People v. Sanchez

Citation16 P.3d 118,24 Cal.4th 983,103 Cal.Rptr.2d 698
Decision Date05 February 2001
Docket NumberNo. S066991.,S066991.
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE, Plaintiff and Respondent, v. Juan Jose SANCHEZ, Defendant and Appellant.

Jo Anne D. Roake, under appointment by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Carol Wendelin Pollack, Assistant Attorney General, Chung L. Mar, Kerrigan M. Keach, James W. Bilderback II, Barbara B. Dayvault and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

We are called upon to determine whether the offense of gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5, subd. (a))1 is a lesser included offense of murder. (§ 187.) We conclude, as did the Court of Appeal, that it is not.

I

Defendant was charged by information filed July 5, 1995, with (1) the murder of Royal Williams (§ 187); (2) gross vehicular manslaughter while intoxicated (based upon the death of Royal Williams) (§ 191.5, subd. (a)); (3) driving under the influence of alcohol, causing injury to Richard Conrad (Veh.Code, § 23153, subd. (a)); (4) driving with a blood-alcohol level in excess of .08 percent with injury to Richard Conrad (Veh.Code, § 23153, subd. (b)); (5) hit-and-run driving, causing injury (Veh.Code, § 20001, subd. (a)); and (6) perjury (§ 118). As to counts 2, 3, and 4, it also was alleged that defendant caused death and bodily injury to more than one victim within the meaning of former Vehicle Code section 23182. (See Veh.Code, § 23182, as amended by Stats.1988, ch. 1264, § 1, p. 4199, repealed by Stats. 1998, ch. 118, § 45; see also present Veh.Code, § 23558.)

After a court trial, defendant was found guilty of second degree murder, gross vehicular manslaughter while intoxicated, driving under the influence of alcohol causing injury, and driving with the specified blood-alcohol level, causing injury. The court found defendant not guilty of the hit-and-run charge and dismissed the perjury charge pursuant to section 1118.

The court sentenced defendant to a term of 15 years to life in prison on count 1 (the second degree murder charge). The court ordered that this term be served consecutively to an eight-month term on count 3 (driving under the influence of alcohol, causing injury), a term that the court enhanced with an additional term of eight months, pursuant to former Vehicle Code section 23182. Sentences imposed on counts 2 and 4 (gross vehicular manslaughter while intoxicated, and driving with a specified blood-alcohol level) were stayed.

On appeal, the Court of Appeal modified the judgment, imposing a two-year term on count 3 (driving under the influence of alcohol, causing injury) but staying the enhancement imposed pursuant to Vehicle Code section 23182. It affirmed the judgment in all other respects. We granted defendant's petition for review.

The evidence considered in the light most favorable to the judgment established that in the early morning hours of April 25, 1995, Richard Conrad and Royal Williams were en route to Taft, where they worked. Conrad, the driver, slowed for a curve but was startled to see an oncoming vehicle in his lane. Conrad swerved to avoid it, but the other vehicle struck Conrad's Dodge Colt on the passenger side, killing Williams and seriously injuring Conrad. Police accident reconstruction confirmed that the collision occurred in Conrad's lane. Defendant was the driver of the other vehicle, a Ford Bronco. In statements to the police and at trial, he claimed that Conrad had been at fault, but gave conflicting accounts of the circumstances of the collision and of his own alcohol consumption preceding the collision. He admitted some alcohol consumption, but denied feeling intoxicated.

Because of various indications that he was under the influence of alcohol, defendant was arrested at the scene, and en route to the police station he commented laughingly that he was scheduled to appear on another driving-under-the-influence charge that morning. He also commented that his wife had told him not to drink and drive. His blood-alcohol level two hours after the collision was .17 percent.

Defendant had sustained two prior convictions for driving under the influence of alcohol, and one additional such charge was pending against him. In 1988, he was arrested after he twice careened into other vehicles, and the driver of one of those vehicles chased him on foot and tackled him. His blood-alcohol level at the time was .19 percent. Upon conviction, his license to drive was suspended, and he was placed on 36 months' probation. In 1993, defendant again was arrested and convicted of driving under the influence of alcohol, and again was placed on probation. He was ordered to attend a drinking driver's educational program, but failed to do so. In February 1995, two months prior to his commission of the present offenses, a California Highway Patrol officer found defendant next to an apparently stalled vehicle. Defendant stated that another person was the driver. It appeared to the officer that defendant was under the influence of alcohol, and the officer directed defendant not to drive the automobile. When the officer withdrew, he observed defendant put gas into the vehicle and drive away. Defendant drove 20 miles per hour over the speed limit, failed to put on his vehicle headlights, and weaved among lanes. His blood-alcohol level after he was stopped was between .18 and .19 percent. Charges in that case were pending at the time of trial in the present case.

Defendant had been driving without a valid driver's license since 1988, when his license was suspended in connection with his first conviction.

II

In most cases "this court has ... affirmed multiple convictions for a single act or indivisible course of conduct," leaving it to the sentencing court to determine whether to stay execution of sentence on one or more convictions pursuant to section 654 in order to avoid multiple punishment for the same act. (People v. Pearson (1986) 42 Cal.3d 351, 354, 359, 228 Cal. Rptr. 509, 721 P.2d 595.) A defendant, however, 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. (Id. at p. 355, 228 Cal.Rptr. 509, 721 P.2d 595.)

For purposes of the rule proscribing multiple conviction, "`[u]nder California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.'" (People v. Breverman (1998) 19 Cal.4th 142, 154, fn. 5, 77 Cal. Rptr.2d 870, 960 P.2d 1094.)

As an example of the application of this rule based upon the statutory elements of the crimes involved, we observe that assault with a deadly weapon (§ 245) is not an offense necessarily included within murder, even if the murder in fact is carried out with a deadly weapon. Murder requires proof of an unlawful killing of a human being committed with malice. (§ 187, subd. (a).) Assault with a deadly weapon requires proof that a deadly weapon was used. Because in the abstract a murder can be committed without a deadly weapon, assault with a deadly weapon is not an offense necessarily included within the crime of murder. (People v. Benjamin (1975) 52 Cal.App.3d 63, 71, 124 Cal.Rptr. 799; see also People v. Zapata (1992) 9 Cal.App.4th 527, 533, 12 Cal.Rptr.2d 118, disapproved on other grounds in People v. Fields (1996) 13 Cal.4th 289, 305, 52 Cal. Rptr.2d 282, 914 P.2d 832; In re David S. (1983) 148 Cal.App.3d 156, 158, 195 Cal. Rptr. 754.) Of course, even though a defendant may stand convicted of both a murder and an assault with a deadly weapon for the same act, execution of sentence for one of the offenses normally would be stayed pursuant to section 654. (See, e.g., People v. Siko (1988) 45 Cal.3d 820, 824, 248 Cal.Rptr. 110, 755 P.2d 294; People v. Parks (1971) 4 Cal.3d 955, 961, fn. 3, 95 Cal.Rptr. 193, 485 P.2d 257.)

We conclude that the same rule should apply in the present case. Although as a factual matter, a murder may be carried out by means of a vehicle and by an intoxicated driver, in the abstract it obviously is possible to commit a murder without committing gross vehicular manslaughter while intoxicated. Accordingly, dual conviction in the present case was appropriate—although the trial court properly avoided dual punishment pursuant to section 654 by staying execution of sentence for the vehicular manslaughter offense.

Gross vehicular manslaughter while intoxicated is defined as follows: "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 which might produce death, in an unlawful manner, and with gross negligence." (§ 191.5, subd. (a).)

When we compare the elements of murder with the elements of gross vehicular manslaughter while intoxicated, it appears, as the Court of Appeal concluded, that the statutory elements of murder do not include all the elements of the lesser offense. Gross vehicular manslaughter while intoxicated requires proof of elements that need not be proved when the charge is murder, namely, use of a vehicle and intoxication. Specifically, section 191.5 requires proof that the homicide was committed "in the driving of a vehicle" and that the driving was in violation of specified Vehicle Code provisions prohibiting driving...

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