THE PEOPLE v. VALENZUELA

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

THE PEOPLE, Plaintiff and Respondent, v. Herminio VALENZUELA, Defendant and Appellant.

No. B067522.

Decided: April 28, 1994

Richard G. Rumery, 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, Senior Ass. Atty. Gen., Kenneth C. Byrne, Supervising Deputy Atty. Gen., and Uzzi Raanan, Deputy Atty. Gen., for plaintiff and respondent.

While driving under the influence of alcohol appellant collided with another vehicle, killed two car occupants, and injured others.   Based upon this conduct he was charged with ten felony counts.   After a court trial (a submission on the preliminary hearing transcript plus additional evidence) appellant was convicted of eight offenses:  two counts of second degree murder (Pen.Code,1 § 187;  counts I and II), two counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a);  counts III and IV), felony driving under the influence and causing bodily injury (Veh.Code, § 23153, subd. (a);  count V), felony driving with .08 percent alcohol and causing bodily injury (Veh.Code, § 23153, subd. (b);  count VI), flight from peace officer causing bodily injury (Veh.Code, § 2800.3;  count VII), and misdemeanor driving while unlicensed (Veh.Code, § 12500, subd. (a);  count X).

The trial court sentenced appellant to state prison for 15 years to life on count I and to concurrent terms on the other counts.

Appellant contends:  vehicular manslaughter is a lesser included offense of murder;  the trial court erred in denying his Faretta motion (Faretta v. California (1975) 422 U.S. 806);  and some of the concurrent sentences should be stayed.   We find merit only in appellant's last contention.   Accordingly, we modify the judgment and, as modified, affirm the judgment.

FACTUAL BACKGROUND

There being no insufficiency of evidence claim, the facts may be stated simply.   Our perspective favors the judgment.  (People v. Barnes (1986) 42 Cal.3d 284, 303–304.)

On August 17, 1991, at about 5:30 a.m., a deputy sheriff saw a Toyota Supra being driven eastbound on Pacific Coast Highway in Malibu, without lights.   He pursued it and, after observing it veer into left turn and oncoming traffic lanes, attempted to pull it over by turning on his siren.   The Toyota accelerated to 80 miles an hour, repeatedly crossed oncoming lanes, and after passing Topanga Canyon, collided with a westbound vehicle.

Appellant, an unlicensed driver, was the driver of the Toyota Supra.   One of his passengers was killed in the collision and the other seriously injured.   The driver of the other car was also seriously injured and his passenger died from her injuries.

Two hours after the collision, appellant's blood alcohol level was .15 percent.

DISCUSSION

1. Appellant contends vehicular manslaughter is a lesser included offense of murder.

Appellant argues that having been convicted of murder (counts I and II) he cannot also be convicted of the lesser included offense, vehicular manslaughter (counts III and IV).   Appellant is mistaken.

“The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.”  (People v. Greer (1947) 30 Cal.2d 589, 596;  People v. Pearson (1986) 42 Cal.3d 351, 355;  see generally People v. Rush (1993) 16 Cal.App.4th 20, 27 et seq. (dissent).)  “A crime is an included offense if all of its elements are also elements of the other crime․  And a crime is not an included offense if any of its elements is not an element of the other crime ․ “ (1 Witkin & Epstein, Cal.Criminal Law (2d ed.1988) § 325, p. 376;  see generally People v. Rush, supra, 42 Cal.3d 351, 355 et seq. (dissent).)

Penal Code section 191.5, subdivision (a)—vehicular manslaughter—is not an included offense of murder because it contains elements murder does not contain:  driving a vehicle while intoxicated with gross negligence.

People v. Watson (1983) 150 Cal.App.3d 313 is distinguishable.   It held that vehicular manslaughter (then section 192, subd. (3)) was an included offense of murder because it was just a “subdivision[ ] under section 192,” the general manslaughter section, and section 192 manslaughter was an included offense of murder.  (Id. at pp. 321–322.)   After Watson, in 1986, the subject offense, section 191.5, subdivision (a), became a separate crime, not a “subdivision under section 192.”

Watson is also distinguishable because it strained to provide the benefits of the lesser related doctrine before there was such a doctrine (People v. Geiger (1984) 35 Cal.3d 510).

Our esteemed colleague, in dissent, concedes that according to the “traditional” test, vehicular manslaughter is not an included offense of murder.   Our colleague then dismisses this test as “hypertechnical,” suggests a “hierarchy” test,2 and concludes that according to this hierarchy test, vehicular manslaughter is an included offense of murder.

Unlike our colleague, we believe it inappropriate for a subordinate court to dismiss as “hypertechnical” the (“traditional”) test for included offenses promulgated by our Supreme Court.   We are bound to follow, as are trial courts, law promulgated by higher courts.  (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450.)   We are not free, nor are trial courts free, to disregard a “traditional” test because we think it “hypertechnical” or dislike its possible consequences.

We conclude vehicular manslaughter is not an included offense of murder because the latter can be committed without committing the former.

2. Appellant contends the concurrent sentences on counts III, IV, V, VI, and VII should be stayed.

Appellant does not contest his separate punishment for counts I, II, and X. He does argue, however, that because counts III–VII were part of a single “course of criminal conduct” with the same “intent and objective” as counts I and II (Neal v. State of California (1960) 55 Cal.2d 11, 18–19;  People v. Latimer (Oct. 4, 1993, S027839) ––– Cal.4th ––––) he cannot be separately punished for their commission. (§ 654.)

We agree there was but one course of criminal conduct with a single objective and intent.   Appellant, with recklessness amounting to malice, sought to elude the pursuing officer by any means, however life threatening.   Section 654 permits separate punishment for the two murders (counts I and II) but, absent an exception, bars punishment for counts III–VII.

The attorney general asserts such an exception.   He contends appellant waived the protection of section 654 by agreeing to a specified prison term as provided for in California Rules of Court, rule 412(b).   The section provides:  “By agreeing to a specified prison term personally and by counsel, a defendant who is sentenced to that term or a shorter one abandons any claim that a component of the sentence violates section 654's prohibition of double punishment, unless that claim is asserted at the time the agreement is recited on the record.”

Evidencing such an “agreement,” the attorney general claims, is a single statement by the trial court.   This statement was made immediately after the court's decision on each of the ten counts.   In context, the statement (italicized) is the following:  “Unlicensed driver in count 10, I will find him guilty.  [¶] I think the agreement was upon the waiver of the jury trial, that if he was found guilty of the murder it would be, sentence would be concurrent.”

For several reasons we find this statement fails to satisfy rule 412(b).  First, although appellant's attorney stated “That's correct”—arguably an agreement “by counsel”—appellant did not “agree[ ] to a specified term Personally,” as required by rule 412(b).   Second, the trial court's “agreement” reference is ambiguous.   It may mean, as we believe likely, that if appellant was found guilty of both murders he would not be sentenced consecutively for those murders even though section 654 permitted such consecutive sentences.   We believe it unlikely—absent a record making such an agreement clear—that appellant waived jury and agreed to the detriment of foregoing the protection against double punishment provided by section 654.

We conclude appellant's contention is correct.

3. Appellant contends the trial court erred in denying his Faretta motion.

On March 23, 1992, after the trial date had been continued on three prior occasions at appellant's request, appellant sought to relieve counsel, to represent himself, and to again continue the trial.   The trial court (Superior Court Judge Robert T. Altman) denied the motion as untimely.   Appellant claims error.   We disagree.

“A defendant has a federal constitutional right to represent himself if he voluntarily and intelligently elects to do so.  (Faretta v. California (1975) 422 U.S. 806.)   In order to invoke an unconditional right of self-representation, the defendant must assert the right ‘within a reasonable time prior to the commencement of trial.”  (People v. Windham (1977) 19 Cal.3d 121, 128;  see also People v. Joseph (1983) 34 Cal.3d 936, 943.)   A motion made after this period is addressed to the sound discretion of the trial court.  (People v. Windham, supra, 19 Cal.3d at p. 128;  People v. Hernandez (1985) 163 Cal.App.3d 645, 650.)

“The ‘reasonable time’ requirement is intended to prevent the defendant from misusing the motion to unjustifiably delay trial or obstruct the orderly administration of justice.  ‘For example, a defendant should not be permitted to wait until the day preceding trial before he moves to represent himself and requests a continuance in order to prepare for trial without some showing of reasonable cause for the lateness of the request.   In such a case the motion for self-representation is-addressed to the sound discretion of the trial court which should consider relevant factors such as whether or not defense counsel has himself indicated that he is not ready for trial and needs further time for preparation.” ’  (People v. Burton (1989) 48 Cal.3d 843, 852–853;  People v. Clark (1992) 3 Cal.4th 41, 98–100.)

We find no abuse of discretion by the trial court.   In granting two of appellant's earlier continuance motions the trial court had ordered four officers, all present and waiting, to return on the new trial date.   On March 23rd both the prosecutor and defense counsel were ready for trial, at least one witness was present, and a trial department was available.   Under such circumstances the trial court was within its discretion in denying appellant's motion to represent himself.

DISPOSITION

The abstract of judgment is ordered modified with respect to counts III, IV, V, VI, and VII by deleting each “concurrent” entry and by inserting for each count a “654 stay” entry.  (People v. Niles (1964) 227 Cal.App.2d 749, 756;  In re Wright (1967) 65 Cal.2d 650.)

As modified, the judgment is affirmed.

CERTIFIED FOR PUBLICATION.

I concur in most of the majority opinion but respectfully dissent from its conclusion appellant may be convicted of both second degree murder and gross vehicular manslaughter for the deaths of the same individuals.   In reaching this conclusion, my colleagues depart from the common sense interpretation of lesser included homicide offenses first propounded by Justice Puglia in People v. Watson (1983) 150 Cal.App.3d 313.

The practical implications of our differences over this issue appeared insignificant for appellant at the time we began considering this appeal because the trial court stayed the sentence on the gross vehicular manslaughter counts.   Recent events, however, have introduced the possibility the Legislature or electorate might enact laws which count as separate “strikes” both homicide crimes—second degree murder and gross vehicular manslaughter—even though they involved the same individual's homicide.   If so, this or any other person whose drunk driving results in a death, might find themselves two-thirds of the way—instead of one-third of the way—to a life sentence.1  In my view, appellant cannot be convicted of both second degree murder and vehicular manslaughter for the deaths of the same individuals.   As explained in People v. Watson, supra, 150 Cal.App.3d 313, vehicular manslaughter is a lesser included offense of murder and a defendant cannot be found guilty of both the lesser and the greater.

I. GROSS VEHICULAR MANSLAUGHTER WITH INTOXICATION IS A LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER.

In People v. Watson, supra, 150 Cal.App.3d 313, (Watson II) Presiding Justice Puglia writing for a unanimous court held vehicular manslaughter (the predecessor of gross vehicular manslaughter while intoxicated) was a lesser included offense of second degree murder.

The issue arose in the following context.   In the early morning hours of January 2, 1979, the defendant got drunk and drove his car into another vehicle, killing a father and child.   At the first trial the court struck the second degree murder allegations, ruling a jury could not properly imply malice from the drunken driving of an automobile.   On appeal, the California Supreme Court reversed, for the first time holding drunk driving in some circumstances can support a second degree murder charge.  (People v. Watson (1981) 30 Cal.3d 290) (Watson I).)   On remand, the trial court instructed on second degree murder and the jury convicted on that charge.   However, after hearing the new trial motion, the trial court reduced the murder convictions to “the lesser included felony of vehicular manslaughter” based on evidence not before the jury.  (150 Cal.App.3d at p. 316)

On appeal, Justice Puglia and his colleagues first reversed the reduction of the murder convictions on grounds the trial court “transcended the limits of the power of review ․ by reweighing the evidence in the light of judicially noticed facts which were not before the jury.”  (150 Cal.App.3d at p. 319.)   The appellate court then directed the trial court to reconsider the new trial motion “without regard to matters not in evidence before the jury.”  (Id. at p. 320.)   However, the court went on to advise the trial judge the murder verdicts “are legally infirm regardless of whether they are supported by credible evidence.   Given the finding of the trial court that credible evidence supported verdicts of vehicular manslaughter, it follows the jury should have been instructed on the lesser offense if, as we shall conclude, it is necessarily included within murder.”  (Id. at p. 320.)

Thus, the question presented in Watson II was whether there is a sua sponte duty to instruct on vehicular manslaughter in a second degree murder trial where the homicide arises out of the defendant's drunk driving.   For that sua sponte duty to apply, vehicular manslaughter had to qualify as a “lesser included” offense.  (There is no such duty even for “lesser related” offenses under that more recent doctrine.  (People v. Geiger (1984) 35 Cal.3d 510, 530.)

Justice Puglia's discussion of this issue is a triumph of common sense over hypertechnicality.   He first concedes that “[c]onsidered superficially, vehicular manslaughter does not readily appear to be necessarily included within murder.   A crime 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.  (Citations omitted.)   As defined in section 192, subdivision 3, vehicular manslaughter is an unlawful killing without malice perpetrated with gross negligence by means of a vehicle.   Since murder, which is the unlawful killing of a human being with malice aforethought ( 187, subd. (a)),2 can be committed without the instrumentality of a vehicle, it could be argued that vehicular manslaughter is not necessarily included within murder.”  (150 Cal.App.3d at pp. 320–321.)

Having established the arguability of the position vehicular manslaughter is not included within murder, Justice Puglia suggests the absurdity of that conclusion.  “It is firmly established, however, that ‘manslaughter’ is necessarily included in murder.  (Citations omitted.)  ․ [¶] Furthermore, from the authorities, it is clear that both ‘voluntary’ and ‘involuntary’ manslaughter' ․ are necessarily included in murder.  (Citations omitted.)”   (150 Cal.App.3d at p. 321.)

Justice Puglia then points out a number of forms of involuntary manslaughter besides vehicular manslaughter would fail the narrow test for lesser included offenses, yet are considered lesser included offenses to murder.   That is, murder can be committed without committing some of the elements of involuntary manslaughter just as it can be committed without using a vehicle or being intoxicated.   And what are these forms of involuntary manslaughter and their elements?   As Justice Puglia illustrates, “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” ’ (citation omitted), involuntary manslaughter as defined in subdivision 2 of section 192 occurs “ ‘in the commission of an unlawful act, not amounting to 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.”  (150 Cal.App.3d at p. 321, italics added.)

Having demonstrated vehicular manslaughter is not unique among forms of involuntary manslaughter in requiring elements which are not necessarily involved in murder, the court applied this analysis to vehicular manslaughter itself.  “Against the background of firmly established decisional law, logic dictates that for purposes of necessarily included offense analysis, manslaughter be regarded as a single offense with the 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.   For Purposes of necessarily included offense analysis, the elements of manslaughter as expressed in section 192 are the unlawful killing of a human being without malice.   Vehicular manslaughter is such a killing.”   (150 Cal.App.3d at pp. 321–322, italics added, fn. omitted.)

I see no reason to quarrel with this reasoning.   Moreover, since it is a lesser included offense to second degree murder, the consequence in this case is reversal of the “gross vehicular manslaughter with intoxication” conviction.  (People v. Moran (1970) 1 Cal.3d 755, 763 [when both the greater and the lesser result in convictions, the remedy is to reverse the lesser and allow the greater to stand].   Nonetheless, I cannot leave this topic without discussing the majority's argument seeking to distinguish Watson II and a very recent decision in Division 6 of this District also taking that position.

II. THE AMENDMENT WHICH EXTRACTED THE OFFENSE OF GROSS VEHICULAR MANSLAUGHTER WHILE INTOXICATED FROM ONE CODE SECTION, PLACED IT IN A NEW SECTION AND INCREASED THE PENALTIES DID NOT ALTER ITS STATUS AS A LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER.

In People v. Bradford (1994) 22 Cal.App.4th 433,3 Presiding Justice Stone also writing for a unanimous court held contrary to Watson II that vehicular homicide arising out of drunk driving is not a lesser included offense of second degree murder and thus upheld convictions for both offenses for the death of the same person.   This essentially is the same reasoning the majority opinion adopts in this case.   I find the attempt to distinguish Watson II and its underlying rationale unpersuasive and thus decline to follow my respected colleagues on Division 6 in this instance.

The reasoning of both the majority opinion and the Bradford opinion rests on an amendment the Legislature enacted in 1986, three years after Watson II. In that amendment, the lawmakers extracted from “gross negligent involuntary manslaughter in the driving of a vehicle” found in section 192 subsection (a) the special case where the offense also involved intoxication and created a new form of involuntary,manslaughter carrying heavier penalties.   They placed this new involuntary manslaughter statute between the murder sections and the manslaughter sections of the homicide chapter and assigned it the section number 191.5.   This new section reads:

0191.5.  Gross vehicular manslaughter while intoxicated

“(a) 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 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.  (Italics added.)

“(b) Gross vehicular manslaughter while intoxicated also includes operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence;  or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

“(c) Gross vehicular manslaughter while intoxicated is punishable by imprisonment in the state prison for 4, 6, or 10 years.  [This contrasts with 3, 6, and 8 years for “ordinary” gross vehicular manslaughter. ( 192).]

“(d) 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.

“(e) This section shall not be construed as making any homicide in the driving of a vehicle or the operation of a vessel punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.”

In Bradford, as in the instant case, appellant “was convicted of both second degree murder and vehicular manslaughter of” a single victim.  (22 Cal.App.4th at p. 438.)   The Bradford court repeated the traditional definition of a lesser included offense that “the greater offense includes all the elements of the lesser so that the greater offense may not be accomplished without necessarily committing the lesser (citations omitted) ․ [or the] pleading encompasses all the elements of the lesser offense.  (Citations omitted.)”  (Id. at p. 439.)   The court then acknowledged Watson II and its holding the vehicular manslaughter crimes as then defined in section 192 were lesser included offenses of second degree murder.   That holding, however, the Bradford court said, was not enough to decide the case before it.  “We are faced here with the question whether Watson II's reasoning is applicable to section 191.5.   We hold it is not.”  (Id. at p. 440.)

Division 6 disagreed with “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.

“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.”  (22 Cal.App.4th at pp. 442–443.)

I am not at all persuaded the fact the Legislature set forth “gross vehicular manslaughter while intoxicated” in a separate statutory section outside 192 in any way affects the basic rationale of Watson II. What Justice Puglia's opinion highlighted was that all species of involuntary manslaughter contained elements which were not elements of the greater crime of second degree murder.   Yet the courts nevertheless had uniformly treated all species of involuntary manslaughter as lesser included offenses of second degree murder.   It was not critical to this rationale that at the time Watson II was written those involuntary manslaughter species happened to be grouped together under a single statutory section, 192.   Each could have had its own independent section, its own chapter, or its own title.   What the court found significant was the offenses and their definitions, wherever located.   The fact “gross vehicular manslaughter while intoxicated” is now relocated to its own section does not make it any less a species of manslaughter.

Nor does the fact section 191.5 contains an additional element not found in some other species of involuntary manslaughter which remain behind in 192—the requirement the defendant has violated the drunk driving laws—affect the rationale of Watson II. It is still true, as it was when Watson II was written in 1983, that the involuntary manslaughter crimes now found in section 192 contain elements which must be satisfied if one is to be guilty of these crimes yet are not necessarily present when someone is found guilty of second degree murder.   Thus it is still true those involuntary manslaughter crimes do not satisfy the hypertechnical definition of “lesser included offenses” to second degree murder.   It is possible to commit second degree murder without necessarily committing any of the subspecies of involuntary manslaughter.   Section 191.5 shares several of those elements with the species of manslaughter listed in section 192 and then adds the further element the defendant also be in violation of the drunk driving laws at the time of the homicide.   But if we abandon the rationale of Watson II for the manslaughter offense defined in 191.5 and thereby find this offense is not a “lesser included” of second degree murder, then as a matter of logic we must do so as to all the manslaughter offenses defined in 192 as well.

I am persuaded the Watson II court properly construed the “lesser included offense” doctrine in the context of homicide offenses.   As Watson II suggests, that arm of the criminal law creates a hierarchy of criminal acts (and states of mind) causing the death of a human being.   A defendant can only be found guilty of one crime on that hierarchy, the one involving the most serious combination of act and state of mind.   Each crime on the hierarchy potentially is the lesser of those above it, even though some may require acts or states of mind not shared by the some of those higher ranking crimes.4  As a consequence, for purposes of the sua sponte duty to instruct as to “lesser included” offenses, it is not necessary to give such an instruction as to those lesser forms of homicide whose unique elements are not supported by the evidence in the particular case.   But as to the rule a defendant cannot be convicted of the greater and the lesser of the same specie of offense, complete identity of elements is unnecessary to mark one offense as the lesser of the other.

The legislative history of section 191.5 reinforces the conclusion it was not intended to create a new crime which could be committed at the same time as and result in a simultaneous conviction with second degree murder.   To the contrary, that history demonstrates the Legislature considered 191.5 an alternative to second degree murder.

Section 191.5 began life as A.B. 2558 authored by Assembly Member Jean Duffy and sponsored by the Los Angeles County District Attorney.   The original draft not only moved gross vehicular manslaughter from section 192, the manslaughter section, but changed its name to “gross vehicular homicide” and increased the penalties to seven, ten, or fifteen years.   On August 29, 1985, however, in the process of Assembly passage it was amended to reduce the penalties to four, six, or eight years.  (Office of Traffic Safety Analysis, February 11, 1986.)   Thus, by the time it reached the Senate Subcommittee on the Judiciary, the bill was described as follows:

“Under existing law, a person who kills another while driving a vehicle under the influence of alcohol and/or drugs(DUI) may be prosecuted for second degree murder (People v. Watson (1981)) and, upon conviction, is punishable by a term of 15 years to life in state prison.   Alternatively, the person may be prosecuted for vehicular manslaughter which, if committed with gross negligence, is punishable by a four, six, or eight-year state prison term.   (Italics added.)

“․  This bill would reclassify vehicular manslaughter committed while driving under the influence with gross negligence as ‘gross vehicular homicide,’ and would prescribe a punishment of 4, 6, or 10 years in state prison․  [Existing] Sec. 192.(c)(3) relates to driving while under the influence of an intoxicant (DUI) with gross negligence.   This bill would reclassify the latter provision, without substantive change, as ‘gross vehicular homicide.’ ”  (Italics added.)

The Senate Committee on the Judiciary raised several issues about the changed title of the crime to “gross vehicular homicide.”  (Drunk Driving–Gross Vehicular Homicide, [Five-page analysis ascribed to Los Angeles County District Attorney's Office], Senate Committee on Judiciary, 1985–86 Regular Session.)   Thus, the bill was amended in the Senate to restore the name of the crime defined in section 191.5 from “homicide” to “manslaughter.”   By the time the Senate Rules Committee submitted the bill for third reading in the Senate the committee could describe its purposes as simply to “reclassify vehicular manslaughter committed while driving under the influence with gross negligence as ‘gross vehicular manslaughter while intoxicated,’ and would prescribe a punishment of 4, 6, or 10 years in state prison.”  (Senate Rules Committee, Office of Senate Floor Analyses, A.B. 2558, 8/18/86, at p. 1.)

As this legislative history underscores, the Legislature fully understood the crime defined in the new section 191.5 was just a renumbered version of one of the involuntary manslaughter categories formerly incorporated in section 192.   Moreover, the Legislature fully understood this crime was an alternative to second degree murder, not a companion crime to that greater offense.   The Legislature understood what the Watson II court understood—depending on his or her state of mind, a defendant is guilty either of second degree murder or, in the alternative, of the lesser crime of gross vehicular manslaughter while intoxicated.   The legislative history is equally clear that the Legislature did not intend A.B. 2558 (and the new section 191.5 it created) to change the alternative nature of these two crimes.

Indeed A.B. 2558 and its legislative history actually represent a legislative endorsement of the interpretation of “lesser included” homicide offenses announced in Watson II. It is assumed the Legislature was aware of the holding of Watson II. (Estate of Banerjee (1978) 21 Cal.3d 527, 537.)   Consequently, its failure to expressly differ with the Watson II interpretation or to attempt to include an amendment in A.B. 2558 defining “lesser included” offenses in a different way is considered evidence the Legislature agrees with that interpretation.  (Estate of McDill (1975) 14 Cal.3d 831, 837–838;  Bailey v. Superior Court (1977) 19 Cal.3d 970, 977–978, fn. 10;  People v. Olsen (1984) 36 Cal.3d 638, 647, fn. 19.)   This inference of legislative approval is reinforced further in this instance by the legislative history which demonstrates the Legislature repeatedly acknowledged a conviction of gross vehicular manslaughter while intoxicated is an alternative not a supplement to conviction of second degree murder.

The contrary interpretation produces an anomalous result in this case.   Second degree murder is a killing with malice but gross vehicular manslaughter while intoxicated is expressly defined as a killing without malice.   Consequently, to convict appellant of both these crimes for the death of the same individual requires appellant be found to have entertained simultaneously two inconsistent states of mind at the time of the offense.   Somehow he committed the act both with malice and without malice, that is, he intended to kill and did not intend to kill these same victims.   This result confounds both formal logic and common sense.5

For these reasons, much as I admire my colleagues on Division 6, I decline to follow People v. Bradford.   And despite my equal admiration for my colleagues on this court, I am unable to agree with their similar reasoning in this case.   Contrary to the majority opinion in this case and the Bradford decision, I conclude the rationale of Watson II does apply to Penal Code section 191.5.   Consequently, I would reverse the two convictions of gross vehicular manslaughter while intoxicated while affirming the two convictions of second degree murder for the deaths of the same victims.

CERTIFIED FOR PUBLICATION

FOOTNOTES

FN1. Statutory references, unless otherwise noted, are to the Penal Code..  FN1. Statutory references, unless otherwise noted, are to the Penal Code.

2.   Compare People v. Orr (1994) 22 Cal.App.4th 780, 27 Cal.Rptr.2d 553 with the dissent's application of its “hierarchy” test.

1.   The question whether one offense is “lesser included” in another offense is relevant in at least two other situations.   First, courts ordinarily have a sua sponte duty to instruct the jury about any offenses which are lesser included offenses of the charged crime if there is some evidence the lesser was committed.  (People v. Wickersham (1982) 32 Cal.3d 307, 324;  5 Witkin & Epstein, Cal.Criminal Law (2d ed.1989) § 2926.)   Second, double jeopardy applies to prevent the prosecution from charging a defendant with either the greater or the lesser of an offense of which that defendant was acquitted (or convicted) on a previous occasion.   (U.S. Const., 5th and 14th Amendments;  Cal. Const., art.   I, § 15;  Penal Code, § 1023;  1 Witkin & Epstein, Cal.Criminal Law (2d ed., supra ) § 322–331.)

2.   Unless otherwise indicated all subsequent references are to the Penal Code.

3.  Subsequent to the initial filing of the opinions in this case, the California Supreme Court decertified publication of People v. Bradford, supra. This dissent does not rely on the holding or rationale of the Bradford opinion. To the contrary, it arrives at the opposite legal conclusion and attempts to refute the reasoning of that opinion. The Bradford opinion nevertheless contains a thorough exposition of the position I seek to counter in this dissent and provides a useful framework for discussion. Accordingly, I find it both unnecesary and undesirable to delete the many references to the Bradford opinion and its language. Readers are reminded People v. Bradford, of course, cannot be cited or quoted in support of the legal propositions it advances merely because that language is quoted in this dissent.

4.   A recent opinion from Division Four differs from this “hierarchy” analogy while simultaneously supporting the ultimate point various forms of involuntary manslaughter, gross and otherwise, are lesser included offenses of murder.   In People v. Orr (1994) 22 Cal.App.4th 780, the court held double jeopardy did not bar retrial of a defendant on a voluntary murder charge on which the jury hung despite his acquittal of involuntary manslaughter in that same proceeding.   In what appears to be a decision of first impression, the court concluded involuntary manslaughter is not a lesser included offense of voluntary manslaughter.   Hence the acquittal on the involuntary manslaughter count did not bar retrial on the voluntary manslaughter count. While I might quarrel with that particular holding, it has little significance in this case since appellant was convicted of second degree murder and involuntary manslaughter, not voluntary and involuntary manslaughter.   The more relevant holding of the Orr court for the case at bar is its reiteration of the principle that “both voluntary and involuntary manslaughter are lesser included offenses of murder ․ They  are ․ siblings who have a common parent.”  (Id. at pp. 784–785.)   Whether 191.5 is considered a part of the involuntary manslaughter sibling or a new, younger sibling in the homicide family, for the same reasons the Orr court along with scores of courts before it concluded involuntary manslaughter is a lesser included offense of murder, gross vehicular manslaughter while intoxicated has the same status.

5.   “[I]t is legally impossible to be guilty of both murder and voluntary manslaughter because the mental state required for one necessarily negates the mental state required for the other.”  (United States ex rel.   Flowers v. Illinois Department of Corrections (N.D.Ill.1991) 767 F.Supp. 880, 891, citing People v. Almo (Ill.1985) 483 N.E.2d 203, 207;  see also People v. Hofer (Ill.App.1984) 460 N.E.2d 824 affd.  (Ill.1985) 478 N.E.2d 335 [reverses convictions of murder, voluntary and involuntary manslaughter for death of same person on grounds jury had to have found defendant simultaneously entertained inconsistent mental states].)

JOHNSON, Associate Justice.