San Francisco Criminal Lawyer BlogGross Vehicular Manslaughter While Intoxicated Is Not A Lesser Included Offense Of Murder
People v. Barooshian (Cal. Ct. App., Apr. 16, 2024, No. D081050) 2024 WL 1629664, at *1
Summary: Barooshian was convicted him of murder (Pen. Code, § 187, subd. (a)) under a Watson murder theory. In People v. Watson (1981) 30 Cal.3d 290, (Watson), the California Supreme Court concluded that a person who kills another while driving under the influence of alcohol may be charged with second degree murder if the circumstances support a finding of implied malice. This is “informally known as a Watson murder.”
At Barooshian’s first trial, the jury did not reach a verdict on a murder charge but convicted Barooshian of gross vehicular manslaughter while intoxicated (Pen. Code,2 § 191.5, subd. (a); Veh. Code, §§ 23140, 23152, 23153).
Barooshian argues that his second trial violated double jeopardy principles because gross vehicular manslaughter while intoxicated should be considered a necessarily included (or lesser included) offense of a Watson murder. However, “ ‘[u]nder California law, 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. Breverman (1998) 19 Cal.4th 142, 154, fn.) Barooshian does not argue that the accusatory pleading test applies here. And the California Supreme Court held that gross vehicular manslaughter while intoxicated is not a lesser included offense of murder. (See People v. Sanchez (2001) 24 Cal.4th 983, 987, (Sanchez).) The Court of Appeal affirmed the judgment.
Double Jeopardy
The Fifth Amendment to the United States Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” (People v. Fields (1996) 13 Cal.4th 289, 297. (Fields) [explaining this clause was made applicable to the states through the Fourteenth Amendment].) Article I, section 15 of the California Constitution provides that “[p]ersons may not twice be put in jeopardy for the same offense.”
Section 1023 “implements the protections of the state constitutional prohibition against double jeopardy….” It provides:
“When 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 might have been convicted under that accusatory pleading.” (§ 1023.)
Courts have interpreted section 1023 to bar subsequent prosecution for a greater offense after conviction of a lesser included offense, even if the jury deadlocked on the greater offense in the first trial. This rule is premised on the concept that “once a conviction on the lesser offense has been obtained, ‘ “to [later] convict of the greater would be to convict twice of the lesser.” ’ ” However, section 1023 is typically inapplicable where the lesser offense is not a necessarily included offense.
Elements and Accusatory Pleading Test
Generally, “ ‘[t]o determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the “elements” test and the “accusatory pleading” test) must be met. The elements test is satisfied when “ ‘all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.’ ” ‘Under the accusatory pleading test, a lesser offense is included within the greater charged offense “ ‘if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.’ ” ’ ” (People v. Herrera (2006) 136 Cal.App.4th 1191, 1198 (Herrera).)
Barooshian does not argue that the accusatory pleading test is applicable to the instant action. Nor could he. The prosecution separately charged Barooshian with both second degree murder and gross vehicular manslaughter while intoxicated. “The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime.” (People v. Reed (2006) 38 Cal.4th 1224, 1229.) Indeed, we made clear that “the accusatory pleading test has nothing to do with double jeopardy principles or section 1023, each of which applies when ‘a given crime, by definition, necessarily and at all times is included within another one.’ ” (Scott, supra, 83 Cal.App.4th at p. 796.) Moreover, we also have rejected a so-called “expanded” accusatory pleading test that would look beyond the face of the pleading to the evidence presented at the preliminary hearing. (See People v. Alvarez (2019) 32 Cal.App.5th 781, 787–790.)
The elements test does not support Barooshian’s arguments here. He concedes that Sanchez, forecloses any argument that gross vehicular manslaughter while intoxicated is a lesser included offense of murder under the elements test. In Sanchez, the defendant was charged with second degree murder and gross vehicular manslaughter while intoxicated and was convicted of both offenses. The Supreme affirmed both convictions, holding that gross vehicular manslaughter while intoxicated was not a necessarily included offense of murder because each offense requires proof of statutory elements that the other does not.
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