"). These comments lend support to Yarborough's position that the state must prove at least criminal negligence for a misdemeanor manslaughter conviction.

18. —Santillanes. Yarborough's position is further supported by this Court's recent decision in Santillanes v. State, 115 N.M. 215, 849 P.2d 358 (1993). In Santillanes, we interpreted the term "negligence" as contained in the child-abuse statute to impliedly require criminal negligence. Id. at 223, 849 P.2d 358. There, we began our analysis by noting that although the legislature "may define certain conduct as criminal without the element of intent[,] ... we presume criminal intent as an essential element of the crime unless it is clear from the statute that the legislature intended to omit the mens rea element." Id. at 218, 849 P.2d at 361 (citing Reese v. State, 106 N.M. 498, 501, 745 P.2d 1146, 1149 (1987) (Ransom, J., specially concurring)). In the child-abuse statute, negligence was specifically listed as sufficient for criminal liability, but the term was not defined to show whether the legislature intended criminal or civil negligence. NMSA 1978, § 30-6-1(C) (Cum.Supp.1992). We held that criminal negligence was implicitly required for the felony conviction of child abuse, stating that

[w]e do not find the absence of a definition of negligence in the statute indicative of legislative intent, and we are not persuaded by the State's contention that when the legislature has meant to apply a criminal negligence standard, it has specifically done so.... Instead, we find this concept firmly rooted in our jurisprudence: When a crime is punishable as a felony, civil negligence ordinarily is an inappropriate predicate by which to define such criminal conduct.... We ... construe the statute as requiring at least a showing of criminal negligence in the absence of some contrary indication from the legislature that "the public interest in the matter is so compelling or that the potential for harm is so great that the interests of the public must override the interests of the individual" so as to justify civil negligence as a predicate for a felony.

Santillanes, 115 N.M. at 222-23, 849 P.2d at 365-66 (quoting State v. Barber, 91 N.M. 764, 765, 581 P.2d 27, 28 (Ct.App.1978)) (citations omitted). The State has argued in this case that this language from Santillanes is applicable only to the child-abuse statute. However, this case stands for the proposition, well-established in New Mexico, that only criminal negligence may be a predicate for a felony unless another intention is clearly expressed by the legislature.

*138 19. —Criminal negligence is required to convict of involuntary manslaughter. Involuntary manslaughter is a fourth-degree felony in New Mexico. As the amici curiae appropriately note, conviction of a fourth-degree felony carries with it a presumptive sentence of eighteen months in the New Mexico State Penitentiary, a fine of up to $5000, a lifetime loss of the right to vote, and the loss of the right to hold an elective office or an appointive public office. See NMSA 1978, § 31-18-15(A)(6) & (E)(5) (Repl. Pamp.1994) (eighteen months and $5000); N.M. Const. art. VII, § 1 (Repl.Pamp.1994) (voting); N.M. Const. art. VII, § 2 (Repl. Pamp.1992) (non-qualified electors may not hold elective office); NMSA 1978, § 10-1-2 (Repl.Pamp.1995) (elective or appointive office). In addition to these and other legal consequences of a felony conviction, there are many intangible social repercussions. We must be sure that the penalties associated with a felony conviction are imposed only in response to an act done with at least the minimum culpable state of mind.

The contention than an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. A relation between some mental element and punishment for a harmful act is almost as instinctive as the child's familiar exculpatory "But I didn't mean to," and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. Unqualified acceptance of this doctrine by English common law in the Eighteenth Century was indicated by Blackstone's sweeping statement that to constitute any crime there must first be a "vicious will."

Morissette v. United States, 342 U.S. 246, 250-51, 72 S.Ct. 240, 243-44, 96 L.Ed. 288 (1952) (quoting 4 William Blackstone, Commentaries *22).

20. As previously noted, criminal negligence has been required in this jurisdiction for involuntary-manslaughter convictions arising out of automobile accidents, and it is required by most of the jurisdictions that still apply the misdemeanor-manslaughter rule. We believe that the law in this area mandates that a felony conviction be based upon more than ordinary negligence. For the reasons stated above, we hold that the State must show at least criminal negligence to convict a criminal defendant of involuntary manslaughter. As set forth in NMRA 14-241 (1996) (criminal jury instruction on vehicular homicide), "to find that the defendant was driving recklessly, [the jury] must find that he drove with willful disregard of the rights or safety of others and in a manner which endangered any person or property."

21. Careless driving. The "unlawful act" that served as a predicate for Yarborough's involuntary-manslaughter conviction was the misdemeanor crime of careless driving. See § 66-8-114. Careless driving has been a part of the Motor Vehicle Code in New Mexico since its inception. It states:

A. Any person operating a vehicle on the highway shall give his full time and entire attention to the operation of the vehicle.

B. Any person who operates a vehicle in a careless, inattentive or imprudent manner, without due regard for the width, grade, curves, corners, traffic, weather and road conditions and all other attendant circumstances is guilty of a misdemeanor.

Section 66-8-114. Although this is the first time this Court has reviewed this statute, it has been analyzed by the Court of Appeals on other occasions. In State v. Baldonado, the Court stated that "the statute prohibits driving while not paying enough attention under the existing circumstances." 92 N.M. 272, 273, 587 P.2d 50, 51 (Ct.App.), cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978). In Baldonado, the Court of Appeals upheld a conviction of careless driving for carelessly driving through a red light and colliding with another vehicle. This was an act of ordinary or civil negligence and not criminal negligence. Id. We agree that the careless-driving statute requires only a showing of ordinary or civil negligence. Therefore, careless driving cannot be used as a predicate for