PEOPLE v. FIELDS

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Court of Appeal, Second District, Division 7, California.

The PEOPLE, Plaintiff and Respondent, v. Paul Douglas FIELDS, Defendant and Appellant.

No. B072100.

Decided: December 21, 1994

Peter A. Estern, under appointment by the Court of Appeal, San Jose, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Sr. Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., and Robert Renner, Deputy Atty. Gen., for plaintiff and respondent.

Defendant was charged with gross vehicular manslaughter while intoxicated (Pen.Code, § 191.5, subd. (a);  count 1), vehicular manslaughter while intoxicated (Pen.Code, § 192, subd. (c)(3);  count 2), gross vehicular manslaughter (Pen.Code, § 192, subd. (c)(1);  count 3), driving under the influence and causing bodily injury (Veh.Code, § 23153, subd. (a);  count 4), driving with a blood-alcohol level of .08 percent or more and causing bodily injury (Veh.Code, § 23153, subd. (b);  count 5), and driving with a suspended license (Veh.Code, § 14601, subd. (a);  count 6).   The jury reported itself deadlocked on both gross vehicular manslaughter counts, but rendered verdicts that defendant was guilty of vehicular manslaughter while intoxicated, driving under the influence and causing bodily injury, driving with a blood-alcohol level of .08 percent or more and causing bodily injury, and driving with a suspended license.   The court directed the jury to deliberate further on the gross vehicular manslaughter counts.   After further deliberations, the jury reported itself hopelessly deadlocked on the gross vehicular manslaughter counts.   The trial court declared a mistrial on those counts after the prosecutor and defense attorney indicated that they had no objection to declaration of a mistrial.   The jury was divided nine to three in favor of conviction as to both counts.

The trial court found that defendant served a prior prison term for a 1986 conviction for being an ex-felon in possession of a firearm and that he also served a prior prison term for a 1980 conviction for three counts of assault with a deadly weapon and one count of forgery.  (Pen.Code, §§ 470, 667.5, subd. (b), 12021;  former Pen.Code, § 245, subd. (a).)  For the purpose of determining whether defendant was eligible for probation (Pen.Code, § 1203, subd. (e)), the trial court also found that in 1975 defendant had been convicted of assault with a deadly weapon.   The court made no finding as to whether defendant had served a prior prison term for the 1975 conviction.   Defendant was sentenced to a total prison term of six years.

In a subsequent trial in the same matter, a jury convicted defendant of one count of gross vehicular manslaughter while intoxicated, the second count having been dismissed earlier, and the court found that defendant served a prior prison term for the 1975 conviction.1  The trial court ordered the previously imposed sentence stayed and sentenced defendant to a total prison term of 13 years (10 years for the gross vehicular manslaughter while intoxicated and a total of 3 years for the 3 prior prison terms).

Defendant appeals from both judgments.2  He contends that the trial court erred in refusing to instruct the jury in the first trial on the defenses of necessity and imminent peril;  that the second trial on gross vehicular manslaughter while intoxicated and on the 1975 prior conviction was barred by double jeopardy;  that, if he waived the double jeopardy defense, he received ineffective assistance of counsel;  and that in the second trial he was denied due process because the court did not instruct the jury regarding all appropriate lesser included offenses.

FACTS

 Prosecution Case

On the evening of June 2, 1992, defendant was driving eastbound on Venice Boulevard near McLaughlin Avenue in Los Angeles in a 40–mile–per–hour zone.   At 10:20 p.m., after rapidly weaving through traffic, he ran a red light and struck a car driven by Daniel Hernandez, who was proceeding southbound on McLaughlin Avenue.   Hernandez died as a result of the collision.   After the accident, defendant staggered, and his speech was slurred.   Expert testimony established that there were no pre-impact skid marks, that defendant's speed at the time of impact was about 73 miles per hour, and that defendant's blood-alcohol level at the time of the impact was about .16 percent.   Defendant's driver's license had been suspended for failing to appear regarding a moving violation.

Defendant was taken to the hospital after the collision.   When he was taken from the ambulance, he said:  “ ‘Yes, I had a fucking drink.   So what?   Let it be.’ ”   Los Angeles Police Officer Van Johnson detected an odor of alcohol on defendant's breath and noticed that defendant's eyes were glazed and bloodshot.   At 12:10 a.m. on June 3, 1992, defendant's blood-alcohol level was .14 percent.   Expert testimony established that a peak in blood-alcohol level is reached within an hour after consumption of alcohol.

 Defense

Defendant's girlfriend, Donna Williams, testified that in the early evening of June 2, 1992, she and defendant each had three drinks at a house in Inglewood.   About sundown, they left.   Defendant drove for awhile, parked the car, and got out for about five minutes.   When he returned, he seemed angry and drove very fast.

Defendant testified that he drank a couple of glasses of vodka and grapefruit juice at the house in Inglewood.   It was dark when he and Williams left.   He first drove toward the ocean and then drove eastbound.   He parked the car to buy cigarettes near the intersection where the collision occurred.   After he got out of the car, defendant was approached by three young men, who said, “ ‘What's happening, Blood?’ ” or “ ‘What's up, Blood?’ ”   Defendant was wearing a red or burgundy jogging suit.3  The car he drove was also red.   He told the men he was not a gang member.   He was attacked by one or more of the men, and they fought.   One man told one of his companions to get a gun.   Defendant then ran to the car and drove away quickly.   As he was driving, he looked behind him to see if the men were following him.   Immediately thereafter, he struck Hernandez's car.4

I

NECESSITY AND IMMINENT PERIL INSTRUCTIONS

During the first trial, defendant requested that the court instruct the jury on the effect of imminent peril pursuant to a modified version of CALJIC No. 8.92.5  The trial court tentatively ruled that an imminent peril instruction was not applicable but that an instruction on necessity might be appropriate.   Defendant then withdrew his request for the imminent peril instruction and instead requested that the jury be instructed on the defense of necessity pursuant to CALJIC No. 4.43 (1989 new) (5th ed. pocket pt.).   The court refused to instruct on necessity, concluding that defendant had the alternative of running away, that it was not objectively reasonable for him to believe that driving in the manner he did after drinking was necessary to prevent a greater harm, and that he substantially contributed to his predicament by wearing a red shirt and driving a red car in a Crip neighborhood.6  Defendant then renewed his request for an instruction on imminent peril.   The court refused to give the imminent peril instruction and explained that instruction deals with hazards in the road, not with dangers that arise before the driver gets into the car.7

Appellant contends that at his first trial the court erred in failing to instruct on necessity and imminent peril.   We reject that contention.

 Necessity is not a defense to any crime that involves taking the life of an innocent person.  (See People v. Pena (1983) 149 Cal.App.3d Supp. 14, 22, 197 Cal.Rptr. 264.)   In appropriate circumstances, necessity may be a defense to driving under the influence, driving with a blood-alcohol level of .08 percent or more, or driving with a suspended license.  (See id. at pp. 21–23, 197 Cal.Rptr. 264.)   In the present case, however, appellant does not claim and the record does not reflect any basis for a claim that there was any necessity for him to drive from the house in Inglewood.   Since defendant's blood-alcohol level at the time of the collision was about .16 percent and he asserts that the collision occurred shortly after a brief stop to buy cigarettes, necessity was not an available defense to driving under the influence, driving with a blood-alcohol level of .08 percent or more, or driving with a suspended license under the circumstances of this case.

 The trial court correctly concluded that CALJIC No. 8.92 should not be given when the sudden peril at issue was not a hazard of the road but was instead an emergency that was claimed to have occurred before the driver got into the car.   CALJIC No. 8.92 was derived from the imminent peril instructions in People v. Clark (1962) 202 Cal.App.2d 513, 20 Cal.Rptr. 803 and People v. Boulware (1940) 41 Cal.App.2d 268, 106 P.2d 436.   Both cases involved hazards of the road that occurred while the defendant was driving under the influence.

II

DOUBLE JEOPARDY

Appellant contends that the second trial on gross vehicular manslaughter while intoxicated is barred by double jeopardy.

Penal Code section 1160 provides in pertinent part:  “Where two or more offenses are charged in any accusatory pleading, if the jury cannot agree upon a verdict as to all of them, they may render a verdict as to the charge or charges upon which they do agree, and the charges on which they do not agree may be tried again.”

In Stone v. Superior Court (1982) 31 Cal.3d 503, 183 Cal.Rptr. 647, 646 P.2d 809, the defendant was charged with murder.   After the jury unanimously agreed the defendant was not guilty of murder but the jury was deadlocked on whether the defendant was guilty of voluntary manslaughter, the trial court declared a mistrial.   The Supreme Court held that, whether or not greater and lesser included offenses are separately charged, a jury may render a partial verdict of acquittal on a greater offense without reaching a verdict on a lesser included offense.  (Id. at pp. 517–518, 183 Cal.Rptr. 647, 646 P.2d 809.)

In People v. Kurtzman (1988) 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572, the court held that a jury must acquit a defendant of a greater offense before returning a verdict on a lesser included offense.  (Id. at pp. 330–334, 250 Cal.Rptr. 244, 758 P.2d 572.)  Kurtzman explained that Penal Code section 1160 must be construed in light of the doctrine of implied acquittal.  (Kurtzman, supra, at pp. 332–333, 250 Cal.Rptr. 244, 758 P.2d 572.)

 Conviction of a lesser included offense is a bar to subsequent prosecution of the greater offense.  (United States v. Dixon (1993) 509 U.S. 688, ––––, –––– – ––––, 113 S.Ct. 2849, 2856, 2859–2865, 125 L.Ed.2d 556, 568, 572–578;  People v. Lohbauer (1981) 29 Cal.3d 364, 372, 173 Cal.Rptr. 453, 627 P.2d 183.)   In United States v. Dixon, supra, 509 U.S. at p. ––––, 113 S.Ct. at p. 2856, 125 L.Ed.2d at p. 568, the court stated:  “[T]his Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements' test, the double jeopardy bar applies.  [Citations.]  The same-elements test, sometimes referred to as the ‘Blockburger’ [Blockburger v. United States (1932) 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306] test, inquires whether each offense contains an element not contained in the other;  if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.”   Vehicular manslaughter while intoxicated is a lesser included offense of gross vehicular manslaughter while intoxicated.  (See People v. Piceno (1987) 195 Cal.App.3d 1353, 1355, 241 Cal.Rptr. 391.)

 In People v. Zapata (1992) 9 Cal.App.4th 527, 12 Cal.Rptr.2d 118, the defendant was charged with two counts of attempted murder, and the jury was instructed regarding the lesser related offense of assault with a deadly weapon.   The jury acquitted the defendant of the charges as to one victim and found the defendant not guilty of attempted murder of the second victim.   As to the second victim, the jury was deadlocked on attempted voluntary manslaughter and convicted the defendant of assault with a deadly weapon.   After satisfying itself that the jury was unable to reach a verdict on attempted voluntary manslaughter, the trial court declared a mistrial on that count and accepted the assault verdict.

In Zapata Division Four of this court stated that under Stone and Kurtzman the jury may consider the principal and lesser offenses in any order but must acquit the defendant of the greater offense before returning a verdict on a lesser included offense.  (People v. Zapata, supra, 9 Cal.App.4th at pp. 532–533, 12 Cal.Rptr.2d 118.)   The court explained:  “The procedure established by these cases protects the People's interest in obtaining a verdict on the charged offense, as well as the defendant's right to have a decision of acquittal recorded and not to be placed in jeopardy twice for the same offense.   It also is consistent with ․ the provision that declares that conviction of a lesser included offense bars retrial of the greater offense.  (Pen.Code, § 1023.)   That provision is, of course, also mandated by former jeopardy principles.  [Citation.]”  (Id. at p. 533, 12 Cal.Rptr.2d 118.)   Division Four held that the guilty verdict on assault with a deadly weapon constituted an implied acquittal of attempted voluntary manslaughter.  (Id. at p. 534, 12 Cal.Rptr.2d 118.)   The court explained that, although the trial court's acceptance of the assault verdict was irregular, the verdict was not void.  (Ibid.)  Based on the reasoning of Zapata, we conclude that the guilty verdict on vehicular manslaughter while intoxicated was an implied acquittal of gross vehicular manslaughter while intoxicated.   Thus, the second trial for gross vehicular manslaughter while intoxicated was barred by double jeopardy principles.

After imposition of sentence following the first trial, the prosecution filed an amendment to the information.   After the amendment was itself amended by interlineation, it alleged that defendant served a prior prison term for a July 10, 1975, conviction for assault with a deadly weapon.  (Pen.Code, § 667.5, subd. (b);  former Pen.Code, § 245, subd. (a).)  In the first trial, that prior conviction had been alleged and proven as a basis for denial of probation but had not been alleged and proven as a Penal Code section 667.5, subdivision (b), prior conviction.

In the prior conviction phase of the second trial, the court ruled that the prior conviction allegations that had previously been found true and the newly alleged prior prison term allegation would each be tried.   Defendant objected on the grounds of double jeopardy.   The court overruled his objection and, after a court trial on the prior conviction allegations, the court found true each of the prior prison term allegations.

In People v. Saunders (1993) 5 Cal.4th 580, 593, 20 Cal.Rptr.2d 638, 853 P.2d 1093, the court “assume[d], without deciding, that double jeopardy principles apply to allegations of prior convictions [citations],” but concluded that, because proceedings regarding the alleged prior convictions had not yet transpired when the trial court discharged the jury, the subsequent trial proceedings on the alleged prior convictions did not place the defendant twice in jeopardy.  (Ibid.)  The court noted that it has been held that double jeopardy principles apply to firearm use allegations and to enhancement allegations regarding possession for sale of more than a specified amount of heroin.  (Ibid., citing People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 78, fn. 22, 2 Cal.Rptr.2d 389, 820 P.2d 613, and People v. Bonner (1979) 97 Cal.App.3d 573, 575, 158 Cal.Rptr. 821.)

It is unnecessary for this court to decide the question left open in Saunders.   Here, the court lacked jurisdiction to proceed as to the substantive offense in count 1 and it also lacked jurisdiction to adjudicate the enhancement added after the first judgment.  (Cf. People v. Martin (1978) 87 Cal.App.3d 573, 579, 151 Cal.Rptr. 141.)

In view of our conclusion that the second trial for gross vehicular manslaughter while intoxicated and the prior prison term finding for the 1975 conviction were barred by double jeopardy, we need not and do not discuss appellant's contention regarding instructional error at the second trial.

DISPOSITION

The judgment entered based on the convictions and findings in the first trial is affirmed and the December 1, 1992, sentence is reinstated.   The judgment entered following the second trial is reversed and count one and the enhancement based on case No. A 307796 are dismissed.

I concur in the judgment only.

I write separately to observe that appellant waived double jeopardy protection by failing to make a timely objection (People v. Belcher (1974) 11 Cal.3d 91, 96, 113 Cal.Rptr. 1, 520 P.2d 385;  1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) § 337, p. 391 et seq.) however that failure constituted incompetency of counsel reviewable on appeal.  (See People v. Franklin (1976) 56 Cal.App.3d 18, 23, 128 Cal.Rptr. 94;  People v. Moore (1983) 140 Cal.App.3d 508, 511, 189 Cal.Rptr. 487.)

FOOTNOTES

1.   Defendant waived a jury trial on the prior convictions in both trials.   Defendant moved to dismiss the charge of gross vehicular manslaughter while intoxicated in the interest of justice under Penal Code section 1385 on grounds he had been convicted and sentenced for vehicular manslaughter while intoxicated.   He also objected to the prior prison term allegation for the 1975 conviction on double jeopardy grounds.   The trial court denied the motion to dismiss and overruled the objection.In the second trial, the court refused defendant's request that the jury be instructed on vehicular manslaughter while intoxicated as a lesser included offense of gross vehicular manslaughter while intoxicated, since defendant had already been convicted of that lesser offense.   However, the trial court instructed the jury on gross vehicular manslaughter without intoxication and vehicular manslaughter without intoxication.   (Pen.Code, § 192, subds. (c)(1), (c)(2).)

2.   He filed the notice of appeal from the first judgment before the second trial.

3.   At the first trial, defendant stated he had parked in a Crip neighborhood.

4.   At the first trial, defendant stated he looked back once or twice, he saw the men were following him, and, immediately after looking back, he collided with Hernandez's car.   At the second trial, he testified he accelerated as quickly as possible after the altercation.   He looked behind him once and noticed he was being followed.   When he looked back a second time, he no longer saw the men.   He then looked ahead and immediately crashed into Hernandez's car.

5.   Defendant requested that the jury be instructed as follows:  “A person who, without negligence on his part, is suddenly and unexpectedly confronted with peril arising from either the actual presence of or the appearance of imminent danger to such person or others, is not expected or required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments.   His duty is to exercise only the care that an ordinarily prudent person would exercise in the same situation.   If at the moment of such peril he does what appears to him to be the best thing to do, and if his choice and manner of action are the same as might have been followed by any ordinarily prudent person under the same conditions, he does all the law requires of him, although in the light of after-events, it should appear that a different course would have been better and safer.  [¶]  This applies [solely] to the issue of negligence.”

6.   The court stated:  “․ I find that, first of all, of course, we have the threshold question whether this is actually a believable story.   I agree this would be up to the jury to decide, but there was obviously a legal alternative.   I guess he could have run away.   And then the harm—part three of 4.43 speaks of the harm caused by the act was not disproportionate to the harm avoided.   I can't imagine any legal or any situation in which the harm caused by this act would be so excused.  [¶]  I find further, as far as subdivision (5), which states that the belief has to be objectively reasonable under all the circumstances, that there are no facts upon which such a finding could be based.  [¶]  And, furthermore, if you look at No. 6, that the defendant did not substantially contribute to the creation of the emergency, in this case he says he had a red car and a red shirt in a neighborhood where he knew—you know, if you believe his story, then it was his doing that caused this problem, the predicament that he found himself in.   So I'm going to refuse that instruction based on the facts as presented in this case.”

7.   The court stated:  “[T]hat instruction deals with the rules of the road.   If you came across some barricade or pothole or something and had to swerve to avoid it, then I think this would come into play, but that's not the situation here and I think it's inapplicable.”

LILLIE, Presiding Justice.

JOHNSON, J., concurs.