Friday, October 19, 2007

3 prior Vehicular Manslaughter - DUI 's not strikes

California DUI criminal defense attorney news

Filed 10/19/07 P. v. Kurek CA6

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Appellant,

v.

BRYCE STEVEN KUREK,

Defendant and Respondent.
H030104
(Santa Cruz County

Super. Ct. No. F11216)


The People appeal from a judgment committing defendant Bryce Steven Kurek to state prison for four years on his conviction by no contest plea to driving under the influence of alcohol and/or drugs with four prior qualifying convictions. (Veh. Code, §§ 23152, subds. (a) & (b), 23550, 23550.5.) The People contend that the sentence is unlawful because the trial court erred in ruling that defendant’s three prior gross vehicular manslaughter while intoxicated convictions (Pen. Code, § 191.5)1 are not strikes (§ 667, subds. (b)–(i)). As we find that the People failed to carry their burden of proving that defendant’s prior convictions qualified as strikes, we will affirm the judgment.

BACKGROUND

At approximately 1:25 a.m. on March 30, 2005, a California Highway Patrol officer observed defendant driving a vehicle approximately 40 miles per hour in a 25-mile-per-hour zone on 7th Avenue in Santa Cruz. The officer instituted a traffic stop, and detected a strong odor of alcohol emitting from defendant’s vehicle through the open driver’s side window. The officer also noticed that defendant’s eyes were very red and that his speech was slurred. The officer administered field sobriety tests to defendant, determined that defendant was under the influence of alcohol, and placed defendant under arrest. Inside defendant’s left front pant’s pocket the officer found two boxes containing marijuana and a glass pipe. Defendant was transported to a hospital where a breath analyzer test was conducted. Defendant’s blood-alcohol content was approximately .11.2

Defendant was charged by information filed August 9, 2005, with two counts of driving under the influence of alcohol and/or drugs (Veh. Code, § 23152, subds. (a) & (b); counts 1 & 2), and misdemeanor possession of marijuana while driving (Veh. Code, § 23222, subd. (b); count 3). The information further alleged that defendant had three prior convictions under section 191.5, and one prior conviction under Vehicle Code section 23153, subdivisions (a) and (b) (Veh. Code, §§ 23550, 23550.5); that these four prior convictions constituted strikes (§ 667, subds. (b)–(i)); and that defendant had served a prior prison term (§ 667.5, subd. (b)).

On January 10, 2006, defendant entered a negotiated no contest plea to the new charges and admitted three prior felony convictions for gross vehicular manslaughter while intoxicated, one prior felony conviction for driving under the influence causing injury or death, and the prior prison term allegation. Conditions of the plea were that the court was to determine whether the prior convictions constituted strikes and that, regardless of the court’s determination, the prosecutor would move to strike all but one of the alleged prior convictions. After accepting defendant’s plea, the court proceeded with the trial on the priors.

The only evidence the People submitted in support of the allegation that defendant’s four prior convictions constituted strikes was exhibit 1. The exhibit comprises four documents: (1) An abstract of judgment dated November 6, 1997, indicating that defendant was sentenced to eight years in state prison for his conviction by plea to three counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), two counts of which had one-year enhancements for causing death or bodily injury to more than one victim (former Veh. Code, § 23182), and two counts of driving under the influence causing bodily injury (Veh. Code, § 23153, subds. (a) & (b)). (2) A minute order for March 3, 1998, indicating that the court denied a motion to recall the sentence under section 1170, subdivision (d). (3) A minute order for the November 6, 1997 sentencing hearing. (4) A minute order for August 21, 1997, indicating that defendant was charged by grand jury indictment with three felony counts of violating section 191.5 (counts 1 – 3), a felony count of violating Vehicle Code section 23153, subdivision (a) (count 4), and a felony count of violating Vehicle Code section 23153, subdivision (b) (count 5); that defendant pleaded guilty as charged to counts 1 through 5, and admitted all allegations; and that it was an “open plea.”

The prosecutor argued that the documents, together with defendant’s admissions to the charged priors, proved that defendant’s prior convictions constituted serious felonies and therefore strikes. “Penal Code section 1192.7 [subdivision] (c)[](8) . . . describes as a serious felony prior any felony wherein the defendant inflicts great bodily injury, that is a strike prior, because it’s a serious felony prior. [¶] Similarly pursuant to Penal Code section 1192.7[, subdivision] (c)[](23), a serious felony prior is defined as any felony wherein the defendant personally used a deadly weapon and the case law is very clear that cars are, in fact, a deadly weapon. [¶] . . . So based on those two sections of the Penal Code, in fact, these priors do constitute serious felony priors, and therefore strike priors.”

Defendant argued that a “violation of [Penal] Code section 191.5 is not a strike unless [he] personally inflicted great bodily injury on a non-accomplice. The proof provided in the documents before the Court are solely, completely and totally lacking on any facts upon which the Court could make a finding of personal infliction of great bodily injury on a non-accomplice.” “Your Honor, this is the trial of the facts, and the fact is that [the prosecutor] hasn’t presented anything – any facts from which the Court could make – could even speculate as to whether or not there was proved personal infliction of great bodily injury on a non accomplice.” “There are no facts before this Court wherein you can make a decision that the decedents in this case were accomplices or not. There are no facts. [¶] And [section] 191.5 standing alone is not a strike, and that is all the Court has before it right now.”

On January 12, 2006, the court found that defendant’s prior convictions did not constitute strikes. “In following the law, the Court finds the People have failed to meet the burden of proof regarding the strikes.”

The prosecutor advised the court that she was prepared to retry the prior allegations later that day. The court asked, “Hypothetically, what would you submit as evidence.” The prosecutor responded that she would submit the same documents as before, and ask the court to take judicial notice of the probation report. The court stated it had reviewed the probation report in anticipation of the hearing, and defendant’s admissions to the probation officer as stated in the report seemed to indicate that some, if not all, of the victims in the case could be accomplices. “Mr. Kurek’s statement is that – one statement that is somewhat telling, ‘They were asking me to go faster,’ is the one I’m referring to. It doesn’t tell me who was asking him to go faster, but it seems multiple individuals.” “[T]hat statement seems to indicate that some of the victims were accomplices. [¶] So, if I were to go that route . . . I think I would still find that the victims were by law possibly accomplices. Again, the People would not have met their burden.”

On February 17, 2006, the People filed supplemental points and authorities requesting that the court reinstate the strike priors. The People contended that, as a matter of law, the deceased victims in the prior case could not be accomplices to their own vehicular manslaughter because they were not liable for prosecution for gross vehicular manslaughter resulting in their own death and their conduct did not result in the deaths of others. (See §§ 31, 1111.) The court denied the request on February 24, 2006. “Well, I’ve considered the case, and my decision to strike the strikes remains.”

On April 4, 2006, the court sentenced defendant to four years in state prison. The People filed a notice of appeal on April 17, 2006.

DISCUSSION

“An appeal may be taken by the people from any of the following: [¶] . . . [¶] (10) The imposition of an unlawful sentence, . . . As used in this paragraph, ‘unlawful sentence’ means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.” (§ 1238, subd. (a)(10).) “[T]he People may appeal from the judgment pursuant to section 1238, subdivision (a)(10) on the grounds that defendant’s sentence is unlawful because the trial court erred in ruling that [an] alleged prior conviction was not a strike.” (People v. Trujillo (2006) 40 Cal.4th 165, 169 (Trujillo).)

In this case, defendant admitted that he suffered felony convictions in 1997 for three counts of violating section 191.5, gross vehicular manslaughter while intoxicated, and one count of violating Vehicle Code section 23153, driving under the influence causing injury. He requested a court trial on the issue of whether these priors constituted serious or violent felonies, and therefore strikes. Neither gross vehicular manslaughter nor driving under the influence is listed as a serious felony under section 1192.7, subdivision (c), or as a violent felony under section 667.5, subdivision (c). However, the People contend on appeal, as they did below, that the gross vehicular manslaughter offenses are serious felonies under section 1192.7, subdivision (c)(8). Under that subdivision, an offense is a serious felony if the defendant “personally inflict[ed] great bodily injury on any person, other than an accomplice . . . .” (Ibid.)

This court has previously concluded “that by virtue of subdivision (c)(8) of Penal Code section 1192.7, . . . gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5) . . . will be a serious felony if in the commission of the crime the defendant personally inflicts great bodily injury on any person other than an accomplice. [Citation.]” (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1694 (Gonzales).) “In Proposition 8 the electorate saw fit unambiguously to classify as a serious felony any felony in the commission of which the defendant inflicts great bodily injury on anyone other than an accomplice.” (Ibid.) The Legislature codified this holding in section 1192.8, subdivision (a), which states in pertinent part: “For purposes of subdivision (c) of Section 1192.7, ‘serious felony’ also means any violation of Section 191.5, . . . when [the] offense[] involve[s] the personal infliction of great bodily injury on any person other than an accomplice, . . .” (See § 1192.8, subd. (b).)

While gross vehicular manslaughter will often constitute a serious felony and thus a strike, this is not always the case. For instance, a passenger in a car could be convicted of gross vehicular manslaughter based on evidence that the passenger aided and abetted the driver in a speed contest that resulted in a death, and such a conviction would not constitute a strike because, as an aider and abettor, the passenger did not personally inflict great bodily injury on the victim. (§§ 1192.7, subd. (c)(8); 1192.8, subd. (a); cf. People v. Rodriguez (1998) 17 Cal.4th 253, 161-262; People v. Madison (1966) 242 Cal.App.2d 820, 827.) Thus, in order to constitute a prior serious felony and a strike, the prosecution had to prove beyond a reasonable doubt that the defendant was convicted under section 191.5 as the driver of the vehicle involved in the offense.

It is also the prosecution’s burden to prove beyond a reasonable doubt that the defendant personally inflicted great bodily injury on a person other than an accomplice. (People v. Tenner (1993) 6 Cal.4th 559, 566; People v. Henley (1999) 72 Cal.App.4th 555, 564.) Thus, the prosecution had to present evidence proving that defendant was the driver of the vehicle, that he personally inflicted great bodily injury on the victims, and that the victims were not accomplices. At the hearing on the priors in this case, the prosecution introduced the abstract of judgment and the minute order of defendant’s plea to prove that the priors defendant admitted were serious felonies.3 The only evidence the prosecution introduced identifying the actual conduct of defendant that led to the charges and plea was the fact that the documents indicated that defendant pleaded guilty to driving under the influence causing injury at the same time he pleaded guilty to three counts of gross vehicular manslaughter. The prosecution did not submit copies of the grand jury indictment, the transcript of the grand jury proceedings, or the transcript of the hearing during which defendant entered his change of plea. Accordingly, based on the scant evidence presented by the People, the trial court found that the People “failed to meet the burden of proof regarding the strikes,” and that “the victims were by law possibly accomplices.”

“[A] reviewing court will not alter, or hold unsupported, a [trier of fact’s] findings merely because it might reasonably draw an inference different from the one the [trier of fact] drew.” (People v. Williams (1970) 11 Cal.App.3d 1156, 1162.) “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

The trial court found in part that the People failed to carry their burden of proving beyond a reasonable doubt that the victims of defendant’s gross vehicular manslaughter offense were not accomplices. “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons . . . who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.” (§ 31.) An accomplice is a person “who is liable to prosecution for the identical offense charged against the defendant . . . .” (§ 1111.) Therefore, a principal is someone who is liable for punishment for committing a crime, and an accomplice is someone who “could be charged as a principal.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, p. 123.) Accordingly, both the driver and a passenger in a vehicle could be liable for prosecution for gross vehicular manslaughter if the passenger aided and abetted that offense, or another offense committed by the driver of which the victim’s death was the natural and probable consequence. (See People v. Prettyman (1996) 14 Cal.4th 248, 260-262; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; People v. Beeman (1984) 35 Cal.3d 547, 560.)

We agree with the People that a deceased passenger who is the victim of a vehicular manslaughter cannot as a matter of law be an accomplice to his or her own death. The victim of a manslaughter offense is not “liable to prosecution”

(§ 1111) for manslaughter because it is not illegal to kill oneself. (Cf. In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373 [suicide is not a crime]; see also People v. Antick (1975) 15 Cal.3d 79, 91.) Hence, as to each individual manslaughter offense, the victim of that offense could not have been an accomplice to the offense because he or she would not have been liable to prosecution for his or her own death. (But see People v. Flores (2005) 129 Cal.App.4th 174, 182 [discussing the accomplice exception in § 12022.53, subd. (d)].)

The People further argue that vehicular manslaughter is always a serious felony as a matter of law when the defendant is the driver and the victim is a single passenger in the vehicle, because the victim cannot as a matter of law be an accomplice to his or her own death. Thus, when there are multiple passengers and multiple deaths, all of the resulting vehicular manslaughter convictions must also be serious felonies in order to avoid an unintended absurdity in the law. Accordingly, the People’s argument continues, because the prosecution proved that defendant was the driver of the vehicle, the prosecution proved that defendant’s convictions under section 191.5 constitute serious felonies and strikes no matter who the victims were.

We reject the People’s argument because we disagree with the underlying assumption that the prosecution proved that defendant was the driver of the vehicle and that he personally inflicted great bodily injury. Just as a passenger in a car can be convicted of vehicular manslaughter as an aider and abettor, a passenger in a car can also be convicted of driving under the influence as an aider and abettor. (Cf. People v. Verlinde (2002) 100 Cal.App.4th 1146, 1160-1161; In re Queen T. (1993) 14 Cal.App.4th 1143, 1144-1145.) None of the documents submitted by the prosecution conclusively eliminated the possibility that defendant was convicted of driving under the influence and vehicular manslaughter as an aider and abettor. As a result, the documents submitted by the prosecution did not preclude the trial court from entertaining a reasonable doubt that defendant was the driver and that he personally inflicted great bodily injury on the vehicular manslaughter victims.

This is not to say that the evidence produced by the prosecution could not have supported an inference that defendant was the driver. However, it is for the trier of fact, here the trial court, to decide whether an inference has been established beyond a reasonable doubt. (People v. Small (1988) 205 Cal.App.3d 319, 325; People v. Autry (1995) 37 Cal.App.4th 351, 358.) As the record and reasonable inferences therefrom justify the trier of fact’s findings, reversal is not warranted. (People v. Bean, supra, 46 Cal.3d at pp. 932-933.) Here, the trial court could have concluded, and did conclude, that an inference that defendant was the driver and that he personally inflicted great bodily injury on any person other than an accomplice had not been established by the prosecution beyond a reasonable doubt when the prosecutor relied solely on an abstract of judgment, which showed nothing more than the bare convictions.

The prosecution bore the burden of proving its contention below that defendant had been the driver and that he personally inflicted great bodily injury on persons other than accomplices. The failure by defendant to submit evidence or argument that he was not the driver did not lessen the prosecution’s burden of proof or obligate the trial court to rule in the prosecution’s favor. In this case, the documents presented by the prosecution and properly considered by the trial court did not establish beyond a reasonable doubt that defendant was the driver of the vehicle and that he personally inflicted great bodily injury on any person other than an accomplice. Thus, the People failed to carry their burden of proving that defendant’s three prior gross vehicular manslaughter while intoxicated convictions qualified as strikes.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

duffy, J.



1 Further statutory references are to the Penal Code unless otherwise specified.



2 The facts underlying defendant’s conviction are taken from the probation report.



3 “[W]e conclude that a defendant’s statements, made after a defendant’s plea of guilty has been accepted, that appear in a probation report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not ‘reflect[] the facts of the offense for which the defendant was convicted.’ [Citation.]” (Trujillo, supra, 40 Cal.4th at p. 179.) Accordingly, this court may not “consider the statement attributed to defendant in the probation officer’s report in determining whether defendant had suffered a prior conviction for a serious felony as defined in section 1192.7, subdivision (c)[(8)].” (Id. at p. 175.) In their supplemental brief, the People state that they “have not attempted to rely on the probation report to prove the strike nature of the prior convictions.”