People v. Rocha, Cr. 16585

• Decision Date: 05 May 1978
• Docket Number: Cr. 16585
• Citation: 80 Cal.App.3d 972,146 Cal.Rptr. 81
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jose Lopez ROCHA, Defendant and Appellant.

Page 81

146 Cal.Rptr. 81

80 Cal.App.3d 972

PEOPLE of the State of California, Plaintiff and Respondent, v. Jose Lopez ROCHA, Defendant and Appellant.

Cr. 16585.

Court of Appeal, First District, Division 1, California.

May 5, 1978.

Paul N. Halvonik, State Public Defender, Clifton R. Jeffers, Chief Asst. State Public Defender, Michael G. Millman, Phyllis J. Hamilton, Deputy State Public Defenders, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg, Stanley M. Helfman, Deputy Attys. Gen., for plaintiff and respondent.

RACANELLI, Associate Justice.

Defendant was convicted by a verdict of the jury finding him guilty of a violation of Penal Code section 192, subdivision 3(a) (count I: felony vehicular manslaughter) and Vehicle Code section 23101, subdivision (a) (count II: felony drunk driving). On appeal from the judgment entered imposing concurrent sentences to state prison, defendant claims error resulting from multiple convictions and punishment, unconstitutionality of Penal Code section 193, and the failure to give certain requested jury instructions. Only one of these claims has merit. Accordingly, we modify the judgment and, as modified, affirm.

We briefly summarize the facts relevant to our discussion:

In the early evening of June 21, 1976, while driving his new Mustang automobile accompanied by his passenger, Louis, defendant sped through the red traffic signal at the intersection of Central Expressway and Scott Boulevard in Santa Clara County, colliding broadside with another automobile then properly in the intersection which was traveling north on Scott Boulevard. The driver of the other automobile died later that evening from injuries sustained in the collision. A police officer responding to the scene of the accident detected a strong odor of alcohol on defendant's breath, and observed that defendant was unsteady while standing and that his eyes were red and watery. Following his arrest, defendant's blood specimen was taken about one hour later revealing, upon testing, a blood alcohol level of .10. Defendant presented no testimony in his defense at trial.

I. Multiple Convictions and Punishment

Defendant contends, relying principally on our reasoning in People v. Lobaugh (1971) 18 Cal.App.3d 75, 95 Cal.Rptr. 547, that a single act or course of criminal conduct cannot, as here, support multiple convictions. His contention is unpersuasive.

It is well settled that section 654 of the Penal Code proscribes only double punishment but does not bar double convictions. (People v. Greene (1973) 34 Cal.App.3d 622, 654, 110 Cal.Rptr. 160; People v. Tideman (1962) 57 Cal.2d 574, 586-587, 21 Cal.Rptr. 207, 370 P.2d 1007; In re Adams (1975) 14 Cal.3d 629, 636, 122 Cal.Rptr. 73, 536 P.2d 473; 1 Witkin, Cal.Crimes, § 207, p. 199; 2 Witkin, Cal.Crimes, § 948, pp. 900-901.) It is likewise well recognized that where one of the offenses charged is "necessarily included" in the other a defendant may not be convicted of both. (People v. Greene, supra, 34 Cal.App.3d at p. 654, 110 Cal.Rptr. 160; People v. Pater (1968) 267 Cal.App.2d 921, 924-926, 73 Cal.Rptr. 823; see also 1 Witkin, Cal.Crimes, § 208, pp. 199-200.) But where the charge arising from a single act involves different offenses entailing different elements of proof, a defendant may be properly convicted of both. (People v. Tideman, supra, 57 Cal.2d at pp. 585-586, 21 Cal.Rptr. 207, 370 P.2d 1007; see also In re Dennis B. (1976) 18 Cal.3d 687, 691-692, 135 Cal.Rptr. 82, 557 P.2d 514.)

The crime of "felony drunk driving" is not a lesser included offense of vehicular manslaughter. (People v. Young (1964) 224 Cal.App.2d 420, 425, 36 Cal.Rptr. 672.) Nor are the two offenses mutually exclusive so as to preclude a conviction of both. (See People v. Jaramillo (1976) 16 Cal.3d 752, 129 Cal.Rptr. 306, 548 P.2d 706; People v. Prado (1977) 67 Cal.App.3d 267, 273, 136 Cal.Rptr. 521; People v. Witzel (1957) 155 Cal.App.2d 486, 490-491, 318 P.2d 136.) "Manslaughter in the driving of a vehicle (Pen.Code, § 192, subd. 3(a)) need not be committed by a person under the influence of alcohol, and felony drunk driving (Veh.Code, § 23101) need not result in the death of the person injured. Neither offense, therefore, is necessarily included in the other." (People v. Young, supra, 224 Cal.App.2d 420, 425, 36 Cal.Rptr. 672, 676.) Moreover, to constitute involuntary manslaughter under Penal Code section 192, subdivision 3(a), the death must be due either to (1) the commission of an unlawful act, not amounting to a felony, with gross negligence, or (2) the commission of a lawful act which might produce death, in an unlawful manner and with gross negligence. Here there was substantial evidence ¹ that at the time of injury causing death, defendant was driving his automobile while under the influence of alcohol at an excessive rate of speed, had run a red light, and was otherwise inattentive to his driving. Proof of such acts would fully support the jury's implied finding of either (1) unlawful and grossly negligent conduct not amounting to a felony (see In re Dennis B., supra, 18 Cal.3d 687, 697, 135 Cal.Rptr. 82, 557 P.2d 514) or (2) a lawful act likely to produce death, in an unlawful manner, with gross negligence. (See People v. Collins (1925) 195 Cal. 325, 348-349, 233 P. 97.)

Defendant's reliance on our holding in People v. Lobaugh, supra, 18 Cal.App.3d 75, 95 Cal.Rptr. 547, is misplaced; our decision in Lobaugh is readily distinguishable on its facts and does not compel a contrary conclusion. In Lobaugh, we were concerned inter alia with the question of prohibition against multiple convictions based upon a single act by reason of multiple victims. We there held that a single violation of Vehicle Code section 23101 constituted but one offense irrespective of the number of persons injured thereby. (Id. at p. 79, 95 Cal.Rptr. 547.) We questioned the authority of People v. Young, supra, 224 Cal.App.2d 420, 36 Cal.Rptr. 672, only insofar as it purported to hold that the bar of Penal Code section 654 did not prohibit multiple convictions for multiple victims arising from a single offense. The defendant herein was properly convicted of both counts involving but one victim.

Defendant's alternate contention of having been improperly sentenced on both convictions is meritorious, and the People so concede. (See People v. Young, supra, 224 Cal.App.2d 420, 424, 36 Cal.Rptr. 672.) The circumstance of concurrent sentencing does not satisfy the statutory proscription against such double punishment. (In re Adams, supra, 14 Cal.3d 629, 636, 122 Cal.Rptr. 73, 536 P.2d 473.) In such case, the appropriate remedial procedure is to permit the sentence on the greater or more serious offense to stand and to stay execution of the lesser. (People v. Niles (1964) 227 Cal.App.2d 749, 755-756, 39 Cal.Rptr. 11.)

In determining which is the greater offense, we need look only to the comparative penalties and sustain that imposing the greater sanction; since the penalty then provided for a violation of Vehicle Code section 23101, subdivision (a), is greater, ² the sentence imposed for conviction of count II must remain. (In re Adams, supra, 14 Cal.3d 629, 636-637, 122 Cal.Rptr. 73, 536 P.2d 473; People v. Young, supra, 224 Cal.App.2d 420, 425-426, 36 Cal.Rptr. 672.)

II. Constitutionality of Penal Code Section 193

In its verdict on count I, the jury did not recommend punishment by imprisonment in the county jail. ³ Defendant's argument in support of his claim of being denied due process of law under the Fourteenth Amendment is twofold: (1) the statutory standard permitted "unfettered discretion" of the jury in deciding the question of penalty; (2) that the instructions given concerning penalty (CALJIC 8.97, 17.42), together with the form of verdict, effectively deprived the jury of exercising its discretion in an informed manner. His argument is unsound.

Preliminarily, we observe that defendant's failure to request additional or clarifying instructions constitutes a waiver of the right to complain of such omission for the first time on appeal. (See People v. Hawkins (1968) 268 Cal.App.2d 99, 106, 73 Cal.Rptr. 748.) Moreover, since punishment for the conviction in count I is proscribed by Penal Code section 654, as previously discussed, defendant cannot complain of an alleged error in which no prejudice to him is shown. (People v. Archerd (1970) 3 Cal.3d 615, 643, 91 Cal.Rptr. 397, 477 P.2d 421; see also People v. Schroeder (1968) 264 Cal.App.2d 217, 227-229, 70 Cal.Rptr. 491; see also People v. Brown (1973)35 Cal.App.3d 317, 327, 110 Cal.Rptr. 854, likewise precluding complaint based upon unconstitutionality of a statute inapplicable to the defendant's case.) Nevertheless, we elect to treat the contentions raised on their merits.

Relying on constitutional principles condemning unbridled jury discretion in the imposition of penalty in capital cases (Gregg v. Georgia (1976) 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida (1976) 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas (1976) 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929; Furman v. Georgia (1972) 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346), defendant contends that by analogous reasoning the determination of penalty by the jury (jail or prison, depending upon its recommendation) without adequate, articulated guidelines violates due process requirements. His contention is without merit.

The sole function of the jury's recommendation is to establish whether the defendant will suffer a misdemeanor or felony punishment, subject, however, to the court's ultimate power to impose probation. (Pen.Code, § 193.) A substantially similar Penal Code provision (§ 264, applicable to jury verdicts in unlawful sexual intercourse cases) has been held not to violate due process...