Rebecca Grossman, the wealthy wife of a plastic surgeon serving 15 years in prison for hitting and killing two young boys with her car, urged a state appellate panel Tuesday to overturn her second-degree murder conviction.
"This is an extremely difficult case, an absolutely tragic case," Grossman's attorney, Lara Gressley, told the three-judge panel of California's Second Appellate District. "But tragedy does not imply malice. There is a difference between manslaughter and murder. The jury was not told where that line was."
Much of Gressley's argument centered on the judge's instructions to the jury in 2024. To convict Grossman of murder, prosecutors had to prove she acted with "implied malice," which means that she knew her actions was "dangerous to human life." Gressley argued that the judge did not clarify the meaning of that phrase, which is that there was a "high degree of probability that death will result."
The appellate justices appeared skeptical of the defense's position during oral arguments. Associate Justice Carl Moor questioned whether driving at 73 mph through a residential crosswalk while intoxicated could be considered a close call regarding dangerousness.
"Driving through a residential neighborhood, through a pedestrian crosswalk at 73 miles per hour," said Associate Justice Carl Moor, "having consumed at least one and a half drinks while engaged in racing behavior... Are you saying that that's a close call whether or not that's dangerous to human life?"
"Yes your honor," replied Gressley, of Gressley and Donaldson, a firm specialized in DUI defense. "There is not a high degree of probability that even intoxicated driving results in a fatality."
The fatal crash occurred in 2020, shortly after the Covid lockdown had first been relaxed. At the time, Grossman was separated from her husband Peter, president of the renowned Grossman Burn Center, and was having drinks with her boyfriend, a former professional baseball pitcher named Scott Erickson.
According to evidence presented during the trial, both Grossman and Erickson left the bar and were driving playfully to her house, racing and weaving between lanes while driving at speeds of up to 81 miles per hour. This reckless behavior set the stage for the tragic collision that would claim two young lives.
Nancy Iskander was crossing the street with three of her children: 11-year-old Mark, 8-year-old Jacob, and 5-year old Zachary. As she saw the SUVs hurtling down the street, Nancy pushed Zachary out of the way and dived for safety. When she looked up, her two other sons had disappeared. Both Mark and Jacob had been struck and killed.
The impact was severe enough to deploy Grossman's air bags, but she continued to drive for about a third of a mile until her vehicle automatically shut off. A roadside assistance operator eventually stopped her vehicle.
The case highlights the legal distinction between murder and manslaughter in DUI fatalities. For a second-degree murder conviction, prosecutors must prove the defendant acted with implied malice, meaning they knew their conduct was dangerous to human life and acted with conscious disregard for that danger.
Grossman's defense team argues this standard was not properly explained to the jury, potentially leading to a wrongful conviction. They contend that while Grossman's actions were certainly negligent and resulted in tragedy, they did not rise to the level of implied malice required for a murder conviction.
The prosecution's case relied heavily on evidence of Grossman's excessive speed, alcohol consumption, and racing behavior immediately before the crash. Driving 73 mph through a residential area with pedestrian crosswalks, particularly while under the influence, formed the basis for their argument that she acted with implied malice.
The appellate court's skeptical questioning suggests the justices may not be persuaded by the defense's argument that the jury instructions were inadequate. Justice Moor's pointed questions about whether high-speed drunk driving through a residential area could reasonably be considered anything other than dangerous to human life indicates the court may view the evidence differently than the defense.
This case represents one of several high-profile prosecutions in California where prosecutors have pursued murder charges rather than manslaughter in DUI fatalities involving particularly egregious conduct. The outcome of Grossman's appeal could influence how similar cases are prosecuted and what jury instructions are required in future implied malice cases.
The Second Appellate District will now review the arguments and evidence before issuing a written opinion. If the conviction is upheld, Grossman would continue serving her 15-year sentence. If reversed, the case could potentially be remanded for a new trial with different jury instructions, or prosecutors could accept a lesser charge.
The tragic loss of Mark and Jacob Iskander continues to resonate as their mother Nancy has become an advocate for pedestrian safety and stricter enforcement of DUI laws. The case serves as a reminder of the devastating consequences that can result from impaired and reckless driving.