Opinion
E074096
01-11-2022
THE PEOPLE, Plaintiff and Respondent, v. ROBERT ALEXANDER COVINGTON, Defendant and Appellant.
Riordan & Horgan, Dennis P. Riordan and Donald M. Horgan for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and Andrew Mestman, Deputy Attorneys General for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF1703396. Mac R. Fisher, Judge. Affirmed.
Riordan & Horgan, Dennis P. Riordan and Donald M. Horgan for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Randall D. Einhorn and Andrew Mestman, Deputy Attorneys General for Plaintiff and Respondent.
OPINION
MENETREZ J.
A jury convicted Robert Alexander Covington of second degree murder after he injected heroin, drove his car on the freeway, and hit and killed a motorcyclist. Covington argues that the court erred by failing to instruct the jury on gross vehicular manslaughter while intoxicated and involuntary manslaughter. He also argues that the People violated Penal Code section 654 by failing to charge him with vehicular manslaughter. (Unlabeled statutory citations refer to the Penal Code.) We reject Covington's arguments and affirm.
BACKGROUND
After work one evening in September 2017, Covington went with a coworker to a nearby gas station and drank a beer. Afterward, he purchased heroin at another gas station and injected the drug there. Surveillance video from the gas station showed that he parked there for approximately 15 minutes. Once Covington left the gas station, he waited roughly one hour before getting on the I-15 freeway to drive home. He felt that he was "perfectly fine" to drive at that point because of his previous experience with heroin.
A number of witnesses testified that they saw Covington's car swerve or veer onto the shoulder several times before hitting Jesus Salazar, a motorcyclist who was stopped on the shoulder. Data downloaded from Covington's car showed that the car was traveling 63 miles per hour just before impact. Covington pulled over after hitting Salazar and ran to check on him, but Covington eventually fled the scene on foot. Salazar died at the scene from blunt force trauma. Covington testified that he fled the scene because he panicked; he knew that he "probably was going to be in a lot of trouble and that [the collision] was 100 percent" his fault.
Covington had been advised in the past about the dangers of driving under the influence. He had a 2012 conviction for impaired driving and signed a plea agreement stating: "Being under the influence of alcohol or drugs or both impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs or both. If I drive while under the influence of alcohol or drugs or both[, ] and as a result of that driving someone is killed, I can be charged with murder." In connection with that same conviction, he signed a substantially similar advisement under Vehicle Code section 23593. He also received substantially similar advisements in 2011 and 2014, when he signed applications for a driver's license. And in 2015, Covington attended a substance abuse treatment program at which his counselor discussed the consequences of driving under the influence, including a potentially fatal car accident and the possibility of a murder charge.
The jury found Covington guilty of second degree murder. The trial court sentenced him to prison for 15 years to life.
DISCUSSION
I. Claimed Instructional Errors
Covington argues that the trial court erred by failing to instruct the jury on gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and involuntary manslaughter (§ 192, subd. (b)). He argues that each offense is a lesser included offense of murder. The argument lacks merit.
We independently review the trial court's claimed failure to instruct on a lesser included offense. (People v. Cook (2006) 39 Cal.4th 566, 596 (Cook).) "'A trial court must instruct on all lesser included offenses supported by substantial evidence.' [Citation.] That obligation arises 'whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser, but not the greater, offense.'" (People v. Bettasso (2020) 49 Cal.App.5th 1050, 1057 (Bettasso).) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (People v. Breverman (1998) 19 Cal.4th 142, 162.)
"To determine whether one crime is necessarily included in another, courts apply either the accusatory pleading test or the statutory elements test. [Citations.] '"Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former."'" (Bettasso, supra, 49 Cal.App.5th at p. 1057.) If "the accusatory pleading incorporates the statutory definition of the charged offense without referring to the particular facts, a reviewing court must rely on the statutory elements to determine if there is a lesser included offense." (People v. Robinson (2016) 63 Cal.4th 200, 207 (Robinson); People v. Fontenot (2019) 8 Cal.5th 57, 65 (Fontenot).)
Section 187 defines murder as "the unlawful killing of a human being . . . with malice aforethought." (§ 187, subd. (a).) Here, the language in the information incorporates the statutory definition of murder and does not allege any additional facts. It states that Covington "did willfully and unlawfully murder [Salazar], a human being." We therefore must apply the statutory elements test to decide Covington's claims of instructional error. (Robinson, supra, 63 Cal.4th at p. 207; Fontenot, supra, 8 Cal.5th at p. 65.)
A. Gross Vehicular Manslaughter While Intoxicated
People v. Sanchez (2001) 24 Cal.4th 983 (Sanchez) forecloses Covington's argument that the court was required to instruct on gross vehicular manslaughter while intoxicated. In Sanchez, our Supreme Court held that the offense is not a lesser included offense of murder, because it "requires proof of elements that need not be proved when the charge is murder, namely, use of a vehicle and intoxication." (Id. at p. 989.) Covington had no right to instructions on uncharged offenses that are not included in murder. Accordingly, the court did not err by failing to instruct the jury on gross vehicular manslaughter while intoxicated.
Covington relies on People v. Ortega (2015) 240 Cal.App.4th 956 (Ortega) to argue otherwise. The Ortega court applied an "expanded accusatory pleading test" to hold that sexual battery was a lesser included offense of forcible sexual penetration. (Id. at p. 967.) The court referred to the test as "expanded" because it considered the evidence adduced at the preliminary hearing in addition to the accusatory pleading. (Id. at pp. 967-971.)
A number of appellate courts have rejected Ortega, supra, 240 Cal.App.4th 956, as inconsistent with Supreme Court authority (e.g., People v. Montoya (2004) 33 Cal.4th 1031, 1036), which holds that only the allegations of the pleading are considered in applying the accusatory pleading test. (People v. Macias (2018) 26 Cal.App.5th 957, 964 (Macias); People v. Alvarez (2019) 32 Cal.App.5th 781, 787; People v. Munoz (2019) 31 Cal.App.5th 143, 158 (Munoz).) Ortega did "not even discuss or attempt to distinguish" that Supreme Court authority. (Macias, supra, at p. 964.)
Regardless of whether we adopt or reject Ortega's expanded accusatory pleading test, the test does not apply here. The information merely incorporated the statutory definition of murder, so we must apply the statutory elements test. (Fontenot, supra, 8 Cal.5th at p. 65.) Under that test, gross vehicular manslaughter while intoxicated is not a lesser included offense of murder.
B. Involuntary Manslaughter
The court also did not err by failing to instruct the jury on involuntary manslaughter. Manslaughter is an unlawful killing that "does not include the element of malice, which distinguishes it from the greater offense of murder. [Citation.] One commits involuntary manslaughter either by committing 'an unlawful act, not amounting to [a] felony' or by committing 'a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.'" (Cook, supra, 39 Cal.4th at p. 596.) But the statutory definition of involuntary manslaughter contains an important exclusion: The offense does "not apply to acts committed in the driving of vehicle." (§ 192, subd. (b).)
Although involuntary manslaughter is a lesser included offense of murder (People v. Lewis (2001) 25 Cal.4th 610, 645), the court in this case was not required to instruct the jury on involuntary manslaughter. That is because an instruction on the offense was not supported by substantial evidence. There was no evidence from which a reasonable jury could conclude that Covington committed the killing by some means other than by driving a vehicle. Indeed, the evidence was undisputed that Covington killed the victim by hitting the victim with a car. As such, the killing fell squarely within the exclusion for "acts committed in the driving of a vehicle." (§ 192, subd. (b); Munoz, supra, 31 Cal.App.5th at p. 154 ["[S]ection 192, subdivision (b) effectively eliminates involuntary manslaughter as a lesser included offense of murder when 'committed in the driving of a vehicle'"].)
Covington argues that the statutory exclusion conflicts with his constitutional right to instructions on lesser included offenses. (See Cook, supra, 39 Cal.4th at p. 596 [right to instructions on lesser included offenses derived from "the defendant's constitutional right to have the jury determine every material issue"].) He further argues that to avoid the conflict, we must look to the legislative history of the involuntary manslaughter provision, and the legislative history discloses no reason to conclude that the Legislature meant to limit a defendant's constitutional right to instructions on lesser included offenses. But there is no conflict and no need to resort to legislative history. Again, the right to instructions on lesser included offenses extends only to lesser included offenses supported by substantial evidence. The evidence in this case did not meet that standard for an involuntary manslaughter instruction. Our conclusion follows from a straightforward application of the rule, not a conflict with the rule.
Covington also argues that the statutory exclusion for acts committed while driving a vehicle conflicts with section 1159, thereby invalidating the exclusion. Section 1159 states that "[t]he jury . . . may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged." However, Covington does not explain how the two statutes conflict. One defines a criminal offense. (§ 192, subd. (b).) The other states that a jury may find the defendant guilty of lesser included offenses. (§ 1159.) We see nothing conflicting or inconsistent in the two statutes.
Covington lastly argues that we should interpret the involuntary manslaughter provision in a way that "will result in wise policy rather than mischief or absurdity." (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, disapproved on another ground by Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 15.) He contends that to avoid unwise policy and absurd consequences, we must ignore the exclusion for acts committed while driving when the People have charged a vehicular homicide as murder.
The language of section 192, subdivision (b), is unambiguous in its exclusion of acts while driving. In rare cases, the literal meaning of an unambiguous statute "may be disregarded to avoid absurd results. But this approach is reserved for 'extreme cases' where the absurdity is patent." (California School Employees Assn. v. Governing Bd. of South Orange County Community College Dist. (2004) 124 Cal.App.4th 574, 588.) "To justify departing from a literal reading of a clearly worded statute, the result must be so unreasonable that the Legislature could not have intended it." (Lopez v. Sony Electronics, Inc. (2018) 5 Cal.5th 627, 638.) Covington has not made that showing here.
The exclusion in section 192, subdivision (b), for acts committed while driving has existed in some form since 1941. (People v. Watson (1981) 30 Cal.3d 290, 297 (Watson).) In 1981, our Supreme Court held in Watson that a murder charge was appropriate in vehicular homicide cases if the evidence, including the defendant's conduct, showed implied malice-that is, "when the conduct in question can be characterized as a wanton disregard for life, and the facts demonstrate a subjective awareness of the risk created." (Watson, supra, at p. 298.) After Watson, the Legislature amended section 192 to clarify that the gross vehicular manslaughter provision does not preclude a murder charge if the evidence warrants it. (§ 192, subd. (e) [vehicular manslaughter with gross negligence does not preclude a murder charge under Watson]; see also § 191.5, subd. (e) [gross vehicular manslaughter while intoxicated does not preclude a murder charge under Watson].)
The Legislature thus has declared that vehicular homicides should not be charged as involuntary manslaughter, but that such homicides may be charged as vehicular manslaughter or murder as the evidence warrants. The Legislature could have determined that this charging scheme was appropriate to discourage "people from engaging in the highly dangerous conduct of driving under the influence" and to punish such conduct accordingly. (People v. Wolfe (2018) 20 Cal.App.5th 673, 690.) We see no patent absurdity in this scheme. This is not one of those rare and extreme cases in which we should disregard the clear wording of a statute.
For all of these reasons, the court did not err by failing to instruct the jury on involuntary manslaughter. Nor did it err by failing to instruct on gross vehicular manslaughter while intoxicated.
II. Section 654
Covington argues that the People violated section 654 by failing to charge him with the related offense of vehicular manslaughter. He also characterizes section 654 as imposing a duty to instruct on related offenses. We disagree.
As a threshold matter, Covington has forfeited the argument that the People violated section 654. He failed to raise it in the trial court. (People v. Clark (2016) 63 Cal.4th 522, 561.) Even if he had not forfeited the argument, we would reject it.
The People have "'sole discretion'" to determine what charges to bring against a defendant. (People v. Eubanks (1996) 14 Cal.4th 580, 588.) "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts." (§ 954, italics added.)
While the People are not required to charge all potentially related offenses together, if they do not, section 654 may bar later prosecutions. Section 654 applies to "[a]n act or omission that is punishable in different ways by different provisions of law." (§ 654, subd. (a).) The statute addresses multiple punishment and multiple prosecution. (People v. Correa (2012) 54 Cal.4th 331, 336.) The multiple prosecution bar states that "[a]n acquittal or conviction and sentence under any one [provision] bars a prosecution for the same act or omission under any other" provision. (§ 654, subd. (a).) Thus, if the same act or course of conduct plays a significant part in more than one offense, the failure to unite all such offenses in one prosecution bars subsequent prosecutions for any omitted offenses. (Kellett v. Superior Court (1966) 63 Cal.2d 822, 827.)
Contrary to Covington's argument, the section 654 bar against multiple prosecution does not eliminate the People's discretion to determine what charges to bring. Rather, the bar imposes consequences if the People fail to prosecute all related offenses together. This case does not involve multiple prosecutions within the meaning of section 654, so the statute's bar has no application here.
Moreover, section 654 does not impose a duty on the trial court to instruct on uncharged lesser related offenses. The defendant has no unilateral right to instructions on lesser offenses that are merely related, "even if he or she requests the instruction and it would have been supported by substantial evidence." (People v. Jennings (2010) 50 Cal.4th 616, 668.) "California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties." (Ibid.; People v. Birks (1998) 19 Cal.4th 108, 136.)
In sum, we conclude that Covington's section 654 argument lacks merit.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J. FIELDS J.