Opinion
E053416
01-13-2012
THE PEOPLE, Plaintiff and Respondent, v. JUANGABRIEL ARAYA, Defendant and Appellant.
Dennis P. O'Connell for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Heidi T. Salerno, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIF10001783)
OPINION
APPEAL from the Superior Court of Riverside County. James T. Warren, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Dennis P. O'Connell for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Heidi T. Salerno, Deputy Attorney General, for Plaintiff and Respondent.
Defendant and appellant Juangabriel Araya appeals the trial court's ruling that his conviction of vehicular manslaughter was a violent felony, based on a great bodily injury enhancement (for injury to another person in the accident). The finding that the vehicular manslaughter conviction was a serious or violent felony (strike) resulted in a greater limitation on defendant's ability to earn conduct credits while in prison. In other words, he will have to serve at least 85 percent of his two-year sentence because of the violent felony restriction on the earning of credits. Defendant attacks the great bodily injury enhancement, arguing that there was no underlying offense to which it could attach, because the conviction for vehicular manslaughter involved a different victim. We reject defendant's argument and affirm the sentence.
FACTS AND PROCEDURAL HISTORY
Defendant pleaded guilty before the preliminary hearing took place. Consequently, the summary of facts is taken from the initial probation report.
Sixteen-year-old Katie R. was the girlfriend of defendant, who was age 18 on the date of the incident. On April 18, 2009, Katie and her friend, 16-year-old Michaela Zickuhr, told Michaela's mother that they would be spending the night at the house of another girlfriend. In fact, they lied to Michaela's mother and instead went to defendant's home. Defendant planned to attend a dance that night. The girls wanted to make jewelry while they waited for defendant to return from the dance; defendant drove them to some shops to buy jewelry-making supplies before he went to the dance. When driving the girls to the shops, he at times drove in excess of 100 miles per hour. Both girls told defendant to slow down.
Katie and Michaela stayed at defendant's house while he went to the dance. He returned at approximately 11:00 p.m. Defendant, Katie, Michaela and another young man decided to go to an amusement park in Redlands to attend a party. They were refused entry, however, and returned to Riverside. Defendant dropped off the other young man on their return.
By then, it was nearly 2:00 a.m. The three companions decided to go pick up some food at a taco stand. Defendant was driving his truck, Katie sat in the front passenger seat, and Michaela sat in the backseat. On the return journey, defendant sped along the road, again reaching speeds of 100 miles per hour. Katie was concerned, but said nothing. Defendant, driving southbound, neither slowed nor stopped at a posted four-way-stop intersection. He collided with another vehicle that had entered from the east. The collision caused defendant's truck to veer to the southwest corner of the intersection, and roll over, striking a tree. The impact with the tree crushed the passenger compartment, killing Michaela in the backseat. Defendant's truck continued rolling and rotating, coming to rest approximately 145 feet south of the intersection. Katie, defendant, and the driver of the other vehicle were all injured in the accident. Of these three, Katie apparently suffered the more severe injuries: chin cut open, black eye, swollen cheeks, bruised hip and chipped teeth.
Defendant was charged with one count of vehicular manslaughter (death of Michaela) in violation of Penal Code section 192, subdivision (c)(l), with the allegation that, in the commission of the offense, he had personally inflicted great bodily injury on Katie R. in violation of Penal Code sections 12022.7, subdivision (a) (GBI enhancement) and 1192.7, subdivision (c) (serious felony or "strike").
On the eve of the preliminary hearing, defendant pleaded guilty to the charged offense and admitted the allegation. At the time of this change of plea, the court expressly advised defendant that his plea would "constitute a conviction of a violent crime and would be a strike under the California three-strikes law," and explained the consequences of a strike conviction, including "the contemplation that you'll be serving 85 percent of a two-year sentence." Defendant acknowledged on the record that he was aware of and accepted that result. The court then set a sentencing hearing.
In advance of the sentencing hearing, however, defense counsel filed a brief objecting to the designation of defendant's offense as a serious or violent (strike) felony. The sole point at issue was whether defendant would be required to serve 85 percent of his sentence, or whether he could earn 50 percent credit against his sentence. Penal Code section 2933.1 is one of a number of statutes that restricts the amount of credits an inmate may earn. Persons who have been convicted of qualifying violent felonies are restricted from earning credits that they otherwise might earn, and are required to serve at least 85 percent of the prison term imposed. Defendant argued that vehicular manslaughter is not, in itself, a violent felony under Penal Code section 667.5. He also argued that the GBI enhancement cannot be applied to a vehicular manslaughter conviction; although it might attach to a violation of Vehicle Code section 25153, subdivision (a) or (b) (driving under the influence causing bodily injury, or driving with a blood-alcohol level of 0.08 percent or more and causing bodily injury), so as to render that offense a qualifying violent felony, it could not attach to a vehicular manslaughter charge. In the absence of some underlying criminal offense alleged as to the injury to Katie R. herself, there was no offense to which the GBI enhancement could attach, and therefore defendant's conviction was not a qualifying violent felony for purposes of restricting his ability to earn credits against his sentence.
The People opposed defendant's contention, relying on People v. Weaver (2007) 149 Cal.App.4th 1301. In Weaver, the defendant was involved in a collision in which one person was killed and another was severely injured. Even though the substantive crime of vehicular manslaughter was victim-specific as to the person who was killed in the collision, the appellate court upheld the imposition of a three-year GBI enhancement, based on the injuries to persons other than the deceased victim of the vehicular manslaughter. (Id. at p. 1335.)
The trial court was persuaded by the close analogy of Weaver and proceeded to impose sentence, finding that the conviction was a violent felony (based on the enhancement) and thus restricting defendant's ability to earn credits.
Defendant now appeals.
ANALYSIS
The Trial Court Properly Held Defendant's Offense Was a Violent Felony,
Subject to the Limitations on the Earning of Credits
As defendant correctly notes, Penal Code section 2933.1 prescribes a limitation on the earning of custody credits for persons who are convicted of qualifying felonies (i.e., those listed in Pen. Code, § 667.5, subd. (c)). Penal Code section 667.5, subdivision (c)(8), provides that one such qualifying violent felony is, "Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice. . . ."
As defendant also recognizes, the true finding of a GBI enhancement satisfies the meaning of a person who " ' "is convicted of a [violent] felony" ' " within the meaning of Penal Code section 2933.1. (In re Pope (2010) 50 Cal.4th 777, 783.)
In Pope, the defendant, like defendant here, drove his vehicle recklessly, causing a collision in which another person was killed. The defendant in Pope pleaded guilty to one count of driving under the influence (Veh. Code, § 23153, subd. (a)), and one count of driving with an unlawful blood-alcohol level, causing injury (Veh.Code § 23153, subd. (b)). As to each of these counts, he admitted enhancement allegations that the offenses caused great bodily injury. (Pen. Code, § 12022.7, subd. (a).) Because of the GBI enhancements, each of these two counts constituted a qualifying violent felony for the purpose of the credit restrictions imposed by section 2933.1, subdivision (a). In addition to the driving-under-the-influence offenses, the defendant also pleaded guilty to gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5, subd. (a).) No enhancement was alleged as to that count, because the only person who was injured was the same person who was the victim of the vehicular manslaughter. In and of itself, vehicular manslaughter is not a qualifying violent felony for the purpose of the credit restrictions imposed by section 2933.1, subdivision (a). (In re Pope, supra, 50 Cal.4th at p. 780.)
Because it carried a longer prison term, the vehicular manslaughter count was designated as the principal count. The sentences on the intoxicated driving offenses were imposed, but stayed under Penal Code section 654. Nevertheless, the California Supreme Court held that the stayed offenses, which were violent felonies that restricted the defendant's ability to earn credits, rendered the 15 percent restriction applicable to the defendant's entire sentence: because the defendant met the definition of a person who "is convicted" of a qualifying violent felony, he could not earn more than 15 percent credits on his prison sentence, notwithstanding that the principal count was not itself a qualifying violent felony. (In re Pope, supra, 50 Cal.4th at p. 784.)
Defendant points to In re Gomez (2009) 179 Cal.App.4th 1272, for the proposition that vehicular manslaughter is not, in itself, a violent felony under Penal Code section 667.5. In Gomez, the defendant had crashed his car into a tree, killing his passenger. He was charged with four separate offenses arising out of the one incident and the one death. He pleaded guilty to two counts of vehicular manslaughter, and two counts of impaired driving (Veh. Code, § 23153, subds. (a) [DUI causing bodily injury], and (b) [driving with 0.08 percent blood alcohol causing injury]). He also admitted a GBI enhancement as to each of the intoxicated driving violations. The trial court had sentenced the defendant on one of the vehicular manslaughter counts, but stayed all the others. The appellate court had held that the vehicular manslaughter was not, in itself, a violent felony, and the counts that would qualify as violent felonies (intoxicated driving plus GBI enhancements) had been stayed. Thus, the reviewing court had determined that the defendant would qualify to earn full custody credits, as the only qualifying violent felony counts had been stayed. On this issue, however, the California Supreme Court in Pope specifically disapproved Gomez; when the defendant has been convicted of a qualifying violent felony, the credits restrictions apply to the entire sentence, even if the sentence on the qualifying violent felony has itself been stayed. (In re Pope, supra, 50 Cal.4th at p. 785, fn. 3.)
Defendant argues that there is no underlying offense to which the GBI enhancement can attach. This is mistaken. It is true that Penal Code section 12022.7, subdivision (g), precludes the allegation of a GBI enhancement for murder, manslaughter, or where the infliction of GBI is an element of the offense. However, the restriction applies when the victim of the murder, manslaughter or GBI-based-element is the same person as the person alleged in the enhancement allegation. In other words, where there is a victim of murder or manslaughter, that victim is already dead, and has already suffered as grievous a bodily injury as is possible. That offense cannot be bootstrapped into enhanced punishment for the infliction of great bodily injury, which can consist only of the same death which is an element of the crime.
Here, however, there was more than one victim. There is no GBI enhancement alleged as to the same person who was the victim of the vehicular manslaughter (Michaela). Rather, the GBI enhancement pertains to a second, injured, victim Katie R. Unlike a situation in which the enhancement is alleged as to the same person who is the victim of the murder or manslaughter, the GBI enhancement allegation relates to additional conduct of the defendant, which renders his crime more reprehensible than it already was.
People v. Weaver, supra, 149 Cal.App.4th 1301, at pages 1330-1331, is on all fours with this case. There, as here, there were two people who were injured. One was the victim of the underlying offense of vehicular manslaughter. The other was a person who was also injured by the defendant's conduct. Defendant's claim that there is no underlying offense to which the enhancement can attach is simply incorrect. Of course there is: it attaches to the vehicular manslaughter count. Penal Code section 12022.7, subdivision (a), provides that: "(a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years." Defendant personally inflicted GBI on Katie, in the course of committing the felony of vehicular manslaughter of Michaela. There is no exception which would excuse the imposition of the enhancement. The imposition of the enhancement renders his conviction a violent felony. The trial court therefore properly held that defendant was required to serve 85 percent of his stated sentence, and the restriction on his earning of credits applied.
DISPOSITION
The court properly ruled that defendant had been convicted of a violent felony and that he was subject to the limits on the earning of credits as stated in Penal Code section 2933.1. The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
MILLER
J.