People v. Morgan

Filed 1/20/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080016
Plaintiff and Respondent,
v. (Super. Ct. No. INF1670055)
RICHARD BRIAN MORGAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Riverside County,
Randall S. Stamen, Judge. Vacated in part, affirmed in part, and remanded.
Paul Stubb, Jr., 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,
Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff
and Respondent.
Under Vehicle Code section 23550.5, subdivision (b), a conviction for
driving under the influence (DUI) in violation of Vehicle Code section 23152
is elevated from a misdemeanor to a felony if the defendant was previously
convicted of violating specified provisions of the Penal Code, including Penal
Code section 191.5, subdivision (a)—gross vehicular manslaughter while
intoxicated. In 1981, defendant Richard Brian Morgan was convicted of
vehicular manslaughter caused by unlawful exhibition of speed (former Pen.
Code, § 192, subd. 3(a); Veh. Code, § 23109) and DUI (former Veh. Code,
§ 23101, subd. (a)), neither of which is listed as a qualifying prior for
elevating a DUI to a felony under Vehicle Code section 23550.5, subdivision
(b). The sole question presented in this appeal is whether Morgan’s
nonqualifying 1981 convictions may be treated together as if they were a
qualifying prior conviction for violating Penal Code section 191.5, subdivision
(a), even though the latter statute was not enacted until five years later.
After deciding that they could be, the trial court sentenced Morgan’s current
DUI convictions as felonies.
We conclude that the trial court erred by treating Morgan as if he had
previously been convicted of violating a Penal Code provision that was not yet
in existence at the time of his 1981 convictions. The plain language of
Vehicle Code section 23550.5, subdivision (b), applies only to prior convictions
for violating the specified provisions of the Penal Code. Morgan was never
previously convicted of violating any of these specified Penal Code sections.
Without legislative authorization, we cannot expand the statute by judicial
fiat to authorize courts to cobble together the elements of older California
convictions and treat them as if they were a violation of a Penal Code
provision that was not enacted until years later. If the Legislature wishes to
amend the statute to reach older convictions in this fashion, it is free to do so,
but that is not our prerogative. Accordingly, we vacate Morgan’s sentence
and remand the matter for resentencing.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Current Offenses
In October 2015, a California Highway Patrol officer was on routine
patrol in Thousand Palms in Riverside County when he observed Morgan
driving a motorcycle that appeared to have unlawfully raised handlebars.
The officer initiated a traffic enforcement stop. Morgan drove into the gated
mobile home community where he resides and then stopped on the right
shoulder of the road 20 or 30 yards inside the gate.
After the officer approached Morgan, the officer stated that it was
obvious Morgan had been drinking, and Morgan responded that he was a
block from his house. When the officer specifically inquired how much
Morgan had been drinking, Morgan denied drinking. The officer informed
Morgan that his speech was slurred and that he could smell alcohol on
Morgan’s breath, and Morgan apologized.
The officer then conducted a series of field sobriety tests, during which
he observed additional signs of intoxication. He testified at trial that Morgan
could not maintain his balance, follow directions, or multitask. Throughout
his interactions with Morgan, the officer noticed Morgan had red, watery
eyes, his speech was slurred, he had an unsteady gait, and his breath smelled
of alcohol. The officer arrested Morgan on suspicion of DUI. At the police
station, Morgan was given two breathalyzer tests, both of which indicated his
blood alcohol concentration (BAC) was 0.25 percent, over three times the
legal limit.
The Riverside County District Attorney ultimately charged Morgan
with three counts: (1) DUI after having previously been convicted of gross
vehicular manslaughter while intoxicated (Veh. Code, §§ 23152, subd. (a),
23550.5, subd. (b); Pen. Code, § 191.5, subd. (a)); (2) driving with a BAC of
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0.08 percent or more after having previously been convicted of gross vehicular
manslaughter while intoxicated (Veh. Code, §§ 23152, subd. (b), 23550.5,
subd. (b); Pen. Code, § 191.5, subd. (a)); and (3) unlawful possession of a
slungshot (Pen. Code, § 22210). Although DUI in violation of Vehicle Code
section 23152 is usually charged as a misdemeanor, the People charged
Morgan with a felony based on his 1981 prior convictions for vehicular
manslaughter (former Pen. Code, § 192, subd. 3(a)) and DUI (former Veh.
Code, § 23101, subd. (a)). 1
The People further alleged that with respect to counts one and two,
Morgan had a BAC of 0.15 percent or more within the meaning of Vehicle
Code section 23578, that Morgan had suffered three prior “strike” convictions
within the meaning of Penal Code sections 667 and 1170.12, and that Morgan
was ineligible for probation pursuant to Penal Code section 667, subdivisions
(c)(2) and (e)(2)(C).
B. Prior Convictions and Motion to Strike
In 1981, a jury convicted Morgan of three counts of vehicular
manslaughter under former Penal Code section 192, subdivision 3(a), after it
found that three deaths were proximately caused by his unlawful exhibition
1 Morgan’s 1981 conviction for vehicular manslaughter is referred to in
the record as a violation of Penal Code section 192.3, subdivision (a). There
was no such provision in 1981, but courts in that era appear to have used this
designation to refer to vehicular manslaughter in violation of former Penal
Code section 192, subdivision 3(a). (See, e.g., People v. Escarcega (1969) 273
Cal.App.2d 853, 857 & fn. 2.) Accordingly, we refer to it as former Penal
Code section 192, subdivision 3(a), which in 1981 defined the crime of
manslaughter to include the unlawful killing of a human being in the driving
of a vehicle, and in the commission of an unlawful act not amounting to a
felony, with gross negligence, or in the commission of a lawful act which
might produce death, in an unlawful manner, and with gross negligence.
(Deering’s Penal Code (1981) former Pen. Code, § 192, subd. 3(a).)
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of speed in violation of Vehicle Code section 23109. The jury also convicted
Morgan of DUI in violation of former Vehicle Code section 23101, subdivision
(a). 2 Morgan was committed to state prison for two years for these offenses.
Morgan filed a pretrial motion to strike the prior conviction allegations
in the instant case, arguing among other points that Vehicle Code section
23550.5, subdivision (b), did not apply to his 1981 vehicular manslaughter
conviction under former Penal Code section 192, subdivision 3(a), and
therefore could not be used to elevate his current Vehicle Code section 23152
charges to felonies. The People opposed, arguing that it would be
inappropriate for the court to dismiss Morgan’s prior strike convictions. At
the hearing on the motion to strike, defense counsel argued that Morgan had
been separately charged with DUI and vehicular manslaughter while
speeding in the 1981 case, not vehicular manslaughter while intoxicated as
argued by the prosecution. The defense contended that because exhibition of
speed, and not DUI, was the finding underlying the vehicular manslaughter
convictions under former Penal Code section 192, the 1981 prior convictions
did not qualify to elevate the current misdemeanor charges to felonies.
The trial court rejected Morgan’s argument and found that the 1981
convictions, in combination, could serve as a sentence-enhancing offense
under Vehicle Code section 23550.5, subdivision (b), to elevate the current
DUI charges from misdemeanors to felonies. Specifically, the court stated:
“[I]n terms of the actual Court’s ruling whether or not the three violations of
[former Penal Code section] 192[, subdivision 3(a)] can be used as the
predicate under [Vehicle Code section] 23550.5, subdivision (b), for which
2 Morgan was also convicted of a misdemeanor violation of Vehicle Code
section 23152, subdivision (b), for DUI in 2012. That prior conviction is not
at issue on appeal.
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there is no washout period[,] and which would elevate any current DUI to a
felony, the Court’s ruling is it can[.]”
C. Current Conviction and Sentencing
Morgan went to trial on the current offenses the following year. A jury
convicted him of the Vehicle Code section 23152 offenses charged in counts
one and two and found true the allegation that he had a BAC of 0.15 percent
or more when he committed the offenses. The jury acquitted Morgan on
count three.
At a bifurcated proceeding before a different judge than the one who
had presided over Morgan’s pretrial motion to strike the prior conviction
allegations, Morgan admitted the 2012 prior conviction and admitted that in
1981, he was convicted of three counts of violating former Penal Code section
192, subdivision 3(a), and one count of violating former Vehicle Code section
23101, subdivision (a). In his sentencing memorandum submitted to the
court prior to the hearing, Morgan again argued that Vehicle Code section
23550.5 is not applicable to this case based on the plain language of the
statute, as it does not reference former Penal Code section 192, subdivision
3(a), the statute under which he was convicted in 1981. Morgan argued that
Vehicle Code section 23550.5, subdivision (b), applies to prior convictions for
violating Penal Code section 191.5, but Morgan was not convicted of violating
Penal Code section 191.5. He further argued that former Penal Code section
192, subdivision 3(a), is not equivalent to current Penal Code section 191.5.
According to Morgan, therefore, his prior conviction could not be used to
elevate his misdemeanor to a felony under Vehicle Code section 23550.5,
subdivision (b).
The sentencing court stated that it “would not act as a court of appeal
as to [the prior judge’s pretrial] ruling,” and that “the issue ha[d] been fully
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litigated” in the pretrial proceedings. The court sentenced Morgan to felony
violations under Vehicle Code section 23550.5, subdivision (b), imposing and
staying the middle term of two years in state prison on count one and
imposing the upper term of three years in state prison on count two, which it
found to be the principal count.
Morgan timely filed this appeal.
DISCUSSION
A. Standard of Review
The interpretation of a statute is a pure question of law. (People ex rel.
Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) The soundness of
the trial court’s resolution of that question is an issue we review de novo.
(Ibid.)
Our role in “construing a statute is to ‘ascertain the intent of the
Legislature so as to effectuate the purpose of the law.’ [Citations.] In
determining the Legislature’s intent, a court looks first to the words of the
statute.” (People v. Snook (1997) 16 Cal.4th 1210, 1215.) If we find “no
ambiguity in the language, we presume the Legislature meant what it said[,]
and the plain meaning of the statute governs.” (Ibid.; see also People v. Doyle
(2013) 220 Cal.App.4th 1251, 1257 (Doyle) [“We begin with the ordinary and
usual meaning of the language the Legislature used, and we do not alter that
meaning if it is clear.”].)
B. Analysis
In 1997, the Legislature enacted a statute permitting a DUI
misdemeanor to be prosecuted as a felony if the defendant was previously
convicted of violating certain statutes involving DUI manslaughter. (Doyle,
supra, 220 Cal.App.4th at p. 1258, citing Stats. 1997, ch. 901, § 6.) In 1999,
that statute became what is now Vehicle Code section 23550.5. (Doyle, at
7
p. 1258, citing Stats. 1998, ch. 118, § 84.) Vehicle Code section 23550.5,
subdivision (b) provides: “Each person who, having previously been convicted
of a violation of subdivision (a) of Section 191.5 of the Penal Code, a felony
violation of subdivision (b) of Section 191.5, or a violation of subdivision (a) of
Section 192.5 of the Penal Code, is subsequently convicted of a violation of
[Vehicle Code] Section 23152 or 23153 is guilty of a public offense punishable
by imprisonment in the state prison or confinement in a county jail for not
more than one year and by a fine of not less than three hundred ninety
dollars ($390) nor more than one thousand dollars ($1,000).”
We find nothing ambiguous in this language and fail to see how it could
reasonably be interpreted to mean anything other than that the statute
applies only to prior convictions for violating Penal Code section 191.5,
subdivisions (a) or (b), or Penal Code section 192.5, subdivision (a). Morgan
was never convicted of violating any of these Penal Code sections. His 1981
convictions predated the enactment of Penal Code sections 191.5 and 192.5,
and they were for other offenses not listed as qualifying priors in the statute:
vehicular manslaughter caused by unlawful exhibition of speed (former Pen.
Code, § 192, subd. 3(a); Veh. Code, § 23109) and DUI (former Veh. Code,
§ 23101, subd. (a)).
The People do not dispute this fact. Instead, they argue that Morgan’s
1981 convictions are, taken together, “equivalent” to a violation of current
Penal Code section 191.5, subdivision (a) for gross vehicular manslaughter
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while intoxicated. 3 The People contend that because Morgan’s 1981 prior
convictions predated Penal Code section 191.5, the trial court properly
analyzed their elements to determine that they included all the essential
elements for a violation of modern-day Penal Code section 191.5, subdivision
(a). According to the People, Morgan’s prior convictions therefore fall “within
the meaning of” Vehicle Code section 23550.5, subdivision (b), such that the
trial court properly elevated his current DUI misdemeanors to felonies.
In making this argument, the People urge us to focus on factors outside
of the plain meaning of the statute. They point to the trial court’s finding
that, before the codification of Penal Code section 191.5 in 1986, there was no
unitary law that addressed vehicular manslaughter while intoxicated, so the
only way to charge such conduct was through a combination of charging
violations of former Penal Code section 192, subdivision 3, and former Vehicle
Code section 23101. The People argue that the trial court properly applied an
elements analysis similar to what is used for analyzing foreign convictions, as
the prosecutor urged it to do. They further contend that Morgan’s literal
reading of Vehicle Code section 23550.5 conflicts with the Legislature’s intent
in enacting Penal Code section 191.5, whereas the trial court’s approach
effectuated the Legislature’s intent and should therefore be affirmed.
3 Penal Code section 191.5, subdivision (a) provides: “Gross vehicular
manslaughter while intoxicated is the unlawful killing of a human being
without malice aforethought, in the driving of a vehicle, where the driving
was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and
the killing was either the proximate result of the commission of an unlawful
act, not amounting to a felony, and with gross negligence, or the proximate
result of the commission of a lawful act that might produce death, in an
unlawful manner, and with gross negligence.” This statute was first enacted
in 1986, then repealed and reenacted in 1990, operative in 1992. (Stats.
1986, ch. 1106, § 2; Stats. 1990, ch. 1698, §§ 3, 4.)
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We reject these contentions for several reasons. First, the Legislature
has enacted no statutory provision authorizing courts to engage in such an
elements analysis for old California convictions, as it has explicitly done for
foreign convictions. Under the Vehicle Code, a foreign conviction that would
be a violation of Vehicle Code section 23152 or 23153 or Penal Code section
191.5 “if committed in this state” must be treated is if it were an equivalent
California conviction. (Veh. Code, § 23626.) Under this statute, “the conduct
underlying the foreign conviction [must] meet all the elements of the
California offense.” (People v. Crane (2006) 142 Cal.App.4th 425, 433.)
Similarly, other Penal Code provisions explicitly authorize the use of an
elements test to treat foreign convictions as qualifying priors. (See, e.g., Pen.
Code, § 667, subd. (a)(1) [“A person convicted of a serious felony who
previously has been convicted . . . of any offense committed in another
jurisdiction that includes all of the elements of any serious felony, shall
receive . . . a five-year enhancement[.]” (italics added)]; id., subd. (d)(2) [“A
prior conviction in another jurisdiction for an offense that, if committed in
California, is punishable by imprisonment in the state prison constitutes a
prior conviction of a particular serious or violent felony if the prior conviction
in the other jurisdiction is for an offense that includes all of the elements of a
particular violent felony[.]” (italics added)].)
The People cite no similar statutory provision authorizing courts to
apply such an elements analysis to old California convictions not specifically
listed as qualifying priors in Vehicle Code section 23550.5, subdivision (b).
We may not substitute our own judgment for that of the Legislature as
expressed in the plain language of the statute. (County of San Diego v. State
of California (2008) 164 Cal.App.4th 580, 597 (County of San Diego).) Courts
do not have the authority to expand the scope of the statute beyond its plain
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meaning, even if we think it would serve the Legislature’s purpose. Our
judicial task is to interpret and determine what the Legislature has done, not
what we—or the People—believe it could or should have done. (Ibid.)
Second, the statutory scheme demonstrates that the Legislature knew
how to include older convictions when it wanted to. Indeed, the Legislature
explicitly included some prior convictions sustained under “former” statutes
in Vehicle Code section 23550.5, subdivision (a)(1), which provides: “(a) A
person is guilty of a public offense, punishable by imprisonment in the state
prison or confinement in a county jail for not more than one year and by a
fine of not less than three hundred ninety dollars ($390) nor more than one
thousand dollars ($1,000) if that person is convicted of a violation of Section
23152 or 23153, and the offense occurred within 10 years of any of the
following: [¶] (1) A separate violation of Section 23152 that was punished as
a felony under Section 23550 or this section, or both, or under former Section
23175 or former Section 23175.5, or both.” (Italics added.) This underscores
that the Legislature could have also chosen to include prior convictions under
other older statutes no longer in effect, such as former Penal Code section
192, subdivision 3(a), or former Vehicle Code section 23101, but it elected not
to do so. (See In re Ethan C. (2012) 54 Cal.4th 610, 638 [“When language is
included in one portion of a statute, its omission from a different portion
addressing a similar subject suggests that the omission was purposeful.”].)
The Legislature also could have included broader language not tied to
any specific statute if it had wished to include violations of statutes it deemed
“equivalent” to those specifically listed in Vehicle Code section 23550.5,
subdivision (b). In Penal Code section 1192.7, for example, the Legislature
defined “serious felony” to include any “grand theft involving a firearm” (Pen.
Code, § 1192.7, subd. (c)(26)), whereas for other crimes within that same
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subdivision, it referenced specific Penal Code and Health and Safety Code
sections (see, e.g., Pen. Code, § 1192.7, subd. (c)(24), (25)). The Legislature
could have used similarly broad language in Vehicle Code section 23550.5,
subdivision (b), such as by including any prior conviction for “vehicular
manslaughter while driving under the influence.” But the Legislature chose
not to employ such general language, instead referring only to convictions for
violating specific Penal Code and Vehicle Code sections. Again, it is not our
role to second-guess that choice. (County of San Diego, supra, 164
Cal.App.4th at p. 597 [“ ‘It also is hornbook law that courts are not
authorized to second-guess the motives of a legislative body[.]’. . . . ‘As long
as that body does not exceed its powers, and its judgment is not influenced by
corruption, a court cannot substitute its judgment for that of the
Legislature.’ ”].) The plain language chosen by the Legislature makes clear
that Vehicle Code section 23550.5, subdivision (b), does not apply to Morgan’s
1981 prior convictions.
Third, the People’s argument disregards the critical role prosecutorial
discretion plays in making charging decisions and negotiating dispositions.
We cannot simply assume that a prosecutor would have chosen to charge
Morgan with a violation of Penal Code section 191.5 if the statute had been in
existence in 1981. As the Supreme Court has explained, “ ‘prosecutorial
discretion to choose, for each particular case, the actual charges from among
those potentially available arises from “ ‘the complex considerations
necessary for the effective and efficient administration of law enforcement.’ ”
[Citation.] The prosecution’s authority in this regard is founded, among other
things, on the principle of separation of powers, and generally is not subject
to supervision by the judicial branch.’ ” (People v. Lopez (2020) 9 Cal.5th 254,
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276.) The prosecution enjoys similar discretion in negotiating plea bargains.
(In re Alvernaz (1992) 2 Cal.4th 924, 943.)
The facts underlying Morgan’s 1981 convictions illustrate the point.
According to the probation officer’s report and sentencing recommendation in
this case, Morgan had been driving his friends home from a party in 1979
when they encountered an acquaintance from school driving a van. Morgan
and the driver of the van began speeding and playing a game of “tag” in their
vehicles, during which Morgan hit a parked vehicle while the driver of the
van hit a different vehicle, killing three people inside. Both Morgan and the
other driver had been drinking alcohol. Morgan’s probation officer noted that
“defendant acknowledged the role he played in the tragic deaths in 1979, but
at the time, he was also a youthful and naive 19 year-old who would have
certainly not have been punished in the same manner by today’s standards in
sentencing.”
We do not assume or rely on the truth of these facts but rather recite
them just to demonstrate that the prosecutor may have chosen to pursue a
lesser charge against Morgan even if Penal Code section 191.5 had been in
effect at the time. Alternatively, even if the crime had been charged, the
prosecution might have agreed to a plea to lesser charges. We cannot rewind
time and determine how prosecutorial discretion would have been exercised
in a counter-factual world four decades ago.
Finally, we reject the People’s argument that a literal reading of
Vehicle Code section 23550.5 is at odds with the Legislature’s intent in
enacting Penal Code section 191.5. Statutory construction begins with “the
ordinary and usual meaning of the language the Legislature used, and we do
not alter that meaning if it is clear. We resort to extrinsic aids to understand
the Legislature’s intent only if the Legislature’s language can reasonably be
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interpreted more than one way.” (Doyle, supra, 220 Cal.App.4th at p. 1257.)
As we have explained, the Legislature’s language in subdivision (b) of Vehicle
Code section 23550.5 cannot reasonably be interpreted more than one way.
Because we have determined that we need not go beyond the language of the
statute, we decline to follow the People’s suggestion that we consider the
Legislature’s findings and declarations in enacting Penal Code section 191.5
to determine its intent in enacting Vehicle Code section 23550.5.
Accordingly, we conclude that Vehicle Code section 23550.5,
subdivision (b), does not apply to Morgan’s 1981 prior convictions and
therefore should not have been used to elevate his current DUI convictions
from misdemeanors to felonies.
DISPOSITION
Morgan’s sentence is vacated. The matter is remanded to the trial
court with directions to resentence Morgan to misdemeanor violations of
Vehicle Code section 23152, subdivisions (a) and (b). In all other respects,
the judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
O’ROURKE, J.
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