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Filed 1/26/24 P. v. Underwood CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been 

certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

TYLER UNDERWOOD,

Defendant and Appellant.

 A165026

 (Alameda County

 Super. Ct. No. 18-CR-018052)

Tyler Underwood appeals from convictions of murder and multiple 

other offenses after he lost control of the car he was driving while under the 

influence of alcohol and, in the resulting collision, one passenger was killed 

and others injured. Underwood believes he was guilty of at most gross 

vehicular manslaughter or involuntary manslaughter and challenges several 

rulings preventing him from presenting the jury with these alternative 

offenses. Additionally, he contends certain sentence enhancements were not 

authorized by statute and must be stricken. We agree with the latter 

argument and otherwise affirm the judgment. 
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BACKGROUND

I.

Factual Background

A. The Collision

On the evening of October 9, 2018, Underwood was with Wint Kyaw, 

Chris Stubbs, Darren Walker, Ron Mauck and Sean Johnson, talking and 

drinking in the parking lot of the Fanwood Terrace apartment complex in 

Fremont. Underwood’s four-year-old daughter, Jane Doe, was with him; 

Underwood had recently won full custody of her. After an hour or two, 

Underwood, Doe and Kyaw drove to McDonald’s, bought more beer and 

returned to the apartments. A short time later, they went to the house where 

Underwood was living, a few minutes drive away. Outside the house, 

Underwood, Kyaw, Walker and others including Daniel Cameron and Blake 

Blevins, continued drinking and talking. 

Johnson testified that he left the group at the apartments after getting 

into an argument with Underwood when Johnson said Underwood should not 

be drinking and driving with his daughter in the car. Johnson could tell 

when Underwood was impaired and he was not showing signs of being 

intoxicated, but Johnson thought it was wrong to be drinking and driving 

with your child in the car. He believed Underwood had a high tolerance for 

alcohol and did not think beer “really affects” him. Johnson testified that 

Underwood had “at least two” beers but acknowledged having told the 

defense investigator that Underwood had “one to two” tall cans. 

Kyaw testified that she drank three tall (24 ounce) cans of Mickey’s 

beer and saw Underwood drinking Mickey’s tall cans. Before they left the 

apartments to go to Underwood’s house, Stubbs asked Underwood if he was 

“okay to drive” and said he should not drive with his daughter. Underwood 
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said he was fine and “[i]t’s just beer. It’s just water.” At Underwood’s house, 

Kyaw saw Underwood drink “[m]aybe . . . two” Mickey’s cans and a shot of 

Fireball whiskey, then acknowledged on cross examination that she did not 

actually remember whether he drank any Fireball. Cameron testified that 

Underwood drank at least two tall cans of beer, but he did not remember 

exactly how much. 

The group decided to get food from a restaurant in Milpitas. Blevins 

drove one car, with Cameron as a passenger, and Underwood drove the other, 

with Kyaw, Walker and Underwood’s daughter as passengers. Kyaw testified 

that she knew Underwood was intoxicated because he had had “too many 

beers,” he was stumbling and his face was red. She offered to drive but he 

said he was okay, and she believed him. Blevins testified that Underwood 

did not show any signs of being impaired by alcohol. Cameron testified that 

he was intoxicated and believed Underwood was too, and that from his 

experience drinking with Underwood, Underwood drank “to actually get 

drunk.” 

Kyaw sat in the front seat of Underwood’s BMW, with Doe behind her 

and Walker behind Underwood. They stopped at a gas station a few minutes 

from Underwood’s house. After watching a clip from the surveillance video

showing Underwood filling the tank and walking around, Kyaw testified that 

he appeared to be intoxicated because he was stumbling. 

After getting gas, Underwood got on the freeway, driving about 80 

miles per hour. Blevins’s car was behind them, and then passed them going 

at what Kyaw believed was around 100 miles per hour. Underwood caught 

up with Blevins and the two cars raced. Kyaw did not feel safe because 

Underwood was “driving and drinking.” She felt like he was driving faster 

and faster and when she looked at the speedometer, it said 140 miles per 
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hour. The car started to swerve, Kyaw thought she heard a tire pop, and she 

could feel the bumps of the lane dividers as the car moved to the right. She 

and Walker had both told Underwood to slow down and he did, but the car 

was already out of control. 

The car flipped over a “cliff” and rolled three or four times. Kyaw hit 

her head and briefly lost consciousness, then came to and heard Doe crying. 

Kyaw’s head and ankle were bleeding. She wanted to get Doe out of the car, 

which was smoking, and she climbed out the window because the car door 

would not open. Cameron and Blevins helped get Doe out. Kyaw testified 

that as she walked up the hill with Underwood, he told everyone that he was 

not driving, Cameron was, and asked Kyaw, Cameron and Blevins to lie to 

the police about who was driving. Everyone agreed; Kyaw testified that she 

did so because she was in shock. She told California Highway Patrol (CHP)

officers that Cameron had been driving, which was not true. Kyaw had an 

immunity agreement providing that her testimony could not be used against 

her. 

Blevins testified that as he was driving on the freeway at about 75 

miles per hour with Underwood behind him, Underwood passed him on the 

left, going about 100 miles per hour, and they jokingly threw hand signals at 

each other. Underwood had told him his car could go 140 miles per hour. As 

the gap between the cars grew, Blevins commented to Cameron that 

Underwood needed to slow down because it was reckless to drive as fast as he 

was driving. Blevins then suddenly saw Underwood’s taillights “starting to 

go sideways” and realized Underwood had lost control of the car, which 

veered across the freeway to the right. Cameron estimated that Underwood 

was driving at least 90 miles per hour when he passed their car. He did not 

feel like the cars were “interacting or racing.” He testified that Underwood 
5

“hit a bump or something” and the car veered right and went down the 

embankment. 

Blevins pulled over and both he and Cameron ran down the 

embankment. Underwood’s car was behind or against a tree and Doe and 

Kyaw were screaming. Underwood was standing outside the car, by the 

driver’s door according to Cameron and near the right-side passenger door

according to Blevins. Blevins and Cameron helped Doe out of her car seat. 

Underwood asked Cameron to “take the fall” for him, saying he could not “get 

another DUI” (Driving Under the Influence) and he would owe Cameron his 

life. Cameron did not immediately reply. 

Once they were back at the top of the hill, Cameron saw the police 

coming and realized he had to answer Underwood. Cameron asked 

Underwood, Kyaw and Blevins, “ ‘who was driving?’ ”; when Kyaw said 

Underwood, Cameron said, “no, I was.” Cameron testified that he was 

thinking he would “get a DUI” and “maybe sit in the jail for a day” but “just 

get out . . . pretty soon.” Asked why he was willing to be arrested for 

Underwood, Cameron testified that he thought about Underwood having just 

gotten custody of Doe and that he was always trying to help people. 

Blevins testified that Underwood told him Cameron was going to “take 

the fall” for the accident and at first Blevins said he “wasn’t okay with that,”

then he agreed when Cameron told him it was alright. When the police 

arrived, both Cameron and Blevins told them Cameron was driving. 

B. Emergency Responders’ Observations

When CHP Officer Logan Dysert arrived at the scene, Cameron and 

Kyaw each separately told him Cameron was the driver. Both had red, 
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watery eyes and Kyaw had the odor of alcohol on her breath.1 Underwood 

said the car was his, but Cameron was the driver. Underwood, too, had red, 

watery eyes, as well as a strong odor of alcohol on his breath and slurred 

speech. Underwood answered Dysert’s questions very quickly, “like he 

wanted to get out of there,” but he was cooperative, coherent and followed 

Dysert’s directions. Dysert believed Underwood, Cameron and Kyaw were all 

under the influence of alcohol. He conducted field sobriety tests with 

Cameron, who did poorly, and placed him under arrest. 

Several of the first responders at the scene testified, based on their 

training and experience, that Underwood appeared to be intoxicated. 

Paramedic David Eastin testified that Underwood was “very loud, very 

belligerent” and did not appear to be cooperating appropriately with 

emergency responders given the severity of the accident. At one point 

Underwood appeared to lose his balance and “sidestepp[ed] into the freeway”

and someone grabbed him. Eastin testified that it was “apparent that there 

was some substance on board.” Firefighter and paramedic Frank Carlucci

testified that Underwood was “very aggressive,” “belligerent” and “all over 

the place,” “mak[ing] the scene very difficult to control”; “his hands were on 

everybody,” he was not listening to what the paramedics were trying to tell 

him and he did not appear to comprehend what Carlucci said to him. 

Carlucci smelled alcohol on Underwood from a foot away. Fremont Fire 

Department Captain and emergency medical technician Ronald Martin 

described Underwood’s behavior as “erratic to the point where it was making 

things very hard to assess our patients” and the responders “were worried 

1 Dysert acknowledged that red, watery eyes can result from an airbag 

deploying in a person’s face. 
7

about his safety.” Underwood was moving a lot and yelling, and there was 

concern that he was going to walk into traffic. Martin thought Underwood 

was intoxicated based on his “loud, slurred speech” and “belligerence,” and 

thought he smelled alcohol on Underwood. Underwood was very concerned

about his daughter, but in Martin’s experience his behavior “felt excessive 

and extreme.” 

Paramedic Glenn Rogers, who was with Underwood when he was 

transported to the hospital, smelled alcohol on Underwood’s breath after 

getting him into the ambulance. He asked if Underwood had had any alcohol

and Underwood said he had had several beers. Rogers did not recall 

observing signs of intoxication other than the smell of alcohol. He gave 

Underwood two doses of fentanyl, a total of 100 micrograms, which he 

described as a “moderate” dose; he did not give a “significant” dose due to 

concern about increased sedative effects caused by alcohol in his system. 

Underwood was complaining of severe pain associated with bruising on his 

chest and the fentanyl did not appear to relieve any of his pain. Underwood 

was alert, oriented, cooperative and answered questions appropriately. 

Rogers did not note any impairments such as slurred speech or lack of 

coordination in his report and would have done so if he had observed them. 

He did not recall or note in his report any changes in Underwood’s 

orientation or ability to converse after he was given fentanyl. 

Hospital records showed that the doctor who first assessed Underwood 

noted “alcohol before driving,” “intoxication” and “ETOH [alcohol] on breath,” 

all of which reflected only that alcohol was consumed, not how much or the 

person’s level of intoxication. Underwood was alert and answered questions 

appropriately. Dr. James Alva, who treated Underwood in the emergency 

department, testified that a note saying “[p]atient appears intoxicated” 
8

indicated he saw behavior or clinical signs of intoxication, as he would not 

write this unless he believed there was sufficient evidence it was true.2

C. Discovery of Walker’s Body

No one told the officers and other first responders at the scene that 

Walker had also been in the car. Walker’s body was found the day after the 

crash, about 60 feet from where the car came to rest. The location was not 

visible from the crash site even in daylight, and it would have been extremely 

difficult to find Walker’s body at night. He died from multiple blunt 

traumatic injuries to his head that were consistent with being ejected from a 

vehicle moving at a very high rate of speed. It appeared he had not been 

wearing a seat belt. In the opinion of the forensic pathologist who performed 

the autopsy, it was very unlikely there was a period of time in which Walker

could have been resuscitated; he “had no chance.” 

Kyaw learned that Walker had died from Mauck and decided she had 

to tell the truth about who was driving, so she called CHP and said 

Underwood was the driver. Cameron also told the police he was not the 

driver when he learned that Walker had died; he testified that he never 

would have said he was driving if he had known. 

Johnson learned of Walker’s death on October 10, 2018, and was with 

Underwood that evening at a mutual friend’s house. Underwood’s friends 

were “grilling” him about whether he was driving, telling him he was 

“screwed” if he was and should “kill himself or run.” In a recorded statement 

2 Underwood was placed in a cervical collar that had to be replaced 

multiple times because he removed it. The repeated removal without medical 

approval indicated to Dr. Alva “an illogical thought process,” in this case most 

likely due to either behavioral issues or intoxication. Dr. Alva was not aware 

that Underwood had been given fentanyl. Underwood later testified that he 

took off the neck collar because he was extremely uncomfortable and did not 

think he had a neck injury. 
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to the police the next day, Johnson said there was an argument about who 

was driving, the story changing from Cameron to Blevins and back, then 

Underwood said he “screwed up” and “shouldn’t have been driving.” When 

Johnson asked, “what did you say,” Underwood said Cameron was driving. 

On October 18, 2018, Underwood called his cousin, Lani Jackson, who 

worked as a technician with the Alameda County Sheriff’s Office; told her he 

had been in a car accident and there was a warrant for his arrest; and asked 

for her and her father to take him to turn himself in. Underwood said he had 

been drinking and “racing a car full of friends,” that a friend was going to 

“take the DUI for him” but “that changed” when they learned someone had 

died, and that the police were looking for him and “had him on camera 

getting into the driver’s seat at a gas station.” He was “[h]ysterical,” said he 

was “going to go away forever because he had so many DUIs,” he was “drunk 

and driving,” he had “killed his best friend” and his “daughter was in the 

car.” As soon as they hung up, Jackson called the CHP and told the lead 

officer on the case what Underwood had said. An hour or two later, in a 

second phone call, Underwood told Jackson that he had not been driving and 

there was no warrant, but he wanted to hide at her father’s house because 

the victim’s family was looking for him. When she tried to convince him to 

turn himself in, pointing out that her work calls were randomly recorded and 

he had already said he was driving and on video, he said, “Why would I do 

that when I wasn’t even the one driving.” 

D. Underwood’s Blood Alcohol Level

Underwood’s blood was drawn by a trauma nurse at 12:33 a.m. on 

October 10 and tested at the hospital’s clinical laboratory. As described by 
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the expert witness, Dr. Philip Sobolesky,3 the lab uses an enzymatic method 

for testing ethanol levels, a fast method that measures levels of the molecule 

NADH (nicotinamide adenine dinucleotide), which forms from ethanol. 

NADH can be produced by a number of naturally occurring reactions in the 

body and the enzymatic testing method does not identify the source. The 

hospital lab tests plasma rather than whole blood.

4 Ethanol concentrations 

in plasma samples are about 1.14 times higher than in whole blood samples. 

Underwood’s test results indicated a level of 0.181, which would convert to a 

level of 0.158 in whole blood.5

Underwood’s blood samples were subsequently released for testing by a 

forensic laboratory, Central Valley Toxicology Crime Lab (CVT).6 CVT tests 

3 Dr. Sobolesky, a clinical biochemist at the Santa Clara Valley Medical 

Center (SCVMC), testified as the People’s expert on operation of the machine 

used by the lab to test for ethanol in blood.

4 Whole blood is the blood in a living person’s system. Plasma is the 

“aqueous phase on top” that results from centrifuging a whole blood sample 

to which an anticoagulant has been added. 

5 Asked on cross examination whether he was familiar with a 

statement that individuals’ serum whole blood ratio varies from 1.09 to 1.35, 

Sobolesky said he was not. The prosecutor subsequently asked Sobolesky to 

convert Underwood’s 0.181 level by the lowest and highest conversion rates 

in that range, which resulted in levels of 0.166 for the lowest conversion rate 

and 0.134 for the highest. 

6 Clinical labs process samples for purpose of medical treatment; 

forensic labs, which test samples for use in criminal trials, must follow some 

requirements beyond those applicable to clinical labs. Title 17 of the 

California Code of Regulations establishes requirements for forensic labs. 

(See Cal. Code Regs., tit. 17, § 1216 et seq.) 

CVT is a state-approved forensic laboratory. It is not accredited. 

California does not require forensic labs to be accredited. 
11

for alcohol using a gas chromatograph with dual detector, a machine that 

most hospital labs do not have. In accordance with regulations governing 

forensic laboratories, CVT must test samples of whole blood with both 

preservative and anticoagulant. CVT tested the gray tube top vial of 

Underwood’s blood, the only vial that appeared to have both the preservative 

and the anticoagulant required by title 17.7 The blood alcohol level in a 

whole blood analysis was 0.147. Expert witness Bill Posey8 testified this 

result was accurate within a range from 0.139 to 0.156 and was consistent 

with the 0.158 whole blood conversion result from the hospital lab plasma 

test. 

Given a hypothetical of a six-foot four-inch, 290-pound man who 

stopped drinking at about 10:55 p.m., crashed his vehicle at about 11:10 p.m., 

and was found to have 0.14 percent blood alcohol content in blood drawn at 

about 12:33 a.m., Posey estimated the blood alcohol level at the time of the 

crash would have been 0.15 to 0.16. If the test showed a level of 0.15, the 

estimated level at the time of the crash would be 0.16 to 0.17. Studies on the 

effects of alcohol and driving indicate that one hundred percent of the 

population will show “marked impairment” at a 0.15 level. For a man of this 

size, it would take ten to eleven 12-ounce cans of beer to reach a 0.14 level if 

7 Underwood’s blood had been tested previously by a person who had 

since left CVT and moved out of state. The People requested that the sample 

be retested by a current employee who would be able to testify at trial. 

8 Posey, a forensic toxicologist and licensed medical technologist who 

founded CVT and at the time of trial had recently retired as its director, 

testified as the People’s expert on analysis and determination of blood alcohol 

and controlled substances content and the effects of alcohol on the human 

body. 
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all were consumed in a short period of time, more if the drinks were 

consumed over a period of hours. 

E. Prior Incidents Involving Drinking and Driving

Underwood had five prior convictions related to driving under the 

influence of alcohol. At the time of each conviction, he was advised in writing 

and by his attorney and the court that being under the influence of alcohol 

impairs his ability to safely operate a motor vehicle, driving while under the 

influence of alcohol is extremely dangerous to human life, and if he continued 

to drive under the influence of alcohol and someone was killed as a result, he 

could be charged with murder. Each time, Underwood acknowledged his 

understanding of these advisements. Underwood received the same 

advisements, and acknowledged his understanding of them, when he applied 

for a new driver’s license shortly after the 2008 conviction. Underwood was 

also told, upon each of the five convictions, that his driver’s license would be 

suspended and that he was required to install an ignition interlock device on 

any car he drove. 

Underwood’s first arrest for driving under the influence was in 2007, 

when he was 20 years old; in October 2008 pleaded no contest to a “wet and 

reckless,” a lesser included offense of DUI. He was required to complete a 30-

hour, first offender DUI program, during which there was repeated 

discussion of the dangers of drinking and driving and the possibility of being 

charged with murder if someone died as a result of his drinking and driving. 

While that case was pending, in February 2008, Underwood was again 

arrested for driving under the influence. He pleaded guilty to driving with a 

blood alcohol content over 0.08 percent and was required to attend a sixmonth course on the dangers of drunk driving. He was next arrested for 

driving under the influence in February 2012, pleaded guilty a few months 
13

later and was required to complete an 18-month DUI course but did not do so. 

While on probation, he was again arrested for driving under the influence

and pleaded guilty to driving with a blood alcohol level above 0.08 in October 

2013. Finally, Underwood was arrested for drinking and driving on March 

11, 2018, and pleaded guilty in August 2018. He was advised that he had to 

complete another 18-month DUI course but never enrolled in one. 

A few months before the October 9, 2018, collision, Underwood drove 

76-year-old Ronald Mauck to pick up Kyaw in San Jose. On the way back to 

Fremont, Underwood stopped at a liquor store and bought a tall can of 

Mickey’s, which he kept between his legs and drank as he drove to Fremont. 

Mauck became concerned when Underwood started driving 100 miles per 

hour on the 880 freeway, changing lanes and dodging in and out of traffic. 

Mauck told Underwood to slow down, saying “if he gets in a wreck and hurts 

me, he better kill me because if he don’t, I’m gonna take him apart.” 

F. Defense Case

1. Expert Testimony on Blood Alcohol Testing

Janine Arvizu testified as an expert in laboratory quality assurance, 

standards, proficiency and testing programs, operations, method validation 

and quality control of chemical tests, including testing for ethanol content in 

serum plasma or whole blood samples. She concluded that the results of the 

blood testing by the SCVMC lab were not reliable because the enzymatic 

testing method is considered a screening tool and is suitable for use in clinical 

settings9 but not for forensic purposes; the lab tested plasma rather than 

whole blood (as title 17 requires); and the testing procedures and chain of 

9 Arvizu did not evaluate the reliability of the blood alcohol test results 

for use in a clinical setting and noted that the CVMC testing appeared to 

have complied with the lab’s internal clinical requirements. 
14

custody were lacking. The blood sample CVT tested was not suitable for a 

forensic alcohol test because it did not have sufficient preservative and there 

was no record showing that a critical piece of the testing equipment was 

properly calibrated, and the CVT results could not be used to confirm the 

SCVMC results because the two labs tested different blood samples. 

Arvizu explained that to prevent microbes from changing the 

composition of blood samples, they must be refrigerated and must have 

sufficient preservative. Bacteria in blood can cause elevated levels of ethanol 

and yeast can cause bacteria to form through fermentation; sufficient 

preservative in a blood sample prevents bacteria from growing but does not 

stop yeast from growing. Arvizu testified that there is no way to tell from 

looking at or smelling a sample that fermentation has occurred. In the 

present case, the blood samples were not refrigerated when transported from 

SCMVC to CVT and the manner in which they were transported raised 

questions about the reliability of subsequent ethanol testing. 10

Arvizu expressed concerns about CVT’s quality management systems 

and the lab not being accredited, as accreditation bodies impose higher 

10 The blood samples were transported from SCVM to CVT by 

motorcycle and were not refrigerated during the two-hour trip; the vials were 

in a paper evidence envelope on top of the CHP officer’s jacket in the 

saddlebag of his motorcycle, the bottom of which is a few inches from the 

motorcycle’s exhaust pipe, which gets hot. 

The People’s expert witnesses agreed that increased temperature can 

cause fermentation, which would result in an artificially high alcohol level, 

but neither considered this a problem in this case. Sobolesky testified that 

“[g]enerally bacteria aren’t in a patient’s bloodstream to the degree that 

would interfere” and, since the tubes are vacuum sealed, they are not subject 

to contamination from outside sources if unopened. Posey did not think 

fermentation was an issue with Underwood’s sample because no visible signs 

or odor of fermentation were noted. 
15

standards than California does. She acknowledged that the regulations in 

title 17 do not require use of any specific type of test tube or amount of 

preservative for a reliable ethanol test. Nor do the regulations refer to 

refrigeration or chain of custody requirements. The regulations do prohibit 

using alcohol to clean the skin where a specimen will be collected (as was 

done when Underwood’s blood was drawn), which Arvizu testified is 

important because even if the alcohol used is isopropanol, the indirect testing 

method can misidentify isopropanol as ethanol.11

2. Underwood’s Testimony

Underwood testified that he was raised by his grandparents from age 

12 on. They drank frequently, and Underwood learned to cope with stress 

and problems with alcohol. He started drinking when he was 16. Despite his 

DUIs, he did not think he had an alcohol problem. He knew he was not 

11 Underwood’s skin was cleaned with isopropyl alcohol before the blood 

draw. The procedure followed is to first clean the area with isopropyl alcohol 

or ChloraPreps (chlorhexidine and isopropyl alcohol), then let it dry before 

inserting the needle so as to avoid accidentally injecting any live bacteria 

that might remain on the skin. 

The People’s experts did not consider this a problem. Sobolesky 

testified that there are studies showing alcohol used to clean the skin before a 

blood draw can affect the accuracy of the results, but the impact can be 

avoided by waiting a certain time after wiping the area before drawing the 

sample. Although the manufacturer’s package insert for the hospital’s 

testing equipment says not to use alcohol at the draw site, Sobolesky testified 

this was not an issue for a clinical lab because the contribution of an alcohol 

wipe “is quite negligible” and “not really a factor in terms of patient care”; he 

acknowledged the contribution could be significant for legal purposes. 

Posey testified that use of an isopropyl alcohol wipe would not affect 

the results of testing for ethanol because the results would show the other

type of alcohol if it was present. Even if the machine could not distinguish 

the two types of alcohol, the only potential significance would be for the first 

vial drawn and the vial CVT tested was not the first one drawn. 
16

allowed to drive with alcohol in his system and could not explain why he 

continued to do so. He had not had a valid driver’s license since his first 

conviction in 2008 and had never tried to regain his license. He had never 

installed an ignition interlock device despite knowing he was required to do 

so and driving without one was a violation of his probation. 

Underwood considered himself to have a high tolerance for beer 

because he is a big man and had been drinking for a long time. He thought it 

was dangerous to drive if he was feeling the effects of alcohol, but not if he 

was not feeling its effects. 

In October 2018, Underwood was working but was looking for a job that 

would fit the schedule of his daughter’s daycare. He had an interview 

scheduled for October 10. On the evening of October 9, the group got together 

because Walker was getting ready to leave for a few months for a job;

Underwood had texted Blevins that Walker was leaving “and let’s get him 

fucked up.” Underwood was not planning to drink as much as he might have, 

since his daughter was there and he had the interview the next day. He 

testified that he drank two tall cans of Mickey’s and part of a third over the 

course of the evening. He did not drink any Fireball. 

Underwood was on probation and knew that one of the conditions was 

that he does not drive with alcohol in his system, even if he was not feeling 

its effects. He testified that when the group wanted to go for food, he drove 

because he had not had as much to drink as everyone else, was not feeling 

any effects from the alcohol he had consumed and believed he could drive 

safely; he would not have driven otherwise. 

Underwood testified that when he sped up to pass Blevins on the 

freeway, he was going between 90 and 100 miles per hour for four to five 

seconds; when he hit 100 miles per hour, Kyaw told him to slow down and he 
17

let off the gas. He did not believe driving fast was necessarily dangerous or 

that someone was likely to die if he drove fast, and he did not feel he was 

putting anyone in danger with his driving. 

After he took his foot off the accelerator, Underwood heard a noise, his 

car pitched to the right and he lost control of it. He did not remember the car 

rolling down the embankment or crashing; when came to, he did not have his 

glasses on, he heard Doe crying and, when he could not open the car door, he 

climbed out the sunroof. He was “super freaked out” and “discombobulated,” 

scared and worried about Doe and Kyaw. He thought Walker was okay and 

had walked off; it never occurred to him that Walker could have been ejected 

from the car. 

Underwood testified that he was “a little bit” worried that he could get

another DUI even though he was not feeling the effects of alcohol. He asked 

Cameron to say he was driving because he had just worked so hard to get 

custody of Doe and was “finally starting” to get his life in order. He felt 

“pretty desperate” because he was scared of having his daughter taken away 

and “possible repercussions of what had happened.” He acknowledged lying 

about who was driving to the first responders, at the hospital and to Walker’s 

mother. When he was interacting with the first responders, Underwood was 

worried about Doe and trying to relay to them that she had epilepsy; she had 

recently been diagnosed and he did not know if the epilepsy might be 

triggered by the collision. He did not remember stepping into the roadway 

but testified he might have done so when he was trying to step around the 

paramedic to get to the back of the ambulance, because he could not see 

without his glasses. He did not tell the first responders that anyone else had 

been in the vehicle because Walker “didn’t particularly like law enforcement” 

and Underwood thought Walker might have walked away to avoid having an 
18

interaction with them. Underwood learned of Walker’s death when Blevins 

called him on the evening of October 10, 2018. Underwood denied driving 

100 miles per hour with a beer between his legs when he was driving with 

Mauck. 

II.

Legal Proceedings

The first amended information filed on July 29, 2021, charged 

Underwood with second degree murder (Pen. Code,12 § 187, subd. (a)) 

(count 1); child abuse (§ 273a, subd. (a)) (count 2); driving under the influence 

of alcohol (DUI) causing injury (Veh. Code, § 23153, subd. (a)) with prior 

convictions (Veh. Code, §§ 23560, 23566) (count 3); with special allegations 

that he was driving at least 30 miles per hour over the maximum speed limit 

(Veh. Code, § 23103), proximately caused bodily injury and death to more 

than one victim (Veh. Code, § 23558) and had a passenger under the age of 

14; driving with over 0.08 percent blood alcohol level causing injury (Veh. 

Code, § 23153, subd. (b)) with prior convictions (Veh. Code, §§ 23560, 23566), 

with the same special allegations as in count 3 (count 4); misdemeanor 

driving with a suspended license for a prior DUI (Veh. Code, § 14601.2, 

subd. (a)) (count 5); misdemeanor unlawful operation of a vehicle without a 

functioning ignition interlock device (Veh. Code, § 23247, subd. (e)) (count 6); 

and two infractions, driving at a speed exceeding 100 miles per hour (Veh. 

Code, § 22348, subd. (b)) (count 7) and driving with a blood alcohol 

12 Further undesignated statutory references will be to the Penal Code 

except as otherwise specified.
19

concentration of 0.01 percent or greater while on probation for a DUI (Veh. 

Code, § 23154, subd. (a)) (count 8). 

The initial information, filed on February 14, 2020, had included a 

count of gross vehicular manslaughter while intoxicated, with a prior 

(§ 191.5, subd. (a)). 

On November 23, 2021, a jury found Underwood guilty on all counts 

and found the special allegations true. On March 4, 2022, the trial court 

denied Underwood’s motion for a new trial and imposed sentence. The court 

sentenced Underwood to a prison term of 15 years to life on count 1; a 

consecutive middle term of four years on count 2; a concurrent one-third 

middle term of one year on count 3, with concurrent one-year terms for each 

of the three victims for the Vehicle Code section 23558 enhancements, stayed 

pursuant to section 654, and concurrent jail terms of 60 days and 30 days, 

respectively, for the Vehicle Code section 23582 and 23572 enhancements; 

the same sentence on count 4 as on count 3, stayed pursuant to section 654; 

stayed six-month sentences on counts 5 and 6; and fines of $500 each on 

counts 7 and 8. 

Underwood filed a timely notice of appeal on March 7, 2022. 

DISCUSSION

I.

Refusal to Instruct on Vehicular Manslaughter

In an argument raised primarily to preserve the issue for further 

review, Underwood maintains his rights to due process and a fair trial were 
20

violated by the trial court’s failure to instruct the jury on gross vehicular 

manslaughter as a lesser included offense of murder. 

A. Background

The People moved in limine to prohibit the defense from arguing to the 

jury that Underwood was only guilty of vehicular manslaughter, arguing that 

vehicular manslaughter may be related to but is not a lesser included offense 

of the charged murder. In opposition, the defense pointed out that the People 

had elected to dismiss the originally charged count of gross vehicular 

manslaughter while intoxicated (§ 191.5, subd. (a)), presumably “to take 

away Mr. Underwood’s right to have instructions on the lesser-included 

offenses to that charge,” and argued that Underwood had a right to argue he 

was guilty only of a lesser related, uncharged, offense even if he was not 

entitled to jury instructions on the offense.

13

The trial court held that because gross vehicular manslaughter is not a 

lesser included offense within the charged murder and it could not instruct 

on a lesser related offense without the People’s agreement, it would not 

“(1) instruct on gross vehicular manslaughter, (2) allow the Defense to 

discuss that instruction or statute, or (3) allow the Defense to say that 

Mr. Underwood may have committed gross vehicular manslaughter.” The 

court stated that the defense was “free, of course, to fully argue that the

People have not proven implied malice or any other element of murder. The 

Defense may argue that Mr. Underwood drove under the influence of alcohol, 

13 Underwood relied on People v. Valentine (2006) 143 Cal.App.4th 

1383, 1388, which held that a defendant charged with robbery was not 

entitled to jury instructions on receiving stolen property because he was not 

charged with that offense but noted, “[w]e do not suggest, however, that 

Valentine could not argue to the jury that his culpability was as one who was 

in possession of stolen property but not one who committed a robbery.” (Id. 

at pp. 1385, 1388.)
21

did something that could cause death, acted with gross negligence, and killed 

Mr. Walker due to that negligence. The Defense may even argue that these 

facts may add up to a ‘different offense’ but not murder.” (Fn. omitted.) 

B. Governing Legal Principles

Underwood was charged with murder in violation of section 187, 

subdivision (a), which defines murder as “the unlawful killing of a human 

being . . . with malice aforethought.” People v. Watson (1981) 30 Cal.3d 290 

(Watson) held that a person who kills another while driving under the 

influence of alcohol may be charged with second degree murder if the 

circumstances support a finding of implied malice. (Id. at pp. 294, 298–299.) 

This is “informally known as a Watson murder.” (People v. Wolfe (2018) 

20 Cal.App.5th 673, 677 (Wolfe).) 

“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.” 

(§ 191.5, subd. (a).)

“When the prosecution charges a defendant with a Watson murder, a 

vehicular manslaughter charge may be related to, but it is not necessarily 

included within, the murder charge. (People v. Sanchez (2001) 24 Cal.4th 

983, 990 (Sanchez), overruled on another point in People v. Reed (2006) 

38 Cal.4th 1224, 1228–1229.)” (Wolfe, supra, 20 Cal.App.5th at p. 685.) 

Sanchez held that gross vehicular manslaughter is not a lesser included 

offense of murder because “the statutory elements of murder do not include 
22

all the elements of the lesser offense. Gross vehicular manslaughter while 

intoxicated requires proof of elements that need not be proved when the 

charge is murder, namely, use of a vehicle and intoxication. Specifically, 

section 191.5 requires proof that the homicide was committed ‘in the driving 

of a vehicle’ and that the driving was in violation of specified Vehicle Code 

provisions prohibiting driving while intoxicated.” (Sanchez, supra, 24 Cal.4th 

at p. 989.) Gross vehicular manslaughter is not a lesser included offense 

under the statutory elements test because “[a]lthough as a factual matter, a 

murder may be carried out by means of a vehicle and by an intoxicated 

driver, in the abstract it obviously is possible to commit a murder without 

committing gross vehicular manslaughter while intoxicated.” (Id., at p. 988.)

“A trial court must instruct on all lesser included offenses supported by 

substantial evidence.” (People v. Duff (2014) 58 Cal.4th 527, 561.) 

Instructions on lesser related offenses, however, are permitted only if both 

parties agree. (People v. Jennings (2010) 50 Cal.4th 616, 668; People v. Birks 

(1998) 19 Cal.4th 108,136–137.) “A defendant has no right to instructions on 

lesser related offenses, even if he or she requests the instruction and it would 

have been supported by substantial evidence, because California law does not 

permit a court to instruct concerning an uncharged lesser related crime 

unless agreed to by both parties.” (People v. Jennings, supra, 50 Cal.4th at 

p. 668.)

“To determine if an offense is lesser and necessarily included in another 

offense for this purpose, [courts] apply either the elements test or the 

accusatory pleading test. ‘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 
23

pleading include all of the elements of the lesser offense, the latter is 

necessarily included in the former.’ (People v. Reed (2006) 38 Cal.4th 1224, 

1227–1228.)” (People v. Shockley (2013) 58 Cal.4th 400, 404.)

C. Analysis

1. Under Sanchez, Gross Vehicular Manslaughter Is Not a Lesser 

Included Offense of Murder

Underwood takes issue with Sanchez, pointing out that the court took a 

different approach with respect to theft offenses in People v. Ortega (1998) 

19 Cal.4th 686 (Ortega). The issue in Ortega was whether the defendant 

could be convicted of both robbery and theft under the rule prohibiting 

multiple convictions based on necessarily included offenses. (Id. at p. 694.) 

In holding he could not be convicted of both offenses, Ortega explained that 

although some forms of theft require proof of facts not required for robbery 

(e.g., grand theft of an automobile), “[f]ocusing upon whether a particular 

form of theft necessarily is included within the offense of robbery misses the 

point, recognized in our early case law, that the crime of theft, in one form or 

another, always is included within robbery.” (Sanchez, supra, 24 Cal.4th at 

pp. 695–697.) As described in Sanchez, Ortega “emphasized a particular 

historical tradition—the long-standing recognition of the law that theft is a 

lesser included offense of robbery” and robbery is “ ‘ “ ‘simply an aggravated 

form of theft with the additional element of force or fear.’ ” ’ ” (Sanchez, at 

p. 992, quoting Ortega, at p. 695.)

In distinguishing Ortega, Sanchez explained, “Although it generally is 

true that manslaughter is a lesser included offense of murder, because 

generally manslaughter simply involves an unlawful killing of a human being 

without malice, gross vehicular manslaughter while intoxicated—like assault 

with a deadly weapon—requires proof of additional elements that are not 
24

included in the offense of murder or in other forms of nonvehicular 

manslaughter. . . . Although we recognize that historically manslaughter in 

general has been considered a necessarily included offense within murder, 

that long and settled tradition has not extended to the more recently enacted 

forms of vehicular manslaughter that require proof of additional elements.” 

(Sanchez, supra, 24 Cal.4th at p. 992.)

Underwood relies heavily on Justice Kennard’s dissent in Sanchez, 

which challenged the majority’s “departure from its analysis in Ortega” and

argued that, as with theft and robbery, “it is irrelevant that gross vehicular 

manslaughter while intoxicated has elements that distinguish it from other 

forms of manslaughter, because manslaughter, in whatever form it happens 

to occur, is a necessarily included offense of murder” (Sanchez, supra,

24 Cal.4th 983 at p. 1001, (dis. opn. of Kennard, J.).) Justice Kennard’s 

position, of course, was considered and rejected by the Sanchez majority—

which, as Underwood recognizes, we are bound to follow. (Auto Equity Sales, 

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

2. The Expanded Accusatory Pleadings Test Is Inconsistent with 

Precedent

Sanchez, as noted, determined that gross vehicular manslaughter is not 

a lesser included offense of murder under the statutory elements test. 

Underwood argues the result would be different under the “expanded 

accusatory pleading test” applied in People v. Ortega (2015) 240 Cal.App.4th 

956, which held that “[t]he evidence adduced at the preliminary hearing must 

be considered in applying the accusatory pleading test when the specific 

conduct supporting a holding order establishes that the charged offense 

necessarily encompasses a lesser offense.” (Id. at p. 967.) Underwood argues 

that although the first amended information tracked the language of the 
25

statute, the jury instructions required proof of driving under the influence, so 

that the prosecutor was required to prove the elements of gross vehicular 

manslaughter in order to prove murder.14

As Underwood recognizes, People v. Ortega, supra, 240 Cal.App.4th 956

has been criticized as contrary to California Supreme Court precedent. 

(People v. Macias (2018) 26 Cal.App.5th 957, 963; People v. Alvarez (2019) 

32 Cal.App.5th 781, 789; People v. Munoz (2019) 31 Cal.App.5th 143, 156

(Munoz).) “The Supreme Court has indicated repeatedly . . . that when 

applying the accusatory pleading test to determine whether one offense is 

necessarily included in another, courts do not look to evidence beyond the 

actual pleading and its allegations regarding the purported greater offense. 

(See, e.g., People v. Banks (2014) 59 Cal.4th 1113, 1160 . . . [‘When applying 

the accusatory pleading test, “[t]he trial court need only examine the 

accusatory pleading” ’], overruled in part in People v. Scott (2015) 61 Cal.4th 

363, 391; accord, People v. Smith (2013) 57 Cal.4th 232, 244; see also People 

v. Montoya (2004) 33 Cal.4th 1031, 1036 . . . [‘Consistent with the primary 

function of the accusatory pleading test—to determine whether a defendant 

is entitled to instruction on a lesser uncharged offense—we consider only the 

pleading for the greater offense’].) ¶ Indeed, in cases such as this one in 

which ‘the accusatory pleading incorporates the statutory definition of the 

14 Underwood’s opening brief specifically states that his argument 

concerning the accusatory pleading test, like his argument that Sanchez 

reached the wrong conclusion, is raised to preserve the issue for further 

review. In his reply brief, however, he “clarifies” that his other arguments 

are raised for consideration on the merits because the California Supreme 

Court “has not yet addressed application of the expanded pleadings test in 

these circumstances.” 
26

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, italics added; see 

also [People v. Shockley, supra, 58 Cal.4th at p. 404] [‘because the information

. . . simply tracked [the statutory] language without providing additional 

factual allegations, we focus on the elements test’].)” (Munoz, supra,

31 Cal.App.5th at p. 156.)

Not surprisingly, the Courts of Appeal have rejected the expanded 

accusatory pleading test in cases directly on point, upholding trial courts’ 

refusal to instruct on gross vehicular manslaughter as a lesser included 

offense of a charged Watson murder. (People v. Alvarez, supra,

32 Cal.App.5th at pp. 787–788; Munoz, supra, 31 Cal.App.5th at pp. 155–

158.) We agree. Underwood was not entitled to jury instructions on gross 

vehicular manslaughter.

II.

Section 192, Subdivision (b), Excludes Involuntary Manslaughter as a 

Lesser Included Offense of Murder

“Generally, involuntary manslaughter is a lesser offense included 

within the offense of murder.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 

1145.) Involuntary manslaughter is defined as “the unlawful killing of a 

human being without malice ¶ . . . ¶ in the commission of an unlawful act, 

not amounting to a felony; or in the commission of a lawful act which might 

produce death, in an unlawful manner, or without due caution and 

circumspection.” (§ 192, subd. (b).) The statutory definition, however, 
27

further provides: “This subdivision shall not apply to acts committed in the 

driving of a vehicle.” (§ 192, subd. (b).)

Despite this statutory exclusion, Underwood contends section 192, 

subdivision (b) should not be read to exclude vehicle-based involuntary 

manslaughter as a lesser included offense to murder because, in his view, the 

history of the provision shows the Legislature did not intend the exclusion to 

allow a prosecutor’s decision to charge only murder to leave the jury with an 

all or nothing choice between murder and no liability. Underwood argues 

that excluding vehicle-based manslaughter from section 192, subdivision (b) 

violates his constitutional right to equal protection because defendants 

charged with murder based on an act of driving a vehicle are denied the 

benefit of lesser included offense instructions on involuntary manslaughter to 

which those charged with murder committed by other means are entitled.

A. Section 192, Subdivision (b) Means What it Says

Underwood argues that the Legislature’s intent, when it adopted the 

language of what is now the section 192, subdivision (b) exclusion, was 

simply to prevent dual liability for the same act under both the Penal Code 

and the Vehicle Code. The language was initially adopted as part of a 1941

amendment to former Vehicle Code section 500 (Stats. 1941, ch. 279, § 1, 

p. 1414), which then defined vehicular manslaughter. (Watson, supra,

30 Cal.3d at p. 297.) The amendment “elevate[ed] the standard of culpable 

conduct” from negligence to “reckless disregard of, or wilful indifference to, 

the safety of others.” (Ibid.) It included a provision stating, “ ‘Hereafter, the 

provisions of the Penal Code, defining involuntary manslaughter, shall not 

apply to homicide caused by the driving of any vehicle.’ ” (People v. Mitchell 

(1946) 27 Cal.2d 678, 684. (Mitchell)) As Underwood points out, Mitchell 

observed that “[t]he sentence last quoted prevented dual liability under 
28

section 500 of the Vehicle Code and section 192 of the Penal Code for the 

same conduct.” (Ibid.) 

Although the Legislature has since reorganized the relevant statutes,15

it has maintained the separation between involuntary manslaughter (§ 192, 

subd. (b)) and vehicular manslaughter (§§ 192, subd. (c), 191.5, subd. (a)),

including the exclusionary language in section 192, subdivision (b), and

eventually further separated vehicular manslaughter while intoxicated 

(§ 191.5, subd. (a)) from other forms of vehicular manslaughter (§ 192, 

subd. (c)). Consistent with its exclusionary language, the Courts of Appeal 

have applied section 192, subdivision (b) in upholding trial courts’ refusal to 

instruct on involuntary manslaughter when a defendant is charged with a 

Watson murder. (Munoz, supra, 31 Cal.App.5th at pp. 151, 153–154; Wolfe,

supra, 20 Cal.App.5th at p. 686.) 

15 Vehicle Code section 500 was repealed in 1943 and section 193 “was 

amended to provide a specific penalty for involuntary manslaughter resulting 

from the operation of a vehicle.” (Watson, supra, 30 Cal.3d at pp. 297–298.) 

Then, “[i]n 1945, subdivision 3 was added to section 192 (Stats. 1945, 

ch. 1006, § 1, p. 1943) to provide a separate category for vehicular 

manslaughter in addition to the voluntary and involuntary categories.” 

(Watson, supra, 30 Cal.3d at p. 298.) “In 1983, [the Legislature] further 

defined vehicular manslaughter as being with or without gross negligence 

and with or without some form of intoxication. (Former § 192, subd. 3, as 

amended by Stats. 1983, ch. 937, § 1, pp. 3387–3388.)” (People v. Bennett

(1991) 54 Cal.3d 1032, 1035.) 

In 1986, the Legislature enacted section 191.5, defining the offense of 

gross vehicular manslaughter while intoxicated and replacing what had 

previously been subdivision (c)(3) of [section] 192 (vehicular manslaughter). 

(People v. Bennett, supra, 54 Cal.3d at p. 1035–1036 and fn. 2.) At the same 

time, the Legislature expressly stated in section 192, subdivision (c)(1), that 

the subdivision defines vehicular manslaughter “[e]xcept as provided in 

Section 191.5.” (Stats. 1986, ch. 1106, § 3, p. 3881.)
29

Munoz explained: “Involuntary manslaughter is a lesser included 

offense of murder; thus, a trial court must instruct the jury on involuntary 

manslaughter ‘[i]f the evidence presents a material issue of whether a killing 

was committed without malice, and if there is substantial evidence the

defendant committed involuntary manslaughter.’ (People v. Cook (2006) 

39 Cal.4th 566, 596.) [¶] If a defendant is charged with murder caused by 

driving a vehicle while intoxicated, however, a trial court cannot give an 

involuntary manslaughter instruction, because the alleged killing was an 

‘act[ ] committed in the driving of a vehicle’ exempt from the involuntary 

manslaughter statute. (§ 192, subd. (b); see Wolfe, supra, 20 Cal.App.5th at 

pp. 685–686.) Thus, section 192, subdivision (b) effectively eliminates 

involuntary manslaughter as a lesser included offense of murder when 

‘committed in the driving of a vehicle.’ (§ 192, subd. (b).)” (Munoz, supra,

31 Cal.App.5th at pp. 153–154.)

Underwood argues that these cases, which he describes as applying 

“the plain meaning of the proviso” in section 192, subdivision (b), result in 

harsher treatment for homicides resulting from acts of driving than for 

homicides resulting from other acts, since the jury is forced into an all or

nothing choice between murder and acquittal. The “plain reading,” he 

maintains, leads to “absurd results, contrary to the Legislative intent,”

because the proviso was intended only to prevent dual liability and there is 

no indication the legislature intended to treat vehicular homicides more 

harshly than other homicides. Underwood argues that the Legislature 

excluded vehicular homicide from the involuntary manslaughter statute at 

the same time it added vehicular manslaughter to section 192 with a less 

severe punishment than that for involuntary manslaughter, thus “indicating 
30

an intent to exclude vehicular based homicide from involuntary 

manslaughter to ensure lesser punishment.”16

Underwood is correct that the punishment originally attached to 

vehicular manslaughter was less severe than the punishment for involuntary 

manslaughter. For example, in 1943, when the punishment for vehicular 

involuntary manslaughter was set at not more than one year in county jail or 

a state prison term of not more than five years, the punishment for 

involuntary manslaughter was imprisonment for not more than 10 years. 

(Watson, supra, 30 Cal.3d at p. 297.) But Underwood’s suggestion that the 

exclusion of vehicular manslaughter from the involuntary manslaughter

statute reflects legislative intent to ensure lesser punishment for the former 

is unpersuasive in light of subsequent changes to the punishments for these 

offenses, throughout which the Legislature has retained the section 192 

proviso. Currently, involuntary manslaughter is punishable by 

imprisonment for two, three or four years. (§ 193, subd. (b).) Vehicular 

manslaughter under section 192, subdivision (c), is subject to punishment 

ranging from a jail term of not more than a year to a term of four, six or ten

years, depending on how it is committed.17 Gross vehicular manslaughter 

16 Underwood’s chronology appears to be slightly off: The exclusionary 

provision was first adopted in 1941; a separate penalty was attached to 

vehicle-based involuntary manslaughter in 1943; and vehicular 

manslaughter was added to section 192 in 1945. (Watson, supra, 30 Cal.3d at 

pp. 297–298.)

17 Vehicular manslaughter under section 192, subdivision (c)(1) (gross 

negligence) is punishable by imprisonment in the county jail for not more 

than a year or in state prison for two, four or six years; vehicular 

manslaughter under section 192, subdivision (c)(3) (knowingly causing 

accident for financial gain in connection with presenting a false or fraudulent 
31

while intoxicated under section 191.5 is punishable by imprisonment for four, 

six or ten years (§ 191.5, subd. (c)(1)) and, for a person such as Underwood, 

who has one or more prior convictions under enumerated statutes pertaining 

to multiple convictions for DUI offenses, is punishable by a prison term of 15 

years to life (§ 191.5, subd. (d).) Clearly, the Legislature no longer views 

vehicular manslaughter—and particularly vehicular manslaughter while 

intoxicated—as subject to lesser punishment than involuntary manslaughter, 

and the exclusion of vehicular manslaughter from section 192, subdivision (b) 

cannot be seen as ensuring lesser punishment.

The absurdity that Underwood sees in what he concedes is the plain 

meaning of the exclusion in section 192, subdivision (b) was pointed out by 

Justice Kennard in her Sanchez dissent with respect to vehicular 

manslaughter as a lesser included offense of murder: “When an intoxicated 

driver becomes involved in a fatal accident, a prosecutor may elect to charge 

the driver only with murder, without also charging any form of vehicular 

manslaughter. Because, under the majority's holding, trial courts may not 

instruct on vehicular manslaughter as a lesser included offense of murder, 

juries in these instances will face the difficult and troubling all-or-nothing 

choice between a murder conviction and an acquittal. Thus, the majority's 

decision will deny juries ‘the opportunity to consider the full range of criminal 

offenses established by the evidence.’ (People v. Barton (1995) 12 Cal.4th 

186, 197; see also People v. Birks, supra, 19 Cal.4th at p. 127.)” (Sanchez,

supra, 24 Cal.4th at p. 1001, (dis. opn. of Kennard, J.).) This argument did 

claim) is punishable by a prison term of four, six or 10 years. (§ 193, 

subd. (c).) 
32

not convince the majority that vehicular manslaughter under section 191.5 

should be considered a lesser included offense of murder. 

While Sanchez did not address section 192, subdivision (b),18 Justice 

Kennard’s argument applies equally to the statutory exclusion of vehiclebased manslaughter from the definition of involuntary manslaughter, which

also removes the possibility of a lesser offense to murder and therefore leaves 

the jury with a “difficult and troubling all-or-nothing choice” when the 

prosecutor charges only murder and not gross vehicular manslaughter. The 

Sanchez majority’s implicit acceptance of this consequence of its decision 

makes it difficult to see the same consequence as “absurd” in the context of 

section 192, subdivision (b). Moreover, the Legislature has retained the 

section 192, subdivision (b) exclusion despite the consequence pointed out by 

the Sanchez dissent more than 20 years ago. 

“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.) In 

light of Sanchez, we cannot find the effect of the section 192, subdivision (b) 

exclusion on cases charging murder based on driving a vehicle so absurd as to 

justify departing from the unambiguous language of statute. “ ‘ “[T]he power 

to define crimes and fix penalties is vested exclusively in the legislative 

branch.” (Keeler v. Superior Court [(1970)] 2 Cal.3d 619, 631 . . . ; 

[citations].)’ (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 516.)” 

18 The issue in that case was not, as here, what lesser included offense 

instructions should be offered to the jury but rather whether the defendant 

could be convicted of both second degree murder and gross vehicular 

manslaughter based on the same act—which he could not if one offense was a 

lesser necessarily included offense of the other. (Sanchez, supra, 24 Cal.4th 

at p. 988.)
33

(People v. Chun (2009) 45 Cal.4th 1172, 1183.) If the Legislature does not 

intend the plain language of section 192, subdivision (b) to apply when a 

defendant is charged with a Watson murder, it is for the Legislature to refine 

the statute.

B. The Statutory Exclusion Does Not Violate Underwood’s Equal 

Protection Rights19

“ ‘Equal protection of the laws means that similarly situated persons 

shall be treated similarly unless there is a sufficiently good reason to treat 

them differently.’ (People v. Castel (2017) 12 Cal.App.5th 1321, 1326.) In 

evaluating an equal protection challenge, we first determine ‘whether there 

are two groups of individuals who are “ ‘ “similarly situated with respect to 

the legitimate purpose of the law” ’ ” but are being treated differently.’ (Ibid.)

‘[I]f these threshold requirements are met, a court must next ascertain 

whether the Legislature has a constitutionally sufficient reason to treat the 

groups differently.’ (Ibid.) As a general matter, laws ‘will be upheld as long 

as there is any “ ‘ “rational relationship between the disparity of treatment 

and some legitimate governmental purpose,” ’ ” even if the rational basis for 

that law was never articulated by—or even relied on by—the Legislature.’ 

(Id. at p. 1327.) However, if the law ‘affects a fundamental right,’ or the 

groups the law treats differently are ‘members of a “suspect class” (such as 

race, national origin, gender, or illegitimacy, to name a few),’ courts will 

19 Underwood did not request jury instructions on involuntary 

manslaughter and asks us to exercise our discretion to reach the equal 

protection issue despite any forfeiture. We do so because the issue is one of 

law, subject to de novo review, and might otherwise return to us as a petition 

for writ of habeas corpus alleging ineffective assistance of counsel. (In re 

Spencer S. (2009) 176 Cal.App.4th 1315, 1323.) The People do not suggest we 

should find the issue forfeited.
34

subject it to heightened scrutiny. (Id. at p. 1327.)” (Munoz, supra,

31 Cal.App.5th at p. 162.)

As Underwood recognizes, the exclusion of vehicular homicides from 

the involuntary manslaughter statute has been upheld against equal 

protection challenges. (Munoz, supra, 31 Cal.App.5th at p. 162; Wolfe, supra,

20 Cal.App.5th at p. 690.) Wolfe held that defendants charged with a Watson 

murder are not subjected to disparate treatment with regard to instructions 

on involuntary murder as a lesser included offense because not all defendants

charged with non-vehicular implied malice murder are entitled to such 

instructions: Since defendants are entitled to lesser included offense 

instructions only when there is substantial evidence to support the lesser 

charge, juries in some non-vehicular implied murder cases are also presented 

with an all-or-nothing choice between murder and acquittal. (Wolfe, at 

pp. 687–688.)20 The court went on to determine that even overlooking this 

threshold failure to establish disparate treatment of similarly situated 

persons, there was no fundamental right at issue and there was “a rational 

basis for allowing prosecutors to charge DUI drivers who commit homicides 

solely with implied malice murder, rather than manslaughter.” (Id. at 

p. 690.) Wolfe held that “the Legislature's charging scheme is rationally 

related to a legitimate governmental purpose: to appropriately punish—and 

20 Underwood criticizes Wolfe for defining the two groups of defendants 

it compared in a manner that allowed the court to find no disparate 

treatment. He argues the relevant comparison is within the group of all 

defendants charged with murder, where there is evidence the defendant 

acted without malice, between the defendants charged with murder based on 

an act involving driving a vehicle and those charged with murder by other 

means. For purposes of this discussion, we will assume the comparison 

groups to be as Underwood describes them.
35

also perhaps to discourage—people from engaging in the highly dangerous 

conduct of driving under the influence. (See People v. Wells (2006) 38 Cal.4th 

1078, 1086 [‘ “a drunk driver is not at all unlike a ‘bomb,’ and a mobile one at 

that” ’].)” (Ibid.)

Munoz “assume[d] for the sake of argument that the defendants 

charged with Watson murder are similarly situated to the defendants 

charged with other forms of implied malice murder, and that the law treats 

them differently” and, like Wolfe, concluded there was no basis for applying 

strict scrutiny. (Munoz, supra, 31 Cal.App.5th at pp. 159–160, 162.) Munoz 

held the statutes related to vehicular homicide were reasonably related to the

legitimate legislative purpose of “providing a wider and more nuanced range 

of penalties given the ubiquity of automobiles and the resulting deaths 

caused by motorists.” (Id. at p. 162.)

Munoz explained that “the Legislature reasonably could distinguish 

unintentional homicides committed in the driving of a vehicle from other 

unintentional homicides. Motor vehicles are a ‘leading cause of accidental 

deaths’ in this country. (Motor Vehicle Mfrs. Assn v. State Farm Mut. (1983) 

463 U.S. 29, 33.) Our Supreme Court expressly has identified deterrence of 

driving under the influence of alcohol as ‘a highly important governmental 

interest.’ (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1338.) [¶] Given the 

prevalence of deaths caused by motor vehicle accidents, the Legislature 

reasonably could conclude that the general involuntary manslaughter statute 

did not account sufficiently for the varying circumstances and levels of 

culpability (e.g., gross negligence, intoxication) arising in this all-too-common 

occurrence. The Legislature thus reasonably could define separate vehicular 

manslaughter offenses, with a wider range of penalties than would be 

available under the general involuntary manslaughter statute. (Cf. §§ 191.5, 
36

subd. (c)(1), (2), 193, subds. (b), (c)(1), (2).) The Legislature reasonably could 

add additional elements to the vehicular manslaughter statutes, such as 

‘driving a vehicle,’ to distinguish them from involuntary manslaughter. 

Having created a specific statutory scheme directed at unintentional 

vehicular homicides, the Legislature also reasonably could exclude vehicular 

homicides from the general involuntary manslaughter statute.” (Munoz,

supra, 31 Cal.App.5th at pp. 160–161.)

Contrary to Munoz and Wolfe, Underwood argues there is no rational 

basis for treating homicide involving driving more harshly than homicide by 

any other means.21 His argument focuses on the premise, discussed above, 

that the legislative intent behind the section 192, subdivision (b) exclusion of 

acts involving driving a vehicle was solely to avoid dual liability for the same 

act under both vehicular manslaughter statutes and the involuntary 

manslaughter statute, and not to punish vehicular homicides more harshly 

than other homicides. The argument is no more persuasive as the basis for 

an equal protection challenge than as a reason to depart from the express 

language of section 192, subdivision (b).

The rational review standard “ ‘does not depend upon whether 

lawmakers ever actually articulated the purpose they sought to achieve. Nor 

must the underlying rationale be empirically substantiated. [(Heller [v. Doe

(1993) 509 U.S. 312,] 320.)] While the realities of the subject matter cannot 

be completely ignored (id. at p. 321), a court may engage in “ ‘rational 

speculation’ ” as to the justifications for the legislative choice (id. at p. 320). 

It is immaterial for rational basis review “whether or not” any such 

speculation has “a foundation in the record.” ’ ([People v.] Turnage[ (2012) 

21 Underwood makes no real effort to argue for application of strict 

scrutiny. 
37

55 Cal.4th 62,] 74–75.) To mount a successful rational basis challenge, a 

party must ‘ “negative every conceivable basis” ’ that might support the 

disputed statutory disparity. (Heller, at p. 320; see Turnage, at p. 75.) If a 

plausible basis exists for the disparity, courts may not second-guess its 

‘ “wisdom, fairness, or logic.” ’ (Heller, at p. 319; see Turnage at p. 74.)” 

(Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)

As we have discussed, whatever the Legislature’s purpose in its initial 

adoption of the language that is now the section 192, subdivision (b) 

exclusion, the Legislature has maintained that exclusion throughout the 

development of a statutory scheme that treats vehicular manslaughter 

distinctly from involuntary manslaughter committed by other means. The 

Legislature’s choice to distinguish vehicular manslaughter from other forms 

of involuntary manslaughter and vehicular manslaughter while intoxicated 

from other forms of vehicular manslaughter, reflects its increasing concern 

with vehicular homicide in general and vehicular homicide while intoxicated 

in particular. For example, “[w]hen the Legislature enacted section 191.5, it 

stated: ‘The Legislature finds and declares that traffic accidents are the 

greatest cause of violent death in the United States and that over one-half of 

the ensuing fatalities are alcohol related. . . . In view of the severe threat to 

public safety which is posed by the intoxicated driver, there is a compelling 

need for more effective methods to identify and penalize those who 

voluntarily consume alcoholic beverages to the point of legal intoxication and 

thereafter operate a motor vehicle, thereby combining sharply impaired 

physical and mental faculties with a vehicle capable of exerting great force 

and speed and causing severe damage and death.’ (Stats. 1986, ch. 1106, § 1, 

pp. 3880–3881.)” (People v. Bennett, supra, 54 Cal.3d at pp. 1038–1039.) 
38

The Legislature “is afforded considerable latitude in defining and 

setting the consequences of criminal offenses.” (Johnson v. Department of 

Justice, supra, 60 Cal.4th at p. 887.) The section 192, subdivision (b) 

exclusion of acts involving driving a vehicle from the offense of involuntary 

manslaughter is an integral part of the statutory scheme chosen by the 

Legislature. The fact that the statutory scheme results in an all-or-nothing 

choice for the jury when a prosecutor charges a defendant with a Watson 

murder and does not also charge vehicular manslaughter does not invalidate 

the Legislature’s definition of the offenses. We join Wolfe and Munoz in 

concluding the Legislature’s exclusion of acts involving driving a vehicle from 

section 192, subdivision (b) is rationally related to a legitimate legislative 

purpose.

III.

Underwood Was Not Denied His Right to Present a Defense

“A criminal defendant has a well-established constitutional right to 

have counsel present closing argument to the trier of fact. (People v. 

Marshall (1996) 13 Cal.4th 799, 854.) ‘[The] right is not unbounded, 

however; the trial court retains discretion to impose reasonable time limits 

and to ensure that argument does not stray unduly from the mark.’ (Ibid.)” 

(People v. Benavides (2005) 35 Cal.4th 69, 110.) “We review a trial court's 

decision to limit defense counsel closing argument for abuse of discretion.” 

(People v. Simon (2016) 1 Cal.5th 98, 147.) 

A. Background

Underwood contends he was denied his constitutional right to present a 

defense by the trial court’s ruling that counsel could not argue Underwood 

was guilty of gross vehicular manslaughter. As earlier described, in response 

to the People’s in limine motion to prohibit the defense from arguing to the 
39

jury that Underwood was only guilty of vehicular manslaughter, the trial 

court ruled that it would not “(1) instruct on gross vehicular manslaughter, 

(2) allow the Defense to discuss that instruction or statute, or (3) allow the 

Defense to say that Mr. Underwood may have committed gross vehicular 

manslaughter.” The court explained that the defense was free to “fully argue 

that the People have not proven implied malice or any other element of 

murder,” that Underwood “drove under the influence of alcohol, did 

something that could cause death, acted with gross negligence, and killed Mr. 

Walker due to that negligence,” that “these facts may add up to a ‘different 

offense’ but not murder” and that Underwood’s conduct “was reckless in a 

way that created a high risk of death or great bodily injury—in other words, 

that his conduct was grossly negligent—but there was no implied malice.” 

Defense could not, however, argue “that this means [Underwood] is ‘guilty 

only of gross vehicular manslaughter’ or discuss that law or related 

instruction.” 

Later, the court reminded the parties of this ruling, noting that it felt 

the order had been violated during opening statements. When defense

counsel sought to clarify that the court was precluding the defense from “even 

mention[ing]” the word “manslaughter” or “gross vehicular manslaughter,” 

the court responded, “I can't imagine how you would say the word and . . . not 

violate the order. There might be some way, I am not envisioning it. . . . You 

can say this conduct was grossly negligent, you can say all that. But you 

can't say that he was—should have been·charged with gross vehicle 

manslaughter or he committed gross vehicle manslaughter.” 

B. Analysis

Underwood argues the trial court’s ruling prevented him from 

conveying his primary defense—that he was guilty of a lesser manslaughter 
40

offense but not guilty of murder. He acknowledges that defense counsel did 

argue that he was not guilty of murder, that there were “lesser forms of 

homicide that would actually be applicable to this case” and that “the 

Prosecution chose to charge [Underwood] with the most extreme form of 

homicide, murder.” He maintains, however, that defense counsel “could not 

give legitimacy to the argument by naming the lesser crime that the evidence 

supported or argue the elements were a better fit.” 

In essence, Underwood argues that his defense depended on being able 

to show the jury that the elements of gross vehicular manslaughter fit the 

facts of his offense better than the elements of murder. But since the jury did 

not have the option of convicting Underwood of gross vehicular 

manslaughter, referring to that offense and discussing its elements would 

have risked confusing the jury unnecessarily.

The point of discussing gross vehicular manslaughter would have been 

to convince the jury that the prosecutor overstepped by choosing not to charge 

an offense that fit the facts better than the more serious offense actually 

charged. Defense counsel was able to, and did, make this point forcefully

despite not naming the specific offense. Defense counsel argued, “Now when 

you first found out what happened in this case, you were probably a bit 

surprised that [Underwood] was being charged with murder and not a 

different form of homicide, maybe a lesser form of homicide. [¶] And you 

should trust your instincts when it comes to that because this, what 

happened here is not murder. There are other forms of homicide as you 

heard. There are lesser forms of homicide that would actually be applicable 

to this case. But the Prosecution chose to charge [Underwood] with the most 

extreme form of homicide, murder.” At another point, defense counsel argued

that “[t]his was stupid, reckless behavior plain and simple” but was stopped 
41

by a sustained objection when he began to say, “vehicular recklessness that 

leads to a death is a different—” Counsel then continued, “The Prosecution 

could have charged Mr. Underwood with something else if they wanted to do 

this fairly. Instead they chose to pursue the most extreme charge which 

must be reserved for only the most extreme conduct.” Defense counsel told 

the jury that “[c]onvicting [Underwood] of something so extreme when the

evidence does not support that would be a grave and irreversible injustice. 

[Underwood] bears responsibility but he is not guilty of murder.” 

Underwood quotes a portion of closing argument in which defense 

counsel, after arguing that Walker’s death was a tragedy but did not involve 

the “conscious decision-making” necessary for murder, stated that “[t]his was 

stupid, reckless behavior plain and simple” but was stopped by a sustained 

objection when he began to say “vehicular recklessness that leads to a death 

is a different—” Underwood acknowledges that his counsel then argued he 

was not guilty of murder but of “something less” but complains that counsel 

could not identify the lesser offense. He then points to several questions the 

jury asked during deliberations seeking clarification of instructions regarding 

implied malice and suggesting it was having difficulty reaching a verdict on 

one (unidentified) count.22 To the extent Underwood is arguing that the 

22 The jury asked for “[c]larification on ‘A natural and probable 

consequence is one that a reasonable person would know is likely to happen if 

nothing unusual intervenes’ from pg 31 in the form of definition and 

examples”; “[c]larification on pg 30 Implied Malice #3 ‘At the time he acted, 

he knew his act was dangerous to human life’ in terms of interpretation of 

‘knew’ ”; and “[c]larification or understanding of standard for pg 30, Implied 

Malice #4 ‘He deliberately acted with conscious disregard for human life.’ ” 

The jury also asked the court “[w]hat happens if we can’t agree on one of the 

counts? Is the one charge dismissed and the others still hold?” 
42

inability to expressly refer to gross vehicular manslaughter interfered with 

his ability to argue he lacked implied malice, we are again unpersuaded.

Defense counsel repeatedly stressed that Underwood acted recklessly 

but without the mental state of implied malice necessary for murder. As 

Underwood points out, defense counsel’s closing argument in effect focused on 

Underwood’s mental state by conceding much of his culpable conduct, 

including his prior DUI convictions, his decisions to drive after drinking 

(although not while feeling the effects of alcohol), with a suspended license,

without a required ignition interlock, well over the speed limit, with his 

daughter in the car and his attempts to avoid responsibility by lying to the 

police and Walker’s family. Counsel’s fundamental point was that 

Underwood did not intend or want to put anyone in danger or kill anyone: 

Counsel argued that Underwood’s conduct “was poor judgment but it was not 

implied malice. This was recklessness, yes, but it was not murder.” Counsel 

argued that convicting Underwood of murder “when the evidence does not 

support a charge that extreme is not true, proper accountability.” 

Specific reference to gross vehicular manslaughter would not have 

assisted defense counsel in explaining the concept of implied malice; it would 

simply have allowed counsel to name an offense the People could have 

charged rather than refer generally to charges not requiring implied malice. 

The court responded that it could not “give further instructions with 

additional definitions, examples, or explanations” but suggested that it “may 

(or may not) be helpful to read the instructions for Count 1 with the ‘act’ in 

mind” and provided a copy of the instructions pertaining to count 1 on which 

“driving under the influence” was substituted for each instance of “act.” The 

court further stated that if the jurors were unable to agree on count 1, “we 

can discuss whether short, further arguments by counsel about implied 

malice would be helpful.” The jury subsequently returned its verdicts 

without additional argument. 
43

As shown in the portions of closing argument we have quoted, defense 

counsel was fully able to make the point that the evidence showed 

Underwood’s poor judgment and reckless conduct but not that he knew his 

act of driving under the influence was “dangerous to human life” and 

“deliberately acted with conscious disregard for [human] life.” (CALCRIM 

No. 520 [defining implied malice].)

Underwood “was not precluded from making his central argument” by 

the trial court’s ruling. (People v. Simon, supra, 1 Cal.5th at p. 147.) 

Accordingly, we find no abuse of discretion. (Ibid.)

IV.

Several Sentence Enhancements Must Be Stricken

A. The Two Vehicle Code Section 23572 Enhancements Are Not 

Statutorily Authorized

In connection with counts 3 and 4, the jury found true the allegations 

that Underwood had a passenger under the age of 14. The trial court 

imposed a concurrent term of 30 days in county jail for the enhancement on 

count 3 and the same punishment on count 4, stayed pursuant to section 654. 

Vehicle Code section 23572 specifies additional penalties to be imposed 

on a person convicted of a violation of Vehicle Code section 23152 when a 

minor under 14 years of age was a passenger in the vehicle at the time of the 

offense. Counts 3 and 4 charged Underwood with violations of Vehicle Code 

section 23153, not section 23152. Accordingly, Underwood contends these 

two enhancements must be stricken. He also points out that even if Vehicle 

Code section 23572 applied to convictions of violating Vehicle Code 

section 23153, the enhancements would not apply to him because Vehicle 

Code section 23572, subdivision (c), specifies that “[n]o punishment 

enhancement shall be imposed pursuant to this section if the person is also 
44

convicted of a violation of Section 273a of the Penal Code arising out of the 

same facts and incident.” Underwood was convicted of child abuse in 

violation of section 273a, subdivision (a), in count 2. 

The People agree that these enhancements must be stricken. We 

concur.

B. Two of the Vehicle Code Section 23558 Enhancements Are Not 

Statutorily Authorized

On counts 3 and 4, Underwood was convicted of driving under the 

influence of alcohol causing injury to Walker, Kyaw and Underwood’s 

daughter (Veh. Code, § 23153, subd. (a)) and driving with over 0.08 percent 

blood alcohol level causing injury to the same three victims (Veh. Code, 

§ 23153, subd. (b)). In connection with both counts, the jury found true

allegations that Underwood caused bodily injury and death to the three 

victims. The trial court imposed one-year terms for each of the three victims 

pursuant to Vehicle Code section 23558.

23

Vehicle Code section 23558 provides that a person who proximately 

causes bodily injury or death “to more than one victim in any one instance of 

driving in violation of Section 23153 of this code” shall receive a one-year 

enhancement “for each additional injured victim.” (Italics added.) 

Underwood argues the language of Vehicle Code section 23558 requires that 

enhancements be imposed only for additional injured victims beyond the first. 

The People agree, as do we. Underwood may be sentenced to only two 

Vehicle Code section 23558 enhancements, not three.

23 On count 3, the court imposed the enhancements as to Kyaw and 

Underwood’s daughter to run concurrently and stayed the enhancement as to 

Walker pursuant to Penal Code section 654; the court stayed the 

enhancements on count 4 pursuant to Penal Code section 654. 
45

DISPOSITION

On each of counts 3 and 4, the enhancements under Vehicle Code 

section 23572 and corresponding punishment shall be stricken. 

On each of counts 3 and 4, one of the Vehicle Code section 23558 

enhancements and the corresponding one-year prison term for each of these 

enhancements shall be stricken.

The abstract of judgment shall be corrected accordingly.

In all other respects, the judgment is affirmed. 
46

_________________________

STEWART, P. J.

WE CONCUR:

_________________________

RICHMAN, J.

_________________________

MILLER, J.

People v. Underwood (A165026)