Opinion
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRF079530
Harley, J.
I. INTRODUCTION
After he had entered a plea of guilty to two counts of gross vehicular manslaughter while intoxicated, appellant was sentenced to 16 years in state prison. He appeals, claiming that the trial court erred in imposing three, one-year enhancements pursuant to Vehicle Code section 23558 because his plea supported only one such enhancement. We disagree and affirm the judgment and sentence imposed.
II. FACTUAL AND PROCEDURAL BACKGROUND
This summary of the pertinent facts is taken from the probation officer’s report.
In the early morning hours of August 2, 2007, a head-on collision occurred on the Dr. Fine Bridge, a bridge over the Smith River on Highway 101 a few miles north of Crescent City. The northbound vehicle was a 1996 Cadillac and contained a driver and four passengers. The southbound vehicle was a 2003 Toyota pickup truck which was apparently occupied only by the driver, appellant, at the time of the accident. Appellant left the scene of the accident shortly thereafter. The driver and two of the passengers of the Cadillac, two young children, were injured; two, including the mother of the two children, were killed. The coroner determined that the cause of their deaths was blunt force trauma to their heads.
The driver of the Cadillac told investigating officers that, while driving at 55 miles per hour on the two-lane bridge, he observed the oncoming southbound vehicle swerving in and out of his northbound lane. At the last minute, that vehicle swerved entirely into the northbound lane and the head-on crash occurred. That driver estimated that the Toyota had been traveling at about 60-70 miles per hour; the posted speed limit on the bridge is 55 miles per hour.
After appellant was located and apprehended later that day, a blood sample was taken and a preliminary alcohol screening test performed. The latter indicated a blood alcohol content of.08 percent; the blood sample was sent to the Department of Justice, which reported that it indicated positive for both the same level of alcohol and, also, marijuana.
On October 4, 2007, the Del Norte County District Attorney filed a four-count information against appellant. The first two counts charged gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5); the third and fourth counts charged, respectively, driving under the influence and causing injury (Eh. Code, § 23153, sud. (a)) and hit and run with an injury (Eh. Code, § 20001). Four enhancements were also alleged, two alleging the infliction of great bodily injury under Penal Code section 12022.7, and the others alleging that appellant had fled the scene of the accident (Eh. Code, § 20001, sud. (c)) and that bodily injury was caused to more than one victim (Eh. Code, § 23558 (hereafter section 23558)).
On April 16, 2008, pursuant to a negotiated disposition, appellant piled guilty to the two gross vehicular manslaughter counts and admitted the Vehicle Code section 20001, subdivision (c), enhancement and the section 23558 enhancement. The remaining counts and enhancements were dismissed pursuant to the agreed disposition.
All further dates noted are in 2008.
On June 19, the trial court imposed a state prison term of 16 years. This term was composed of a six-year midterm for the first gross vehicular manslaughter charge, two years for the second, five years for the fleeing the scene of the accident enhancement, and three years for the section 23558 multiple-victims enhancement. All the terms were ordered to run consecutively.
Appellant filed a timely notice of appeal the following month.
III. DISCUSSION
As noted above, appellant argues that the term imposed was two years too long, because he admitted to only one enhancement under section 23358, and thus the court erred in imposing three additional years, rather than just one.
The relevant “special allegation” charged in the information was as follows: “SPECIAL ALLEGATION OF VIOLATION OF SECTION 23588 OF THE VEHICLE CODE, ENHANCED PENALTY. [¶] It is further alleged that said defendant caused bodily injury to more than one victim while driving in violation of Section 23153 of the Vehicle Code.”
Section 23558 reads in pertinent 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 or in violation of Section 191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements that may be imposed pursuant to this section is three.” (§ 23558, emphasis supplied.)
The Attorney General argues that (1) appellant’s contention that his sentence was two years too long for the section 23558 enhancement is barred because he did not request or secure a certificate of probable cause, (2) appellant is stopped to assert any such error because he did not object to the sentence imposed in the trial court, (3) appellant did, in fact, admit that there were bodily injuries to multiple victims, and (4) even if there was error, the case should be reversed and remanded so as to place the parties in the status they were before the plea agreement, rather than giving appellant a “windfall” by striking two years from the sentence imposed. We agree with the Attorney General’s second and third contentions, and thus do not need to reach the other two.
First of all, regarding whether the section 23558 offense was properly piled in the information, appellant’s argument is as follows: “while the information alleged that ‘defendant proximately caused bodily injury to more than one victim while driving in violation of Section 23153 of the Vehicle Code,’ it did not charge ‘the fact of the bodily injury to each additional victim,’ as statutorily required.” We reject this argument as one asserting a distinction without a difference. To be sure, it might have been preferable for the district attorney to name the specific victims injured in the special allegation (as the trial court did at sentencing—see post) or to specifically allege that “three victims” were injured, but such was clearly not mandatory because, among other reasons, all three injured persons were, in fact, specifically named in the text of count 3 of the information.
Appellant’s reliance on People v. Mancebo (2002) 27 Cal.4th 735 as support for this contention is misplaced. As several subsequent cases have made clear in distinguishing Mancebo, it “involved the imposition of a statutory enhancement that was not pleaded in the charging document.” (In re Varnell (2003) 30 Cal.4th 1132, 1143; see also People v. Miralrio (2008) 167 Cal.App.4th 448, 459; People v. Riva (2003) 112 Cal.App.4th 981, 1002; People v. Tardy (2003) 112 Cal.App.4th 783, 788-789.) Such is clearly not the case here.
Regarding appellant’s understanding of his plea regarding the section 23558 allegation, at or just prior to the April 16 hearing at which the plea agreement was formalized, appellant initialed and signed, and his attorney also signed, a “Felony-Guilty Plea Declaration.” The printed portion of line 3 of that declaration reads: “I plead guilty and/or admit the crimes and allegations set forth below and understand that the maximum punishment I could receive for each crime/special enhancement which I plead guilty to or admit are:”
Then followed, in handwriting, the potential maximum terms to each of the counts and enhancement to which the appellant was either pleading guilty or admitting. As to the relevant allegation here, the handwriting reads: “Special Allegation per 23558 V.C. up to 3 yrs.” The declaration ended with the statement that appellant “had sufficient consultation with my attorney” who had “explained everything in this declaration to me, and I have had time to consider the meaning of each statement,” followed by appellant’s signature. Appellant’s attorney then confirmed, on the reverse sheet, that he had “personally explained the contents of the above declaration to the defendant.” The trial judge also signed the form, certifying among other things that appellant “has read and understands this declaration.”
In appellant’s briefs to us, he omits to note these admissions, citing only a redundant reference on the following page which does not mention the “up to 3 yrs.” part of the admission.
At the hearing itself, the court confirmed that appellant was “admitting the special allegation of multiple victims under 12022.7” but then added, apparently addressing the deputy district attorney: “Is that right, is that 1202.5?,” to which the deputy district attorney responded: “No, 23558,” which the court then confirmed by saying: “I’m sorry, 23558. Okay.” Then, a few minutes later, the court addressed appellant personally as follows:
“THE COURT: And you admit the special allegation pursuant to Vehicle Code Section 23558 that you caused bodily injury to more than one victim?
“THE DEFENDANT: Guilty
“THE COURT: You admit that. That’s not guilty or not guilty. Do you admit that?
“THE DEFENDANT: Oh, yes.
“THE COURT: You admit that special allegation.
“THE DEFENDANT: Yes.”
Before the June 19 sentencing hearing two other filings confirmed that everyone understood—or certainly should have—that the section 23558 special allegation could result in a three-year term, because of the three injured victims. First of all, on May 27, the Del Norte County Probation Department filed a ‘Presenter Investigation Report” which included, not once but twice, a recommendation that “three, one year consecutive enhancements be imposed pursuant to 23558 VC, which is the maximum amount that can be imposed....” and then repeated that recommendation on the following page.
A week or so later, on June 4, appellant’s counsel filed a “Sentencing Brief” which concluded by stating that “the following sentence would serve the interests of justice” and then noted regarding the relevant allegation: “Special allegation, V.C. § 23558, 3 years, concurrent.”
At the sentencing hearing on June 19, no objection or reservation was stated to any of these recommendations by appellant; nor did his counsel retract his June 4 recommendation. After many statements by relatives of the decedents, the court specifically named the three injured victims in the course of indicating that its intention was to impose an “additional three years enhancement, one year each for the injuries to Rollie Gripper, Jacklyn Rene Gripper, and Nathaniel Gripper pursuant to Vehicle Code Section 23558....”
This statement is also not noted in appellant’s briefs to us.
Nothing was said by way of objection to that proposed sentence by either appellant or his attorney. Indeed, the only comments either made thereafter concerned aggravating and mitigating factors and reasons for the delay in working out the plea agreement. The court then imposed the sentence it had previously indicated, including the three years under section 23558.
Clearly, there was both an admission by appellant of the truth of the charged section 23558 enhancement as to all three injured victims (hence potentially implicating a three-year term) and a consequent estoppal to assert error by the imposition of such a term. (See, erg., People v. Chatterton (2005) 129 Cal.App.4th 771, 773, and cases cited therein.)
IV. DISPOSITION
The judgment and sentence imposed are both affirmed.
We concur: Kline, P.J., Richman, J.