People v. Barooshian

320 Cal.Rptr.3d 260

The PEOPLE, Plaintiff and Respondent,

v.Adam Daniel BAROOSHIAN, Defendant and Appellant.

D081050

Court of Appeal, Fourth District, Division 1.

Filed April 16, 2024

APPEAL from a judgment of the Superior Court of San Diego County, Brad A. Weinreb, Judge. Affirmed. (Super. Ct. No. SCN395003)

Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier, and Maxine Hart, Deputy Attorneys General, for Plaintiff and Respondent.

HUFFMAN, Acting P. J.

In this case, we are asked to consider whether double jeopardy principles have been violated in the second trial of Adam Daniel Barooshian wherein the jury convicted him of murder (Pen. Code, § 187, subd. (a)) under a Watson murder theory.¹ In Barooshian’s first trial, the jury did not reach a verdict on a murder charge. However, the jury did convict Barooshian of gross vehicular manslaughter while intoxicated (Pen. Code,² § 191.5, subd. (a); Veh. Code, §§ 23140, 23152, 23153) among other offenses.

Here, 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. 5, 77 Cal.Rptr.2d 870, 960 P.2d 1094.) Barooshian does not argue that the accusatory pleading test applies in the instant matter. And our high court has determined that gross vehicular manslaughter while intoxicated is not a lesser included offense of murder. (See People v. Sanchez (2001) 24 Cal.4th 983, 987, 990–992, 103 Cal. Rptr.2d 698, 16 P.3d 118 (Sanchez).) Moreover, Barooshian has not persuaded us that we should create a new test to apply to his second trial here. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The specific facts of Barooshian’s offenses are not necessary to resolve the issues before us. Suffice it to say, in the early morning hours of January 1, 2019, Barooshian drove his vehicle while heavily intoxicated and ultimately collided with a motorcycle, killing its rider. As such, in an amended information filed in March 2020, the San Diego County District Attorney charged Barooshian with murder (§ 187, subd. (a); count 1); gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a); count 2); driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a); count 3); driving with a measurable blood alcohol level causing injury (Veh. Code, § 23153, subd. (b)); count 4); and driving with a license suspended for a prior DUI conviction (Veh. Code, § 14601.2, subd (a); count 5). As to count 2, the prosecution alleged that Barooshian personally inflicted great bodily injury upon the victim (§ 1192.7, subd. (c)(8)). Regarding counts 3 and 4, the prosecution further alleged that Barooshian had a prior DUI conviction within 10 years (Veh. Code, §§ 23626, 23540), that he personally inflicted great bodily injury on the victim (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)), and that Barooshian had a blood alcohol concentration of .15 or more (Veh. Code, § 23578).

Barooshian pled guilty to count 5 and admitted the prior DUI conviction alleged in counts 3 and 4. The matter proceeded to trial and the jury convicted Barooshian on counts 2 through 4 and found true the corresponding allegations. However, the jury was unable to reach a verdict on count 1, and the trial court declared a mistrial.

The prosecution elected to retry Barooshian on the murder offense. The jury convicted Barooshian of second degree murder.

At sentencing, the court found two aggravating factors had been proven beyond a reasonable doubt: Barooshian was on probation at the time of the offense and his previous performance on probation was unsatisfactory. The court sentenced Barooshian to prison for 15 years to life on count 1. Under section 654, the court stayed Barooshian’s 10-year sentence on count 2 and dismissed the remaining counts and allegations in the interest of justice or because they were lesser included offenses.³

Barooshian timely filed a notice of appeal.

DISCUSSION

Double jeopardy protections are enshrined in both the United States and California Constitutions. 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, 52 Cal.Rptr.2d 282, 914 P.2d 832 (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…." (Fields, supra, 13 Cal.4th at p. 305, 52 Cal.Rptr.2d 282, 914 P.2d 832.)

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.)

[1, 2] 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. (Fields, supra, 13 Cal.4th at p. 307, 52 Cal.Rptr.2d 282, 914 P.2d 832.) 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." ’ " (Id. at p. 306, 52 Cal.Rptr.2d 282, 914 P.2d 832.) However, section 1023 is typically inapplicable where the lesser offense is not a necessarily included offense. (See People v. Scott (2000) 83 Cal.App.4th 784, 796–797, 100 Cal.Rptr.2d 70 (Scott).)

[3] 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.’ " [Citation.] ‘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, 39 Cal.Rptr.3d 578 (Herrera), quoting People v. Lopez (1998) 19 Cal.4th 282, 288–289, 79 Cal.Rptr.2d 195, 965 P.2d 713.)

Barooshian does not argue that the accusatory pleading test is applicable to the instant action.⁴ 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, 45 Cal.Rptr.3d 353, 137 P.3d 184.) 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, 100 Cal.Rptr.2d 70.) 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, 244 Cal.Rptr.3d 230.)

[4] In addition, the elements test does not support Barooshian’s arguments here. He rightly concedes that Sanchez, supra, 24 Cal.4th at page 988, 103 Cal.Rptr.2d 698, 16 P.3d 118 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. (Id. at p. 986, 103 Cal.Rptr.2d 698, 16 P.3d 118.) Our high court 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. (Id. at pp. 988–989, 103 Cal.Rptr.2d 698, 16 P.3d 118.)

Barooshian maintains Sanchez is limited to the context of multiple convictions in a single prosecution but not a subsequent prosecution. However, this argument cannot withstand the California Supreme Court’s holding in People v. Hicks (2017) 4 Cal.5th 203, 226 Cal.Rptr.3d 565, 407 P.3d 409 (Hicks). There, the court made clear that the elements test also governs necessarily included offenses in circumstances analogous to the instant matter, explaining why section 1023 did not bar the defendant’s subsequent murder prosecution after he was convicted of gross vehicular manslaughter:

"[R]etrial of the murder charge was permitted because the first jury, unable toagree as to the murder charge, convicted defendant of lesser related offenses, but it did not convict him of any necessarily included offen

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