People v. RochaPeople v. Rocha
OPINION
Defendant was convicted by a verdict of the jury finding him guilty of a violation of
We briefly summarize the facts relevant to our discussion:
In the early evening of June 21, 1976, while driving his new Mustang automobile accompanied by his passenger, Louis, defendant sped through the red traffic signal at the intersection of Central Expressway and Scott Boulevard in Santa Clara County, colliding broadside with another automobile then properly in the intersection which was traveling north on Scott Boulevard. The driver of the other automobile died later that evening from injuries sustained in the collision. A police officer responding to the scene of the accident detected a strong odor of alcohol on defendant‘s breath, and observed that defendant was unsteady while standing and that his eyes were red and watery. Following his arrest, defendant‘s blood specimen was taken about one hour later revealing, upon testing, a blood alcohol level of .10. Defendant presented no testimony in his defense at trial.
I. Multiple Convictions and Punishment
Defendant contends, relying principally on our reasoning in People v. Lobaugh (1971) 18 Cal.App.3d 75 [95 Cal.Rptr. 547], that a single act or course of criminal conduct cannot, as here, support multiple convictions. His contention is unpersuasive.
(1) It is well settled that
Defendant‘s reliance on our holding in People v. Lobaugh, supra, 18 Cal.App.3d 75, is misplaced; our decision in Lobaugh is readily distinguishable on its facts and does not compel a contrary conclusion. In Lobaugh, we were concerned — inter alia — with the question of prohibition against multiple convictions based upon a single act by reason of multiple victims. We there held that a single violation of
Defendant‘s alternate contention of having been improperly sentenced on both convictions is meritorious, and the People so concede. (See People v. Young, supra, 224 Cal.App.2d 420, 424.) (4) The circumstance of concurrent sentencing does not satisfy the statutory proscription against such double punishment. (In re Adams, supra, 14 Cal.3d 629, 636.) In such case, the appropriate remedial procedure is to permit the sentence on the greater or more serious offense to stand and to stay execution of the lesser. (People v. Niles (1964) 227 Cal.App.2d 749, 755-756 [39 Cal.Rptr. 11].)
In determining which is the greater offense, we need look only to the comparative penalties and sustain that imposing the greater sanction; since the penalty then provided for a violation of
II. Constitutionality of Penal Code Section 193
In its verdict on count I, the jury did not recommend punishment by imprisonment in the county jail.3 (5), (6) Defendant‘s argument in support of his claim of being denied due process of law under the
Preliminarily, we observe that defendant‘s failure to request additional or clarifying instructions constitutes a waiver of the right to complain of such omission for the first time on appeal. (See People v. Hawkins (1968) 268 Cal.App.2d 99, 106 [73 Cal.Rptr. 748].) Moreover, since punishment for the conviction in count I is proscribed by
Relying on constitutional principles condemning unbridled jury discretion in the imposition of penalty in capital cases (Gregg v. Georgia (1976) 428 U.S. 153 [49 L.Ed.2d 859, 96 S.Ct. 2909]; Proffitt v. Florida (1976) 428 U.S. 242 [49 L.Ed.2d 913, 96 S.Ct. 2960]; Jurek v. Texas (1976) 428 U.S. 262 [49 L.Ed.2d 929, 96 S.Ct. 2950]; Furman v. Georgia (1972) 408 U.S. 238 [33 L.Ed.2d 346, 92 S.Ct. 2726]), defendant contends that by analogous reasoning the determination of penalty by the jury (jail or prison, depending upon its recommendation) without adequate, articulated guidelines violates due process requirements. His contention is without merit.
The sole function of the jury‘s recommendation is to establish whether the defendant will suffer a misdemeanor or felony punishment, subject, however, to the court‘s ultimate power to impose probation. (
We conclude that defendant has failed to establish the unconstitutionality of the challenged statute on its face or as applied. (Brown v. Superior Court (1971) 5 Cal.3d 509, 520 [96 Cal.Rptr. 584, 487 P.2d 1224]; see also In re Ricky H. (1970) 2 Cal.3d 513, 519 [86 Cal.Rptr. 76, 468 P.2d 204].)
III. Jury Instructions
Defendant claims error in the trial court‘s refusal to give his requested ”Sears instructions” concerning reasonable doubt. (See People v. Sears (1970) 2 Cal.3d 180 [84 Cal.Rptr. 711, 465 P.2d 847].) He is mistaken.
The judgment is modified to stay execution of sentence imposed on count I, such stay to become permanent when defendant has completed serving the sentence imposed on count II. As so modified, the judgment is affirmed.
Elkington, J., and Sims, J.,* concurred.