People v. Binkerd
| Decision Date | 02 October 2007 |
| Docket Number | No. B198470.,B198470. |
| Citation | 155 Cal.App.4th 1143,66 Cal.Rptr.3d 675 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Jessica Rose BINKERD, Defendant and Appellant. |
S.R. Balash, Jr., Santa Barbara, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey, John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
Jessica Rose Etakerd appeals from the judgment entered following her plea of no contest to vehicular manslaughter without gross negligence (count 1, Pen.Code, § 192, subd. (c)(3))1 and driving under the influence of alcohol causing injury (count 2, Veh.Code, § 23153, subd. (a)). She admitted the special allegations of causing injury to more than one victim (Veh.Code, § 23558) as to both counts and causing great bodily injury (§ 12022.7, subd. (a)) as to count 2. The trial court sentenced her to five years four months in state prison on count 2 including enhancements, and stayed imposition of sentence on count 1. (§ 654.)
Appellant contends the trial court improperly entered judgment on count 2 because it is necessarily a lesser included offense of count 1, and that the prosecutor committed misconduct by arguing to the court that she was ineligible for probation. We conclude that driving under the influence of alcohol causing injury (count 2) is a necessarily lesser included offense of vehicular manslaughter without gross negligence (count 1). Accordingly, we reverse the conviction on count 2 and remand for resentencing.
On August 6, 2006, appellant attended a party in Santa Barbara at which she consumed alcohol. Appellant offered Alexander Baer a ride home and left the party at 1:30 in the morning, appellant driving and Baer in the front passenger seat. On her way home, appellant veered into the northbound lane of traffic on Highway 154, hitting Sara Maynez's car head-on. Alexander Baer was killed; Sara Maynez and appellant were injured. Approximately one hour after the collision, appellant's blood alcohol level was 0.20 percent.
Appellant was charged in the amended complaint with vehicular manslaughter without gross negligence (count 1, § 192, subd. (c)), driving under the influence of alcohol causing injury (count 2, Veh.Code, § 23153, subd. (a)), and driving with a blood alcohol content of 0.20 percent or higher causing injury (count 3, Veh.Code, § 23153, subd. (b)).2 The named victim in each count was Alexander Baer, the passenger in appellant's car. The complaint further alleged that appellant caused bodily injury to more than one victim (i.e., Sara Maynez), while committing the offenses charged in all three counts, within the meaning of Vehicle Code section 23558. Attached to counts 2 and 3 were special allegations of great bodily injury to Alexander Baer. (§ 12022.7, subd. (a).) Appellant pled no contest to counts 1 and 2 and admitted the special allegations. Count 3 was dismissed on the district attorney's motion. The court sentenced appellant to the low term of sixteen months on count 2 (Veh.Code, § 23554), plus a three-year enhancement for causing great bodily injury to Alexander Baer (§ 12022.7), plus a one-year enhancement for the injury to Sara Maynez (Veh.Code, § 23558), for a total of five years four months in prison. Sentencing on count 1 was stayed pursuant to section 654.
Validity of Conviction for Violating Vehicle Code Section 23153, Subdivision (a)
Appellant contends the trial court erred in convicting her of count 2, driving under the influence of alcohol causing injury (Veh.Code, § 23153, subd. (a)), because it is a necessarily lesser included offense of vehicular manslaughter without gross negligence (§ 192, subd. (c)(3)). We agree.
A defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act. (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.) In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether " " (People v. Lopez (1998) 19 Cal.4th 282, 288, 79 Cal.Rptr.2d 195, 965 P.2d 713; People v. Sloan (2007) 42 Cal.4th 110, 113, 64 Cal.Rptr.3d 137, 164 P.3d 568; People v. Izaguirre (2007) 42 Cal.4th 126, 128, 64 Cal.Rptr.3d 148, 164 P.3d 578; People v. Reed (2006) 38 Cal.4th 1224, 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.) In other words, "if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." (Lopez, supra, at p. 288, 79 Cal.Rptr.2d 195, 965 P.2d 713; Sloan, supra, at p. 116, 64 Cal.Rptr.3d 137, 164 P.3d 568.) At the time of appellant's offense, section 192 subdivision (c)(3) defined vehicular manslaughter as "[d]riving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence." Under Vehicle Code section 23153, subdivision (a), "It is unlawful for any person, while under the influence of any alcoholic beverage or drug, ... to drive a vehicle and concurrently do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."
In pleading no contest to violating section 192 subdivision (c)(3), appellant necessarily admitted violating Vehicle Code section 23153, subdivision (a). Both offenses require proof appellant was driving under the influence of alcohol when she violated the law, in this case crossing the double yellow lines in violation of Vehicle Code section 21460, subdivision (a). The two statutes differ to the extent that section 192, subdivision (c)(3) is committed when another person dies as a result of these acts, while Vehicle Code section 23153, subdivision (a) is committed when the other person is injured.
In People v. Miranda (1994) 21 Cal. App.4th 1464, 26 Cal.Rptr.2d 610, the Court of Appeal held that (Id., at p. 1468, 26 Cal.Rptr.2d 610.) Here, appellant pled no contest to both counts 1 and 2, which had the same named victim, Alexander Baer. Appellant could not commit a violation of count 1 (§ 192, subd. (c)(3)), without injuring that same victim, as charged in count 2.
The People argue that Vehicle Code section 23153 is not necessarily included in section 192, subdivision (c)(3), because a violation of section 192 could be predicated upon the violation of Vehicle Code section 23140. 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 People argue that the "under the influence" element of Vehicle Code section 23153, subdivision (a), is an additional element not required for a conviction under Vehicle Code 23140. (See McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 686, 688, 91 Cal.Rptr.2d 826 [].)
The People's argument is unconvincing. First, contrary to the People's contention, Vehicle Code section 23140 does include an "under the influence" element. For example, in cases where a driver under the age of 21 is charged with violating Vehicle Code section 23140, but no chemical test is conducted to determine the blood alcohol content, the trial court must make a finding of "under the influence," as stated in subdivision (b) of section 23140.
Second, section 192, subdivision (c)(3) is written in the disjunctive. The statute is violated if one drives a vehicle in violation of either Vehicle Code section 23140, 23152, or 23153. The statute does not provide that one has to violate all three sections of the Vehicle Code to commit the offense of vehicular manslaughter. Here, appellant was charged with violating section 192, subdivision (c)(3), by driving a vehicle in violation of Vehicle Code sections 23152 and 23153. She was over the age of 21 at the time and could not be charged with violating Vehicle Code section 23140.
Third, accepting the People's argument would mean that there could never be a lesser included offense of section 192, subdivision (c)(3). This is incorrect. In cases where one victim dies from an alcohol-related accident due to a violation of Vehicle Code sections 23140, 23152, or 23153, the Vehicle Code violation would always be a lesser-included offense of section 192, subdivision (c)(3). In this case, the prosecution charged appellant with violating Vehicle Code section 23153 and section 192, subdivision (c)(3), by injuring and causing the death of the same victim. As in Miranda, ...
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