THE PEOPLE v. ODELL (1981)

Steven Wesley Odell appeals from a conviction of vehicular manslaughter (Pen.Code, § 192.3, subdivision (a)).   He was granted probation for five years on condition, among others, he serve 180 days in county jail.   We affirm his conviction.

Shortly after 1 a. m. on March 18, 1979, in Odell's pickup truck, he and his girlfriend left a party where they had been drinking.   He knew the truck had bad brakes but could not afford to fix them at that time.   On the way home, Odell apparently fell asleep.   The truck ran off the freeway onto the dirt center divider, proceeded some distance in the divider then tipped over, rolling across the freeway and down an embankment.   Both Odell and his girlfriend were thrown out of the vehicle.   When the highway patrol arrived, they found the girlfriend on the right shoulder of the freeway.   She was unconscious with a severe skull fracture and massive chest injuries.   She died not long after.   Odell was found further down the embankment.   One of the highway patrol officers asked Odell if there were any other persons in the truck.   Defendant answered only his girlfriend.   The officer then asked who had been driving.   Odell replied he had been.

Odell on separate occasions also admitted to his girlfriend's mother and sister that he had been driving at the time of the accident.   Expert testimony tended to show that both persons had been thrown from the truck's passenger door with the girlfriend being thrown first, thus indicating she was the passenger.

Odell was charged with vehicular manslaughter (Pen.Code, § 192.3, subd. (a)) and felony drunk driving (Veh.Code, § 23101, subd. (a)).  At his arraignment, Odell entered a plea of not guilty.   He moved to set aside the information pursuant to Penal Code section 995, but the motion was denied.   He then entered a plea of nolo contendere to misdemeanor drunk driving (Veh.Code, § 23102), but withdrew that plea when the sentencing judge announced it was the court's intention to suspend Odell's driver's license for five years.   The original charges were reinstated and Odell was tried without a jury.   He was convicted on both counts, but the felony drunk driving conviction was dismissed as a lesser included offense of vehicular manslaughter.

On appeal, Odell urges his conviction be overturned for error in denying his Penal Code section 995 motion, an improper jury waiver, allowing in an involuntary admission, judicial misconduct and insufficient evidence to support the conviction.   Alternatively, Odell argues his conviction should be reduced to a misdemeanor either because his withdrawal of his nolo contendere plea was not voluntarily made or because to convict him for a felony following a trial is punishing him for exercising a constitutional right.

Odell contends the information should have been set aside because at the preliminary hearing the prosecution failed to establish the corpus delicti before admitting his extrajudicial admissions.   Odell argues that without his admissions there was insufficient cause to bind him over to trial and, therefore, the superior court lacked jurisdiction to try his case.

 Before a defendant's extrajudicial admissions may be received into evidence, a prima facie showing of the corpus delicti must be made (People v. Ott (1978) 84 Cal.App.3d 118, 130–131, 148 Cal.Rptr. 479).   In a homicide case, the corpus delicti is established by proving the identity of the body of the deceased and that the deceased was killed by an unlawful agency (People v. Leon (1954) 129 Cal.App.2d 676, 681, 277 P.2d 481).   The corpus delicti may be proved by circumstantial evidence or by reasonable inferences (People v. Miller (1969) 71 Cal.2d 459, 477, 78 Cal.Rptr. 449, 455 P.2d 377).   To establish the corpus delicti, it need not be shown that the defendant committed the crime (People v. Lopez (1967) 254 Cal.App.2d 185, 189, 62 Cal.Rptr. 47).   All that need be shown is a crime has been committed by someone (People v. Ott, supra, 84 Cal.App.3d 118, 131, 148 Cal.Rptr. 479).   In providing the foundation for the corpus delicti, the prosecution does not have to eliminate all inferences tending to show a noncriminal cause of death;  it can use inferences to show a criminal cause (People v. Jacobson (1965) 63 Cal.2d 319, 327, 46 Cal.Rptr. 515, 405 P.2d 555).

 While technically there was error in the preliminary hearing because Odell's extrajudicial admission was received before the corpus delicti was established, ample evidence was eventually produced at the hearing establishing not only the corpus delicti but sufficient cause to bind Odell over to trial in superior court.   Since People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529–530, 165 Cal.Rptr. 851, 612 P.2d 941, it is clear a conviction will not be reversed for a defect in the preliminary hearing if the subsequent trial cures the defect.   Thus the defendant must establish not only that an error existed, but that the error was prejudicial.   This rule applies to defendants who argue error in the preliminary hearing on appeal after Pompa-Ortiz, even though their preliminary hearing was before (see People v. Hampton (1981) 116 Cal.App.3d 193, 196–199, 172 Cal.Rptr. 25).   In this connection, we cannot adopt Odell's view that the Pompa-Ortiz rule operates only prospectively because the court used the word “henceforth” in stating its holding.   The court did not discuss the matter of prospectivity (cf. People v. Gainer (1977) 19 Cal.3d 835, 853, 139 Cal.Rptr. 861, 566 P.2d 997), and we do not see a basis for viewing the decision other than as applicable to cases not yet final, including those pending on appeal where the issue is presented.

Odell here failed to establish a fundamental jurisdictional error that prejudiced his case and was not cured by the subsequent trial.

 Odell contends his admission to the highway patrol officer he had been driving the truck was improperly received into evidence.   He argues the admission was not the product of a rational mind and free will.   The admission was admitted into evidence without objection and it is not appropriate to raise the issue for the first time on appeal.   In any event, he himself testified he deliberately lied to protect his girlfriend.   It is thus apparent the admission was voluntarily and thoughtfully made.   There was no error here.

Odell contends there was judicial misconduct in that the court (1) acted as an advocate for the prosecution, (2) was prejudiced against him, (3) relieved the prosecution of the burden of proof, (4) disparaged defense counsel, (5) improperly used its own experience in resolving a factual question, and (6) used evidence improperly in reaching the verdict.   These contentions are unsupported by the record.

 The first three contentions are based on the court's active role in the trial without a jury.   The court questioned witnesses both on direct and cross-examination.   The record shows the court's questions were conscientious attempts to clarify testimony and that Odell failed to object.  “It is settled that a judge's examination of a witness may not be assigned as error on appeal where no objection was made when the questioning occurred.”  (People v. Corrigan (1957) 48 Cal.2d 551, 556, 310 P.2d 953.)   Odell cannot assign the judge's examination as error since he failed to object.

The court's comments to defense counsel were not disparaging, but mild attempts at humor.   Defense counsel was not dissuaded from vigorous advocacy, nor did Odell suffer prejudice since there was no jury.

The judge's mention of his own experience with driving and vehicles was proper.   The record does not support the contention the judge improperly used evidence not presented at trial.

 Other disputed evidence was Odell's responses to questions by the highway patrol in the hospital immediately after the accident.   At trial, defense counsel argued the questioning violated People v. Fioritto (1968) 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625, and People v. Randall (1970) 1 Cal.3d 948, 83 Cal.Rptr. 658, 464 P.2d 114.   The court admitted the evidence, although the record shows it thought it to be a close question.   When the court announced its verdict, it stated it had not used the evidence in reaching its decision, because it was “not necessary” apparently indicating it was merely cumulative.   Odell has failed to show the court acted in bad faith or that it was biased.

 With respect to Odell's contention the evidence was insufficient, on appeal the evidence must be viewed in the light most favorable to the verdict (People v. Samuel (1981) 29 Cal.3d 489, 505, 174 Cal.Rptr. 684, 629 P.2d 485).   The test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether it supports guilt beyond a reasonable doubt (People v. Mosher (1969) 1 Cal.3d 379, 395, 82 Cal.Rptr. 379, 461 P.2d 659).   When two or more inferences can reasonably be deduced from the facts, either deduction will be supported by substantial evidence, and the appellate court cannot substitute its deductions for the trial court's (In re James D. (1981) 116 Cal.App.3d 810, 814, 172 Cal.Rptr. 321).

 There was sufficient evidence produced at trial to support Odell's conviction.   Evidence showed he was driving (both through his own admissions and by testimony of an accident reconstruction expert) and that he was grossly negligent (his blood alcohol level was .21 when taken two hours after the accident, he was exceeding the basic speed law, and he fell asleep at the wheel).   There was no error here.

 Odell pleaded nolo contendere to misdemeanor drunk driving.   On appeal, he argues that withdrawal of his nolo contendere plea was coerced.   He argues that the judge, believing he was innocent, announced a proposed five-year suspension, two years beyond the permissible statutory maximum suspension (see Pen.Code, § 1203a;  Veh.Code, §§ 13208, 13352), to coerce him into going to trial.   The record does not support this contention.   It shows the judge noted two items in the probation report which indicated Odell's possible innocence because he may not have been the driver.   Concerned about this, the judge questioned whether the plea was intelligently made.   Once the judge learned the plea was accepted under the guidelines of People v. West (1970) 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409, the court announced its intention to suspend Odell's driver's license for five years with reinstatement after two and a half years if he showed he had dealt with his alcohol problem.   The record indicates this proposed suspension was based on Odell's prior drunk driving convictions, his apparent alcohol problem and the judge's own beliefs about the dangerousness of drunk drivers.   When the judge announced the proposed sentence, defense counsel stated that any more than a one-year suspension was unacceptable to his client and he wanted time to consult with Odell to see if he wanted to withdraw his nolo contendere plea in light of the proposed sentence.   Time was granted and the withdrawal made.

All of this indicates the decision to withdraw the plea was not coerced, but rather a tactical choice.   Nowhere in the record is there any hint of an intent by the judge to coerce Odell.   True, the proposed suspension was beyond the statutory maximum, but the reinstatement after two and a half years was within the three-year statutory maximum and Odell was concerned about any suspension beyond one year.   Odell had ample opportunity to consult with counsel about whether he should withdraw his plea.   The sentencing judge encouraged consultation and gave him the benefit of knowing what the proposed sentence was to be.   Furthermore, trial did not begin until six months later.   At no time did Odell move to reinstate his nolo contendere plea.

In essence, Odell is claiming he was coerced because he was faced with a hard decision and, in hindsight, he made the wrong choice.   It is often difficult to make a choice between a plea bargain with its certain conviction and known penalty, or to go to trial with the uncertainty of a complete acquittal or an unknown penalty.   The court cannot guarantee a defendant will make the best choice as Odell here asks us to do.   All the court can do is to provide defendant with all the necessary information (see People v. West, supra 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409;  In re Tahl (1970) 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449) and with the advice of counsel (Cal.Const., art. I, § 15), to help a defendant make an intelligent decision.   When a defendant chooses to plead nolo contendere or guilty, the court makes very certain the defendant knows what constitutional rights are being waived and that the defendant made the plea voluntarily.   There is a certain irony here, because Odell is claiming he was “coerced” into the exercise of the rights guaranteed to him by the Constitution.   Odell was not coerced, he was faced with a hard choice and made an informed decision.   Unfortunately, the result was not what he wanted.

Defendant's novel argument that he should have been advised of the consequences of withdrawing the nolo plea is without authority in law or logic and without merit.

Odell argues his jury trial waiver was not voluntarily and intelligently made because he was not informed a jury could recommend county jail time for vehicular manslaughter (Pen.Code, § 193).¹

 A defendant's waiver of a jury trial must be voluntarily, knowingly and intelligently done with sufficient awareness of the circumstances and likely consequences of the waiver (Brady v. United States (1970) 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747).   The failure to advise the defendant of the direct consequences of his waiver constitutes error but requires reversal only where there is a showing of prejudice.  (In re Yurko, 10 Cal.3d 857, 864, 112 Cal.Rptr. 513, 519 P.2d 561).   The court here followed the format of the 1980 Criminal Trial Bench Book which in the ordinary case gives sufficient information to a defendant to make the waiver proper.²  This is not the usual case.   In not being informed of the special statutory benefit of Penal Code section 193 permitting the jury to recommend county time, thus depriving the court of authority to impose a prison sentence on him, Odell was denied the potential benefit of such a recommendation which could have had the effect of reducing the offense to a misdemeanor.   It cannot be said the defendant had sufficient awareness of the relevant circumstances and likely consequences of the waiver of this constitutional right.   It follows, since Odell was denied the benefit of the jury's recommendation this become a misdemeanor, we must fashion a remedy for this defect.

A straight reversal is not called for.   Odell was properly advised of a jury's power to determine his guilt or innocence and his waiver encompasses this power, so he has no claim of prejudice with respect to that.   However, if Odell had been informed of the jury's Penal Code section 193 power to return a binding recommendation of county jail after returning identical verdicts of guilt on the same evidence and trial events as occurred here, the result Odell would be entitled to would be a misdemeanor, not the felony or misdemeanor “wobbler” of which he now stands convicted (see Pen.Code, §§ 17, subd. (b)(3), 1203a).   The stigma of the felony conviction and its five-year, rather than three-year, maximum probation term represent the actual prejudice to him.

This prejudicial effect can be removed and the deprivation of Odell's right to make a knowing waiver of trial by jury can by fully vindicated in this case either by a straight reversal or by fixing the result he would have received under Penal Code section 193 if the above assumed facts had occurred.   This being the case, in the interests of judicial efficiency we make the following order (see People v. Cooper, 94 Cal.App.3d 672, 683, 156 Cal.Rptr. 646 (Pope error);  People v. Garcia, 27 Cal.App.3d 639, 647–648, 104 Cal.Rptr. 69 (burden of proof error)):

The judgment is reversed with directions as follows:  If the People, within 30 days from the issue of the remittitur, file a written demand for a new trial, such trial shall take place.   If the People do not file a written demand for trial within 30 days of the remittitur, the remittitur shall constitute an order that the judgment is modified by fixing the offense as one in which a jury recommended county jail under Penal Code section 193, and in all respects is affirmed;  the trial court shall modify its records accordingly by making it clear Odell was convicted of a misdemeanor and by reducing his probationary term from five years to three years, and shall notify the appropriate authorities of the modification.

FOOTNOTES

1.   Section 193 in pertinent part reads as follows:“(a) Voluntary manslaughter is punishable by imprisonment in the state prison for two, four, or six years.“(b) Involuntary manslaughter is punishable by imprisonment in the state prison for two, three or four years.“(c) A violation of subsection 3 of section 192 of this code is punishable as follows:  In the case of a violation of subdivision (a) of said subsection 3 the punishment shall be either by imprisonment in the county jail for not more than one year or in the state prison, and in such case the jury may recommend by their verdict that the punishment shall be by imprisonment in the county jail;  in the case of a violation of subdivision (b) of said subsection 3, the punishment shall be by imprisonment in the county jail for not more than one year.   In cases where, as authorized in this section, the jury recommends by their verdict that the punishment shall be by imprisonment in the county jail, the court shall not have authority to sentence the defendant to imprisonment in the state prison, but may nevertheless place the defendant on probation as provided in this code.”

2.   Before accepting the jury trial waiver, the trial court and Odell engaged in the following colloquy:“THE COURT:  All right.   Your attorney has told the Court that you wish to give up your right to a trial by jury.   It is my duty to advise you that the Constitution of both the State of California and the United States of America, gives you the right of a trial by a jury of 12 people;  do you understand that, sir?“THE DEFENDANT:  Yes, sir.“THE COURT:  That would be 12 people who would be selected from the community at large and they would decide the question of your guilt or innocence on the charges filed against you in this Information;  you are aware of that?“THE DEFENDANT:  Yes, sir.“THE COURT:  The right to a jury trial is a personal right of each defendant, and you must personally decide if you wish a jury trial, or if you wish me to try the case without a jury, and make a decision as to your guilt or innocence.  [¶] Mr. Lane cannot make that choice for you, you have to make it yourself.   Do you understand that, sir?“THE DEFENDANT:  Yes, sir.“THE COURT:  Do you understand what a jury trial is?“THE DEFENDANT:  Yes, sir.”

COLOGNE, Acting Presiding Justice.

STANIFORTH and WIENER, JJ., concur.