PEOPLE v. BRADFORD

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Court of Appeal, Second District, Division 6, California.

The PEOPLE, Plaintiff and Respondent, v. Robert Allen BRADFORD, Defendant and Appellant.

Crim. No. B068181.

Decided: February 10, 1994

Maureen DeMaio, Santa Barbara, under appointment by the Court of Appeal, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., Robert C. Schneider and Cindy M. Lopez, Deputy Attys. Gen., for plaintiff and respondent.

Here we hold that gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5) 1 is not a lesser included offense of murder.

Robert Allen Bradford appeals from a judgment after jury trial in which he was convicted of one count of murder (§ 187), one count of vehicular manslaughter (§ 191.5), one count of driving under the influence of alcohol causing injury to Kenneth Townsend and Ann Buckley (Veh.Code, § 23153, subd. (a)), one count of driving with a .08 or higher blood alcohol level and causing injury (Veh.Code, § 23153, subd. (b)), possession of not more than one ounce of marijuana (Veh.Code, § 23222, subd. (b)), and carrying a loaded firearm in a vehicle (§ 12031, subd. (a)).  The jury also found true six sentence enhancements of causing bodily injury to additional victims.  (Veh.Code, § 23182.)   The trial court sentenced appellant to 15 years to life in prison.2

Appellant alleges the following as errors:  1) his conviction for manslaughter must be reversed as it is a lesser included offense to murder;  2) sentence must be stayed on one of the two drunk driving convictions sentenced concurrently to count 1;  3) the trial court imposed an excessive number of enhancements for bodily injury under Vehicle Code section 23182;  and 4) the court could not impose a $1,000 restitution fine after ordering direct restitution to the victim of $18,175.41.

Respondent concedes that sentence should be stayed on either count 3 or 4 pursuant to section 654, that imposition of the restitution fine is improper and should be stricken, and that the court erred in the number of enhancements imposed under section 23182.   We order that the restitution fine of $1,000 be stricken, the sentence on the count 4 violation of Vehicle Code section 23153, subdivision (b) be stayed pursuant to section 654, and that only one sentence enhancement under Vehicle Code section 23182 be imposed and the rest be stricken.   The judgment is otherwise affirmed as modified.

FACTS

Appellant and his friend Norman Silveria planned to go to Avila Beach for a fishing vacation beginning Sunday, August 18, 1991.   When appellant arrived at Silveria's Orcutt home that morning he appeared to have been drinking.   Appellant was an alcoholic and brain damaged from head injuries incurred when he was younger.   He drank some vodka at Silveria's.   Silveria took the bottle of vodka and hid it and also took appellant's car keys.   Later when appellant appeared sober, Silveria returned the vodka, told appellant to lock it away, and returned his keys.   Appellant followed Silveria's truck in his motorhome.   Appellant's vehicle veered erratically as he drove and at some point appellant hit a guardrail and damaged the right rear of the motorhome.   One motorist attempted to signal appellant to pull over but appellant ignored her.   The motorist called 911.

Silveria pulled over when he saw appellant's erratic driving in his rear view mirror.   When he saw that appellant had been drinking again and saw an open bottle of vodka beside the driver's seat, Silveria took two sets of keys from appellant and told him they should wait before proceeding further.   When Silveria refused to return the keys to appellant, appellant returned to the motorhome.   Appellant had another set of keys hidden and drove away.   Appellant hit three people who were alongside a parked Toyota pickup unloading bicycles.   Tracy Pfotenhauer was killed, her brother Kenny Townsend was paralyzed from the waist down.   The third person, Ann Buckley, received a head injury.

When appellant was arrested, his blood alcohol within two hours of the accident was .25 percent and an open 1.75 liter bottle of vodka was found on the passenger side of the motorhome.   In July 1991, a family practice physician had warned appellant that if he drove while under the influence of alcohol he could be involved in an accident that could result in his being killed or arrested.

DISCUSSION

1. Manslaughter Not a Lesser Included Offense of Murder.

 Appellant was convicted of both second degree murder and vehicular manslaughter of Pfotenhauer.   Where a defendant is convicted of both a greater offense and a lesser included offense, the conviction on the lesser offense must be reversed.  (People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763.)   Appellant asserts that vehicular manslaughter is a necessarily included offense of murder.

 An offense is necessarily included in a greater offense if the statutory definition of the greater offense includes all the elements of the lesser so that the greater offense may not be accomplished without necessarily committing the lesser.  (People v. Watson (1983) 150 Cal.App.3d 313, 320, 198 Cal.Rptr. 26 (hereinafter referred to as Watson II);  People v. Wolcott (1983) 34 Cal.3d 92, 98, 192 Cal.Rptr. 748, 665 P.2d 520.)   An offense is also necessarily included in a greater offense where the language of the accusatory pleading encompasses all the elements of the lesser offense.   (Watson II, supra, 150 Cal.App.3d at p. 321, fn. 4, 198 Cal.Rptr. 26.)

Watson II, supra, upon which appellant relies for the proposition that his conviction in count 2 is a lesser included offense of count 1, murder, held that the murder convictions therein were legally infirm because the trial court found that credible evidence supported verdicts of vehicular manslaughter but had not instructed on that crime.  (150 Cal.App.3d at p. 320, 198 Cal.Rptr. 26.)  Watson II involved the subsequent proceedings after the California Supreme Court decided in People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279 (hereinafter referred to as Watson I), that a defendant could be charged with both second degree murder based on implied malice and vehicular manslaughter.

Watson II explained that considered superficially, vehicular manslaughter, as set forth in section 192 as it then read, does not appear to be necessarily included within murder.  (150 Cal.App.3d at p. 320, 198 Cal.Rptr. 26.)   After explaining the traditional tests for deciding the issue, the court proceeded to decide the matter by using neither test but rather by relying on “firmly established decisional law.”  (Id., at p. 321, 198 Cal.Rptr. 26.)   The court noted that both voluntary and involuntary manslaughter as defined in subdivisions 1 and 2 of section 192 are necessarily included in murder.   (Ibid.)

“Nonetheless, although murder can be committed using a vehicle as the instrument ․, the definition of involuntary manslaughter in subdivision 2 of section 192 specifically excludes homicides committed by means of a vehicle.   Similarly, although murder can be committed without also committing either a ‘misdemeanor inherently dangerous to human life’ or an ‘act ordinarily lawful which involves a high risk of death or great bodily harm’ ․, involuntary manslaughter as defined in subdivision 2 of section 192 occurs ‘in the commission of an unlawful act, not amounting to a felony’ or ‘in the commission of a lawful act which might produce death, ․’  Given that involuntary manslaughter is necessarily included in murder, the requirements set forth in subdivision 2 of section 192 perforce cannot be elements of involuntary manslaughter for purposes of included offenses.”  (Watson II, supra, 150 Cal.App.3d at p. 321, 198 Cal.Rptr. 26.) 3

Watson II concluded that manslaughter is a single offense with separate subdivisions under section 192 “merely defining the different circumstances under which an unlawful killing constitutes manslaughter, but not stating additional elements of the crime.”  (Watson II, supra, 150 Cal.App.3d at pp. 321–322, 198 Cal.Rptr. 26.)   Thus, according to Watson II, the elements of manslaughter as expressed in section 192, for purposes of necessarily included offense analysis, are the unlawful killing of a human being without malice, elements that encompass vehicular manslaughter.   (Id., at p. 322, 198 Cal.Rptr. 26.)

Since the decision in Watson II, supra, the Legislature enacted section 191.5, the statute in question here, which describes gross vehicular manslaughter while intoxicated and which supplanted similar provisions included in the 1983 amended version of section 192, subdivision (c)(3).   It does not appear that a petition for review was filed in the Supreme Court in Watson II nor has the case been discussed in any depth subsequently.  (See, e.g., People v. Brogna (1988) 202 Cal.App.3d 700, 703, 248 Cal.Rptr. 761;  People v. McCarnes (1986) 179 Cal.App.3d 525, 536, 224 Cal.Rptr. 846.)   We are faced here with the question whether Watson II's reasoning is applicable to section 191.5.   We hold it is not.

We hark back to the basic tests identified, if not exactly applied, in Watson II, i.e., if the greater offense cannot be committed without committing the lesser, or the language of the accusatory pleading encompasses all the elements of the lesser offense.  (People v. Wolcott, supra, 34 Cal.3d 92, 98, 192 Cal.Rptr. 748, 665 P.2d 520.)   Under either of the traditional tests, our conclusion must be the same.4  Section 191.5, subdivision (a) defines gross vehicular manslaughter while intoxicated as “the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 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.”   Both section 191.5 and section 192 contain admonitions that they do not prohibit or preclude a charge of murder under section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice consistent with the holding of the California Supreme Court in Watson I, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279.

To support its holding that vehicular manslaughter is a lesser included offense of murder, the appellate court in Watson II, supra, 150 Cal.App.3d 313, 198 Cal.Rptr. 26, cited People v. Collins (1960) 54 Cal.2d 57, 4 Cal.Rptr. 158, 351 P.2d 326, for the proposition that the California Supreme Court adopted a similar approach in rationalizing the different subdivisions of section 261 then in effect.  Collins had concluded that the statutory subdivisions of section 261 merely defined the different circumstances under which an act of intercourse constitutes the crime of rape rather than stating different offenses.  (150 Cal.App.3d at p. 322, 198 Cal.Rptr. 26.)   Although Watson II acknowledged that People v. Lohbauer (1981) 29 Cal.3d 364, 173 Cal.Rptr. 453, 627 P.2d 183, subsequently restricted necessarily included offenses to the two aforementioned categories, Watson II went on to conclude, under a due process analysis that the three subdivisions of section 192 simply define the different circumstances under which manslaughter may be committed.  (Id., 150 Cal.App.3d at p. 323, 198 Cal.Rptr. 26.)

In discussing People v. Collins, supra, People v. Lohbauer, supra, stated that the rationale of Collins was based upon adequate notice and a reasonable opportunity to prepare a defense.  “The force of that specific holding has been abrogated, of course, by the Legislature's repeal of subdivision 1 of section 261 and the enactment in 1970 of a separate statute, section 261.5, prohibiting sexual intercourse with a female under age 18.   In any event, Collins had neither redefined a ‘necessarily included’ offense within the meaning of section 1159, nor departed from the rule of that statute;  it had held only that rape was one crime within that meaning.”  (29 Cal.3d at p. 372, 173 Cal.Rptr. 453, 627 P.2d 183.)

We do not interpret either Collins or Lohbauer as providing support for the proposition that the specific wording in section 191.5 can be considered “surplusage” in determining whether it is necessarily included in murder nor do we conclude that the language of section 191.5 has simply defined a different circumstance under which manslaughter could be committed.   As respondent indicates, the current version of section 192, the one in effect at the time of appellant's sentencing, specifically exempts section 191.5 from its definition.   Consequently, the holding of Watson II is inapplicable to section 191.5.

Here the court instructed that “[e]very person who drives a vehicle in a grossly negligent manner and in violation of Section 23152 or 23153 of the Vehicle Code, and unintentionally but unlawfully kills another human being, is guilty of the crime of Gross Vehicular Manslaughter While Intoxicated in violation of Penal Code Section 191.5.”   The court further instructed that “[i]n order to prove such crime, each of the following elements must be proved:  [¶] 1. The driver of the vehicle violated Vehicle Code Section 23152 or 23153;  [¶] 2. In addition to such violation, the driver of the vehicle committed with gross negligence an unlawful act, namely a violation of Vehicle Code § 22107 or 22350 or committed with gross negligence an act ordinarily lawful which might cause death;  and [¶] 3. Such unlawful or negligent act was a legal cause of the death of a human being.”

The trial court instructed on the different mental states necessary for murder and vehicular manslaughter, i.e., malice aforethought, and criminal or gross negligence.   These instructions find support in Watson I, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, wherein the California Supreme Court explained that though the definitions of malice and gross negligence are similar, they are not identical.  “Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence.”  (Id., at p. 296, 179 Cal.Rptr. 43, 637 P.2d 279.)   The court applied different tests in determining the requisite mental states:  “A finding of gross negligence is made by applying an objective test:  if a reasonable person in defendant's position would have been aware of the risk involved, then defendant is presumed to have had such an awareness․  However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard․”  (Id., at pp. 296–297, 179 Cal.Rptr. 43, 637 P.2d 279, emphasis in original.)

 Although “generic” manslaughter is a lesser included offense of murder, gross vehicular manslaughter while intoxicated, under section 191.5, is specifically exempted from section 192, voluntary, involuntary, and vehicular manslaughter, and contains the specific elements of driving a vehicle, violating Vehicle Code section 23152 or 23153, and committing an unlawful act with gross negligence or an ordinarily lawful act which might result in death with gross negligence.  (See, e.g., Masoner v. Thurman (9th Cir.1993) 996 F.2d 1003.)   Thus gross vehicular manslaughter while intoxicated is distinguishable from manslaughter under section 192 and is not a necessarily included offense of murder since one can commit murder without doing any of the acts described in section 191.5.   Consequently, appellant could be convicted of both charges although the trial court correctly stayed the sentence on count 2, pursuant to section 654.

2. Sentence Must Be Stayed on One Count of Drunken Driving.

 Appellant asserts, and respondent concedes, that one of the sentences in counts 3 and 4 must be stayed since a defendant convicted of violating both subdivisions (a) and (b) of section 23153 as the result of a single act of “drunk driving” cannot be sentenced on both.  (People v. Pearson (1986) 42 Cal.3d 351, 362, 228 Cal.Rptr. 509, 721 P.2d 595;  People v. Conner (1986) 176 Cal.App.3d 716, 718, 222 Cal.Rptr. 311;  People v. Duarte (1984) 161 Cal.App.3d 438, 446–447, 207 Cal.Rptr. 615.)   We order that the sentence on count 4 be stayed.

3. Error to Impose More Than One Enhancement Under Vehicle Code Section 23182.

 The trial court imposed enhancements under section 23182 of the Vehicle Code on counts 2, 3, and 4.   That section provides that “[a]ny person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 of this code or in violation of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, shall, upon a felony conviction, 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 which may be imposed pursuant to this section is three․”

There appears to be a conflict between the reporter's transcript and the sentencing form regarding how many enhancements the trial court imposed.   In any case, the court imposed too many.   Appellant asserts that the court could impose only one enhancement and respondent contends the proper number is two.   We agree with appellant.   In People v. McFarland (1989) 47 Cal.3d 798, 254 Cal.Rptr. 331, 765 P.2d 493, the California Supreme Court stated that a sentence enhancement imposed pursuant to Vehicle Code section 23182 may not be based upon the same count for which a separate felony drunk driving sentence is imposed.  (Id., at p. 805, fn. 8, 254 Cal.Rptr. 331, 765 P.2d 493.)   Presumably the court reached this conclusion based on the statutory language of “additional victim” and the fact that a drunk driving count is elevated to felony status with its enhanced punishment due to injury caused to a victim.

 Here appellant caused injury to three victims in one instance of drunk driving.   It follows from People v. McFarland, supra, that where a sentence is imposed on both a vehicular manslaughter count and a drunk driving count, the court may not enhance each sentence with the same victim named in the other count as there would be no “additional victims” from the one instance of drunk driving.   The wording of the statute presupposes that one victim be named in the substantive count for which the defendant would be punished and that additional victims would be named in the enhancements to that count.

 However, in multiple-victim cases where each victim is named in a separate substantive count and sentence is imposed upon each of those separate counts, there are no “additional” victims.   Pfotenhauer was named here as the victim of the murder and manslaughter counts and the trial court imposed sentences of 15 years and 6 years on these counts.   Consequently, she cannot be considered an “additional victim” in the other counts arising out of the single instance of drunk driving.   Similarly, since Townsend and Buckley were named victims in separate felony drunk driving counts, they could not be named as “additional victims” in count 2, per McFarland.

Counts 3 and 4 named two victims, Townsend and Buckley.   Sentences were imposed on both counts and we have herein ordered stayed the sentence on count 4 because both violations arose from the same act.   There was only one instance of drunk driving causing injury to Buckley and Townsend even though appellant's act violated both sections of 23153.   Since the drunk driving conviction in count 3 names both Townsend and Buckley as victims, one must be considered the victim of the substantive count and one is an “additional victim” for purposes of section 23182.   Consequently, the trial court could impose only one enhancement under section 23182 for the one “additional victim” in count 3.

4. $1,000 Restitution Fine Must Be Stricken.

 Government Code section 13967, subdivision (a) required at the time relevant herein, imposition in felony cases of a restitution fine of no less than $100 and no more than $10,000.   Subdivision (c) required direct restitution to the victim “in lieu of imposing all or a portion of the restitution fine” where the defendant was sentenced to prison and the victim suffers economic loss.   When an order of direct restitution exceeds the $10,000 statutory limit on a restitution fine, the court cannot also order imposition of a restitution fine.  (People v. Zito (1992) 8 Cal.App.4th 736, 743, 10 Cal.Rptr.2d 491;  see also People v. Cotter (1992) 6 Cal.App.4th 1671, 1677, 8 Cal.Rptr.2d 606.) 5

 Respondent agrees that the trial court erred in imposing the $1,000 fine in addition to the direct restitution which far exceeded the statutory limit.   We order the restitution fine of $1,000 stricken.

CONCLUSION

We therefore order that the sentence on count 4 be stayed, that all enhancements imposed under Vehicle Code section 23182 be stricken except for one on count 3, and that the $1,000 restitution fine be stricken.   We further order that the superior court clerk prepare amended sentencing documents reflecting these changes and forward them to the Department of Corrections.   The judgment is otherwise affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   The sentences on counts 2 through 6 were either stayed pursuant to section 654 or ordered to be served concurrently.

3.   In Watson II, the statute in question stated, in pertinent part, that “ ‘Manslaughter is the unlawful killing of a human being, without malice.   It is of three kinds:  ․ [¶] 3. In the driving of a vehicle—[¶] (a) In the commission of an unlawful act, not amounting to a felony, with gross negligence;  or in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.   [¶] (b) In the commission of an unlawful act, not amounting to felony, without gross negligence;  or in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence․’ ”  (Watson II, supra, 150 Cal.App.3d at p. 322, fn. 5, 198 Cal.Rptr. 26.)Section 192 as it read at the time pertinent herein described vehicular manslaughter as follows:  “(c) Vehicular—[¶] (1) Except as provided in Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence;  or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.  [¶] (2) Except as provided in paragraph (3), driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence;  or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.  [¶] (3) Driving a vehicle in violation of Section 23152 or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, but without gross negligence;  or driving a vehicle in violation of Section 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․  [¶] ‘Gross negligence’, as used in this section, shall not be construed as prohibiting or precluding a charge of murder under Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279].”  (Fn. omitted, emphasis added.)

4.   The accusatory pleading charged that “[o]n or about August 18, 1991, defendant[ ] Robert Allen Bradford did commit a felony, namely a violation of section 187 of the California Penal Code, murder, in that said defendant[ ] did willfully and unlawfully and with malice aforethought murder Tracy Pfotenhauer, a human being.”  Section 187 defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.”

5.   The statutory limits have since been changed to $200 and $10,000.

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.

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