Opinion
[Opinion certified for partial publication. ]
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts enclosed by brackets {parts 2 through 4 of the Discussion}.
See footnote, ante, page 545.
[REVIEW GRANTED BY CAL. SUPREME COURT]
[Reprinted without change in the January 2001 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court.] [Copyrighted Material Omitted] [Copyrighted Material Omitted] COUNSEL
Jo Anne D. Roake, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, James W. Bilderback II and Barbara B. Dayvault, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
NEAL, J.
Summary
The principal issue on appeal concerns whether the "lesser included offense" rule protects appellant from simultaneous conviction both of second degree murder and gross intoxicated vehicular manslaughter based on the same homicide. We conclude that gross intoxicated vehicular manslaughter is not a lesser included offense of murder, because the legal elements of the former crime are not all included among the elements of the latter, and the former crime is not "necessarily committed" when the latter is committed. We modify the judgment in certain minor respects noted below, and affirm.
Factual and Procedural Background
The evidence at trial is summarized as follows:
At 5:30 a.m. April 25, 1995, Messrs. Conrad and Williams were on highway 138 in a Dodge Colt. As they rounded the curve at Quail Lake, Conrad saw headlights coming in his lane. Although Conrad swerved, the oncoming car hit the Colt's passenger side. The collision killed Williams and seriously injured Conrad. The other vehicle, a Ford Bronco, was driven by appellant.
Appellant testified that between 10:30 p.m. and midnight, he drank six beers at Quail Lake, then slept in his Bronco until 5:20 a.m. When he awoke, he had a headache, but did not feel drunk. Appellant claimed he did not see the Colt's headlights until just before collision, that the Colt was in his lane, and that he crossed the center divider to try to avoid the Colt.
The Highway Patrol's accident reconstruction expert testified that appellant's Bronco was on the wrong side of the road. He also testified that beer cans in the road probably came from the Bronco.
Off-duty Sheriff Vine stopped to help. When Highway Patrol Officer Egger arrived, Vine pointed out appellant as the Bronco's driver. Vine and Egger smelled alcohol on appellant's breath, and Egger noticed that appellant had slurred speech and red, watery eyes. Egger drove appellant to a hospital, where appellant's blood-alcohol level was .17 percent, more than twice the legal limit, at 7:59 a.m. On the way, appellant laughed and said he was supposed to be in court in Inglewood on another driving under the influence charge at that very moment, and that his wife had told him not to drink and drive.
Appellant had two earlier convictions for drunk driving. In a 1988 incident he rear-ended a car, then fled. Witnesses chased him and summoned police. His blood alcohol was .19 percent. He was sentenced to 36 months on probation.
In 1993 appellant was arrested after a sheriff saw him drive into a "double, double yellow line area," and weave back and forth. His blood alcohol was .15 percent. He was again given 36 months probation, still in force at the time of the current offense. Appellant disobeyed a probation condition requiring him to attend a drinking driver's program. Two months before the current offense, appellant again was arrested for drunk driving. Highway Patrol Officer Bianco saw appellant carry gas to a car parked near the freeway. Appellant smelled of alcohol and appeared drunk. Bianco told appellant not to drive the car. Appellant nonetheless poured in the gas and drove away. Bianco followed and saw appellant drive a quarter mile without headlights, drive approximately 65 miles per hour in a 45 miles per hour zone, weave, and change lanes without signaling. Bianco pulled appellant over, did field sobriety tests, and arrested appellant. Appellant's blood-alcohol level was .18 to .19 percent.
The information in the present case charged appellant with multiple offenses, including second degree murder (count 1) and gross intoxicated vehicular manslaughter (count 2).
After a bench trial, the court found that appellant acted with implied malice and convicted him of second degree murder (count 1). The court also found appellant guilty of gross vehicular manslaughter while intoxicated (count 2); driving under the influence, causing injury (count 3); and driving with a .08 percent or higher blood-alcohol level, causing injury (count 4). In addition, the court found true allegations that appellant caused death or bodily injury to more than one victim.
The court sentenced appellant to prison for 15-years to life for second degree murder, plus consecutive terms of 8 months each for driving under the influence, causing injury (count 3) and the multiple victim enhancement on that count. The court imposed and stayed a six-year sentence for manslaughter and a two-year sentence for driving with a .08 percent or higher blood-alcohol level, causing injury. The court did not impose, strike, or mention the multiple victim enhancements for counts 2 and 4.
Eight months was one-third of the two-year middle term for felony driving under the influence, pursuant to Penal Code section 18, and two-thirds of the one-year Vehicle Code section 23182 enhancement.
Appellant contends that (1) his manslaughter conviction must be reversed because it is a lesser included offense of murder, (2) the multiple victim enhancement (count 3) was improperly imposed because both offense and enhancement pertained to injury to the same person, and (3) future administrative and recidivist use of appellant's conviction for driving with .08 percent or higher blood alcohol must be stayed. Discussion
1. Appellant was properly convicted of gross vehicular manslaughter.
a. Gross intoxicated vehicular manslaughter is not a lesser included offense of murder.
Appellant argues that a defendant may not be convicted of both a greater and a "lesser included offense" based on the same conduct, citing People v. Pearson (1986) 42 Cal.3d 351, 355 [228 Cal.Rptr. 509, 721 P.2d 595] and People v. Moran (1970) 1 Cal.3d 755, 763 [83 Cal.Rptr. 411, 463 P.2d 763]. Appellant urges that gross intoxicated vehicular manslaughter is a "lesser included offense" of murder, citing People v. Garcia (1995) 41 Cal.App.4th 1832 [50 Cal.Rptr.2d 127], and People v. Watson (1983) 150 Cal.App.3d 313 [198 Cal.Rptr. 26] (each concluding that gross intoxicated vehicle manslaughter is a lesser included offense of murder). Therefore, appellant argues, his manslaughter conviction should be reversed.
We respectfully disagree with Garcia and Watson. We conclude that gross intoxicated vehicular manslaughter is not a lesser included offense of murder.
California law has long defined a "lesser included offense" as one which is necessarily committed when a related greater offense is committed. (Pen. Code section 1159 [enacted 1872]; People v. Greer (1947) 30 Cal.2d 589, 596 [184 P.2d 512]; People v. Pearson, supra, 42 Cal.3d 351, 359; People v. West (1970) 3 Cal.3d 595, 612 [91 Cal.Rptr. 385, 477 P.2d 409]; In re Hess (1955) 45 Cal.2d 171, 174 [288 P.2d 5]; In re Robert G. (1982) 31 Cal.3d 437, 441 [182 Cal.Rptr. 644, 644 P.2d 837].) The lesser offense is "necessarily committed" by committing the greater offense only if all legal elements of the lesser offense are also elements of the greater: "A crime is an included offense if all its elements are also elements of the other crime, so that substantially the same facts would be required to prove the commission of either. And a crime is not an included offense if any of its elements is not an element of the other crime, so that one requires proof of some fact in addition to the facts required to establish the other [citations omitted]." (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Defenses, section 325, at p. 376.)
Watson acknowledged that gross intoxicated vehicular manslaughter is not "necessarily included" within murder, because the latter offense can in some circumstances be committed without committing the former. (People v. Watson, supra, 150 Cal.App.3d at pp. 320-321.) Murder can be committed without using a car or being intoxicated. Nonetheless, Watson reasoned, manslaughter is usually an offense necessarily included within murder. Watson concluded that intoxication and the use of a vehicle are not elements of a crime, but rather "merely ... circumstances under which an unlawful killing constitutes manslaughter...." (Id. at p. 322.) According to Watson, the "elements" of gross intoxicated vehicular manslaughter are simply the unlawful killing of a human. These also are the elements of murder, and therefore gross intoxicated vehicular manslaughter is a lesser included offense of murder. Garcia adopted the rationale of Watson.
Watson and Garcia expanded the group of crimes constituting "lesser included offenses" by including related crimes that are not "necessarily committed" when the greater offense is committed.
However, the Supreme Court has held that lesser offenses which are closely related to the charged offense, but are not necessarily committed when the charged offense is committed, are properly classified as lesser related offenses, not lesser included offenses. (People v. Geiger (1984) 35 Cal.3d 510, 532 [199 Cal.Rptr. 45, 674 P.2d 1303, 50 A.L.R.4th 1055] [in burglary prosecution charging defendant entered by breaking through restaurant window, trial court erred in declining defense request for jury instructions on "lesser related offense" of vandalism].) This holding also tacitly affirmed the continuing validity of the "necessarily committed" test for lesser included offenses.
In fairness to the panel that decided Watson, we note that Geiger, the first California case to recognize the "lesser related offense" rule, was decided one year after Watson. Garcia, decided in 1995, did not mention Geiger.
Gross intoxicated vehicular manslaughter fits squarely within Geiger's definition of a lesser related offense. It is not necessarily included in murder, but is closely related to the crime of murder. Watson and Garcia mistakenly classified gross intoxicated vehicular manslaughter as a lesser included offense when it should instead be classified as a lesser related offense.
Mistaken classification of lesser included offenses as lesser related offenses has serious practical consequences.
First, the mistaken classification may lead to serious errors in instructing juries, and in the appellate review of jury instructions. A trial court must on its own motion instruct the jury on lesser included offenses, even over defense objection. (People v. Barton (1995) 12 Cal.4th 186, 194 [47 Cal.Rptr.2d 569, 906 P.2d 531].) But under Geiger a trial court is not obligated to instruct on lesser related offenses absent a request by defendant, and indeed, violates defendant's due process right to notice of the charges against him if it instructs sua sponte. (People v. Geiger, supra, 35 Cal.3d at pp. 526, 530.) All the elements of a lesser "included" offense are included in the greater offense charged, so defendant is given notice of potential liability on the lesser charge by the bringing of the greater charge. In contrast, a lesser related offense involves elements not included within the greater charged offense, and so the charged greater offense does not impart notice of the non included elements. (Id., at p. 526).
Therefore, erroneously classifying a lesser related offense as a lesser included offense may lead the trial court improperly to instruct on the lesser offense, even over defense objection, thus violating defendant's right to notice of all elements of the charge against him. Or, as in Watson and Garcia, the error in classification may lead the appellate court to reverse a valid conviction for the greater offense because the trial court failed to instruct sua sponte on a lesser offense, when in fact the lesser offense was merely related and did not require sua sponte instruction.
Second, mistaken classification of lesser included and related offenses may lead to erroneous reversal of proper convictions for related offenses. As noted above, a defendant cannot be convicted both of the charged greater offense and lesser included offenses based on the same conduct. (People v. Pearson, supra, 42 Cal.3d 351, 355; People v. Moran, supra, 1 Cal.3d 755, 763; CALJIC No. 17.10; CALJIC No. 8.75.) On the other hand, we know of no rule precluding simultaneous conviction for closely related but not necessarily included offenses. Instead, long-standing California law allows separate convictions to "be had for more than one offense committed by means of a single act or series of acts, where there is an element of one crime not found in the other ..." (People v. Thomas (1943) 59 Cal.App. 2d 585, 587 [139 P.2d 359], italics added.) Thirteen cases following this rule are cited in Thomas, and fourteen additional cases are cited in People v. Rush (1993) 16 Cal.App.4th 20, 30-31 [20 Cal.Rptr.2d 15] (dissent). Penal Code section 954 also reflects this principle.
Erroneously classifying lesser related offenses as lesser included offenses, as in Watson and Garcia, undermines the People's right to obtain multiple convictions for related offenses.
Of course, Penal Code section 654 prohibits multiple punishments based on the same acts, so that in some instances of multiple convictions for related conduct, punishment may be imposed only for one offense. However, different crimes may carry dramatically different punishments, so simultaneous convictions of related crimes may have large practical significance despite the prohibition on multiple punishments. For example, second degree murder carries a base sentence of 15 years to life in prison (Pen. Code, section 190), while gross intoxicated vehicle manslaughter carries a sentence of 4, 6, or 10 years (Pen. Code, section 191.5). Also, one of two (or more) simultaneous convictions may later be reversed, but the People nonetheless are entitled to see defendant punished for any other crime(s) for which convictions were obtained and affirmed.
Apart from improperly characterizing lesser included offenses as lesser related offenses, there is an additional serious shortcoming with Watson and Garcia: they distort the reasonable and sensible meaning of the concept of "elements" of a crime. The "elements" of a crime are "[t]hose constituent parts of a crime which must be proved by the prosecution to sustain a conviction." (Black's Law Dict. (6th ed. 1990) p. 520, col. 2.) See People v. Sanchez (1950) 35 Cal.2d 522, 528 [219 P.2d 9] (reversing criminal conviction because trial court refused to instruct that defendant's intoxication should be considered in determining whether he had the motive, purpose, or intent required for the crimes charged). The court said: "... it is [the trial] court's duty to see to it that the jury are adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law." (Italics added.)
Watson and Garcia held that intoxication and vehicle use are not "elements" of gross intoxicated vehicular manslaughter. Yet the prosecution must prove both intoxication and vehicle use, beyond a reasonable doubt, to secure a conviction for gross intoxicated vehicular manslaughter. In our view intoxication and vehicle are elements of the crime. They are indispensable ingredients, without which the crime cannot be committed. CALJIC No. 8.93, the standard jury instruction for gross intoxicated vehicular manslaughter, in relevant part states: "In order to prove this crime, each of the following elements must be proved: [¶] 1. The driver of a vehicle violated Vehicle Code section 23140, 23152, or 23153" (each of the numbered sections prohibits driving while intoxicated; italics added).
Watson and Garcia provide no analysis nor authority addressing how one properly identifies the "elements" of a crime, nor a coherent rationale for concluding that intoxication and use of a vehicle are "mere circumstances" not elements. They articulate no test to guide courts in determining what are essential elements and what are "mere circumstances." Here again, we conclude that these cases are in error, and that they have potential for mischief in confusing the meaning of an important criminal law concept: what are the "elements" of a crime. The Watson/Garcia holdings could be defended if classification of lesser included offenses depended on analysis of the evidence presented in support of the charged greater offense. Where the evidence offered in support of a murder shows defendant killed his victim while drunk and driving a car, under circumstances showing conscious disregard for life, a hindsight, evidence-based test for lesser included offenses would classify gross intoxicated vehicular manslaughter as a lesser included offense. But California has not adopted such an evidence-based test for lesser included offenses. Geiger makes clear that such a test would violate the defendant's right to full notice of the charge against him: "A defendant may not be 'convicted of an offense which is neither specifically charged in the accusatory pleading nor "necessarily included" within a charged offense ... ' "Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' ..." ' " (People v. Geiger, supra, 35 Cal.3d at p. 526, citation omitted.)
An evidence-based determination as to what constitute lesser included offenses, deferred until the evidence is taken, would violate defendant's right to notice of the charges and an opportunity to prepare to meet them. California law does not authorize such a test.
Two decisions appear to adopt such a test, People v. Irvin (1991) 230 Cal.App.3d 180, 184-186 [281 Cal.Rptr. 195], and People v. Rush, supra, 16 Cal.App.4th 20, but neither Irvin nor the majority in Rush consider or discuss Geiger or the due process obstacle to an evidence-based test for lesser included offenses. Nor do these cases contain an extensive review of the nature and boundaries of the lesser included offense doctrine. We respectfully conclude that Irvin and Rush are incorrect.
We adhere to the "necessarily committed," elements-based test adopted in Penal Code section 1159, and many decades of California cases. Intoxication and vehicle use are elements of the crime of gross intoxicated vehicle manslaughter. They are not elements of murder, and thus gross intoxicated vehicle manslaughter is not a lesser included offense of murder.
b. The mental states for second degree murder and gross vehicular manslaughter are consistent.
We briefly address a further issue concerning appellant's murder and manslaughter convictions. Murder is a killing "with malice aforethought." (Pen. Code, section 187.) Gross intoxicated vehicle manslaughter is defined as a killing without malice aforethought. (Pen. Code, section 191.5.) The two crimes thus at first blush require inconsistent and contradictory mental states. However, the inconsistency disappears when the mental states required for the two offenses are scrutinized more closely. Second degree murder requires an "act ... performed with knowledge of the danger to and with conscious disregard for human life." (CALJIC No. 8.11.) Gross intoxicated vehicular manslaughter requires "gross negligence," defined in CALJIC No. 3.36 as "a negligent act which is aggravated, reckless, or flagrant and which is such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life...." Thus, both crimes require proof, at bottom, of aggravated indifference or disregard for human life. Accordingly, the same proof as to mental state plausibly could support convictions for both crimes, as the trial court found here.
c. Punishment for manslaughter was properly stayed.
Finally, it is appropriate to stay punishment for one conviction, under Penal Code section 654, where convictions on two closely related offenses are predicated on the same act or omission. That is just what the trial court did here. It stayed punishment on appellant's conviction for gross intoxicated vehicular manslaughter. We find no fault with its rulings.
Appellant's conviction for gross vehicular manslaughter while intoxicated will be affirmed.
{2.-4} *
Disposition
The judgment is modified as to count 3, by imposing a two-year prison term instead of the eight-month term imposed by the trial court, and by staying the Vehicle Code section 23182 enhancement. As modified, the judgment is affirmed.
Lillie, P. J., and Woods, J., concurred.