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noting that the Supreme Court in Sanchez had explained that the criminal offense defined in section 191.5 was formerly contained in section 192
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E072173
06-05-2020
The PEOPLE, Plaintiff and Respondent, v. Michael George BETTASSO, Defendant and Appellant.
Joshua L. Siegel, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Sharon L. Rhodes and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part A. of the DISCUSSION.
Joshua L. Siegel, Santa Monica, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Sharon L. Rhodes and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MENETREZ, J. A jury convicted Michael Bettasso of driving under the influence (DUI) of alcohol causing injury, hit and run driving causing death, driving with a suspended license, and second degree implied malice murder. ( Pen. Code, §§ 187, subd. (a), 189, subd. (b) ; Veh. Code, §§ 14601.2, 20001, subd. (a), 23153, subd. (a).) The jury also found true a great bodily injury enhancement associated with the DUI count. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) Bettasso was sentenced to a total term of 19 years to life.
Further unlabeled statutory references are to the Penal Code.
On appeal, Bettasso challenges the sufficiency of the evidence supporting the second degree murder conviction and also contends that the trial court prejudicially erred by failing to instruct the injury on vehicular manslaughter as a lesser included offense of murder. In the published portion of our opinion, we hold that vehicular manslaughter is not a lesser included offense of murder. ( People v. Wolfe (2018) 20 Cal.App.5th 673, 685-686, 229 Cal.Rptr.3d 414 ( Wolfe ).) In the unpublished portion, we reject Bettasso's substantial evidence challenge, and we accordingly affirm the judgment.
BACKGROUND
A. Bettasso's Workday Before the Collision
On July 2, 2016, Bettasso was working as a bartender along with Julie M., another bartender with over 30 years' experience. They both worked from 1:00 p.m. to 7:00 p.m. Early in the shift, Julie made herself and Bettasso each a mixed drink consisting of vodka and cranberry juice, which they both drank. Over the remainder of the shift, Julie estimated that Bettasso drank an additional three drinks. Julie did not know whether Bettasso's remaining drinks contained alcohol. She did not see him pour them. She also explained that bartenders sometimes pretend to drink alcohol to appease customers. Bartenders sometimes pour themselves a nonalcoholic drink.
Two surveillance video recordings (without audio) totaling approximately 55 minutes taken from different angles inside of the bar during Bettasso's shift were played for the jury. Bettasso finished the drink mixed by Julie at 1:21 p.m. During the remainder of his shift, Bettasso drank an additional six mixed drinks, including four between 1:21 p.m. and 3:05 p.m., one at 4:16 p.m., and one at 6:06 p.m. Bettasso also drank five total shots at 3:49 p.m., 4:53 p.m., 5:39 p.m., 5:55 p.m., and 6:34 p.m. For two of those shots (at 4:53 p.m. and 5:39 p.m.), Bettasso poured himself a shot from the same bottle that he poured a shot for a customer and drank the shots with those customers.
The parties agreed that the recording was "edited to include relevant portions of the video."
By the end of Julie's and Bettasso's shift, Julie thought that Bettasso was intoxicated. Bettasso's speech was slurred. He also appeared to be stressed and distracted. Julie thought that Bettasso should not drive, and she expressed that concern to him. She told him that he looked stressed, so he should stay with mutual friends locally. Bettasso responded, " ‘I'm fine.’ " Julie also shared her concern about Bettasso driving with T.R., another coworker.
T.R. arrived at the bar at 6:45 p.m. that night. He almost immediately interacted with Bettasso and was concerned that Bettasso seemed "inebriated." T.R. saw Bettasso stumble, tripping over either his own feet or a chair that Bettasso was moving. T.R. had known Bettasso since childhood and drank with him many times. T.R. told Bettasso that he seemed inebriated and told Bettasso that he should not drive. At approximately 7:00 p.m., T.R. told Bettasso, " ‘You are an asshole if you decide to drive.’ " Bettasso responded, " ‘I'm fine.’ "
B. Post-Collision Witnesses
At approximately 7:45 or 8:00 p.m., a husband and wife were driving southbound on North Indian Canyon Road. The husband, who was driving, noticed a small grey or silver Nissan on the side of the road with some damage to the hood and extensive impact damage to an unspecified window. It was still light outside. The husband slowed down to approximately 20 miles per hour and saw a person whom he later identified as Bettasso walking around outside of the car looking panicked and distraught. Because of the impact to the window, the husband thought that something might have been ejected from the car, but he looked around and did not see anything. Fifty or 60 yards ahead of the Nissan on the other side of the road there was an old camper truck with its hood open. The husband and wife proceeded to dinner. The parties stipulated that the wife would testify similarly to her husband about what she saw that night and that she identified Bettasso in a photographic lineup as the person whom they saw.
About 10 minutes later, at 8:10 p.m., an Uber driver driving along North Indian Canyon Road noticed a white pickup truck with a camper and a small car off the road some distance ahead. It was light outside. After the Uber driver passed the small car, he noticed in the rear view mirror that the car was damaged, so the driver turned around. The windshield appeared "caved in." The Uber driver asked the person standing near the driver's door if he needed help. Bettasso said that someone was on the way, so the Uber driver continued driving his passengers to their destination. Because of the damage to the car, the Uber driver thought that the car had collided with a bicycle or a person. The Uber driver returned to the location when he was alone and took several pictures of the damaged car. He contacted law enforcement the next day.
C. Bettasso's Post-Collision In-Person Encounters and Towing of the Vehicle
At around 9:00 p.m., Bettasso called his stepdaughter and told her that he had been drinking and that he had hit something with his car, possibly a coyote or a dog. Her biological father picked up Bettasso. The stepdaughter saw Bettasso about one hour later, and she later told law enforcement that he appeared drunk and "freaked out."
At trial, the stepdaughter contradicted her statement to law enforcement and testified that Bettasso did not appear drunk when she saw him that night.
Shortly after midnight, Bettasso called his mother, told her that he had been in a car accident, and asked her to take him to his car. She picked him up and drove him there. Bettasso told her that he thought he had hit a large dog or an animal. She looked around the car, underneath it, and in the field with a flashlight but did not see anything. She noticed the white truck on the other side of the road. She called for a tow truck. Later in the evening on the day after the collision, Bettasso's mother spoke with a police officer and told him that she smelled alcohol on Bettasso's breath and that she thought her son should not have been driving the night before.
At trial, Bettasso's mother denied having made those statements to the officer. She claimed to instead have made a general statement about people not driving when they drink and to have said that she smelled alcohol on Bettasso's person from alcohol having spilled onto him during work at the bar.
When the tow truck driver arrived, Bettasso told the driver that his mom had been driving and hit a coyote. The tow truck driver did not speak with Bettasso's mother. The driver did not see anything around the car or notice any blood on Bettasso's car. The driver loaded Bettasso's car onto the flatbed, and Bettasso rode in the cab of the truck with the driver for approximately 30 minutes. The driver smelled alcohol on Bettasso's breath and noticed that Bettasso was slurring slightly, so he thought that Bettasso was intoxicated.
D. Discovery of the Body and Subsequent Investigation
The next morning two bicyclists travelling on North Indian Canyon Road came upon a body lying on the side of the road and called 911. The victim had died from multiple blunt force injuries that were consistent with being hit by a car.
A law enforcement officer investigated the area around where the body was discovered and concluded that a vehicle had veered off the road and struck the victim. The street had an asphalt shoulder followed by a dirt shoulder, a raised dirt berm, and the desert. The body was located in the dirt shoulder between the asphalt and the dirt berm. The bicyclists thought that the body was approximately 20 feet from the side of the road.
Some distance in front of the pickup truck that had the hood open, the officer found one of the victim's shoes, as well as furrow marks in the dirt shoulder. The victim's other shoe also was found near the body and not on the victim's foot. There also were broken plastic pieces on the raised dirt berm, which appeared to be from a car's blinker light. One of the plastic pieces bore the word "Nissan."
The investigating officer believed that the body was found 100 feet from the initial point of impact. From dirt furrow marks and tire pressure marks, the investigator concluded that the car returned to the asphalt shoulder and came to an "abrupt stop" approximately 120 feet past the body and approximately 400 feet past where the car initially veered off the road. The investigator opined that the driver was traveling at a normal rate of speed. The speed limit was 55 miles per hour.
Later that night, an officer went to Bettasso's residence and found Bettasso's grey Nissan Sentra in the driveway. The car was damaged on the passenger side on the front bumper, the hood, the windshield, and the side mirror. There was "hair and/or blood with some matter attached to the windshield."
E. Bettasso's Post-Collision Text Messages
Law enforcement obtained copies of Bettasso's cell phone records. On the night of the collision at approximately 10 minutes before 11:00 p.m., Bettasso texted someone and asked that person to call him " ‘ASAP.’ " Thirty minutes later, that person texted, " ‘I'm going to get it’ " and bring it back to his or her house. Minutes before midnight Bettasso asked how it was " ‘going.’ " At 12:25 a.m., the person texted, " ‘You got to go back there, Bro. What if it wasn't a dog.’ "
The two exchanged another series of messages later that morning at approximately 9:00 a.m. Bettasso informed the person that he had picked up the car and looked around but " ‘didn't see anything.’ " The person asked if Bettasso had noticed " ‘the chunks on the windshield’ " and " ‘a shoe in the street.’ " Both acknowledged that the shoe " ‘freaked [them] out,’ " but the other person surmised that it had been lying in the street for months. The person texted, " ‘You should never have a drink again.’ " Bettasso responded, " ‘You're right, and I won't.’ " Later that afternoon, the same person texted Bettasso, " ‘Who was the tow truck? I wonder if they're gonna know,’ " and " ‘[c]heck out the Desert Sun. It's worse.’ "
F. Prior DUI Convictions
The parties stipulated that Bettasso had four prior DUI convictions in 2001, 2005, 2013, and 2014. For the 2013 and 2014 convictions, Bettasso admitted that his blood-alcohol content (BAC) level was over .15 percent. Bettasso's driving privileges were revoked as a result of the 2014 conviction and had not been reinstated by the date of the July 2016 collision.
For all three of the convictions after 2001, Bettasso was advised in writing that it is " ‘ "extremely dangerous to human life to drive while under the influence of alcohol." ’ " He was further advised: " ‘ "If I continue to drive while under the influence of alcohol ..., as a result of my driving someone is killed, I can be charged with murder." ’ " Bettasso acknowledged that he received these advisements by checking boxes on the forms containing them. For the 2013 and 2014 convictions, Bettasso also received verbal warnings containing the same content from the trial judges in those cases. In February 2015, Bettasso signed a form again acknowledging that he understood " ‘the dangers of driving under the influence’ " and that if he received another DUI " ‘in which someone is killed because of that crime, California state law allows that I could be charged with murder.’ " DISCUSSION
These advisements are commonly referred to as "Watson advisements" after People v. Watson (1981) 30 Cal.3d 290, 296, 179 Cal.Rptr. 43, 637 P.2d 279 (Watson ) and are required to be given under Vehicle Code section 23593 to any person convicted of a DUI.
A. Sufficiency of the Evidence of Second Degree Murder
See footnote *, ante .
B. Failure to Instruct on Vehicular Manslaughter
Bettasso further contends that the trial court erred by failing to instruct the jury on vehicular manslaughter ( § 192, subd. (c) ), which he claims is a lesser included offense of second degree murder. The argument is foreclosed by People v. Sanchez (2001) 24 Cal.4th 983, 992, 103 Cal.Rptr.2d 698, 16 P.3d 118 ( Sanchez ), overruled on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229, 45 Cal.Rptr.3d 353, 137 P.3d 184, which held that gross vehicular manslaughter while intoxicated, in violation of section 191.5, is not a lesser included offense of murder.
"A trial court must instruct on all lesser included offenses supported by substantial evidence." ( People v. Duff (2014) 58 Cal.4th 527, 561, 167 Cal.Rptr.3d 615, 317 P.3d 1148 ( Duff ).) That obligation arises "whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser, but not the greater, offense." ( Ibid. )
To determine whether one crime is necessarily included in another, courts apply either the accusatory pleading test or the statutory elements test. ( People v. Shockley (2013) 58 Cal.4th 400, 404, 165 Cal.Rptr.3d 497, 314 P.3d 798 ( Shockley ); People v. Robinson (2016) 63 Cal.4th 200, 207, 202 Cal.Rptr.3d 485, 370 P.3d 1043 ( Robinson ).) " ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former.’ " ( Shockley, supra , at p. 404, 165 Cal.Rptr.3d 497, 314 P.3d 798.) "When, as here, the accusatory pleading incorporates the statutory definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense." ( Robinson, supra , at p. 207, 202 Cal.Rptr.3d 485, 370 P.3d 1043 ; Shockley , at p. 404, 165 Cal.Rptr.3d 497, 314 P.3d 798 ; People v. Fontenot (2019) 8 Cal.5th 57, 65, 251 Cal.Rptr.3d 341, 447 P.3d 252 ( Fontenot ).) Section 187 defines murder as "the unlawful killing of a human being ... with malice aforethought." ( § 187, subd. (a).) Pertinent here, vehicular manslaughter can be committed in two ways under section 192, subdivision (c). ( § 192, subd. (c)(1)-(2).) A requisite element for both is "driving a vehicle in the commission of an unlawful act." (Ibid. ) The sections differ on whether gross negligence is required. (Ibid. )
There is no allegation that Bettasso knowingly caused the accident for financial gain, so the third way in which vehicular manslaughter can be committed, as defined in subdivision (c)(3) of section 192, is inapplicable.
The language in the accusatory pleading here tracks the statutory language for murder and does not provide any additional factual allegations about the alleged conduct. Count 1 alleged that Bettasso "did willfully and unlawfully murder Richard H., a human being." We therefore are required to apply the statutory elements test. ( Robinson, supra , 63 Cal.4th at p. 207, 202 Cal.Rptr.3d 485, 370 P.3d 1043 ; Shockley, supra , 58 Cal.4th at p. 404, 165 Cal.Rptr.3d 497, 314 P.3d 798 ; Fontenot, supra , 8 Cal.5th at p. 65, 251 Cal.Rptr.3d 341, 251 Cal.Rptr.3d 341.)
The issue therefore is whether a person can commit murder under section 187 without driving a vehicle in the commission of an unlawful act. The answer is obviously yes: Murder can be committed without driving a vehicle. (See Sanchez, supra , 24 Cal.4th at p. 992, 103 Cal.Rptr.2d 698, 16 P.3d 118 [gross vehicular manslaughter while intoxicated is not a lesser included offense of murder under the statutory elements test because intoxication and driving a vehicle are not elements of murder].)
Bettasso presents three arguments against application of Sanchez 's holding here. First, he argues that Sanchez does not apply because it involved gross vehicular manslaughter while intoxicated under section 191.5, not vehicular manslaughter under section 192. We disagree. Sanchez held that gross vehicular manslaughter while intoxicated under section 191.5 is not a lesser included offense of murder because intoxication and driving a vehicle are elements of the section 191.5 offense but are not elements of murder. ( Sanchez, supra , 24 Cal.4th at p. 989, 103 Cal.Rptr.2d 698, 16 P.3d 118.) That holding applies to vehicular manslaughter under section 192, because driving a vehicle is an element of the section 192 offense. Indeed, the Supreme Court expressly stated that its "decision ... does not turn on a distinction between vehicular manslaughter while intoxicated as defined by section 192 and gross vehicular manslaughter while intoxicated as defined by section 191.5." ( Sanchez , at p. 992, fn. 4, 103 Cal.Rptr.2d 698, 16 P.3d 118.)
Second, Bettasso argues that because People v. Ortega (1998) 19 Cal.4th 686, 694, 697, 80 Cal.Rptr.2d 489, 968 P.2d 48 ( Ortega ), overruled on another ground in People v. Reed, supra , 38 Cal.4th at pp. 1228-1229, 45 Cal.Rptr.3d 353, 137 P.3d 184, held that grand theft of a vehicle is a lesser included offense of robbery even though one can commit robbery without stealing a vehicle, it follows that vehicular manslaughter is a lesser included offense of murder even though one can commit murder without driving a vehicle. We reject this argument because the Supreme Court rejected it in Sanchez, supra , 24 Cal.4th at pp. 991-992, 103 Cal.Rptr.2d 698, 16 P.3d 118. We are bound by the Supreme Court's holding. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)
Third, Bettasso notes that the Supreme Court in Sanchez distinguished Ortega 's holding concerning theft and robbery partly on the ground that section 191.5 was enacted relatively recently (in 1986), whereas longstanding authority has held that theft is a lesser included offense of robbery. ( Sanchez, supra , 24 Cal.4th at p. 992, 103 Cal.Rptr.2d 698, 16 P.3d 118.) On that basis, Bettasso argues that Sanchez 's holding should not apply to vehicular manslaughter, which has been a form of manslaughter since 1945 and thus should be covered by the traditional rule that manslaughter is a lesser included offense of murder. Again, we cannot agree. Sanchez explained both that section 191.5 is derived from section 192 ( Sanchez , at p. 992, fn. 4, 103 Cal.Rptr.2d 698, 16 P.3d 118 [the Legislature "moved language formerly contained in section 192 to its current position in section 191.5"] ) and that the Court's decision "[did] not turn on a distinction between vehicular manslaughter while intoxicated as defined by section 192 and gross vehicular manslaughter while intoxicated as defined by section 191.5" ( Sanchez , at p. 992, fn. 4, 103 Cal.Rptr.2d 698, 16 P.3d 118 ).
For all of the foregoing reasons, we join Wolfe, supra , 20 Cal.App.5th at pp. 685-686, 229 Cal.Rptr.3d 414 in holding that vehicular manslaughter under section 192 is not a lesser included offense of murder.
Because vehicular manslaughter with or without gross negligence requires proof of elements that are not necessary to the offense of murder, vehicular manslaughter (as so defined) is not a necessarily lesser included offense of murder. The trial court therefore did not err by not instructing the jury on those offenses. DISPOSITION
Bettasso claims that not treating vehicular manslaughter as a lesser included offense of murder "could potentially create an equal protection problem," because manslaughter is treated as a lesser included offense of murder in nonvehicular homicide cases. Wolfe rejected that argument and concluded that there was not an equal protection violation. (Wolfe, supra , 20 Cal.App.5th at pp. 689-690, 229 Cal.Rptr.3d 414.) Bettasso provides no reason for us to reject Wolfe 's conclusion that the differential treatment of vehicular and nonvehicular manslaughter passes rational basis review. (Ibid. )
We also reject Bettasso's argument that the trial court's failure to instruct on vehicular manslaughter violated due process or other rights under the federal Constitution. As our Supreme Court has explained, "there is no federal constitutional right of a defendant to compel the giving of lesser-related-offense instructions" or "to instruction on lesser necessarily included offenses." (People v. Rundle (2008) 43 Cal.4th 76, 148, 74 Cal.Rptr.3d 454, 180 P.3d 224, overruled on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, 87 Cal.Rptr.3d 209, 198 P.3d 11.) We are bound by those holdings. (Auto Equity Sales, Inc. v. Superior Court, supra , 57 Cal.2d at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.)
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We affirm the judgment.
We concur:
McKINSTER Acting, P. J.
FIELDS, J.