Opinion
F070899
10-11-2017
THE PEOPLE, Plaintiff and Respondent, v. ALFREDO MORENO, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF153027A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Robert C. Nash, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Appellant Alfredo Moreno drove into the rear of a stopped car and fled the scene while intoxicated. One passenger in the other car was killed and several others suffered serious injuries. On November 20, 2014, Moreno was convicted of second degree murder, gross vehicular manslaughter, gross vehicular manslaughter while intoxicated, driving under the influence (DUI) causing bodily injury, driving with a blood-alcohol level of 0.08 percent or higher resulting in bodily injury, hit and run with injury and various enhancements. Moreno was sentenced to an aggregate term of eight years plus 15 years to life in state prison.
Moreno presents two claims on appeal. First, he claims that his statements made to law enforcement officers should have been excluded for failure to provide advisements under Miranda v. Arizona (1966) 384 U.S. 436, 439 (Miranda).) Second, Moreno contends that his convictions for DUI causing bodily injury and driving with a blood-alcohol level of 0.08 percent or higher resulting in bodily injury should be reversed as they are lesser included offenses of gross vehicular manslaughter. Upon review, we strike the convictions for DUI as lesser included offenses, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The January 19, 2014 Accident
On January 19, 2014, at about 10:15 p.m., Faith Mozeke was driving home. Her husband, Donte Heath, their six-month-old twin daughters, J.R.H. and L.R.H., and her stepson, D.E.H., were passengers in the car. Mozeke looked in her rearview mirror while stopped at a four-way intersection and saw headlights coming at her car at a high rate of speed. The oncoming car impacted Mozeke's car. Despite applying her brakes, the collision pushed her car across the intersection to the opposite side of the street. Neither Mozeke nor any of the passengers in her car saw the vehicle or the driver of the vehicle that hit them.
J.R.H. and L.R.H. were both restrained in child safety seats.
Upon returning to a stop, Mozeke checked on her children. Both J.R.H. and L.R.H. were crying, but L.R.H. stopped crying, appeared to seizure and went limp. Both Donte and D.E.H. were knocked unconscious and D.E.H. was bleeding from the face. Despite medical treatment, L.R.H. died three days later due to traumatic brain injuries suffered in the crash.
Jessica Benavides and her boyfriend, Daniel Gonzalez, were approaching the four-way stop from a different direction. Benavides saw Mozeke's car stopped at the intersection. She then witnessed a Cadillac sport utility vehicle (SUV) traveling around 70 to 80 miles per hour rear-end Mozeke's car and push it through the intersection. Neither Benavides nor Gonzalez witnessed any attempt by the driver of the Cadillac to brake prior to hitting the car.
At the crash scene, Moreno stopped the SUV, got out, checked himself, and then got back in his car and sped away. He did not check on the welfare of the occupants of the other car. Benavides called 911 and Gonzalez went to check the passengers in Mozeke's car.
Two miles from the scene of the collision, Jennifer Camacho and her husband, Richard Rodriguez, were outside a convenience store. They heard a loud boom. As they were leaving the store, Camacho saw a cloud of dust and a white-, cream-, or tan-colored Cadillac SUV parked in a large dirt lot. They approached the SUV and Camacho observed that the front bumper was missing. She later saw the bumper laying on the other side of the road. Camacho called 911 and they approached the Cadillac to provide assistance. They found Moreno still in the vehicle and noticed he smelled of alcohol. Rodriguez helped Moreno out of his car and placed him against it. Kern County Sherriff's officers arrived and took control of the scene.
Kern County Sheriff's Deputy William Hakker was the first officer that responded. Dispatch informed Hakker of a hit and run accident and he had reason to believe that Moreno might be involved. As he arrived, he noticed extensive front end damage to Moreno's vehicle. Hakker exited his vehicle and approached Moreno, Camacho and Rodriguez in front of Moreno's SUV. He asked Moreno if he was injured or needed an ambulance, but Moreno declined. Hakker noticed Moreno appeared intoxicated, had red watery eyes, omitted a strong odor of alcohol and was having a difficult time maintaining his balance. Moreno had to maintain contact with his car to keep himself steady and was having difficulty walking. Bakersfield Police Officers Dean Barthelmes and Edgar Aguilera arrived on scene shortly thereafter.
Barthelmes noticed that Moreno had red, bloodshot, watery eyes, slurred speech and smelled of alcohol. Moreno agreed to participate in a field sobriety test. Barthelmes conducted the horizontal gaze nystagmus test, which indicated a high level of depressants in Moreno's system. A preliminary alcohol screening test indicated that Moreno was under the influence of alcohol. Based on the results of the field sobriety test and Moreno's statements that he consumed alcohol that night, Barthelmes determined that Moreno displayed objective signs and symptoms of alcohol intoxication and was DUI.
Moreno was arrested and a breath test administered. Three tests between 11:21 p.m. and 11:28 p.m. indicated blood-alcohol levels of 0.20 percent, 0.18 percent and 0.20 percent, respectively.
Bakersfield Police Officer Jared Diederich was assigned as lead investigator of the collision. Diederich assigned officers to inspect both vehicles to rule out whether a mechanical defect played a role in the accident. Diederich testified at trial that he observed that the brakes and tires of the Cadillac appeared to be operational. He also test-drove Moreno's car to rule out the possibility of mechanical failure. During inspection of the vehicle, officers found a beer can in Moreno's vehicle.
A speed analysis of the victims' car was admitted and indicated that it accelerated from a stop to 34 to 43 miles per hour after impact and then returned to a stop. Moreno's car was equipped with a crash data recorder. The crash data recorder indicated that two and one-half seconds prior to the collision, Moreno was traveling at 71 miles per hour; at one-half second prior to the collision, Moreno was traveling at 58 miles per hour. The recorder also indicated the accelerator pedal was depressed at two and one-half seconds before the crash, but at two seconds prior to the crash, it was no longer depressed. The first braking occurred at one and one-half seconds prior to the collision with the victims' car.
Bakersfield Police Officer Timothy Berchtold opined at trial that Moreno failed to use his brakes to stop prior to hitting the victims' car because he was intoxicated to the point of not recognizing the hazards of the intersection and the victims' vehicle. Moreno prior DUI convictions in 2004 and 2012 were admitted.
II. Questioning of Moreno on January 19, 2014
Officers Barthelmes and Aguilera arrived on scene where Moreno was found with his vehicle. Barthelmes asked Moreno if he was injured or needed medical aid, and he responded that he was not hurt. Realizing that Moreno primarily spoke Spanish, Aguilera, a certified Spanish-language interpreter, translated further conversations with Moreno. They asked Moreno where and what he was driving. Moreno said he was driving northbound on South Union at about 30 to 40 miles per hour in the Cadillac Escalade and was the only occupant in the vehicle. Moreno admitted he had hit another vehicle and fled the scene. Barthelmes asked Moreno if he had been drinking and Moreno said he had.
III. Questioning of Moreno on January 24, 2014
On January 24, 2014, Bakersfield Police Officers Jared Diederich and Richard Bittleston questioned Moreno at his residence along with Bakersfield Police Service Technician Jimmy Ayon to assist with translation. Upon arriving, the officers advised Moreno that they were there to ask some questions. The officers spoke to Moreno in his open garage, where Moreno had provided chairs for the officers to sit. Moreno's daughter was also present during the questioning. All of the officers were wearing authorized uniforms, consisting of khaki-style pants and blue polo shirts with Bakersfield Police Department emblems on the left chest. The officers questioned Moreno for approximately one hour.
Moreno remembered being involved in a crash, but did not recall where it took place. He admitted that he had five or six beers to drink before attempting to drive home and that he was the only occupant of the vehicle. Moreno also admitted to having two prior convictions for driving under the influence. He knew it was dangerous to drive while intoxicated and that it could lead to people being injured or killed. He also conceded that the accident was his fault because he was drinking and driving. When asked if he could have done anything different, Moreno responded that he would not drink beer or drive. The officers found him to be cooperative and remorseful.
DISCUSSION
I. Failure to Provide Miranda Advisements
Moreno contends his incriminating statements made on the night of the accident and when later questioned at his house should have been excluded from evidence for failure to provide Miranda advisements. It is undisputed that the officers failed to provide Miranda advisements when questioning Moreno. We therefore must determine whether Moreno was in custody at the time of the interrogations.
A. Applicable Law
Under California law, issues relating to the suppression of statements made during a custodial interrogation must be reviewed under federal constitutional standards. (People v. Nelson (2012) 53 Cal.4th 367, 374; People v. Lessie (2010) 47 Cal.4th 1152, 1163-1164 (Lessie).) "Under the Fifth Amendment to the federal Constitution, as applied to the states through the Fourteenth Amendment, '[n]o person ... shall be compelled in any criminal case to be a witness against himself ....'" (Lessie, supra, at p. 1162; U.S. Const., 5th Amend.) "'"In order to combat [the] pressures [of custodial interrogation] and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights" to remain silent and to have the assistance of counsel.'" (People v. Nelson, supra, at p. 374.)
An interrogation is custodial when "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, 384 U.S. at p. 444; People v. Kopatz (2015) 61 Cal.4th 62, 80 (Kopatz).) The test for Miranda custody is, "'would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.'" (Yarborough v. Alvarado (2004) 541 U.S. 652, 663 (Yarborough).) The objective circumstances of the interrogation are examined, not the "'"subjective views harbored by either the interrogating officers or the person being questioned."'" (Kopatz, supra, at p. 80; Yarborough, supra, at p. 663.)
Under Miranda, "'custody' is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion." (Howes v. Fields (2012) 565 U.S. 499, 508-509 (Howes).) "In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of 'the objective circumstances of the interrogation,' a 'reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.'" (Id. at p. 509; see Stansbury v. California (1994) 511 U.S. 318, 322-323, 325; accord, Thompson v. Keohane (1995) 516 U.S. 99, 112.) In order to determine how a suspect would have "gauge[d]" (Stansbury, supra, at p. 325) his "'"freedom of movement"'" (id. at p. 322), courts must examine "all of the circumstances surrounding the interrogation" (ibid.).
California courts have identified a number of factors relevant to this determination. While no one factor is conclusive, relevant factors include: "'(1) [W]hether the suspect has been formally arrested; (2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the demeanor of the officer, including the nature of the questioning.'" (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403.)
Not all restraints on freedom of movement amount to custody for purposes of Miranda. (Howes, supra, 565 U.S. at pp. 508-510.) In addition to freedom of movement, courts must ask "the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." (Id. at p. 509.) For example, in Berkemer v. McCarty (1984) 468 U.S. 420, 441-442 (Berkemer), the Supreme Court held that the roadside questioning of a motorist who was pulled over in a routine traffic stop did not constitute custodial interrogation despite the fact that a traffic stop "significantly curtails the 'freedom of action' of the driver and the passengers," that it is generally "a crime either to ignore a policeman's signal to stop one's car or, once having stopped, to drive away without permission, " and that "few motorists ... would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so." (Id. at p. 436.) Despite those concerns, the court held that a traffic stop is not custody under Miranda because such detention does not "sufficiently impair [the detained person's] free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." (Berkemer, supra, at p. 437.) "Under the Fourth Amendment, ... a policeman who lacks probable cause but whose 'observations lead him reasonably to suspect' that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to 'investigate the circumstances that provoke suspicion.'" (Id. at p. 439.) However, the detention and questions posed by the officer must be "'"reasonably related in scope to the justification for their initiation."'" (Ibid.) "Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions." (Ibid.) Due to "[t]he comparatively nonthreatening character" of detentions like Terry or traffic stops, they are not subject to the dictates of Miranda. (Berkemer, supra, at p. 440.) "The ... noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not 'in custody' for the purposes of Miranda." (Ibid.) Stated differently, the "temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop, [citation], does not constitute Miranda custody." (Maryland v. Shatzer (2010) 559 U.S. 98, 113 (Maryland).)
Terry v. Ohio (1968) 392 U.S. 1 (Terry).
B. Standard of Review
With regard to claims of custody under the Fourth Amendment, "'[w]e review the court's resolution of the factual inquiry under the deferential substantial evidence standard.'" (Kopatz, supra, 61 Cal.4th at p. 79.) However, "'[t]he ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.'" (Ibid.) "Whether a defendant was in custody for Miranda purposes is a mixed question of law and fact" and subject to independent review. (Id. at p. 80; People v. Leonard (2007) 40 Cal.4th 1370, 1400.)
C. Analysis
1. January 19, 2014
On the night of the accident, Moreno was standing next to his damaged vehicle. Three law enforcement officers eventually arrived on scene. He was questioned, submitted to a field sobriety test and ultimately arrested. During the time he was questioned, he was standing near his vehicle and was not handcuffed or otherwise restrained in any manner. Moreno had not been arrested and the questioning happened within minutes of the officers arriving. Moreno was neither handcuffed, placed in a patrol car, nor taken to the station to be questioned. Accordingly, many of the relevant factors support a finding that Moreno was not in custody.
On the other hand, there was significant evidence that Moreno had committed a crime, which could lead a reasonable person in such a position to believe that they would not be free to leave. Moreno was standing near his vehicle that suffered extensive damage to its front end. Further, Moreno displayed obvious signs of intoxication. From the evidence present at the scene where Moreno was found, notwithstanding any knowledge that he was involved in the hit and run accident, a reasonable person in Moreno's position could believe that they would be arrested for DUI and would not be free to leave.
Even if a reasonable person in Moreno's position would not feel entitled to terminate the questioning and leave, the interrogation in question was preliminary in nature and reasonably related to the officers' investigation into whether a crime had been committed. (Berkemer, supra, 468 U.S. at pp. 437, 441-442.) The officers asked Moreno if he was hurt, if he had been driving and if he had been drinking. Even though the responses were incriminating, the officers asked a moderate number of questions to confirm their suspicions that Moreno was driving under the influence. (Id. at p. 439.) It is true that by responding to the questions, Moreno provided law enforcement with confessionary statements that confirmed probable cause for his arrest. However, the circumstances surrounding the questioning, specifically the fact that the questioning occurred in a public place and the questioning was brief and solely to confirm the officer's suspicions that Moreno was driving under the influence, support a finding that Moreno was not in custody and entitled to a Miranda advisement. (Berkemer, supra, at pp. 441-442; Maryland, supra, 559 U.S. at p. 113.) The trial court did not err in admitting Moreno's statements from January 19, 2014.
Moreno argues that the situation is similar to People v. Bejasa (2012) 205 Cal.App.4th 26 (Bejasa). In Bejasa, the appellant was involved in a head-on automobile collision, causing serious bodily injury to the passenger of his vehicle. (Id. at p. 30.) Police arrived on scene and asked the appellant several preliminary questions. During the preliminary questions, the appellant made incriminating statements that he had been driving the vehicle and was on parole. (Id. at pp. 32-33.) The police also searched the appellant and found methamphetamine. (Ibid.) The police officers handcuffed the appellant, placed him in the back of a patrol car, and told him that he was being detained for a possible parole violation. (Id. at p. 33.) The appellant was later allowed out of the patrol car and police took off the handcuffs prior to interrogating him without providing a Miranda advisement. The interrogation and field sobriety tests resulted in the appellant making several incriminating statements. (Bejasa, supra, at p. 33.) The appellant challenged whether the statements made during the interrogation should have been admitted, but he did not challenge whether the incriminating statements he made during preliminary questioning were properly admitted. Upon review, the court determined that in light of the fact the appellant had been told he was being detained and his physical movement was previously restrained, a reasonable person in that situation would feel completely at the mercy of police, and was in custody for purposes of Miranda at the time of the interrogation. (Bejasa, supra, at pp. 38-39.)
Many of the factors present in Bejasa are not found in the instant case. At the time the officers asked Moreno preliminary questions, he was not restrained nor was he told he was being detained. Also, Bejasa did not challenge the preliminary questions by the officers who first arrived at the scene. The challenged questions here are like the preliminary questions asked in Bejasa, and were legitimately asked without a Miranda advisement in light of Berkemer. The trial court did not err in finding that the statements were admissible despite not providing Moreno a Miranda advisement.
2. January 24, 2014
Moreno also contends his responses to the police interrogation at his house on January 24, 2014, were not admissible at trial based on the failure of law enforcement to provide him Miranda advisements. The People contend that although Moreno was previously arrested, he had been released and was not in custody as he voluntarily agreed to talk to law enforcement officers in his garage. According to the People, the questioning did not create a coercive situation as illustrated by the fact that Moreno allowed the officers into his garage and provided them chairs to sit upon. During questioning, the officers did not display force, reference Moreno having previously been arrested or otherwise use interrogation techniques to pressure Moreno into answering.
Upon independently reviewing the law and facts presented, we agree that the circumstances surrounding the interrogation support a finding that Moreno was not in custody for purposes of Miranda. The questioning occurred at Moreno's residence by three law enforcement officers. While the number of officers may have increased the likelihood that a reasonable person would believe he was detained, one of the officers was functioning as an interpreter. Accordingly, a reasonable person would not consider that the additional officer was present with the intent to create a greater police presence. Further, Moreno's daughter was present during the questioning creating a less formal atmosphere. Based on the totality of the circumstances, there were not sufficient indicia to support a showing that a reasonable person in Moreno's situation would feel detained.
While we find that Moreno was not entitled to a Miranda advisement, it is a close case and certain aspects of the questioning were troubling. Although the interrogation was relatively informal, by the time law enforcement questioned Moreno on January 24, 2014, there was ample evidence to support charging him with murder and vehicular manslaughter related charges. Witnesses observed the crash and identified both Moreno and his vehicle. Moreno was found several miles away from the accident site standing next to his severely damaged vehicle and displaying overt signs of intoxication. He made incriminating statements that he was involved in the hit and run accident on the night of the incident. In addition to a field sobriety test indicating that he was intoxicated, testing confirmed that his blood-alcohol content was between 0.18 and 0.20 percent. Subsequent investigation found a beer can in Moreno's vehicle, the crash data recorder indicated that he was traveling 70 miles per hour prior to the crash and, despite a last-second attempt to brake, his vehicle was traveling at 58 miles per hour at the time of the collision. Finally, Moreno had two prior DUI convictions. In light of the evidence, it is unclear from the record why law enforcement continued to investigate Moreno rather than arrest him.
But, for the same reasons that further interrogation appeared unnecessary, the admission of any incriminating statements was harmless. The erroneous admission of a defendant's statements obtained in violation of the Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman). (Arizona v. Fulminante (1991) 499 U.S. 279, 309-312; People v. Elizalde (2015) 61 Cal.4th 523, 542.) That test requires the respondent "to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, at p. 24.) Even if none of Moreno's confessionary statements were presented, the evidence described above was sufficient for a jury to find Moreno guilty beyond a reasonable doubt of the charged offenses. Moreno's counsel effectively conceded that he caused the accident while intoxicated, and solely focused on trying to convince the jury that they should only convict Moreno of manslaughter rather than murder. Moreno was not prejudiced by the admission of his incriminating statements.
II. Lesser Included Offenses
Moreno contends that counts 3 and 4, DUI causing injury, in violation of Vehicle Code section 23153, subdivision (a), and driving while having a blood-alcohol level of 0.08 percent or more causing injury, in violation of Vehicle Code section 23153, subdivision (b), must be reversed as they are lesser included offenses of count 2, gross vehicular manslaughter while intoxicated, in violation of Penal Code section 191.5, subdivision (a). The People not only disagree, but argue that the trial court erred in staying the sentences to counts 3 and 4 and the matter should be remanded so that the trial court can resentence Moreno.
A. Procedural History
Moreno was convicted on six counts: second degree murder, a violation of Penal Code section 187 (count 1); gross vehicular manslaughter while intoxicated, in violation of Penal Code section 191.5, subdivision (a) (count 2); DUI causing bodily injury to L.J.H., in violation of Vehicle Code section 23153, subdivision (a) (count 3); DUI while having a 0.08 percent or more blood-alcohol level, in violation of Vehicle Code section 23153, subdivision (b) (count 4); hit and run with injury, in violation of Vehicle Code section 20001, subdivision (b)(2), a felony (count 5); and one count of driving on a suspended license, a misdemeanor violation of Vehicle Code section 14601.2, subdivision (a) (count 6).
The jury also found true several enhancements related to these charges. We will only discuss those directly relevant to the challenges presented in this appeal.
The jury also found not true that Moreno personally inflicted great bodily injury upon both Donte Heath and D.E.H. within the meaning of Penal Code section 12022.7. While the jury did not find that Moreno inflicted great bodily injury, the jury did find true that Moreno caused bodily injury to Donte Heath, D.E.H. and Faith Mozeke within the meaning of Vehicle Code section 23558 with regard to counts 1 through 4.
At his January 13, 2015, sentencing hearing, Moreno was sentenced to 15 years to life on the gross vehicular manslaughter conviction (count 2), which was enhanced with a five-year term pursuant to Vehicle Code section 20001, subdivision (c), for fleeing the scene of the crime, and three one-year terms for each of the bodily injury enhancements pursuant to Vehicle Code section 23558. The sentence on the second degree murder count (count 1) was stayed pursuant to Penal Code section 654, as well as the two DUI counts (counts 3 & 4) and the hit and run count (count 5). Moreno was sentenced to 180 days in county jail for driving on a suspended license (count 6).
B. Legal Standard
It is generally permissible to convict a defendant of multiple charges arising from a single act or course of conduct. (Pen. Code, § 954; People v. Sanders (2012) 55 Cal.4th 731, 736.) However, two limitations apply. First, section 654 bars multiple punishment for the same act or omission. (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) In addition, a "judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses." (People v. Montoya (2004) 33 Cal.4th 1031, 1034.)
It is error for a trial court to impose a concurrent sentence if Penal Code section 654 applies. (People v. Jones (2012) 54 Cal.4th 350, 353.) The proper procedure, if the statute applies, is to impose a sentence but stay its execution, despite little practical difference between a concurrent sentence and a stayed sentence. (Ibid.) On the other hand, "[w]hen a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed." (People v. Sanders, supra, 55 Cal.4th at p. 736; see People v. Moran (1970) 1 Cal.3d 755, 763.)
When seeking to identify a lesser and necessarily included relationship, courts can apply either the elements test or the accusatory pleading test. (People v. Juarez (2016) 62 Cal.4th 1164, 1174 (Juarez).) "'"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."'" (Ibid.; cf. People v. Reed (2006) 38 Cal.4th 1224, 1229 [for purposes of Pen. Code, § 954, only the statutory elements test applies].)
Here, the greater offense in question is gross vehicular manslaughter. (Pen. Code, § 191.5 subd. (a).) "Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence." (Ibid.) Gross vehicular manslaughter requires a defendant to be in violation of one of the three statutory sections, including causing bodily injury while driving under the influence under Vehicle Code section 23153, which was the basis for Moreno's convictions for counts 3 and 4.
The People acknowledge that the appellate courts in People v. Miranda (1994) 21 Cal.App.4th 1464 and People v. Binkerd (2007) 155 Cal.App.4th 1143 (Binkerd) have found DUI causing bodily injury under Vehicle Code section 23153, subdivision (a), a necessarily included offense of either gross vehicular manslaughter or vehicular manslaughter without gross negligence, respectively. The former sections of vehicular manslaughter, like the present language of Penal Code section 191.5, subdivision (a), base the vehicular manslaughter claim on a violation of one of several statues, including Vehicle Code section 23153, where the incident resulted in death rather than just bodily injury. As such, it is necessary to commit a violation of Vehicle Code section 23153 to commit gross vehicular manslaughter. "One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of Penal Code section 191.5 has occurred." (People v. Miranda, supra, at p. 1468.)
In People v. Miranda, the court rejected the respondent's argument that it may be possible a victim could be killed without first being injured and, therefore, DUI causing bodily injury was not a necessarily included offense. (People v. Miranda, supra, 21 Cal.App.4th at p. 1468.) As the respondent did not explain how that could occur, the court did not adopt such a "hypertechincal reading of Penal Code section 191.5" and reversed the conviction for violating Vehicle Code section 23153, subdivision (a). (People v. Miranda, supra, at p. 1468.)
In Binkerd, the respondent argued that Vehicle Code section 23153 was not necessarily included in vehicular manslaughter because vehicular manslaughter could be alternatively predicated upon the violation of Vehicle Code section 23140. (Binkerd, supra, 155 Cal.App.4th at pp. 1148-1149.) Vehicle Code section 23140, subdivision (a), makes it "unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." The court found the respondent's argument unconvincing. (Binkerd, supra, at pp. 1148-1149.) The former vehicular manslaughter section was written in the disjunctive and did not require that one had to violate all three sections of the Vehicle Code (§§ 23140, 23152 & 23153) to commit the offense of vehicular manslaughter. (Binkerd, supra, at p. 1149.) The court noted that accepting the respondent's argument would mean that there could almost never be a lesser included offense of vehicular manslaughter because it was not possible for a defendant over the age of 21 years to violate each section, including Vehicle Code section 23153, as certain sections only applied to drivers under the age of 21 years. (Binkerd, supra, at p. 1149.)
Moreno presents the same argument set forth in Binkerd. For the same reasoning set forth above, we reject the argument. The statute was written in the disjunctive and a conviction for gross vehicular manslaughter in this case was necessarily based on the jury finding Moreno guilty of DUI causing bodily injury under either Vehicle Code section 23153, subdivisions (a) or (b).
Next, Moreno argues that the convictions for counts 3 or 4 were not necessarily included offenses of each other because they could have been based on bodily injury to other victims, rather than the deceased victim. This argument is also not persuasive. Using the accusatory pleading test, the pleading specifically alleged that the bodily injury requirement of counts 3 and 4 was to the injuries sustained to L.J.H., rather than any of the other victims. The jury instructions reiterated that the bodily injury requirement of count 3 was with respect to L.J.H. Further, for both counts 3 and 4, the jury found true enhancements under Vehicle Code section 23558 for the other three injured victims. Vehicle Code section 23558 states that a person who causes bodily injury or death to more than one victim by way of vehicular manslaughter or DUI causing bodily injury shall "receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements that may be imposed pursuant to this section is three." (Veh. Code, § 23558.) Based on the accusatory pleadings and verdict forms, it is clear that the prosecution was not attempting to convict Moreno of separate offenses under counts 3 and 4 based on injuries to the other victims. Those injuries served as the basis for one-year sentence enhancements under Vehicle Code section 23558. Counts 3 and 4 were based on the fatal injuries to L.J.H and are necessarily included offenses of count 3.
Finally, the People argue that count 4 is not a necessarily included offense because it requires the person to be driving with a 0.08 percent blood-alcohol level, rather than DUI of alcohol. This argument is easily dispatched. Gross vehicular manslaughter under Penal Code section 191.5 does not differentiate between the various sections of Vehicle Code section 23153. Accordingly, a violation of any subdivision of Vehicle Code section 23153 is a necessarily included offense of gross vehicular manslaughter. Counts 3 and 4, for violations of Vehicle Code section 23153, subdivisions (a) and (b), respectively, must be reversed. (People v. Sanders, supra, 55 Cal.4th at p. 736.)
Subdivision (a) of Vehicle Code section 23153 requires driving "under the influence of any alcoholic beverage," whereas subdivision (b) requires driving "while having 0.08 percent or more, by weight, of alcohol in his or her blood." The remainder of the statutory language of each subdivision is identical.
DISPOSITION
The convictions for the counts of driving under the influence causing bodily injury, in violation of Vehicle Code section 23153, subdivision (a) (count 3), and driving under the influence while having a 0.08 percent or more blood-alcohol level, in violation of Vehicle Code section 23153, subdivision (b) (count 4), are reversed. The case is remanded and the trial court is directed to strike those convictions and resentence Moreno accordingly. The judgment is otherwise affirmed. The trial court is directed to prepare a new abstract of judgment.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
GOMES, Acting P.J. /s/_________
FRANSON, J.