PEOPLE v. RIVERA (1995)

Mark Edward Rivera was accused by information of murder, gross vehicular manslaughter while intoxicated, and other crimes arising out of a car-train collision in which his passenger was fatally injured.   A jury could not agree as to a verdict on the murder count, but found Rivera guilty of all other crimes charged.   Rivera was sentenced to prison.   He appealed, assigning errors in jury instructions and in sentencing.   When the People proposed to retry him for murder, Rivera petitioned this court for a writ of prohibition to prevent the retrial, asserting former jeopardy on the basis of his conviction of gross vehicular manslaughter while intoxicated.   Both Rivera and the People briefed the merits of the writ petition.   We stayed the retrial and issued an order to show cause in the writ proceeding, and ordered the appeal and the writ petition considered together.   Rivera waived oral argument on his appeal, but both Rivera and the People appeared by counsel and orally argued the issues raised by Rivera's writ petition.

We shall conclude that Rivera has identified no reversible error on appeal.

But we shall also conclude that federal and California authorities support a conclusion that Rivera cannot be retried for murder.   We shall hold that gross vehicular manslaughter while intoxicated is a lesser offense necessarily included in murder.   Because the People did not insist, under People v. Kurtzman (1988) 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572, and cognate cases, that the jury be instructed that it could not return a verdict as to the lesser included offense unless and until it had acquitted Rivera of murder, the jury was permitted to convict Rivera of gross vehicular manslaughter while intoxicated without reaching a verdict as to murder, and in these circumstances the conviction of the lesser included offense operated to bar retrial for the greater.   Related issues are pending before the Supreme Court in People v. Fields (S044641, review granted March 23, 1995) and in People v. Mullins (S045293, review granted April 13, 1995).

Accordingly we shall affirm the judgment of conviction but shall order issuance of the writ of prohibition Rivera seeks.

There is no significant dispute as to the facts.

The collision occurred near Salinas, in Monterey County, at a point at which a two-lane arterial, Highway 183, runs parallel to and immediately to the west of a main north-south railroad track.   Both Highway 183 and the railroad track intersect an east-west arterial, Espinosa Road.   Southbound traffic on Highway 183 can turn left or east onto Espinosa Road by means of a left-turn lane;  having turned left, such traffic would immediately encounter the track at a grade crossing secured by crossing arms and equipped with bells and lights which are activated when the arms are down.

At approximately 11:20 a.m. on a Saturday in September 1993, a freight train, 7,776 feet long and weighing 6,491 tons, was southbound on the track at approximately 53 miles per hour, approaching the Espinosa Road grade crossing.

At the same time a Volkswagen Rabbit automobile, driven by Rivera and carrying a passenger named Monte Greene, was driving south on Highway 183, next to the train, at a speed somewhat greater than the estimated 50 miles-per-hour speed of the flow of traffic.   The Volkswagen was passing other vehicles.

Over a quarter of a mile from the Espinosa Road grade crossing, the engineer began sounding the train's very loud horn, which automatically activated the train's bell.   The train was also equipped with aircraft landing lights at eye level and a flashing yellow beacon light.   The crossing arms and their warning lights and bells all operated properly.   Several vehicles stopped at the crossing arms, eastbound on Espinosa Road, and in the left-turn lane from southbound Highway 183 to eastbound Espinosa Road.

Rivera's Volkswagen did not stop.   On Highway 183 it passed one car by driving on the right shoulder, then cut through the line of traffic, continued south down the northbound lane of Highway 183 to Espinosa Road, turned left or east into the westbound lane of Espinosa Road, and went around the west crossing arm and out onto the track.   A California Highway Patrol officer testified that virtually all of these driving maneuvers violated the law.

The train engineer testified that he had no chance to stop or to do anything other than to blow the train's horn as loudly as he could, and that Rivera smiled and appeared to make an obscene gesture as the Volkswagen drove in front of the train.   The engineer “figured this man is trying to kill himself.”

The train struck the Volkswagen.   Greene was thrown from the Volkswagen and fatally injured.   Rivera was less seriously injured;  he remained in the driver's seat after the collision.   There was a strong odor of alcohol on Rivera's breath and his speech was slow and “somewhat sluggish.”   Medical technicians at the scene believed Rivera was intoxicated.   Rivera was abusive and combative;  he pushed medical personnel away and told them “to leave him the fuck alone;  that he didn't want our help.”   When an ambulance paramedic told him that he had probably killed his friend, Rivera replied “I don't give a shit about him.”   Rivera was taken to a hospital, where his conduct was again characterized as combative and abusive.   A blood sample taken nearly three hours after the accident showed a blood alcohol level of 0.07;  without additional information as to when Rivera had ingested the alcohol, it was estimated that his blood alcohol level at the time of the accident would have been approximately 0.13.   His blood sample was also positive for methamphetamine, benodiazepine, and marijuana.

There was evidence that Rivera had been convicted of driving under the influence of alcohol in 1989, twice in 1990, and in 1992, and that in 1992, approximately 19 months before the collision, a probation officer had warned Rivera of the dangers of drinking and driving and had “told him that I feared that, if he continued his drinking pattern, he would either hurt himself or someone else.”

The information accused Rivera, in five counts, of murder (Pen.Code, § 187), of gross vehicular manslaughter while intoxicated (id. § 191.5, subd. (a)), of causing injury by doing an act forbidden by law in driving under the influence of an alcoholic beverage and a drug (Veh.Code, § 23153, subd. (a)) charged as a felony by virtue of his four prior convictions (id. § 23190), of causing injury by doing an act forbidden by law in driving while having 0.08 percent or more of alcohol in his blood (id. § 23153, subd. (b)) charged as a felony by virtue of his four prior convictions (id. § 23190), and of knowingly driving while his driving privilege was suspended or revoked for a conviction of driving under the influence of alcohol or drugs (id. § 14601.2, subd. (a)) charged as a misdemeanor.

The jury was instructed that “[e]ach count charges a distinct crime.   You must decide each count separately.   The defendant may be found guilty or not guilty of any or all of the crimes charged.”   After relatively lengthy deliberation the jurors advised the court that they had reached verdicts as to all counts other than the murder count, but that they were unable to agree as to the murder count.   Without objection from either side the court received and sealed the four verdicts the jury had reached.   After further deliberation the jurors advised the court they were deadlocked as to the murder count;  after all jurors indicated to the court's satisfaction that further deliberation would not be fruitful the court declared a mistrial as to the murder count.   The jury's verdicts were then unsealed;  the jurors had found Rivera guilty of all of the crimes charged in the second, third, fourth, and fifth counts of the information.

Rivera was sentenced to prison for a term of 10 years.   The appeal in our proceeding H012473 followed.

Shortly after trial the prosecutor advised the court that she wished to proceed to retrial on the murder count.   The trial court denied Rivera's motion to interpose pleas of a former judgment of acquittal (assertedly implicit in the verdict and judgment of conviction of gross vehicular manslaughter while intoxicated) and of once in jeopardy (Pen.Code, § 1016, subds. 4, 5).   The writ petition in our proceeding H012715 followed;  we stayed retrial of the murder count.

Issues on Appeal (H012473)

On appeal from the judgment of conviction of gross vehicular manslaughter while intoxicated, two counts of felony driving under the influence, and misdemeanor driving with a suspended license, Rivera asserts (1) that the trial court erroneously failed to instruct the jury that gross negligence (an element of gross vehicular manslaughter while intoxicated) requires conscious indifference to the consequences of the defendant's acts, (2) that the written sentencing order should be amended to conform to the proceedings in open court, and (3) that a restitution fine ordered by the trial court must be set aside because the court made no effective finding that Rivera had the ability to pay the fine.

We shall conclude that none of these assertions warrants reversal and that the judgment of conviction should be affirmed.

1. Conscious Indifference

 At the time of the trial gross vehicular manslaughter while intoxicated was defined by Penal Code section 191.5 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.” ¹

The requirement that the defendant have acted with gross negligence was discussed in People v. Bennett (1991) 54 Cal.3d 1032, 2 Cal.Rptr.2d 8, 819 P.2d 849, in which Bennett argued on appeal that the trial court had erred by instructing the jury that it could find gross negligence from either the manner in which Bennett drove, or “ ‘the overall circumstances of [Bennett's] intoxication,’ ” or both.  (54 Cal.3d at pp. 1034, 1036, 2 Cal.Rptr.2d 8, 819 P.2d 849.)   The Supreme Court concluded that the instruction had been correct.

The Supreme Court reasoned that “[g]ross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences.  [Citation.]  ‘The state of mind of a person who acts with conscious indifferences to the consequences is simply, “I don't care what happens.” ’  [Citation.]  The test is objective:  whether a reasonable person in the defendant's position would have been aware of the risk involved.   [Citation.]”  (54 Cal.3d at p. 1036, 2 Cal.Rptr.2d 8, 819 P.2d 849.)   The Supreme Court rejected Bennett's argument that “only his ‘driving conduct at the time of the traffic accident,’ not his level of intoxication, is relevant to determining gross negligence,” reasoning “that a driver's level of intoxication is an integral aspect of the ‘driving conduct.’  ․ ‘․ One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, ․ reasonably may be held to exhibit a conscious disregard of the safety of others.   The effect may be lethal․’  [Citation.]  [¶] The jury should therefore consider all relevant circumstances, including level of intoxication, to determine if the defendant acted with a conscious disregard of the consequences rather than with mere inadvertence.  [Citation.]”  (54 Cal.3d at p. 1038, 2 Cal.Rptr.2d 8, 819 P.2d 849.)

In this case the trial court, without objection or alternative suggestion by either side, gave the jury two instructions on gross negligence.

First the court instructed the jury, in the words of CALJIC No. 3.36, that “[g]ross negligence means conduct which is more than ordinary negligence.   Ordinary negligence is the failure to exercise ordinary or reasonable care.   [¶] Gross negligence refers to a negligent act which is aggravated, reckless and gross, and which is such a departure from what would be the conduct of an ordinarily prudent, careful person, under the same circumstances, as to be contrary to a proper regard for human life, or to constitute indifference to the consequences of such act.  [¶] The facts must be such that the consequences of the negligent act could reasonably have been foreseen, and it must appear that the death was not the result of inattention, mistaken judgment or misadventure, but the natural and probable result of an aggravated, reckless or grossly negligent act.”   CALJIC No. 3.36 had also been given in the Bennett case.

Second, the court instructed the jury, in essentially the words of CALJIC No. 8.94 as amended to incorporate language recommended in Bennett (54 Cal.3d at p. 1039, 2 Cal.Rptr.2d 8, 819 P.2d 849), that “[t]he mere fact that a defendant drives a motor vehicle while under the influence of alcohol and violates a traffic law is insufficient in itself to constitute gross negligence.  [¶] You must determine the gross negligence from the level of the defendant's intoxication, the manner of driving, or other relevant aspects of the defendant's conduct resulting in the fatal accident.”

Rivera argues that these instructions, albeit taken directly from CALJIC, improperly omitted from the definition of gross negligence a requirement (which Rivera draws from Bennett and cognate cases) that, if the jury is to rest a finding of gross negligence on a determination that the defendant's conduct constituted “indifference to the consequences,” the defendant's indifference must have been conscious.   Because in the trial court Rivera did not request that the word “conscious” be added to the gross-negligence instructions the court gave, his argument to this court necessarily assumes that the trial court was obliged to add the word on its own motion.

We reject Rivera's argument for two reasons.

 First, we are satisfied that the instructions the trial court gave were sufficient to define gross negligence for the jury in a manner consistent with the Supreme Court's analysis in Bennett and cognate cases.   In common English usage the word “indifference,” when related to a particular fact, plainly connotes awareness, and in this sense consciousness, of the fact.   Thus an individual's “indifference to consequences” means, in common usage, that the individual is aware at least that there may be consequences but does not attach significance to what the consequences may be.   In words Bennett quoted from People v. Olivas (1985) 172 Cal.App.3d 984, 988, 218 Cal.Rptr. 567, such an individual might be deemed to take the position that “ ‘ “I don't care what happens.” ’ ”  (People v. Bennett, supra, 54 Cal.3d at p. 1036, 2 Cal.Rptr.2d 8, 819 P.2d 849.)   Conversely, one cannot (in common English usage) be “indifferent” to that of which he or she is unaware, which is to say of which he or she is not conscious.   These perceptions underlie, in CALJIC No. 3.36 as the trial court gave it, the requirement that the consequences “could reasonably have been foreseen” and the implicit distinction between indifference and “inattention, mistaken judgment or misadventure,” none of which necessarily connotes awareness.   In short the word “conscious,” although it might help assure that a listener or reader will understand the word “indifference,” in fact adds nothing to the meaning of “indifference.”

 Given these conclusions, our second reason for rejecting Rivera's argument to this court is that his assertion that the trial court should have used the word “conscious” should have been made known to the trial court itself, in the form of a request that the instruction be so modified.  “It is well settled the trial court has no sua sponte duty to give amplifying instructions in the absence of a request if the terms used in the instructions given are ‘commonly understood by those familiar with the English language’;  while it does have such a duty where the term has a ‘technical meaning peculiar to the law’ [Citation.]”  (People v. Hill (1983) 141 Cal.App.3d 661, 668, 190 Cal.Rptr. 628;  cf. People v. Anderson (1966) 64 Cal.2d 633, 640, 51 Cal.Rptr. 238, 414 P.2d 366.)   Rivera argues that the term “gross negligence” does in fact have a technical meaning peculiar to the law, but in our view addition of the word “conscious” would tend at most to amplify, or clarify, the word “indifference” (a commonly understood word of no particular technical meaning) and would have no substantial tendency to clarify the concept of “gross negligence.”   Thus we conclude that in any event the trial court had no duty to add the word “conscious” to its instruction on its own motion.

2. Correction of the Record

 The reporter's transcript reflects that at the sentencing hearing, after imposing sentence and ordering credits, the trial court said “I'm also going to have a restitution order, which is possible in a case such as this.

“What amount do you think would be appropriate?

“[Prosecutor]:  I believe the victim's mother․

“THE COURT:  Seven hundred fifty dollars for the—

“[Probation officer]:  That was paid from by insurance.   There was 280 dollar plane ticket, but I'm not so sure that we shouldn't also reimburse victim witness in a token amount.

“THE COURT:  All right.   The victim witness, pay a restitution fine of 500 dollars.   He'll pay 280 dollars for the plane ticket.

“[Defense counsel]:  I'd object to that.   I don't think it is proper restitution.   Travel.

“THE COURT:  All right.   I'll tell you what, I'll assess 1,000 dollars to the victim witness fund.

“You say the burial itself was—I mean the cremation itself was cared for by insurance?

“[Probation officer]:  By insurance, Your Honor.

“THE COURT:  Okay.   That will be the order.”

The record contains a filled-in sentencing order form, signed by the trial judge, which among other things recites “Defendant to pay a restitution fine of $500.00 to the State Restitution Fund, 1202.4 PC,” and “Court also assesses $1,000.00 to victim/witness fund.”

On appeal Rivera argues that the reporter's transcript indicates the trial court's apparent intent was to increase the amount of the restitution fine from $500 to $1,000 rather than to order a separate $1,000 payment to a separate fund.   Rivera invokes the general rule that in a case of discrepancy between a judgment as orally pronounced and clerical entry of the judgment the oral pronouncement will control, and asks that the “minute order” be amended to conform to his understanding of what the trial court meant to do.

The People, citing this court's admonition to the bar in People v. Little (1993) 19 Cal.App.4th 449, 451–452, 23 Cal.Rptr.2d 394, suggest that we should decline to use the formal appellate process to correct what the People appear willing to concede was a clerical error.

We disagree with both parties as to their characterizations of the situation.

In the first place, it is not clear that the entry in the written sentencing order was inconsistent with the proceedings in open court:  While the oral proceedings can fairly be said to have been somewhat ambiguous, one plausible construction of what occurred is the version which appears in the sentencing order.

Second, we do not regard the version in the sentencing order as in the nature of clerical entries necessarily subordinate to the judicial act of the court and thus subject to nunc pro tunc correction.  (Cf. People v. Gardner (1979) 90 Cal.App.3d 42, 50, fn. 8, 153 Cal.Rptr. 160.)   Here the written sentencing order is not simply a compilation of clerical entries but rather a formal order of the court itself, signed on the day of sentencing by the judge who pronounced sentence and who was thus best situated to know what he had intended.

For these reasons, rather than on the ground suggested in Little, we decline to order alteration of the written sentencing order.

3. Ability to Pay

Rivera's final contention on appeal is that the restitution fine must in any event be set aside, or reduced to the statutory minimum amount of $200 applicable at the time he was sentenced, because the trial court did not make an explicit finding that Rivera had ability to pay the fine.

We need not reach the People's assertion that Rivera waived this contention by failing to request an explicit finding, or otherwise to raise the point, in the trial court (cf. People v. Scott (1994) 9 Cal.4th 331, 352, fn. 15, 36 Cal.Rptr.2d 627, 885 P.2d 1040):  The contention in any event fails because the statute on which Rivera relies, Government Code section 13967, as it read at the time he was sentenced, did not require an explicit finding of ability to pay.  (People v. Frye (1994) 21 Cal.App.4th 1483, 1485, 27 Cal.Rptr.2d 52.)

 In his reply brief Rivera belatedly suggests that in any event the record would not support an implicit finding of the ability to pay which section 13967 arguably required for imposition of a restitution fine greater than $200.   We are satisfied that the record is sufficient to support such an implicit finding, taking into account Rivera's ability to pay in the future.   (People v. Frye, supra, 21 Cal.App.4th at pp. 1486–1487, 27 Cal.Rptr.2d 52.)   The probation report reflects that at the time of sentencing Rivera was a 27–year-old man in good health, with an 11th-grade education, who had been employed in the past;  it would have been rational to infer that he would be employable upon release from prison.

Retrial for Murder (H012715)

Our conclusion that Rivera cannot be retried for murder is based in constitutional proscriptions against double jeopardy as implemented both in decisions of the U.S. Supreme Court and in rules of California case law interpreting Penal Code section 1023.

 Both California and federal constitutions provide that (in the words of the California Constitution) a defendant “may not twice be put in jeopardy for the same offense.”  (Cal. Const., art. I, § 15;  U.S. Const., 5th Amend.;   cf. Benton v. Maryland (1969) 395 U.S. 784, 795–796, 89 S.Ct. 2056, 2062–2064, 23 L.Ed.2d 707 [federal double jeopardy clause applies to states by virtue of 14th Amendment].)   Very broadly, a defendant is in jeopardy when he or she has been properly placed on trial, whether or not the trial proceeds to judgment of conviction or to acquittal, subject to a complex of qualifications and exceptions including the well-established rules that there is no jeopardy if in the course of trial a jury is discharged for lawful cause and that the jurors' inability to agree on a verdict is lawful cause for discharge.  (Cf. generally 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) §§ 272(2), 290, 292–293, pp. 313–314, 335–336, 338–340;  Pen.Code, §§ 1140, 1141.)

The “underlying idea” of the double jeopardy rules, “one that is deeply ingrained in at least the Anglo–American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him [or her] to embarrassment, expense and ordeal and compelling him [or her] to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he [or she] may be found guilty.”   (Green v. United States (1957) 355 U.S. 184, 187–188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199;  Benton v. Maryland, supra, 395 U.S. at pp. 795–796, 89 S.Ct. at pp. 2062–2064.)

Rivera argues in essence that the murder charge as to which the jury was unable to agree was the same offense as the charge of gross vehicular manslaughter while intoxicated of which he was placed once in jeopardy by trial and judgment of conviction, and therefore that he cannot be retried on the murder charge.

The leading case on whether, in particular circumstances, a single act which violates two or more statutes will amount to more than one offense is Blockburger v. United States (1932) 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, which addressed in pertinent part the relatively narrow question whether a single sale of narcotics could be punished as two offenses, under both of the sections of the federal Narcotics Act the sale had allegedly violated.   Blockburger said:  “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not․  ‘A single act may be an offense against two statutes;  and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ ”  (284 U.S. at p. 304, 52 S.Ct. at p. 182.)

What has come to be called “the Blockburger test” was explicitly applied to successive prosecutions in Brown v. Ohio (1977) 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187.   Brown had stolen a car and was later caught driving it.   The arresting agency charged him with joyriding, a misdemeanor;  he pled guilty and received a short jail sentence and a small fine.   Shortly after he got out of jail he was indicted for joyriding and, under another subdivision of the same statute, for theft of the car, a felony.   He claimed former jeopardy;  the state courts rejected his claim.   The U.S. Supreme Court reversed, concluding that the Blockburger test was applicable—“If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions” (432 U.S. at p. 166, 97 S.Ct. at p. 2226, fn. omitted)—and that greater and lesser included offenses (such as those involved in Brown) will invariably fail the Blockburger test for separate offenses because “the lesser offense ․ requires no proof beyond that which is required for conviction of the greater․  The greater offense is therefore by definition the ‘same’ for purposes of double jeopardy as any lesser offense included in it.”  (432 U.S. at p. 168, 97 S.Ct. at p. 2226–2227.)  “Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”  (Id. at p. 169, 97 S.Ct. at p. 2227;  cf. also United States v. Dixon (1993) 509 U.S. 688, ––––, ––––, 113 S.Ct. 2849, 2856, 2860, 125 L.Ed.2d 556, 568, 573;  Pen.Code, § 1023;  Bunnell v. Superior Court (1975) 13 Cal.3d 592, 607, 119 Cal.Rptr. 302, 531 P.2d 1086.)

 In this case both parties have chosen to focus on whether under California law gross vehicular manslaughter while intoxicated is, or is not, a lesser offense necessarily included in murder.

Rivera argues that in the circumstances of this case gross vehicular manslaughter while intoxicated is a lesser included offense of the murder the People undertook to prove, under the implied-malice theory of People v. Watson (1981) 30 Cal.3d 290, 298, 300–301, 179 Cal.Rptr. 43, 637 P.2d 279, in that proof of second degree murder by deliberately driving while intoxicated while aware of the danger to the lives of others created by such driving but in conscious disregard of the danger necessarily also proves gross vehicular manslaughter while intoxicated.

Rivera's argument misapprehends the applicable definition of lesser included offenses.   Courts have sometimes adopted fact- or conduct-based definitions for some purposes.  (Cf., e.g., People v. Rush (1993) 16 Cal.App.4th 20, 23–26, 20 Cal.Rptr.2d 15;  but cf. People v. Miranda (1994) 21 Cal.App.4th 1464, 1467, fn. 1, 26 Cal.Rptr.2d 610, and People v. Rush, supra, 16 Cal.App.4th at pp. 28–38, 20 Cal.Rptr.2d 15 (dis. opn. of Woods, J.).)   But most California courts now agree that for purposes other than determining, narrowly, whether a defendant may be tried for and convicted of a lesser offense included in a charged offense, the definition of a necessarily included lesser offense should be solely based on statutory comparison.   Thus, for example, “[f]or purposes of determining the propriety of multiple convictions, an offense is necessarily included if the crimes are defined in such a way as to make it impossible to commit the greater offense without also committing the lesser.”  (People v. Miranda, supra, 21 Cal.App.4th at p. 1467, 26 Cal.Rptr.2d 610.)  “[W]hile an expanded definition of necessarily included offenses may be appropriate in the context of [the statutory provision which authorizes finding a defendant guilty of a lesser included offense], there appears little reason to enlarge the meaning of the same phrase as it is used in other situations.”  (People v. Pearson (1986) 42 Cal.3d 351, 356, fn. 2, 228 Cal.Rptr. 509, 721 P.2d 595;   People v. Scheidt (1991) 231 Cal.App.3d 162, 170, 282 Cal.Rptr. 228;   People v. Watterson (1991) 234 Cal.App.3d 942, 946–947, 947, fn. 15, 286 Cal.Rptr. 13.)

That a limitation to statutory definitions applies in the double jeopardy context appears to have been made clear in the U.S. Supreme Court's recent opinion in United States v. Dixon, supra, 509 U.S. 688, –––– – ––––, 113 S.Ct. 2849, 2859–2864, 125 L.Ed.2d 556, 572–578, which overruled the short-lived fact-based rule of Grady v. Corbin (1990) 495 U.S. 508, 510, 110 S.Ct. 2084, 2087, 109 L.Ed.2d 548 that “the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.”  (Fn. omitted.)   In Dixon, five justices agreed that double jeopardy analysis should be governed solely by Blockburger 's statute-based same-elements test.  (509 U.S. at pp. –––– – ––––, ––––, 113 S.Ct. at pp. 2859–2864, 2865, 125 L.Ed.2d at pp. 572–578, 579.)

The People's statute-based argument is that as defined by Penal Code section 191.5 (quoted above) gross vehicular manslaughter while intoxicated contains elements which murder, as statutorily defined,² does not contain, and therefore that gross vehicular manslaughter while intoxicated cannot be a lesser offense included within murder.

On an abstract and technical level the People's argument is plausible:  In People v. Watson (1983) 150 Cal.App.3d 313, 198 Cal.Rptr. 26 (Watson II ), the Third District Court of Appeal, applying a statute-based definition of lesser included offenses, pointed out that “[c]onsidered superficially, vehicular manslaughter does not readily appear to be necessarily included within murder” under the statutory definitions “[s]ince murder ․ can be committed without the instrumentality of a vehicle․”  (150 Cal.App.3d at pp. 320–321, 198 Cal.Rptr. 26.)   At the time Watson II was decided, the statutory definitions of manslaughter and of vehicular manslaughter, in Penal Code section 192, did not include the crime now defined as gross vehicular manslaughter while intoxicated.   Gross vehicular manslaughter while intoxicated was initially added to section 192 by a bill enacted two months before, but not effective until three days after, Watson II was decided.   (Stats.1983, ch. 937, § 1, pp. 3387–3388.)   The new definition differed from preexisting forms of vehicular manslaughter in its requirements that the defendant have violated section 23152 or section 23153 of the Vehicle Code, and in this respect differed still more markedly from the statutory definition of murder.

But Watson II went on to observe (notwithstanding the apparent strictness of a statute-based definition of lesser included offenses) that the Supreme Court has “firmly established ․ that ‘manslaughter’ is necessarily included in murder.  [Citations.]  ․ [¶] Furthermore, from the authorities, it is clear that both ‘voluntary’ and ‘involuntary’ manslaughter as defined in [former] subdivisions 1 and 2[, now subdivision (a) and (b),] of section 192 are necessarily included in murder.  [Citations.]  ․ [What is now subdivision (b) of section 192 states elements which are inconsistent with the statutory definition of murder, but g]iven that involuntary manslaughter is necessarily included in murder, the requirements set forth in subdivision [b] ․ perforce cannot be elements of involuntary manslaughter for purposes of included offenses.  [¶] 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.  [Citation.]”  (Watson II, 150 Cal.App.3d at pp. 321–322, 198 Cal.Rptr. 26, fn. omitted.)

The People argue that the reasoning of Watson II does not control this case inasmuch as the crime of gross vehicular manslaughter while intoxicated was moved from Penal Code section 192 to new Penal Code section 191.5 in 1986, and thus “[s]ection 191.5 is obviously not a separate subdivision of section 192 merely defining a different circumstance under which an unlawful killing constitutes manslaughter.   Rather, it is an entirely separate statute.”

The People suggest an analogy, in this respect, between gross vehicular manslaughter while intoxicated and unlawful sexual intercourse with a person under the age of 18 years (formerly “statutory rape”), which was treated as a lesser offense included in rape so long as the crime was defined by a subdivision of the general rape statute (People v. Collins (1960) 54 Cal.2d 57, 59, 4 Cal.Rptr. 158, 351 P.2d 326) but was held not to be such a lesser included offense once the definition had been moved to a separate statute (cf. People v. Chapman (1975) 47 Cal.App.3d 597, 603–604, 604, fn. 3, 121 Cal.Rptr. 315.)

We find the People's proposed analogy unpersuasive.

Even under its former name, unlawful sexual intercourse has always been distinguishable from rape of an adult victim by the element of nonconsent:  An absence of knowing, and thus effective, consent to intercourse is of the essence of rape, while nonconsent is essentially irrelevant to the crime of unlawful sexual intercourse which may be committed upon an acquiescent and even willing victim so long as the victim is less than 18 years old.  (Cf. People v. Fremont (1941) 47 Cal.App.2d 341, 351, 117 P.2d 891;  cf. also People v. MacDonald (1914) 167 Cal. 545, 547, 140 P. 256.)   In this light the former holding that unlawful sexual intercourse could be treated as a lesser included offense of rape could have depended only on the happenstance that the lesser crime was then included in a single statute defining various forms of rape, and the change in law occasioned by elimination of the happenstance was both rational and appropriate.

But movement of the definition of gross vehicular manslaughter while intoxicated, without substantive change, from Penal Code section 192 to a new section of its own cannot be taken to have altered the fact that the gravamen of every form of homicide, from first degree murder through gross vehicular manslaughter while intoxicated to involuntary manslaughter by criminal negligence and regardless where in the statutes each particular definition is to be found, is the unlawful killing of a human being.   (Pen.Code, §§ 187, 191.5, 192;  cf. 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) § 447, pp. 502–504.)   In this perspective, each of the several statutes defining the various forms of first and second degree murder and of voluntary and involuntary manslaughter simply describes various means by which the basic crime of homicide—the unlawful taking of human life—may be committed, and the Watson II rationale is applicable notwithstanding the subsequent relocation of the definition of gross vehicular manslaughter.   It should be borne in mind that Watson II did not in the first instance rely on the happenstance, apparently significant in the context of unlawful sexual intercourse, that both murder and manslaughter were defined in a single section:  The definitions had been stated in separate sections—sections 187 and 192, respectively—since enactment of the Penal Code in 1872.

 We are satisfied, under Watson II 's analysis, that gross vehicular manslaughter while intoxicated should be treated as a lesser offense necessarily included in murder, and that either under Brown and Blockburger or under California cases we shall discuss below a defendant who has been convicted of gross vehicular manslaughter while intoxicated should be entitled to bar a subsequent prosecution for murder arising out of the same facts.

Under this analysis, the People clearly would not be permitted to try Rivera for murder had they first taken him to trial only on a charge of gross vehicular manslaughter while intoxicated and secured a conviction of that crime.   In this case the analysis is complicated by the circumstances that the People in fact initially took Rivera to trial on both charges and that the jury, while finding Rivera guilty of the lesser charge of gross vehicular manslaughter while intoxicated, was unable to agree as to the greater charge of murder.

The People's initial decision to try Rivera both for murder and for gross vehicular manslaughter while intoxicated in a single proceeding would not have been proscribed by the double jeopardy clauses.  “The double jeopardy bar does not apply to multiple convictions or acquittals in a single trial.  (Ohio v. Johnson (1984) 467 U.S. 493, 501 [104 S.Ct. 2536, 2541–2542, 81 L.Ed.2d 425] ) ․ [¶] ‘Since the purpose of the doctrine is to protect the defendant from the harassment of multiple trials, it is properly invoked only where there was a prior criminal proceeding which reached the jeopardy stage.   It does not apply to convictions or acquittals or dismissals on separate counts in a single trial.  (See P.C. 954.)   These may operate unjustly against a defendant, but if they do, other protections are invoked:  e.g., multiple convictions and punishment for the same act or omission under different statutes may violate P.C. 654 ․, or a conviction on one count may be so inconsistent with an acquittal on another as to render the verdict or judgment fatally defective․’ ”  (People v. Scheidt, supra, 231 Cal.App.3d at p. 169, 282 Cal.Rptr. 228, citing 1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) § 273, p. 314.)

Indeed, given a decision to try Rivera for both murder and gross vehicular manslaughter while intoxicated, the People were as a practical matter obliged to try the two charges in a single proceeding:  Subject to stated exceptions, “[w]hen ․ the prosecution is or should be aware of more than one offense in which the same act or course of conduct plays a significant part, all such offenses must be prosecuted in a single proceeding unless joinder is prohibited or severance permitted for good cause.   Failure to unite all such offenses will result in a bar to subsequent prosecution of any offense omitted if the initial proceedings culminate in either acquittal or conviction and sentence.”  (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827, 48 Cal.Rptr. 366, 409 P.2d 206.)

The People are thus encouraged to argue that their prosecution of Rivera for both murder and gross vehicular manslaughter while intoxicated in a single proceeding was legitimate in its inception, continues without jeopardy as to the murder charge by virtue of the mistrial occasioned by the inability of the jurors to agree, and should be allowed to proceed to retrial of the mistried count in normal course.  Penal Code section 1160 provides in part that “[w]here 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.”  (Cf. also Stone v. Superior Court (1982) 31 Cal.3d 503, 517, 183 Cal.Rptr. 647, 646 P.2d 809.)   In essence the People seek simply to invoke section 1160.

The People's argument assumes that gross vehicular manslaughter while intoxicated is not a lesser offense necessarily included in murder.   The assumption is certainly understandable:  Notwithstanding Watson II 's analysis the issue has been in doubt, and the People's assumption is consistent with the holdings of two 1994 Court of Appeal opinions which were subsequently ordered depublished.   But for reasons we have stated we have concluded that the assumption is incorrect, and our conclusion vitiates the People's argument.

 A premise that further prosecution of a greater offense might be barred, notwithstanding the jury's failure to agree on it and notwithstanding Penal Code section 1160, were the jury to return a verdict only on a lesser included offense is essential to the holdings of People v. Kurtzman, supra, 46 Cal.3d 322, 250 Cal.Rptr. 244, 758 P.2d 572, and cognate cases.   The primary rule of these cases is that although a jury may properly be permitted to consider greater and lesser included offenses in any order, it may not (without the prosecutor's explicit or implicit acquiescence) return a verdict as to a lesser included offense unless and until it has unanimously agreed to acquit the defendant as to the greater offense.   The purpose of this rule has been said to be to protect “the People's interest in obtaining a verdict” (People v. Zapata (1992) 9 Cal.App.4th 527, 533, 12 Cal.Rptr.2d 118) on the greater offense by permitting the prosecutor to insist on a mistrial as to the greater offense on which the jury could not agree, unqualified by a verdict as to any lesser included offense.   Implicitly this rule recognizes that if the jury does return a verdict as to the lesser offense, further proceedings on the greater offense would in any event be barred.

The bar may be rationalized in either of two ways:  On the basis of an implied acquittal of the greater offense, or by application of a rule of California case law based on section 1023 of the Penal Code.

 Situations in which greater and lesser included offenses have been tried together, and the jury has convicted the defendant of the lesser offense but has made no disposition of the greater, have sometimes been resolved, in favor of a former jeopardy defense to attempted retrial of the greater charge, by a finding that conviction of only the lesser offense (given a full opportunity to convict of the greater) implied an acquittal of the greater.   (Green v. United States, supra, 355 U.S. 184, 190–191, 78 S.Ct. 221, 224–225;  Stone v. Superior Court, supra, 31 Cal.3d 503, 511, fn. 5, 183 Cal.Rptr. 647, 646 P.2d 809 [“This court recognized the notion of implied acquittal as early as 1854 ․”].)  The Supreme Court has pointed out that “[w]here the offenses are in fact greater and lesser included,” the language of Penal Code section 1160 “must be interpreted in light of the doctrine of implied acquittal” (People v. Kurtzman (1988) 46 Cal.3d 322, 333, 250 Cal.Rptr. 244, 758 P.2d 572), which is fairly plainly to say that a prosecutor who seeks to invoke section 1160 to retry a greater charge as to which the jury could not agree may find retrial barred, notwithstanding section 1160, by an implicit antecedent acquittal if the jury has convicted the defendant of a lesser included offense.

The People argue that (even assuming the gross vehicular manslaughter while intoxicated was a lesser included offense of murder) the jury could not be deemed to have implied an acquittal of the murder charge given the jurors' explicit declaration that they had neither convicted nor acquitted, but had in fact been unable to agree.

But the People's argument has not been accepted in the courts.   If the prosecutor does not insist that the jury first reach a verdict as to the greater offense, and the jury goes on to convict the defendant of a lesser included offense, the conviction can be deemed an implied acquittal of the greater offense even though the jury had been unable to agree as to the greater offense.  (People v. Zapata, supra, 9 Cal.App.4th at pp. 532–534, 12 Cal.Rptr.2d 118;  cf. also People v. Carapeli (1988) 201 Cal.App.3d 589, 596, 247 Cal.Rptr. 478.)

In the circumstances of this case a considerably better argument against implied acquittal would have been that the jury, having been explicitly instructed that each count charged a distinct crime and was to be decided separately, and that Rivera could be found guilty or not guilty of any or all of the crimes charged, may well have perceived no legal interrelation between the murder count and the gross vehicular manslaughter while intoxicated count.   Absent a basis for belief that the greater offense necessarily included the lesser (the argument would run), the jurors could not readily be said to have necessarily intended an acquittal of the greater by convicting only of the lesser.

But a determination that acquittal of the greater offense cannot be implied would not forestall a conclusion that renewed prosecution of the greater offense would nevertheless be barred.

Penal Code section 1023 provides that “[w]hen the defendant is convicted or acquitted or has been once placed in jeopardy upon an accusatory pleading, the conviction, acquittal, or jeopardy is a bar to another prosecution for the offense charged in such accusatory pleading, or for an attempt to commit the same, or for an offense necessarily included therein, of which he [or she] might have been convicted under that accusatory pleading.”

“ ‘Although section 1023 refers to a situation where the prosecution for the greater offense is first in time, there is no such limitation in the cases.   If the defendant is tried first for assault and later for battery, the prosecution for the included offense bars the subsequent prosecution for the greater offense.  [Citations.]  “A conviction of the lesser is held to be a bar to [the] prosecution for the greater on the theory that to convict of the greater would be to convict twice of the lesser.”  [Citation.]  If this were not the rule, section 1023 could be vitiated by the simple device of beginning with a prosecution of the lesser offense and proceeding up the scale.’ ”  (Bunnell v. Superior Court, supra, 13 Cal.3d at p. 607, 119 Cal.Rptr. 302, 531 P.2d 1086, quoting from People v. Greer (1947) 30 Cal.2d 589, 597, 184 P.2d 512, and People v. Krupa (1944) 64 Cal.App.2d 592, 598, 149 P.2d 416.)

We are persuaded that this rule is as applicable to a case, such as this one, in which a defendant has been charged and tried in a single proceeding on both greater and lesser included offenses and convicted of the lesser offense as it would be to the rare situation in which the defendant is first tried only on the lesser offense (e.g., Bunnell v. Superior Court, supra, 13 Cal.3d 592, 119 Cal.Rptr. 302, 531 P.2d 1086).   Although a prosecutor may legitimately decide to prosecute a defendant for both greater and lesser included offenses, he or she normally must (by virtue of the Kellett rules) do so in a single proceeding, and will recognize that the proceeding can result in a valid conviction of only one or the other:  “When the jury expressly finds defendant guilty of both the greater and lesser offense, ․ [and] [i]f the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling and the conviction of the lesser offense must be reversed.  [Citations.]”  (People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763.)   The prosecutor properly may, by proceeding on both greater and lesser offenses, seek the assistance of a jury to help him or her determine the gravity of the crime of which, on the evidence, the defendant may be convicted.   But in the fair and orderly administration of criminal justice it is only appropriate that the prosecutor who has elected to proceed in this way be required to abide by the findings of a jury which, as in this case, has been given an unfettered opportunity to find the defendant guilty of either offense or both and has in fact found the defendant guilty of one or the other.   Any other rule would impermissibly expose the already-convicted defendant to the risk of being required to “ ‘run the gantlet’ ” of criminal trial once again.  (Cf. People v. Superior Court (Marks) (1991) 1 Cal.4th 56, 75–76, 2 Cal.Rptr.2d 389, 820 P.2d 613.)

 We believe these perceptions, like the implied-acquittal rules, are implicit in Kurtzman and cognate cases, and that a prosecutor who has elected to proceed on both greater and lesser included offenses can avoid the bar of a conviction only on the lesser offense by insisting on Kurtzman's procedural protections:  If the jury cannot agree as to the greater offense, then the prosecutor is entitled to a mistrial which will avert a verdict on the lesser offense.   That in this case the People did not invoke the Kurtzman rules, and thus did not preserve an opportunity to retry Rivera for murder at cost of an opportunity to convict him at the first trial of gross vehicular manslaughter while intoxicated, may be attributed to the People's perception that gross vehicular manslaughter while intoxicated was not a lesser included offense of murder and therefore that the Kurtzman rules did not apply.   As we have pointed out, the perception was understandable in the state of the caselaw at the time of trial.   But gross vehicular manslaughter while intoxicated was a lesser included offense, and the rules we have stated operate to bar retrial of the murder charge.

Dispositions

In proceeding H012473, the judgment of conviction is affirmed.   In proceeding H012715, let a peremptory writ of prohibition issue restraining respondent Superior Court of Monterey County from proceeding further on the charge of murder, in violation of Penal Code section 187, lodged against Mark Edward Rivera by information filed on October 12, 1993, in respondent's proceeding CR19051.

FOOTNOTES

1.   Stats.1990, ch. 1698, § 4.   A reference to Vehicle Code section 23140 (which is not relevant to this case) was added to section 191.5 after Rivera's trial was completed.  (Stats.1994, ch. 71, § 1.)

2.   In pertinent part Penal Code, section 187 defines murder as “the unlawful killing of a human being ․ with malice aforethought.”   The term “malice” is qualified and defined in Penal Code, section 188:  “Such malice may be express or implied.   It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.  [¶] When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought.   Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.”

BAMATTRE–MANOUKIAN, Associate Justice.

PREMO, Acting P.J., and ELIA, J., concur.