People v. Rocha

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 974 OPINION

Defendant was convicted by a verdict of the jury finding him guilty of a violation of Penal Code section 192, subdivision 3(a) (count I: felony vehicular manslaughter) and Vehicle Code section 23101, subdivision (a) (count II: felony drunk driving). On appeal from the judgment entered imposing concurrent sentences to state prison, defendant claims error resulting from multiple convictions and punishment, *Page 975 unconstitutionality of Penal Code section 193, and the failure to give certain requested jury instructions. Only one of these claims has merit. Accordingly, we modify the judgment and, as modified, affirm.

We briefly summarize the facts relevant to our discussion:

In the early evening of June 21, 1976, while driving his new Mustang automobile accompanied by his passenger, Louis, defendant sped through the red traffic signal at the intersection of Central Expressway and Scott Boulevard in Santa Clara County, colliding broadside with another automobile then properly in the intersection which was traveling north on Scott Boulevard. The driver of the other automobile died later that evening from injuries sustained in the collision. A police officer responding to the scene of the accident detected a strong odor of alcohol on defendant's breath, and observed that defendant was unsteady while standing and that his eyes were red and watery. Following his arrest, defendant's blood specimen was taken about one hour later revealing, upon testing, a blood alcohol level of .10. Defendant presented no testimony in his defense at trial.

I. Multiple Convictions and Punishment

Defendant contends, relying principally on our reasoning inPeople v. Lobaugh (1971) 18 Cal.App.3d 75 [95 Cal.Rptr. 547], that a single act or course of criminal conduct cannot, as here, support multiple convictions. His contention is unpersuasive.

(1) It is well settled that section 654 of the Penal Code proscribes only double punishment but does not bar double convictions. (People v. Greene (1973) 34 Cal.App.3d 622, 654 [110 Cal.Rptr. 160]; People v. Tideman (1962) 57 Cal.2d 574, 586-587 [21 Cal.Rptr. 207, 307 P.2d 1007]; In re Adams (1975)14 Cal.3d 629, 636 [122 Cal.Rptr. 73, 536 P.2d 473]; 1 Witkin, Cal. Crimes, § 207, p. 199; 2 Witkin, Cal. Crimes, § 948, pp. 900-901.) (2) It is likewise well recognized that where one of the offenses charged is "necessarily included" in the other a defendant may not be convicted of both. (People v. Greene,supra, at p. 654; People v. Pater (1968) 267 Cal.App.2d 921, 924-926 [73 Cal.Rptr. 823]; see also 1 Witkin, Cal. Crimes, § 208, pp. 199-200.) But where the charge arising from a single act involves different offenses entailing different elements of proof, a defendant may be properly convicted of both. (People v. Tideman, supra, at pp. 585-586; see also In re Dennis B. (1976) 18 Cal.3d 687, 691-692 [135 Cal.Rptr. 82, 557 P.2d 514].) *Page 976 (3) The crime of "felony drunk driving" is not a lesser included offense of vehicular manslaughter. (People v. Young (1964) 224 Cal.App.2d 420, 425 [360 Cal.Rptr. 672].) Nor are the two offenses mutually exclusive so as to preclude a conviction of both. (See People v. Jaramillo (1976) 16 Cal.3d 752 [29 Cal.Rptr. 306, 548 P.2d 706]; People v. Prado (1977)67 Cal.App.3d 267, 273 [136 Cal.Rptr. 521]; People v.Witzel (1957) 155 Cal.App.2d 486, 490-491 [318 P.2d 136].) "Manslaughter in the driving of a vehicle (Pen. Code, § 192, subd. 3(a)) need not be committed by a person under the influence of alcohol, and felony drunk driving (Veh. Code, § 23101) need not result in the death of the person injured. Neither offense, therefore, is necessarily included in the other." (People v.Young, supra, 224 Cal.App.2d 420, 425.) Moreover, to constitute involuntary manslaughter under Penal Code section 192, subdivision 3(a), the death must be due either to (1) the commission of an unlawful act, not amounting to a felony, with gross negligence, or (2) the commission of a lawful act which might produce death, in an unlawful manner and with gross negligence. Here there was substantial evidence1 that at the time of injury causing death, defendant was driving his automobile while under the influence of alcohol at an excessive rate of speed, had run a red light, and was otherwise inattentive to his driving. Proof of such acts would fully support the jury's implied finding of either (1) unlawful and grossly negligent conduct not amounting to a felony (see In re Dennis B., supra,18 Cal.3d 687, 697) or (2) a lawful act likely to produce death, in an unlawful manner, with gross negligence. (See People v.Collins (1925) 195 Cal. 325, 348-349 [233 P. 97].)