Opinion
F072513
04-11-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT MICHAEL JIRON, Defendant and Appellant.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CMS0710)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Robert Michael Jiron (defendant) stands convicted, following a jury trial, of driving under the influence of a drug and causing bodily injury, during which he proximately caused bodily injury to two other persons and personally inflicted great bodily injury on three other persons (Veh. Code, §§ 23153, former subd. (e), 23558; Pen. Code, § 12022.7, subd. (a); count 1), child endangerment (§ 273a, subd. (a); count 2), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count 3). He was sentenced to 17 years 8 months in prison, and ordered to pay restitution, along with various fees, fines, and assessments.
Further statutory references are to the Penal Code unless otherwise stated.
In addition, defendant received an eight-month consecutive term in Kings County Superior Court case No. 15CM3557A, which is not before us on this appeal.
On appeal, we hold: the enhancements alleged after defendant waived his right to a preliminary hearing must be stricken; there was no prejudicial instructional error; the trial court erred by imposing full prison terms for enhancements attached to a subordinate term; and the sentence on count 3 must be stayed pursuant to section 654. Accordingly, we affirm the convictions, strike all section 12022.7, subdivision (a) enhancements and all but one Vehicle Code section 23558 enhancement, and remand the matter for resentencing.
The current abstract of judgment incorrectly shows count 2A to be a violation of section 237a, subdivision (a), instead of section 273a, subdivision (a). We assume this will be corrected upon resentencing.
FACTS
I
PROSECUTION EVIDENCE
On the evening of March 15, 2015, Judith Boudreau was driving Cynthia Libby, Nancy Burkhart, and Carolyn Deines home to Fresno. Boudreau was traveling northbound on Highway 41, which had two lanes in each direction with a dirt median between them, at a speed of 58 miles per hour. As she approached Lacey Boulevard, she was blinded by headlights coming from the left. She did not have time to react and struck a vehicle being driven by defendant. Boudreau had the right of way.
Unspecified dates in this opinion are to the year 2015.
Mary Graveline was following Boudreau in her own vehicle and witnessed the collision. She saw headlights of a vehicle stopped on Lacey Boulevard, west of the southbound lanes of Highway 41. The vehicle then sped across Highway 41, directly in front of Boudreau, and was struck by Boudreau's vehicle. Boudreau's vehicle spun around and came to rest on the shoulder of the highway, facing east.
Antonio Valenzuela also witnessed the collision. Valenzuela was on the east side of Highway 41, heading west on Lacey Boulevard. As he was waiting to cross, he saw defendant's vehicle accelerating at a high rate of speed southbound on Highway 41, then defendant missed the Lacey exit, slammed on his brakes in the middle of the highway, put his car in reverse, and accelerated in reverse so fast his tires were smoking. Once the vehicle's front end got in a turning position on the Lacey turn-off, defendant "gunned" the car across the highway, but was not fast enough. Boudreau's vehicle, which had the right of way, had no chance to stop. Her vehicle struck the back end of defendant's car, and defendant's car spun out, went through two telephone poles, and came to rest in a field. Defendant got out of the car and leaned against the passenger side door. He was holding his head and appeared disoriented.
California Highway Patrol Officer Trejo responded to the scene and contacted defendant. As they were speaking, Trejo noticed defendant's pupils were constricted, despite the fact the area was dark. Defendant's demeanor was a bit somber and lethargic, and he was sluggish although he said he was uninjured. Trejo suspected opiate use. At first, defendant denied having taken anything, but then he said he had taken one Norco the previous night and one that morning.
Trejo administered several field sobriety tests, which defendant was unable successfully to complete. Trejo opined defendant was under the influence of a drug and unable safely to operate a motor vehicle, which led to the collision. Trejo then arrested defendant, from whom a blood sample subsequently was drawn. The blood tested positive for methamphetamine at 0.16 milligrams per liter, which was a higher level than would be expected from someone taking the drug under a doctor's care. Amphetamine, the metabolized form of the drug, was present at a level of .02 milligrams per liter.
Methamphetamine is a central nervous system stimulant. Initially, the user is excited and reactive to stimuli. His or her pupils are very dilated and sensitive to light. The individual is quick to make decisions and, if the decision is wrong, he or she tends to overcorrect the mistake. Over time, the individual becomes sleep deprived, which causes the user to become sluggish and slow in his or her responses. His or her pupils are constricted, causing the individual to have tunnel vision. The individual's reactions and correction of a poor decision are slow. The drug remains active in the body for several hours to even days.
Defendant's behavior and pupillary size were consistent with defendant coming down from methamphetamine. Toxicologist Bill Posey, who testified as an expert in the area of toxicology, drug analysis, and drug symptomology, opined a hypothetical person with the same level of methamphetamine in his or her system, same pupil size, and same demeanor, driving at the same time of evening, would be slow in decision-making and in performance of the driving task. He or she would be under the influence and unable to drive with the same care of caution as a sober individual.
Deines suffered a fractured sternum and multiple rib fractures on the right side. She also had a hematoma in her abdominal wall, where the seatbelt had caused an incision from an earlier surgery to open, and a hematoma on the right shin. She was hospitalized for four days. Libby sustained multiple rib fractures, a compression fracture to one of her lumbar vertebra, a bleeding spleen, and a blood clot in her lung. She was hospitalized for two weeks and unable to walk during that time. She was in a lot of pain for three months after the accident, and still experienced some pain at the time of trial. Boudreau sustained numerous painful bruises. She was diagnosed with high blood pressure shortly after the collision. Burkhart suffered cracked ribs, a fracture of the area just above the sternum, whiplash, bruising on her legs (one of which was bleeding), and a hematoma to her chest. She was "kind of a mess" for a least a week, and still had trouble with the whiplash at the time of trial.
Elizabeth Herrera and a one-year-old child were passengers in defendant's vehicle. Herrera's medical records (which were admitted by stipulation) revealed she was unable to ambulate after the collision and suffered right hip pain and "lspine" pain.
II
DEFENSE EVIDENCE
Defendant testified and admitted using methamphetamine the morning before the collision. He was not sure how much, and he did not use any the day the accident occurred. He was able to sleep without difficulty the night before the accident. By then, the effects of the methamphetamine had worn off.
When the collision occurred, defendant was making a left turn after traveling southbound. Herrera and defendant's daughter were in the car with him. Defendant, who was driving from Sacramento, was not familiar with the area. At the last minute, he was told to turn left on Lacey. He got over and was slowing down, but either did not slow quickly enough or was not aware of the proper time at which to slow, and so he drove into the dirt median. He put the vehicle in reverse, which kicked up dirt and gravel that may have looked like smoke. He stopped and went to turn left. The road appeared to be clear to cross. He saw vehicles coming, but he did not realize how fast they were going, because he did not know they were on a highway. He thought it was a regular, two-lane country road. As he crossed, he heard a horn, looked to his right, and saw headlights. He tried to accelerate in order to clear the oncoming vehicle that ended up hitting the rear of his car.
Defendant initially told Trejo he had not consumed any drugs. When Trejo insisted defendant had to be under the influence of something, defendant, who had a toothache, admitted taking one of his father's Norcos that morning and the night before.
Defendant's driver's license was suspended at the time of the collision. Defendant was aware of this fact when he drove.
DISCUSSION
I
ADDITION OF ENHANCEMENTS FOLLOWING WAIVER OF PRELIMINARY HEARING
On appeal, defendant initially claimed he was denied his Sixth Amendment right to the effective assistance of counsel, because trial counsel failed to object to the addition of one bodily injury, and three great bodily injury, enhancements to the information after the preliminary hearing was waived. (See People v. Fernandez (2013) 216 Cal.App.4th 540, 555.) We directed the parties to address whether defendant's due process rights were violated by the addition of the new allegations. In his supplemental brief, the Attorney General accurately argues, inter alia, that defendant waived any due process claim by failing to raise such an objection in the trial court. (See, e.g., Yakus v. United States (1944) 321 U.S. 414, 444; People v. Virgil (2011) 51 Cal.4th 1210, 1250; People v. Seaton (2001) 26 Cal.4th 598, 640-641; People v. Fernandez, supra, 216 Cal.App.4th at p. 555.) We exercise our discretion, however, to address the issue on the merits. (See People v. Butler (2003) 31 Cal.4th 1119, 1128; People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; People v. Barber (2002) 102 Cal.App.4th 145, 150.) A. Procedural History
Had we addressed the issue as framed, we would have rejected the contention and directed defendant to whatever remedy he might have by way of a petition for writ of habeas corpus. This is so because, although we might have doubted whether a satisfactory explanation for counsel's omission could be provided, we could not have concluded, based on the record on appeal, that one could not be. (See People v. Kipp (1998) 18 Cal.4th 349, 367; People v. Bell (1989) 49 Cal.3d 502, 546.) The Attorney General observes that a timely objection would have forced the prosecutor to forgo the amendments or dismiss and refile the case, thereby delaying defendant's trial - something defendant may not have wanted.
Because we are concerned only with the enhancement allegations appended to count 1, we limit our recitation of the procedural history accordingly.
Count 1 of the original complaint, which was filed March 17, charged defendant with violating Vehicle Code section 23153, former subdivision (e), in that he drove a vehicle, while under the influence of a drug, and did an act forbidden by law that proximately caused bodily injury to Herrera, Deines, Libby, and Burkhart.
Driving under the influence of a drug and proximately causing bodily injury is now proscribed by subdivision (f) of Vehicle Code section 23153.
A first amended complaint was filed on March 19. Count 1 charged defendant with violating Vehicle Code section 23153, former subdivision (e), in that he drove a vehicle while under the influence of a drug, and did an act forbidden by law that proximately caused bodily injury to another person. Four enhancement allegations — one each for Herrera, Deines, Libby, and Burkhart — asserting defendant "proximately caused bodily injury and/or death" in violation of Vehicle Code section 23558, were appended to the charge.
On May 28, the parties waived a preliminary hearing. As a result, defendant was held to answer on the charges and allegations contained in the first amended complaint.
The information was filed on June 11. Count 1 and the four Vehicle Code section 23558 allegations were unchanged. Added to count 1, however, were two allegations pursuant to section 12022.7, subdivision (a), which asserted defendant personally inflicted great bodily injury on Deines and Libby, thereby causing the offense to become a serious felony under the three strikes law.
At the trial confirmation hearing on August 14, the People tendered a first amended information. Defendant raised no objection. Added to the enhancement allegations contained in the original information was a bodily injury allegation pursuant to Vehicle Code section 23558 in which Boudreau was the named victim, and a great bodily injury allegation pursuant to section 12022.7, subdivision (a), in which Burkhart was the named victim.
A second amended information was tendered by the People, and accepted by the court without objection, on August 18, during the evidentiary portion of trial. It did not alter count 1 or the special allegations appended thereto.
Trial began on August 17. On August 19, jurors convicted defendant of violating Vehicle Code section 23153, former subdivision (e). They further found he (1) did proximately cause bodily injury to Boudreau and Herrera, within the meaning of Vehicle Code section 23558; (2) did personally inflict great bodily injury on Burkhart, Deines, and Libby, within the meaning of section 12022.7, subdivision (a); and (3) did not proximately cause bodily injury to Burkhart, Deines, or Libby, within the meaning of Vehicle Code section 23558. B. Analysis
At the time he waived his right to a preliminary hearing, defendant was facing, with respect to count 1, four separate one-year enhancement allegations, pursuant to Vehicle Code section 23558, asserting he proximately caused bodily injury and/or death. By the time the case was submitted to the jury, he was facing five separate one-year enhancement allegations pursuant to Vehicle Code section 23558, plus three separate three-year enhancement allegations, pursuant to section 12022.7, subdivision (a), asserting he personally inflicted great bodily injury.
At issue is the propriety of the addition of the Vehicle Code section 23558 enhancement allegation with respect to Boudreau, and all three section 12022.7, subdivision (a) enhancement allegations. We conclude the four enhancements must be stricken.
It is a "preeminent principle that one accused of a crime must be 'informed of the nature and cause of the accusation.' [Citation.] 'It is fundamental that "When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.] This reasoning rests upon a constitutional basis: 'Due process of law requires that an accused be advised of the charges against him in order that he may have a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial.' [Citation.]" [Citation.]' [Citations.] 'No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.' [Citation.]" (People v. Thomas (1987) 43 Cal.3d 818, 823.)
"Article I, section 14, of the California Constitution provides in pertinent part: 'Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment of a magistrate, by information.' Our Constitution thus requires that 'one may not be prosecuted in the absence of a prior determination of a magistrate or grand jury that such action is justified.' [Citation.] 'Before any accused person can be called upon to defend himself on any charge prosecuted by information, he is entitled to a preliminary examination upon said charge, and the judgment of the magistrate before whom such examination is held as to whether the crime for which it is sought to prosecute him has been committed, and whether there is sufficient cause to believe him guilty thereof. These proceedings are essential to confer jurisdiction upon the court before whom he is placed on trial.' [Citation.]" (People v. Burnett (1999) 71 Cal.App.4th 151, 165.)
" '[I]n modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords defendant practical notice of the criminal acts against which he must defend.' . . . '[A]n information plays a limited but important role: It tells a defendant what kinds of offenses he is charged with (usually by reference to a statute violated), and it states the number of offenses (convictions) that can result from the prosecution. But the time, place and circumstances of charged offenses are left to the preliminary hearing transcript; it is the touchstone of due process notice to a defendant.' [Citation.]" (People v. Butte (2004) 117 Cal.App.4th 956, 959, italics omitted; see People v. Jones (1990) 51 Cal.3d 294, 317-318; People v. Thomas, supra, 43 Cal.3d at p. 829.)
Consonant with these principles, section 1009 provides, in pertinent part: "The court in which an action is pending may order or permit an amendment of an . . . information, . . . for any defect or insufficiency, at any stage of the proceedings . . . . An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." (Italics added.)
Where a preliminary hearing has been held, an information generally may be amended, even at the close of trial, where no prejudice is shown. (People v. Graff (2009) 170 Cal.App.4th 345, 361-362; People v. Pitts (1990) 223 Cal.App.3d 606, 903-904.) " 'In light of the notice function played by the preliminary hearing transcript, . . . a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information.' " (People v. Luna (1988) 204 Cal.App.3d 726, 748, disapproved on another ground in People v. Jones, supra, 51 Cal.3d at p. 322; accord, People v. Arevalo-Iraheta (2011) 193 Cal.App.4th 1574, 1581.) However, "even where the prosecution complies with the necessary procedures and no specific prejudice is shown, appellate courts are compelled to reverse convictions where substantial evidence was presented at trial that did not correspond to the charges established at the preliminary hearing. [Citations.]" (People v. Graff, supra, 170 Cal.App.4th at p. 362.)
Where, as here, no preliminary hearing was held, the rule is even more constrained. "It is well settled that where a defendant waives a preliminary hearing, the prosecution may not amend the information to add new charges. [Citations.] This is so, even if the amendment would not prejudice the defendant or if the defendant had notice of the facts underlying the new charges. [Citation.]" (People v. Rogers (2016) 245 Cal.App.4th 1353, 1360, italics omitted (Rogers); accord, People v. Peyton (2009) 176 Cal.App.4th 642, 654 (Peyton); People v. Winters (1990) 221 Cal.App.3d 997, 1007 (Winters).) These principles apply equally to conduct enhancements. (Rogers, supra, 245 Cal.App.4th at pp. 1362-1363; see People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 762, fn. 8, 764, superseded by statute on another ground as stated in In re Jovan B. (1993) 6 Cal.4th 801, 814, fn. 8; cf. Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 148-149.)
Clearly, the Vehicle Code section 23558 enhancement based on injuries to Boudreau cannot stand. There were no allegations of injury to her in the first amended complaint that was in existence when the parties waived the preliminary hearing. The Attorney General says, however, that defendant's due process rights were not violated by the addition of the great bodily injury enhancements alleged, pursuant to section 12022.7, subdivision (a), as to Burkhart, Deines, and Libby. The Attorney General reasons defendant had actual notice from the first amended complaint that he was alleged to have proximately caused bodily injury or death to four victims, and this placed him on notice he potentially could face great bodily injury allegations as to those victims.
Vehicle Code section 23558 provides, in part: "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, upon a felony conviction, . . . receive an enhancement of one year in the state prison for each additional injured victim." The first amended complaint alleged, pursuant to this section, that defendant "proximately caused bodily injury and/or death to" Deines, Libby, Burkhart, and Herrera.
We agree Vehicle Code section 23558 and the wording of the first amended complaint, which essentially tracked the statutory language, encompass great bodily injury even though they make no express reference thereto. In so concluding, we recognize the statute uses the words "bodily injury" and "death" in the disjunctive. " ' "Bodily injury means just what it says — harm or hurt to the body. . . ." ' [Citation.] 'Bodily injury' does not mean substantial or great bodily injury. [Citation.]" (People v. Thoma (2007) 150 Cal.App.4th 1096, 1099-1100.)
"Words used in a statute . . . should be given the meaning they bear in ordinary use. [Citations.] If the language is clear and unambiguous there is no need for construction . . . . [Citations.]" (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) On the other hand, "it is settled that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences that the Legislature did not intend. To this extent, therefore, intent prevails over the letter of the law and the letter will be read in accordance with the spirit of the enactment. [Citation.]" (In re Michele D. (2002) 29 Cal.4th 600, 606; accord, People v. Belton (1979) 23 Cal.3d 516, 526.)
"The Legislature enacted [Vehicle Code section 23182] in response to Wilkoff v. Superior Court (1985) 38 Cal.3d 345 which held the state may charge a drunk driver who injures several persons in a single car accident with only one count each of felony drunk driving and driving with an excessive blood-alcohol level resulting in injury. [Citation.] Thus, [Vehicle Code] section 23182's purpose is to increase the potential punishment available in certain cases where an alcohol- or drug-impaired individual operating a vehicle or watercraft causes an accident which results in multiple injuries, not to limit the use of another otherwise applicable enhancement [e.g., section 12022.7]." (People v. Arndt (1999) 76 Cal.App.4th 387, 393-394.) The same is true of Vehicle Code section 23558, the successor of Vehicle Code section 23182. (People v. Weaver (2007) 149 Cal.App.4th 1301, 1328, disapproved on another ground in People v. Cook (2015) 60 Cal.4th 922, 939.)
To hold that Vehicle Code section 23558 can only increase the punishment available when the defendant causes an accident resulting in multiple instances of bodily injury (a minimal amount of harm or hurt to the body) or death, and not when the accident results in multiple instances of "significant or substantial" physical injury (as great bodily injury is defined in § 12022.7, subd. (f)) clearly would result in absurd consequences the Legislature did not intend. Taken to a logical conclusion, such a reading of the statute would mean that if the prosecutor in this case had proceeded to trial on an accusatory pleading that alleged only Vehicle Code section 23558 enhancements as to all the victims, we would be required to strike those enhancements with respect to Burkhart, Deines, and Libby, because Vehicle Code section 23558 does not encompass great bodily injury, and the trial evidence established those three victims sustained such injury. Or, in a different scenario, a prosecutor would be unable to exercise charging discretion to allege Vehicle Code section 23558 enhancements, and instead would have to allege the substantially more punitive section 12022.7 enhancements, in every case in which the medical reports showed more than a minor injury but less than death. Although we find Vehicle Code section 23558 encompasses great bodily injury, the due process inquiry does not end there.
Defendant was on notice, from the language of Vehicle Code section 23558 and the first amended complaint, that he faced a one-year enhancement for each victim as to which he proximately caused some level of injury. He was not on notice, that he faced a three-year enhancement for each victim as to which he personally inflicted more than minor injury. Proximate causation and personal infliction are not necessarily the same thing. (See People v. Bland (2002) 28 Cal.4th 313, 337-338.) Moreover, "a defendant has a cognizable due process right to fair notice of the specific sentence enhancement allegations that will be invoked to increase punishment for his crimes." (People v. Mancebo (2002) 27 Cal.4th 735, 747; see Gautt v. Lewis (9th Cir. 2007) 489 F.3d 993, 1014.)
"To be considered a proximate cause . . . , the acts of the defendant[] must have been a 'substantial factor' contributing to the result. [Citations.]" (People v. Caldwell (1984) 36 Cal.3d 210, 220.) In contrast, " ' "the phrase 'personally inflicts' means that someone 'in person' [citation], that is, directly and not through an intermediary, 'cause[s] something (damaging or painful) to be endured' [citation]." [Citation.]' [Citation.]" (People v. Slough (2017) 11 Cal.App.5th 419, 423.) For the section 12022.7 enhancement to apply, " 'the defendant must be the direct, rather than [the] proximate, cause of the victim's injuries.' [Citations.]" (People v. Elder (2014) 227 Cal.App.4th 411, 418.)
People v. Wilford (2017) 12 Cal.App.5th 827 illustrates this point. In that case, counts 5 and 6 of the amended information alleged the defendant committed a violation of section 273.5, subdivision (a) (willful infliction of corporal injury on a specified person), which carried a sentence range of two, three, or four years. Also alleged as to each of those counts was a prior conviction allegation under section 273.5, subdivision (h)(1), the effect of which was a minimum sentence of 15 days in custody. The jury convicted the defendant of counts 5 and 6, and the trial court found true the prior conviction allegations as to those counts. Prior to sentencing, however, the prosecutor requested that the court sentence the defendant, on counts 5 and 6, to a term of two, four, or five years pursuant to section 273.5, subdivision (f)(1) (conviction of specified offense within seven years of prior conviction of specified offense), based on the trial court's true finding of the prior conviction allegation under subdivision (h)(1) of the statute. The trial court used the harsher triad in imposing sentence. (Wilford, supra, at pp. 835-836.)
On appeal, the defendant claimed the sentence must be reversed, because the prosecutor pled an enhancement under subdivision (h)(1) of section 273.5, instead of subdivision (f)(1) of that statute. In pertinent part, the People argued the amended information alleged every fact necessary to impose sentence under subdivision (f)(1) of section 273.5 was alleged in the amended information and found true. (People v. Wilford, supra, 12 Cal.App.5th at pp. 836, 838.) The appellate court stated: "We agree with the People, but their argument does not carry the day. The problem here was that [the defendant] was not appraised of the possible prison sentence he was facing." (Id. at p. 838.) "[I]t is undisputed that the amended information did not warn [the defendant] that a finding of a prior qualifying conviction under section 273.5, subdivision (h)(1) would increase his sentence range under counts 5 and 6 from two, three, or four years to two, four, or five years. (See § 273.5, subd. (f)(1).) And although the facts necessary to impose the sentence under section 273.5, subdivision (f)(1) are the same as were alleged under section 273.5, subdivision (h)(1), there is no indication in the amended information of the possibility of this increased punishment. This is a critical shortcoming here where [the defendant] was offered and rejected a plea bargain prior to trial. [Citation.]" (Id. at p. 840.)
In the present case, the Attorney General cites us to Peyton, supra, 176 Cal.App.4th 642, as support for his position. Peyton does not assist him, however.
In Peyton, at the time the defendant waived his preliminary hearing, he was charged with four counts of aggravated sexual assault (§ 269), three of which alleged oral copulation and one that alleged sexual penetration. The prosecutor subsequently filed two amended informations, one on the first day of trial and the second following the presentation of the prosecution's case. Under the amended informations, the defendant was again charged with four counts of aggravated sexual assault, but now three alleged sexual penetration and one alleged oral copulation. In addition, he was charged with a new count of forcible lewd conduct (§ 288, subd. (b)(1)). (Peyton, supra, 176 Cal.App.4th at p. 649.)
Relying in large part on Winters, supra, 221 Cal.App.3d 997, the appellate court held the section 288, subdivision (b)(1) conviction must be reversed, because the count was added after the defendant waived his right to a preliminary hearing. (Peyton, supra, 176 Cal.App.4th at pp. 652-653.) The court found, however, that the section 269 charges were properly amended, because the alterations constituted a variance in pleadings. (Peyton, supra, at p. 659.) The court reasoned that all of the pleadings consistently alleged four section 269 charges based on either forcible oral copulation or forcible sexual penetration; each pleading dealt with one victim and with conduct occurring over a limited time frame; and the only difference between the accusatory pleading to which the defendant waived his right to a preliminary hearing and that on which he was convicted, was that the bases of two of the four charges were changed from oral copulation to sexual penetration. (Peyton, supra, at p. 269.) The court further observed that the amendments did not prejudice the defendant's ability to prepare and present his defense to the charges as originally alleged, since the defendant denied engaging in any illegal conduct whatsoever. (Ibid.)
In Rogers, supra, 245 Cal.App.4th 1353, the People relied on Peyton as authority for permitting the addition of a great bodily injury enhancement after the defendant waived his right to a preliminary hearing. The Court of Appeal disagreed, stating: "Unlike the amendments in Peyton, which did not involve a new charge — a circumstance that the Peyton court saw as distinguishing the amendments in that case from the amendments in Winters — the enhancement here involved a new allegation and a different Penal Code provision. Also, in contrast to Peyton, the allegation here exposed defendant to additional punishment not available when he waived his preliminary hearing. Thus, the addition of the conduct enhancement allegation constituted a 'significant variance' from the original charges." (Rogers, supra, at p. 1364.)
We find Rogers persuasive. The amendments in the present case exposed defendant to additional punishment not available when he waived his preliminary hearing. Defendant's due process right to notice of the charges against him was violated by the addition of the Vehicle Code section 23558 enhancement allegation as to Boudreau, and the section 12022.7, subdivision (a) enhancement allegations as to Burkhart, Deines, and Libby.
We assume such error is subject to harmless-error review under Chapman v. California (1967) 386 U.S. 18 (Chapman), rather than being structural error that is subject to automatic reversal. (See Davis v. Ayala (2015) 576 U.S. ___, ___ [135 S.Ct. 2187, 2197]; Gautt v. Lewis, supra, 489 F.3d at pp. 1014-1016.) Defendant clearly suffered prejudice under this standard. The improper enhancements added years to his sentence. As trial counsel did not request a continuance to meet the new allegations, we assume his defense preparation and strategy were not affected. Nevertheless, we cannot conclude, beyond a reasonable doubt, the lack of notice had no effect on defendant's decision whether to accept the plea offer that, the record shows, had been held open in conjunction with defendant's waiver of his preliminary hearing. As the amended complaint did not provide defendant with notice he could be subject to three-year great bodily injury enhancements, defendant did not have the information needed to make an informed decision. (See People v. Wilford, supra, 12 Cal.App.5th at p. 840.)
A defendant might choose to defend against the underlying offense and not mount a separate defense to Vehicle Code section 23558 allegations, based on a tacit acknowledgment that if the jury finds he or she committed the underlying offense, true findings on the bodily injury allegations are a foregone conclusion. By contrast, a defendant might choose to present expert medical or other evidence to rebut a claim he or she personally inflicted great bodily injury.
The Vehicle Code section 23558 enhancement naming Boudreau as the victim, and the section 12022.7, subdivision (a) enhancements naming Burkhart, Deines, and Libby as victims, must be stricken. Although the first amended complaint alleged Vehicle Code section 23558 enhancements as to Burkhart, Deines, and Libby, the jury returned the equivalent of not true findings thereon. As a result, we cannot modify the judgment to provide for those enhancements in lieu of the great bodily injury enhancements. Because no evidence was introduced that would not have been admissible on the original charges and enhancement allegations, however, complete reversal is not warranted. (See Rogers, supra, 245 Cal.App.4th at pp. 1359-1360; Winters, supra, 221 Cal.App.3d at p. 1008.)
II
FAILURE TO INSTRUCT ON ELEMENTS OF BODILY INJURY ENHANCEMENTS
Defendant contends the trial court committed structural error, or at least error that was prejudicial with respect to the bodily injury enhancement remaining as to Herrera, by failing to instruct on any elements of the Vehicle Code section 23558 enhancement. We conclude reversal is not warranted. A. Background
Among the instructions given at trial were CALCRIM No. 220, which told jurors the presumption of innocence required the People to prove a defendant guilty beyond a reasonable doubt, and that when the court said the People had to prove something, it meant they had to prove it beyond a reasonable doubt; CALCRIM No. 2100, which set out the elements of count 1, including the requirement that the defendant's illegal act caused bodily injury to another person, and the explanation that an act causes bodily injury to another person if the injury is the direct, natural, and probable consequence of the act and the injury would not have happened without the act; and CALCRIM No. 3160, which set out the elements of a great bodily injury enhancement.
The trial court did not give an instruction that told jurors that if they found defendant guilty of the crime charged in count 1, they had to decide whether the People proved the additional Vehicle Code section 23558 allegations, or that expressly identified the elements of that enhancement. In his summation, however, the prosecutor emphasized the reasonable doubt standard and observed, with respect to count 1, that he had to prove defendant caused injury. The prosecutor subsequently discussed the injuries caused to the various victims, and noted that, while "bodily injury" was not defined, it was just "common language or parlance." The verdict stated that jurors found defendant did "proximately cause bodily injury" to Herrera, within the meaning of Vehicle Code section 23558. B. Analysis
The reason for the omission is unclear. We note, however, that CALCRIM's table of statutes has consistently shown CALCRIM No. 2100 (the instruction the trial court did give to the jury) as the instruction applicable to Vehicle Code section 23558. It does so now (Judicial Council of Cal., Crim. Jury Instns. (2017) Table of Statutes, p. TS-18) as it did at the time of trial (Judicial Council of Cal., Crim. Jury Instns. (2015) Table of Statutes, p. TS-18).
"The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense" (People v. Cummings (1993) 4 Cal.4th 1233, 1311, abrogated on another point by People v. Merritt (2017) 2 Cal.5th 819, 821-822, 831) and any enhancements (People v. Camino (2010) 188 Cal.App.4th 1359, 1380).
Pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466, 490, "[e]xcept for sentence enhancement provisions that are based on a defendant's prior conviction, the federal Constitution requires a jury to find, beyond a reasonable doubt, the existence of every element of a sentence enhancement that increases the penalty for a crime beyond the 'prescribed statutory maximum' punishment for that crime. [Citation.] Therefore, a trial court's failure to instruct the jury on an element of a sentence enhancement provision (other than one based on a prior conviction), is federal constitutional error if the provision 'increases the penalty for [the underlying] crime beyond the prescribed statutory maximum.' [Citation.] Such error is reversible under Chapman, supra, 386 U.S. at page 24, unless it can be shown 'beyond a reasonable doubt' that the error did not contribute to the jury's verdict." (People v. Sengpadychith (2001) 26 Cal.4th 316, 326; see Neder v. United States (1999) 527 U.S. 1, 15; People v. Flood (1998) 18 Cal.4th 470, 502-503.)
Defendant complains that the trial court failed to instruct on any element of the Vehicle Code section 23558 enhancements. We disagree.
In light of our conclusion in part I of the Discussion, ante, only the enhancement naming Herrera is at issue.
" ' "An appellate court reviews the wording of a jury instruction de novo" [citation], and determines whether "the instructions are complete and correctly state the law" [citation].' [Citation.]" (People v. Camino, supra, 188 Cal.App.4th at p. 1380.) " '[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.' [Citations.] Thus, ' "[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole." ' [Citation.]" (People v. Delgado (2017) 2 Cal.5th 544, 574.)
Vehicle Code section 23153, former subdivision (e) provides: "It is unlawful for a person, while under the influence of any drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver." Vehicle Code section 23558 sets forth a sentence enhancement applicable to "[a] person who proximately causes bodily injury . . . to more than one victim in any one instance of driving in violation of" Vehicle Code section 23153.
It is readily apparent the two statutes share virtually all elements. The shared elements were set out in CALCRIM No. 2100, and jurors were told to pay careful attention to all the instructions and consider them together. (See People v. Delgado, supra, 2 Cal.5th at p. 574.) The jury's verdict on count 1 and the wording of its finding on the Vehicle Code section 23558 enhancement concerning Herrera, establish jurors found the shared elements beyond a reasonable doubt.
Although the jury instruction did not use the phrase "proximately causes," it included a definition of proximate cause. (See People v. Caldwell (1984) 36 Cal.3d 210, 220.) Because "bodily injury" is commonly understood and does not have a technical meaning peculiar to the law (see People v. Thoma, supra, 150 Cal.App.4th at pp. 1099-1100; People v. Guzman (2000) 77 Cal.App.4th 761, 765), it required no definition (see People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023; People v. Anderson (1966) 64 Cal.2d 633, 639).
Nowhere, however, were jurors instructed that in order to find a violation of Vehicle Code section 23558, they must conclude, beyond a reasonable doubt, that defendant proximately caused bodily injury to more than one victim. The omission of this element constituted "serious constitutional error that impact[ed defendant's] fundamental right to a jury trial." (People v. Merritt, supra, 2 Cal.5th at p. 821; accord, People v. Banks (2014) 59 Cal.4th 1113, 1153, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) It is, however, amenable to review for harmless error under the federal and state Constitutions. (People v. Mil (2012) 53 Cal.4th 400, 415.) Accordingly, the question we must answer is "whether it is clear beyond a reasonable doubt that a rational jury would have rendered the same verdict absent the error. [Citation.]" (People v. Merritt, supra, 2 Cal.5th at p. 831.) Such instructional error is harmless "where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence." (Neder v. United States, supra, 527 U.S. at p. 17; accord, People v. Mil, supra, 53 Cal.4th at p. 417.)
In their original discussion of this issue, neither party specifically mentioned the "more than one victim" element of Vehicle Code section 23558. We notified them of our tentative conclusion that failure to instruct on that element was not harmless error, if (as we have found) defendant's due process rights were violated by the amendments to the accusatory pleading made after waiver of the preliminary hearing, and we gave them the opportunity to address that point. After further consideration of the facts, applicable law and the parties' responses, we have rethought our provisional evaluation of the matter.
Here, the evidence multiple victims were injured was overwhelming and uncontested. In addition, the prosecutor argued there were injuries to each named victim. Jurors rejected the Vehicle Code section 23558 enhancements with respect to Burkhart, Deines, and Libby, but expressly found defendant proximately caused bodily injury to Herrera and Boudreau — more than one victim. Although the Boudreau bodily injury allegation itself violated due process because it was added after defendant waived a preliminary hearing, the jury's finding nevertheless establishes, beyond a reasonable doubt, that jurors would have found injury to multiple victims, in the context of the Herrera enhancement, had they been properly instructed. The fact jurors should not have been allowed to make a finding on the allegation relating to Boudreau means that enhancement cannot be imposed. It does not, however, preclude use of the factual finding, together with the evidence, in assessing whether a failure to instruct on elements was harmless. The instructional error was harmless beyond a reasonable doubt. (See People v. Merritt, supra, 2 Cal.5th at pp. 831, 832.)
That Herrera's bodily injury was established by medical records, rather than a live witness, is of no import. Defense counsel stipulated to admission of the records at trial, and defendant does not now contend the evidence was insufficient to support the bodily injury finding as to Herrera.
III
SENTENCING ERRORS
Defendant raises two claims of sentencing error. The Attorney General concedes the matter must be remanded for resentencing. We agree, particularly in light of our reversal of four of the five enhancements appended to count 1. A. Imposition of Full Term for Enhancements Attached to Subordinate Term
The probation officer's report recommended making count 1 the principal term and imposing full-term consecutive sentences for the bodily injury and great bodily injury enhancements. At sentencing, the trial court designated count 2 as the principal term. It then imposed a consecutive subordinate term of eight months (one-third of the middle term) with respect to count 1, but imposed full consecutive terms for the various enhancements. As the Attorney General concedes, this was error. Under section 1170.1, subdivision (a), the trial court was only permitted to impose one-third of the term for each of the enhancements. (See § 1170.11; People v. Moody (2002) 96 Cal.App.4th 987, 990.) B. Failure to Stay Sentence on Count 3
On remand, the trial court is free to reconsider the entire sentence (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258-1259), except as to the section 654 issue addressed post.
At sentencing, the court found the objectives in counts 1, 2, and 3 independent of one another, and so imposed consecutive sentences. On count 3, it imposed a sentence of 180 days, with credit for 180 days.
Section 654, subdivision (a) provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
"[T]he act prohibited by [Vehicle Code] section 23153 is defined in terms of an act of driving . . . ." (Wilkoff v. Superior Court, supra, 38 Cal.3d at p. 352, superseded by statute on another point as stated in People v. Arndt, supra, 76 Cal.App.4th at pp. 393-394.) So too is the act prohibited by Vehicle Code section 14601.1, subdivision (a) — driving with a suspended or revoked license — of which defendant was convicted in count 3. In the present case, there was but a single act of driving. Because "[s]ection 654 prohibits multiple punishment for a single physical act that violates different provisions of law" (People v. Jones (2012) 54 Cal.4th 350, 358), upon remand, sentence on count 3 must be stayed pursuant to section 654.
DISPOSITION
The three Penal Code section 12022.7, subdivision (a) enhancements, and the Vehicle Code section 23558 enhancement in which Judith Boudreau is named, are stricken. As so modified, the judgment of conviction is affirmed. Sentence is vacated and the matter is remanded for resentencing.
/s/_________
DETJEN, J. I CONCUR: /s/_________
LEVY, Acting P.J. MEEHAN, J., Concurring.
While I concur in the disposition, I write separately to offer additional perspective regarding due process notice to add additional charges or, in this case, additional enhancements, after the preliminary hearing has been waived. Specifically, I do not agree that charging a bodily injury enhancement under Vehicle Code section 23558 places a defendant on factual notice of the significant or substantial physical injury required for a great bodily injury enhancement under Penal Code section 12022.7, subdivision (a).
It is well established that a defendant may not be convicted of an offense that is neither specifically charged in the accusatory pleading nor necessarily included within a charged offense. (People v. Wilford (2017) 12 Cal.App.5th 827, 837 (Wilford); People v. Parks (2004) 118 Cal.App.4th 1, 5-7.) Further, a defendant has a right to fair notice of the specific sentence enhancement allegations that will be relied upon to increase punishment for his crimes. (Wilford, supra, at p. 837.) There is no dispute that Penal Code section 1009 only allows amendment to add additional charges if supported by the evidence taken at the preliminary examination. (People v. Winters (1990) 221 Cal.App.3d 997, 1003.) In addition, I agree with the majority that when no preliminary hearing is held, the defendant may not be charged with additional crimes not charged in the pleading even if the amendment did not prejudice the defendant or the defendant otherwise had notice of the facts underlying the new charges. (People v. Peyton (2009) 176 Cal.App.4th 642, 654 (Peyton).)
In relevant part, Vehicle Code section 23558 provides "[a] person who proximately causes bodily injury or death to more than one victim in any one instance of driving shall, ... receive an enhancement of one year in the state prison for each additional injured victim." In contrast, Penal Code section 12022.7, subdivision (a), provides that "Any person who personally inflicts great bodily injury on any person ... shall be punished by an additional and consecutive term ... for three years."
Accordingly, relevant to this appeal, there are two requirements in each statute. Vehicle Code section 23558 requires bodily injury and proximate cause. Penal Code section 12022.7 requires great bodily injury and personal infliction. The relevant language of the first amended complaint mirrors the statutory language of Vehicle Code section 23558. No additional facts regarding the victims' injuries were provided. The majority concludes that Vehicle Code section 23558 provides notice of "great bodily injury" in Penal Code section 12022.7, but that "proximately causes" in Vehicle Code section 23558 does not provide notice of "personally inflicts" in Penal Code section 12022.7.
Vehicle Code section 23558 sets forth the underlying charges to which it applies: Vehicle Code section 23153 for "bodily injury" and Penal Code sections 191.5 and 192.5, subdivision (a), for vehicular manslaughter. The first amended complaint charged only a violation of Vehicle Code section 23153, former subdivision (e), for driving a vehicle under the influence, "which act or neglect proximately causes bodily injury to any person other than the driver." Given these specific charges to which Vehicle Code section 23558 enhancements apply, none of which include charges for great bodily injury, it is unclear on what basis the majority contends that the statute "encompasses" great bodily injury. (Maj. opn. at p. 14.)
I agree that the language of Vehicle Code section 23558 requires only proximate causation and, therefore, would not provide notice of a charge of personal infliction. Personal infliction is a higher standard and covers a narrower range of conduct than the broader concept of proximate cause. It would, therefore, be unreasonable to conclude that the lesser and broader causation requirements of Vehicle Code section 23558 would provide factual notice of the personal infliction requirement of Penal Code section 12022.7.
But, by the same logic, the requirement of "great bodily injury" in Penal Code section 12022.7 creates a higher standard and a narrower class of injuries than the "bodily injury" requirement of Vehicle Code section 23558. There is ample case law defining these terms and drawing material distinctions between them. I believe it is unreasonable to conclude that the lesser and broader "bodily injury" requirement of Vehicle Code section 23558 provides factual notice of the "great bodily injury" requirement of Penal Code section 12022.7.
The term "bodily injury" has been construed to mean "just what it says—harm or hurt to the body." (People v. Lares (1968) 261 Cal.App.2d 657, 662.) "[B]odily injury" does not require substantial or great bodily injury. (People v. Dakin (1988) 200 Cal.App.3d 1026, 1036.) Case law has consistently defined "[g]reat bodily injury" as "bodily injury which is significant or substantial, not insignificant, trivial or moderate." (People v. Armstrong (1992) 8 Cal.App.4th 1060, 1066; see People v. Cross (2008) 45 Cal.4th 58, 63-64 (Cross); People v. Escobar (1992) 3 Cal.4th 740, 749-750; People v. Miller (1977) 18 Cal.3d 873, 883 [construing great bodily injury in former Pen. Code, §§ 213 & 461 to mean "significant or substantial bodily injury or damage as distinguished from trivial or insignificant injury or moderate harm"].)
Whether a victim has suffered "great" bodily injury for purposes of a sentencing enhancement is a question of fact. (Cross, supra, at p. 64.) "Proof that a victim's bodily injury is 'great'—that is, significant or substantial within the meaning of [Penal Code] section 12022.7—is commonly established by evidence of the severity of the victim's physical injury, the resulting pain, or the medical care required to treat or repair the injury." (Id. at p. 66.) It stands to reason that a defendant is entitled to due process notice that evidence, including expertise, may be required at trial regarding the nature and seriousness of the victim's medical condition and treatment, evidence that may not be necessary if the injuries were not alleged to be significant or substantial.
A defendant charged with a bodily injury enhancement without any factual detail under Vehicle Code section 23558 would not be placed on notice of the potential for additional and more substantial injuries to the victim that would support the great bodily injury enhancement under Penal Code section 12022.7, subdivision (a). In the same manner, a defendant charged with assault or speeding would not be provided factual notice to support the greater charges of assault with a deadly weapon or reckless driving, respectively. The majority does not discuss the lack of facts constituting notice of significant or substantial physical injury. Rather than address the elements required to prove each enhancement, the majority argues that the language of Vehicle Code section 23558 must necessarily be construed to provide notice of significant or substantial injury where there is no factual detail because:
"To hold that Vehicle Code section 23558 can only increase the punishment available when the defendant causes an accident resulting in multiple instances of bodily injury (a minimal amount of harm or hurt to the body) or death, and not when the accident results in multiple instances of 'significant or substantial' physical injury (as great bodily injury is defined in [Pen. Code,] § 12022.7, subd. (f)) clearly would result in absurd consequences the Legislature did not intend." (Maj. opn. at p. 13.)
The majority asserts that, unless the language of Vehicle Code section 23558 is construed to provide factual notice of great bodily injury when no facts are alleged, a court would be required to strike Vehicle Code section 23558 enhancements when it is established that the victims suffered significant or substantial injuries. (Maj. opn. at pp. 13-14.) Alternatively, the majority argues that a prosecutor would not have charging discretion to allege the lesser enhancement under Vehicle Code section 23558 when there is evidence of a more substantial injury. Neither of these concerns are supported by applicable authority or are otherwise warranted.
The majority speculates on the perils and absurd consequences that would result if enhancements under Vehicle Code section 23558 could only be applied when the victim is harmed or hurt, but not if the harm was sufficiently significant or substantial as to establish great bodily injury. However, speculation is unnecessary because case law shows that courts have applied the two enhancements in the same case in a logical and consistent manner. And, in any event, the language of Vehicle Code section 23558 does not contain literal language that would constrain it in the manner suggested by the majority. The majority has not identified any cases that hold Vehicle Code section 23558 cannot be applied with respect to a victim who is known to have suffered significant or substantial physical injury. Further, such an interpretation would be inconsistent with the purpose of Vehicle Code section 23558. "The purpose of Vehicle Code section 23558 'is to increase the potential punishment available in certain cases where an alcohol- or drug-impaired individual operating a vehicle or watercraft causes an accident which results in multiple injuries, not to limit the use of another otherwise applicable enhancement [e.g., Penal Code section 12022.7].'" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1328, italics added, reversed on other grounds in People v. Cook (2015) 60 Cal.4th 922, 939; accord, People v. Arndt (1999) 76 Cal.App.4th 387, 394.)
I would agree that to the extent allegations would support a true finding of great bodily injury under Penal Code section 12022.7, subdivision (a)(1), they may also support a true finding of bodily injury enhancement under Vehicle Code section 23558. However, I disagree that the language of Vehicle Code section 23558 would provide factual notice of great bodily injury under Penal Code section 12022.7, subdivision (a).
Despite the majority's assertions otherwise, courts have not stricken bodily injury enhancements under Vehicle Code section 23558, but rather have allowed both bodily injury enhancements under section 23558 and great bodily injury enhancements under Penal Code section 12022.7 to be found true as to the same victim when evidence of significant or substantial bodily injury is established. For example, in People v. Arndt, supra, 76 Cal.App.4th at page 392, cited by the majority, the court allowed great bodily injury enhancements under Penal Code section 12022.7, subdivisions (a) and (b), as well as bodily injury enhancements under Vehicle Code section 23182, the prior codification of Vehicle Code section 23558. In People v. Weaver and People v. Elder, both enhancements under Penal Code section 12022.7, subdivision (a), and Vehicle Code section 23558 were found true with regards to injuries to the same victim. (People v. Weaver, supra, 149 Cal.App.4th at p. 1325; People v. Elder (2017) 11 Cal.App.5th 123, 141.) There was no infringement on the prosecutor's discretion in this case to charge both enhancements with regard to the injuries of a given victim, which he did in amendments made after the preliminary hearing was waived.
As the three cases above illustrate, the majority's fears are unwarranted as courts have allowed both enhancements to be found true when there is evidence that a victim suffered significant or substantial physical injury. It is simply that, when both enhancements are found true, then courts have found that punishment under the lesser enhancement, Vehicle Code section 23558, must be stayed under Penal Code section 654 based on the prohibition against multiple punishments for the same act. (People v. Elder, supra, 11 Cal.App.5th at pp. 141-142; People v. Weaver, supra, 149 Cal.App.4th at p. 1329; People v. Arndt, supra, 76 Cal.App.4th at pp. 394-396.) But staying punishment under Penal Code section 654 at the sentencing phase would have no impact on the prosecution's pretrial discretion to charge a defendant with the enhancements it seeks to prove. Nothing in the literal construction of Vehicle Code section 23558 would create the problems described by the majority or otherwise limit its application when there is a more significant or substantial injury. If anything, the additional limitations to Vehicle Code section 23558 created by the majority to prevent its application if significant or substantial injuries occurred would both misconstrue the literal meaning of the statute and lead to absurd consequences.
The majority relies upon In re Michele D. (2002) 29 Cal.4th 600 (Michele D.) in support of the proposition that statutory language that creates absurd consequences unintended by the Legislature should be disregarded. There, despite the fact that kidnapping required a force greater than that necessary to effect movement, the Supreme Court held that the literal definition should not apply to the kidnapping of an unresisting infant. (Id. at pp. 606-607.) If so, "literal construction of the statute might result in the absurd consequence of finding that a kidnapping did not occur where it is clear a kidnapping was intended." (Id. at p. 608.) Here, the potential absurd consequences do not occur when the literal language of Vehicle Code section 23558 is applied. Instead, the absurd consequences would be created by the additional limitations created by the majority. Michele D. is not applicable, and there is no need to disregard the literal language of section 23558, which has been rationally and consistently applied.
Here, the prosecutor had the options of charging the additional Penal Code section 12022.7, subdivision (a), enhancements in the operative complaint or holding a preliminary hearing in which factual support for the significant or substantial physical injuries could have been provided. The prosecutor elected to waive the preliminary hearing when the operative complaint provided notice of only bodily injury enhancements under Vehicle Code section 23558. As a result of that election, the prosecution was limited by appellant's due process right to notice of the factual bases of the enhancements to be levied against him.
While the prosecution may seek both enhancements for injuries to the same victim, that does not answer the question posed to this court—does the language of Vehicle Code section 23558 provide factual notice to support the amendment to add a great bodily injury enhancement under Penal Code section 12022.7, subdivision (a), when the preliminary hearing is waived and there is no other factual support for the enhancement? I agree with the majority that it does not because there was no notice of the element of personal infliction of the injury. However, I also believe that the language of Vehicle Code section 23558, contained in the first amended complaint, does not provide factual notice that a victim suffered significant or substantial physical injury rather than just harm or hurt to the body.
In People v. Arndt, the court considered whether Vehicle Code section 23182, the predecessor to Vehicle Code section 23558, covered the same subject matter as Penal Code section 12022.7. (People v. Arndt, supra, 76 Cal.App.4th at p. 392.) The court rejected the proposition that the statutes cover the same subject matter. The court explained that "[t]he elements of [Penal Code] section 12022.7 do not correspond to [Vehicle Code] section 23182" and distinguished, among other things, bodily injury from great bodily injury. (Id. at p. 393.) This lends further support to the conclusion that the elements of Vehicle Code section 23558 do not provide notice of the elements of Penal Code section 12022.7. In People v. Arndt, the jury found true enhancements under both Penal Code section 12022.7, which was charged, and Vehicle Code section 23182. Penal Code section 654, however, precluded the application of enhancements under both statutes because the trial court employed the same injury "to impose enhancements for great bodily injury on all three victims under Penal Code section 12022.7" and also enhancements for two victims under Vehicle Code section 23182. (People v. Arndt, supra, at p. 397.) "Under section 654, only one of the enhancements can be applied." (Ibid.)
"The elements of [Penal Code] section 12022.7 do not correspond to [Vehicle Code] section 23182. Section 12022.7 applies when a defendant inflicts 'great bodily injury on any person other than an accomplice.' (§ 12022.7, subd. (a).) Section 23182 applies where a defendant inflicts 'bodily injury or death' on 'more than one victim,' and the enhancement is imposed only for 'each additional injured victim.' Section 12022.7 defines great bodily injury as 'a significant or substantial physical injury.' (§ 12022.7, subd. (e).) Under [Vehicle Code] section 23153, 'bodily injury' requires only proof of '"harm or hurt to the body."' (People v. Dakin[, supra,] 200 Cal. App. 3d [at pp. ]1035-1036 [two cuts on the forehead, a severe headache and stiff neck]; see also People v. Lares[, supra,] 261 Cal. App. 2d [at p. ]662 [acute back strain].)" (People v. Arndt, supra, 76 Cal.App.4th at p. 693.)
In sum, while both enhancements may be found true in light of the evidence ultimately presented of the injuries to each victim at issue, the bare language of Vehicle Code section 23558 at the pleading phase would not place a defendant on factual notice that both the additional elements of personal infliction and great bodily injury occurred so as to allow amendment of the complaint after the preliminary hearing was waived.
"Preliminary hearing transcripts have long been considered the '"'"touchstone of due process notice"'"' to the defendant." (Peyton, supra, 176 Cal.App.4th at p. 656; accord, People v. Graff (2009) 170 Cal.App.4th 345, 367.) "And when, as here, a defendant waives his right to a preliminary hearing and no preliminary hearing is held, substituting the preliminary hearing transcript with potentially vague indications that the defendant was on notice of the facts underlying a proffered additional charge would risk depriving the defendant of his due process right to notice of all of the charges against him. The contents of police reports and other 'discovery' or information available to the defendant would be a poor and potentially dangerous substitute for the 'touchstone' of the preliminary hearing transcript." (Peyton, supra, at p. 656.)
Here, appellant was not provided notice of the basis of the great bodily injury enhancements as the preliminary hearing was waived, and it is likely that the police reports and other discoverable information may not have informed him of the more significant injuries suffered by the victims. In his pleadings, respondent presumes that the added great bodily injury enhancements were based on medical records that the prosecution was still waiting to receive as of the date of the trial readiness conference. Accordingly, there is a very real possibility that appellant lacked any notice of and would have been unable to obtain records that would factually support the additional enhancements until the eve of trial.
Notwithstanding the views stated herein, I concur with the result.
/s/_________
MEEHAN, J.