Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 07F09621
BUTZ, J.Defendant Jonathan Andrew Jordan appeals the finding that his prior gross vehicular manslaughter conviction was a serious felony under Penal Code section 1192.8, contending there was insufficient evidence to support the finding that the victim was not an accomplice. We find the victim could not, as a matter of law, be an accomplice to her own manslaughter. Accordingly, we affirm the strike finding.
Undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
On October 6, 2007, defendant was stopped by Sacramento County Sheriff’s Deputy James Knacke for driving a car with a cracked windshield. Defendant informed Knacke that he was on parole. Knacke detained defendant, searched his car, and recovered 6.96 grams of methamphetamine and a hypodermic needle. Defendant was charged with possession of methamphetamine for sale (Health & Saf. Code, § 11378) and transportation of methamphetamine (id., § 11379, subd. (a)). It was further alleged defendant had served a prior prison term (§ 667.5, subd. (b)) and suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Defendant pleaded no contest to the possession for sale and transportation counts. He also admitted he had served a prior prison term for assault with a deadly weapon. Defendant waived jury trial on the prior strike allegation and argued that there was insufficient evidence to find that the vehicular manslaughter conviction constituted a strike.
Defendant argued that the prosecution had the burden to prove that the victim of the gross vehicular manslaughter was not an accomplice in the crime, relying on People v. Henley (1999) 72 Cal.App.4th 555 (Henley). The district attorney countered that the victim of a vehicular manslaughter could not be an accomplice as a matter of law, relying on People v. Gonzales (1994) 29 Cal.App.4th 1684 (Gonzales). After reviewing the record, the court found Henley distinguishable and Gonzales on point and found the prior strike true. In finding the victim was not an accomplice, the court relied on the factual basis delineated at the plea hearing.
The factual basis supporting the plea was: “On January 10th, 2002, in the County of Sacramento, defendant drove his vehicle in a grossly negligent manner, driving at speeds between 80 and 100 miles per hour. He was erratically changing lanes, eventually taking an exit off of Highway 50 to 59th Street; took that exit at approximately 80 miles per hour, causing his car to flip over the guard rail, killing his passenger, the victim in this case, April Paddock.” The court noted that the “factual basis is replete with references to defendant being the sole operator of the vehicle. There’s no suggestion in the factual basis, or any evidence to suggest, that the victim in that case the person who resulted, who ultimately died as the result of defendant’s conduct in any way participated as either... an aider, abettor, or an accomplice in any form. [¶] The suggestion that [defense counsel] is making, based upon the record of conviction in this case, arises to nothing more than speculation.”
The court then sentenced defendant to an aggregate term of five years in state prison, with the statutory minimum fines and fees imposed. Defendant was awarded 474 actual days of credit and 237 good time credits pursuant to former section 4019 for a total of 711 days of credit. (See pt. II, post, for further discussion.)
DISCUSSION
I
Defendant contends there is insufficient evidence that April Paddock, the victim of the 2002 vehicular manslaughter, was not also an accomplice to the vehicular manslaughter. Specifically, he argues because gross vehicular manslaughter is not an enumerated felony under the three strikes law, it does not qualify as a serious felony “unless (1) [defendant] personally inflicted great bodily injury, and (2) the injured person was not an accomplice.” Defendant further contends it was the prosecutor’s burden to establish the victim was not an accomplice. The People respond “the victim of the vehicular manslaughter could not be an accomplice to her own death as a matter of law” and that the accomplice exception is an affirmative defense on which defendant has the burden of proof.
“Vehicular manslaughter” is a form of homicide. (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349.) “Homicide” is the killing of another person. It does not include killing oneself. (People v. Antick (1975) 15 Cal.3d 79, 87 (Antick), disapproved on other grounds in People v. McCoy (2001) 25 Cal.4th 1111, 1119, 1123; see People v. Teroganesian (1995) 31 Cal.App.4th 1534, 1537; Black’s Law Dict. (5th ed. 1979) p. 661 [homicide].)
Vehicular manslaughter constitutes a “serious felony” only when it involves “the personal infliction of great bodily injury on any person other than an accomplice.” (§ 1192.8, subd. (a); § 1192.7, subd. (c)(8); Gonzales, supra, 29 Cal.App.4th at p. 1688.) Here, there is no dispute that defendant personally inflicted the injuries which killed Paddock. Defendant was driving the car. He was driving in a grossly negligent manner, making erratic lane changes. He was driving at speeds between 80 and 100 miles per hour, exited a highway driving at approximately 80 miles per hour and flipped his car over the guard rail. Paddock died as a result of the injuries sustained in the accident. The only issue defendant contested relative to the prior conviction being a strike was the court’s finding that Paddock was not an accomplice.
“An ‘accomplice’ is one who knowingly, voluntarily, and with common intent with the principal offender unites in the commission of the crime.” (People v. Jones (1967) 254 Cal.App.2d 200, 213; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1158.) An “accomplice” is a person “who is liable to prosecution for the identical offense charged against the defendant” (§ 1111; 1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, subd. (4), p. 123; see People v. Abilez (2007) 41 Cal.4th 472, 504; see also People v. Davis (2005) 36 Cal.4th 510, 543), and “‘must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction’” (People v. De Paula (1954) 43 Cal.2d 643, 647).
In order to be an accomplice, the person must be chargeable with the identical crime as a principal (People v. Sully (1991) 53 Cal.3d 1195, 1227), by aiding and abetting in the commission of that crime, or as a coconspirator in its commission (ibid.; see People v. Garceau (1993) 6 Cal.4th 140, 183). An “aider and abettor” is defined as “one who aids, promotes, encourages or instigates a crime with knowledge of the unlawful purpose of the perpetrator and the intent to assist in the commission of the crime.” (People v. Verlinde, supra, 100 Cal.App.4th at p. 1158, citing People v. Beeman (1984) 35 Cal.3d 547, 560.) To be liable as an accomplice, the person who assists or contributes to the perpetration of the particular crime must also “share[] the perpetrator’s criminal purpose.” (People v. Sully, supra, 53 Cal.3d at p. 1227.)
At trial, the parties based their arguments on Henley and Gonzales and the trial court relied on Gonzales in finding sufficient evidence to support the conclusion Paddock was not an accomplice. Both Gonzales and Henley are distinguishable from the instant case and neither provides either authority or guidance on the issue of whether it is possible, as a matter of law, to be an accomplice to one’s own manslaughter.
In Gonzales, the defendant sped through a red light and hit the victim’s car broadside in the intersection. (Gonzales, supra, 29 Cal.App.4th at p. 1689.) There was no question the victim was not an accomplice to the vehicular manslaughter. The issue in Gonzales was whether, under section 1192.7, subdivision (c)(8), gross vehicular manslaughter constituted a serious felony. Section 1192.7, subdivision (c) describes several categories of felonies deemed to be serious felonies and subdivision (c)(8) includes within that description “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm.” Specifically, Gonzales argued that since the statute explicitly identified only two types of homicide, it intended to exclude other forms, such as vehicular manslaughter. (Gonzales, supra, at p. 1691.) There was no discussion in Gonzales of the legal possibility of a victim as an accomplice to their own manslaughter. Tracking the language of section 1192.7, subdivision (c)(8), the court held gross vehicular manslaughter was a serious felony when the injury was personally inflicted by the defendant on someone other than an accomplice. (Gonzales, supra, at p. 1694.) In 1996, section 1192.8 was amended to codify the holding in Gonzales, and include offenses other than vehicular manslaughter as possible serious felonies. (§ 1192.8, subd. (b); Stats. 1996, ch. 645, § 3.)
In Henley, decided after the 1996 amendment of section 1192.8, the defendant had a prior conviction for evading a police officer and causing great bodily injury (Veh. Code, § 2800.3), not manslaughter. Henley, driving a motorcycle, engaged in a high-speed chase with officers, eventually running a stop sign and crashing into another vehicle. Henley’s passenger sustained a back injury and broken ankle. (Henley, supra, 72 Cal.App.4th at pp. 560-561.) The issues in the case were whether there was substantial evidence in the record to support the finding that the injured passenger on Henley’s motorcycle was not an accomplice and whether the burden of proof on the accomplice exception rested with the prosecution or the defense. The Court of Appeal found the trial court had erred in placing the burden of proof on defendant and there was not sufficient evidence to establish the passenger had not been an accomplice. (Henley, supra, at p. 562.) There was no homicide in Henley, nor was there any discussion of the legal possibility of a victim as an accomplice.
Vehicle Code section 2800.3 is one of the offenses enumerated in Penal Code section 1192.8, subdivision (a).
In his reply brief, defendant also relies on People v. Flores (2005) 129 Cal.App.4th 174 (Flores), which the People make note of in their brief. Flores is also distinguishable from the instant case. Flores addressed whether it was prejudicial error for the trial court to have omitted the accomplice exception language from an instruction on the firearm enhancement under section 12022.53, subdivision (d). The prosecution conceded the error, but argued the error was harmless, since one “cannot be charged as an accomplice to one’s own murder, the accomplice exception to the firearm enhancement does not apply when the accomplice is the murder victim.” (Flores, supra, at p. 182.)
Section 12022.53, subdivision (d) provided a sentence enhancement of 25 years to life for “any person who, in the commission of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice....”
In Flores, Julio Valdivia and Tony Morales were shot to death during a gang fight outside a bar. (Flores, supra, 129 Cal.App.4th at p. 177.) The defendant and a number of his fellow gang members, including Valdivia, were at the bar when the defendant and Morales began arguing. (Id. at p. 178.) Later, as the bar was closing, Valdivia was in the parking lot and gave the defendant a gun. After some disrespectful comments were made about their gang Valdivia and Morales, as well as others, began fighting each other. The gang fight escalated and people started firing guns. (Id. at p. 179.) Aiming to shoot Morales, defendant fired six or seven shots and ran away. (Ibid.) Defendant was convicted of first degree murder of Valdivia, with a firearm enhancement found true under section 12022.53. He was also convicted of conspiracy to commit a battery on Morales. (Flores, at p. 180.)
The Flores court held that the relevant question was not whether Valdivia had been an accomplice to his own murder. Rather, the relevant question was whether “Valdivia was an accomplice to the intended crime, the natural and probable consequence of which was the intentional discharge of a firearm resulting in his own death.” (Flores, supra, 129 Cal.App.4th at p. 182.) The court found “[t]here was sufficient evidence from which the jury could have found Valdivia was defendant’s coconspirator, and that a natural and probable consequence of the conspiracy to commit a battery on Morales was the firing of the gun which killed Valdivia. Valdivia’s status as a coconspirator to commit a battery on Morales would make him defendant’s accomplice to that crime, which resulted in his own murder.” (Id. at pp. 182-183.) “If the victim is an accomplice to the crime he or she and defendant intended but ends up the victim of one of the enumerated offenses, the exception in section 12022.53, subdivision (d) applies.” (Id. at p. 182.)
Flores did not find Valdivia was an accomplice to his own murder, but rather to a separate and distinct intended offense, which led naturally to his murder. However, in this case, there is no separate and distinct intended offense from the vehicular manslaughter. Here, the homicide is the offense. As such, there is no separate target offense to find Paddock was an accomplice to, the natural and probable consequence of which was her death. (See People v. Verlinde, supra, 100 Cal.App.4th at p. 1160.)
To the extent that Flores can be read to hold one liable as an accomplice for their own murder or manslaughter, we believe it is contrary to the California Supreme Court’s reasoning in Antick, supra, 15 Cal.3d 79 . In Antick, the defendant and Donald Bose committed a burglary. Sometime later the police found Bose, who then initiated a gun battle with police and was killed. The defendant was convicted of first degree murder based on Bose’s death. (Id. at p. 83.) In reversing the conviction, the Supreme Court rejected the claim that the defendant could be held vicariously liable for Bose’s death, despite their status as accomplices. The court noted that the defendant could be held accountable under a vicarious liability theory only if Bose had committed a murder, “in other words, that [Bose] caused the death of another human being and that he acted with malice.” (Antick, at p. 91.) The court found the requisite malice in initiating the shootout with police officers, but went on to state, “[h]owever, Bose’s malicious conduct did not result in the unlawful killing of another human being, but rather in Bose’s own death.... As Bose could not be found guilty of murder in connection with his own death, it is impossible to base defendant’s liability for this offense upon his vicarious responsibility for the crime of his accomplice.” (Ibid., second italics added.)
Similarly, in this case, to find Paddock was an accomplice to gross vehicular manslaughter, Paddock had to have caused the death of another while “driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.” (§ 192, subd. (c)(1).) Even if it were possible to find Paddock had “driven” the vehicle in the manner required, whatever her conduct, it did not cause the death of another. Because she did not cause the death of another, she could not be charged with gross vehicular manslaughter. Since Paddock could not have been liable for her own manslaughter, she could not have been an accomplice to the offense charged against defendant. (Miranda v. Gordon (N.D.Cal. July 3, 2003, No. C 02 2442 CRB (PR)) 2003 U.S. Dist. Lexis 11641, at p. *13; see Antick, supra, 15 Cal.3d at pp. 90-91; see also People v. Slaughter (2002) 27 Cal.4th 1187, 1202; People v. Tobias (2001) 25 Cal.4th 327, 332-333; In re Meagan R. (1996) 42 Cal.App.4th 17, 24-27.)
As for defendant’s concern that our interpretation renders the accomplice exception meaningless, it does not. Our interpretation is limited to circumstances which create the legal impossibility of finding the victim an accomplice to their own manslaughter. But, the accomplice exception does not apply only to gross vehicular manslaughter convictions. In addition to vehicular manslaughters, Penal Code section 1192.8 includes within the definition of a serious felony “any violation of... Section 2800.3, subdivision (b) of Section 23104, or Section 23153 of the Vehicle Code, when any of these offenses involve the personal infliction of great bodily injury on any person other than an accomplice, or the personal use of a dangerous or deadly weapon, within the meaning of paragraph (8) or (23) of subdivision (c) of [Penal Code] Section 1192.7.” (Pen. Code, § 1192.8, subd. (a).) That is, included within that definition are felonies which are not defined, as vehicular manslaughter is, by causing the death of another. Thus, the accomplice exception could apply in cases like Henley, where the offense committed is not a homicide, but rather one which results in the infliction of great bodily injury, such as evading a police officer and causing great bodily injury (Veh. Code, § 2800.3) or driving under the influence and causing great bodily injury (Veh. Code, § 23153; Pen. Code, § 1192.8, subd. (a)).
Our conclusion that, as a matter of law, the victim cannot be an accomplice to her own manslaughter obviates the need for us to address the other issues defendant raised regarding the sufficiency of the evidence and the appropriate party to bear the burden of proof.
II
Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue (without additional briefing) of whether amendments to section 4019, effective January 25, 2010, apply retroactively to his pending appeal and entitle him to additional presentence credits.
Although we conclude that the amendments do apply to all appeals pending as of January 25, 2010, defendant is among the prisoners excepted from the additional accrual of credit. (§§ 1192.7, subd. (c)(8), 1192.8, subd. (a), 4019, subds. (b)(2) & (c)(2); Stats. 2009, 3d Ex. Sess., ch. 28, § 50.) Thus, no additional conduct credits are warranted.
See In re Estrada (1965) 63 Cal.2d 740, 745 (Amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final.”); People v. Doganiere (1978) 86 Cal.App.3d 237, 239-240 (applying Estrada to amendment involving conduct credits); People v. Hunter (1977) 68 Cal.App.3d 389, 393 (applying the rule of Estrada to amendment following award of custody credits).
DISPOSITION
The judgment is affirmed.
We concur: HULL, Acting P. J., ROBIE, J.
The Supreme Court has granted review to resolve a split in authority over whether January 2010 amendments to section 4019 apply to pending appeals. (People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963 [giving retroactive effect to amendments]; accord, People v. Pelayo (2010) 184 Cal.App.4th 481, review granted July 21, 2010, S183552; People v. Landon (2010) 183 Cal.App.4th 1096, review granted June 23, 2010, S182808; People v. House (2010) 183 Cal.App.4th 1049, review granted June 23, 2010, S182813; contra, People v. Hopkins (2010) 184 Cal.App.4th 615, review granted July 28, 2010, S183724; People v. Otubuah (2010) 184 Cal.App.4th 422, review granted July 21, 2010, S184314; People v. Rodriguez (2010) 182 Cal.App.4th 535, review granted June 9, 2010, S181808.)