San Diego DUI Lawyer news

July 17, 2007

Michael Paiz, Jr., (appellant) was found guilty after jury trial of one count of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). He pled no contest to one count of driving while privileges were suspended due to prior driving under the influence (DUI) violations (Veh. Code, § 14601.2, subd. (a)). The trial court sentenced appellant to 17 years to life.

Relevant Lesser Included Offense law in today’s case of People v. Paiz:

“Under California law, [where the issue is whether instruction on a lesser included offense was required,] a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Reed (2006) 38 Cal.4th 1224, 1227; People v. Lopez (1998) 19 Cal.4th 282, 288.)

Section 191.5, subdivision (a) provides:

“Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 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 that might produce death, in an unlawful manner, and with gross negligence.”

Vehicle Code section 23152 provides, in relevant part:

“(a) It is unlawful for any person who is under the influence of any alcoholic beverage … to drive a vehicle.

“(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

Vehicle Code section 23153 provides, in relevant part:

“(a) It is unlawful for any person, while under the influence of any alcoholic beverage … to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

“(b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

The accusatory pleading in this case charged that appellant violated section 191.5, subdivision (a) in that he “did unlawfully, and without malice, kill … Prado, a human being[,] while driving a vehicle in violation of Vehicle Code Sections 23140, 23152 and 23153 and said killing was the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence .…”

Appellant contends the statutory elements of Vehicle Code sections 23152 and 23153 are included within the greater offense of section 191.5, subdivision (a) under both the accusatory pleading and elements test. We agree. It appears obvious from reading the relevant code sections that, to find appellant guilty of violating section 191.5, subdivision (a), the jury first had to find that he violated Vehicle Code section 23152 or 23153. All three offenses, section 191.5, subdivision (a) and Vehicle Code sections 23152 and 23153, require proof that appellant, as the driver, was under the influence of alcohol.

In People v. Miranda (1994) 21 Cal.App.4th 1464, 1468, the court determined that

“Vehicle Code section 23153 … is necessarily included in Penal Code section 191.5. One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of Penal Code section 191.5 has occurred.”

The trial court in a criminal case must, even in the absence of a request, instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) That obligation has been held to include giving instructions “on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149; see also People v. Bunyard (1988) 45 Cal.3d 1189, 1232-1234; People v. Flannel (1979) 25 Cal.3d 668, 684 & fn. 12.) In making the determination whether to instruct on a lesser included offense, the trial court should not attempt to weigh the evidence or judge the credibility of the witnesses. (People v. Flannel, supra, at p. 684.) As a corollary, however, where there is no substantial evidence that would support a conviction of the lesser but not greater offense, the court need not instruct on the lesser included offense. (Ibid.; People v. Kaurish (1990) 52 Cal.3d 648, 696.)

Here, the evidence was that appellant was driving while under the influence of alcohol and that he had a blood-alcohol level of 0.20 percent when the accident occurred. That Prado was killed as a result of the accident is without question. If appellant was guilty at all, he was guilty of Prado’s death and not of causing “bodily injury to any person other than the driver,” as required under Vehicle Code section 23153. Thus, there is no substantial evidence that would support a conviction of the lesser (Veh. Code, § 23153) but not greater offense, and the court was not obligated to so instruct. (People v. Flannel, supra, 25 Cal.3d at p. 684.)

But this leaves the question whether the trial court was required, sua sponte, to instruct on the lesser included offense of violating Vehicle Code section 23152.

Trial counsel for appellant argued to the jury that, while the evidence was sufficient to show that appellant was intoxicated, it did not necessarily mean that he was guilty of the crime charged. Trial counsel argued that the question for the jury was “[w]ho caused the accident,” and it could very well be that appellant was not at fault. Evidence was presented, though controverted, that appellant did not cause the accident.

Under the circumstances presented here, we conclude that the trial court erred when it did not instruct on Vehicle Code section 23152 as a lesser included offense. There remains, however, the question of prejudice—a question to be judged by the Watson10 reasonable probability test. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178; People v. Joiner (2000) 84 Cal.App.4th 946, 972.) Examining the evidence as a whole and, as it is appropriate to do in reference to the question of prejudice, examining its strengths and weaknesses (People v. Breverman, supra, at p. 177), we conclude that there is no reasonable probability the failure to give a lesser included offense instruction affected the outcome of the trial.

The jury concluded beyond a reasonable doubt that appellant was guilty of gross vehicular manslaughter while intoxicated. To do so, the jury had to find intoxication, gross negligence, and causation in the death of Prado. Three other theories were available to the jury: first, that appellant was guilty of vehicular manslaughter with gross negligence (§ 192, subd. (c)(1)), which would have required that the jury find gross negligence and causation; second, that appellant was guilty of vehicular manslaughter (§ 192, subd. (c)(2)), which would have required that the jury find a negligent act and causation; third, that appellant was guilty of vehicular manslaughter while intoxicated (§ 192, former subd. (c)(3)), which would have required that the jury find intoxication, a negligent act, and causation.

While each of the three offered lesser offense theories required the jury to find that appellant caused the death of Prado, it is likely that, had the jury not found appellant guilty of causing Prado’s death, it would either have found him not guilty of the charge, as instructed, or, at most, would have found him guilty of simple negligence in violation of section 192, former subdivision (c)(3). This the jury did not do. Instead, it found him grossly negligent.

No reversible error occurred, according to this court.

This unpublished case may not be cited by a San Diego DUI Lawyer or San Diego Drunk Driving Attorney .

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