Opinion
F060364
09-09-2011
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN EDWARD FELIZ, Defendant and Appellant.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and David A. Lowe, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF131302A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner, Judge.
Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and David A. Lowe, Deputy Attorneys General, for Plaintiff and Respondent.
PROCEDURAL BACKGROUND
Appellant Benjamin Edward Feliz pled guilty to vehicular manslaughter while intoxicated without gross negligence (Pen. Code, § 191.5, subd. (b); count 1), driving under the influence causing bodily injury (Veh. Code, § 23153, subd. (a); count 2), driving with a blood alcohol level of .08 percent or more causing bodily injury (Veh. Code, § 23153, subd. (b); count 3), driving when his privilege was suspended or revoked for driving under the influence (Veh. Code, § 14601.2, subd. (a); count 4), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 5). Appellant also admitted various sentence enhancement allegations. The trial court sentenced appellant to six years in prison: the upper term of four years on count 1, plus two years for two multiple-victim sentence enhancements (Veh. Code, § 23558), a concurrent term of three years (the upper term) on count 2, and a concurrent 90-day term on count 4. The court stayed appellant's sentence on counts 3 and 5 under section 654.
Further statutory references are to the Penal Code unless otherwise specified.
A third multiple-victim enhancement based on the death of the manslaughter victim was stayed pursuant to section 654.
FACTS
The facts are taken verbatim from the probation officer's report.
"On January 27, 2010, at approximately 9:30 a.m., officers were dispatched to the area of Comanche Drive and State Route 178 regarding an injury collision. Upon arrival, officers located two vehicles which appeared to have been involved in a head on collision. The occupants of both vehicles were 'pinned' inside; however, fire department personnel were able to [ex]tract them and they were later transported to the hospital for treatment.
"Prior to being transported to the hospital an officer spoke with Alicia [C.], a victim. [Alicia C.] advised the officer she was traveling south on Comanche Drive when she noticed a vehicle enter her lane at a high rate of speed. She stated that the driver of the vehicle never braked or swerved to avoid a collision. At that point, the officer terminated the interview as
she was unable to provide any further information due to her injuries which included complaint of pain to her neck and back. She also appeared to have suffered a broken right ankle. Officers also determined through their investigation the two additional occupants in the victim's vehicle suffered injury. They were identified as Jesus [C.], age 12, and Isavilla [C.], age nine. Jesus suffered injuries including a broken right collar bone, femur, knee, wrist and shoulder. Isavilla complained of pain to her neck and back. They were later transported to the hospital for treatment.
"Following this an officer spoke with the defendant. He reported he was traveling north on Comanche Drive from Tehachapi, California; however, he could not remember any additional information. The defendant did admit consuming a beer while driving. The defendant along with his passenger Diana Strickland, a victim, were later transported to the hospital for treatment. Strickland suffered injuries including a collapsed lung and severe internal bleeding. She later died as a result of her injuries. An inspection of defendant's vehicle revealed a 'Budweiser tall can' which was cold to the touch near the driver's seat.
"A short time later the officers responded to Kern Medical Center and contacted the defendant. He displayed symptoms of being under the influence of alcohol or a controlled substance and a blood sample was obtained. At that point a hold was placed on the defendant and he was later booked for related charges at the Kern County Jail on February 4, 2010.
"A laboratory analysis of the defendant's blood revealed a blood alcohol content of 0%.
"A laboratory analysis of the defendant's blood revealed a positive test for amphetamine and methamphetamine."
DISCUSSION
I. Lesser Included Offenses
Appellant contends his convictions on count 2 (Veh. Code, § 23153, subd. (a) [driving under influence causing injury]) and count 3 (Veh. Code, § 23153, subd. (b) [driving with .08 percent or higher blood alcohol level causing injury]) must be reversed because these crimes are lesser included offenses of vehicular manslaughter while intoxicated (§ 191.5). We conclude that appellant's convictions on counts 2 and 3 must be stricken insofar as they pertain to the manslaughter victim. However, this conclusion does not require us to reverse his convictions, which were proper as to the non-manslaughter victims also named in those counts.
A defendant cannot be convicted of both a lesser included offense and the greater offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Where a defendant has been convicted of both, the conviction of the lesser must be reversed and any attached enhancements stricken. (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1150-1151 (Binkerd).)
In People v. Miranda (1994) 21 Cal.App.4th 1464 (Miranda),the court held that driving under the influence causing injury in violation of Vehicle Code section 23153, subdivision (a) is a necessarily included offense of gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5, subdivision (a). (Miranda, at p. 1468; see also Binkerd, supra, 155 Cal.App.4th at pp. 1147-1148, 1150.) The Miranda court explained, "One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of Penal Code section 191.5 has occurred." (Miranda, at p. 1468.) This same reasoning applies to driving with a .08 percent or higher blood alcohol level causing injury within the meaning of Vehicle Code section 23153, subdivision (b). (See Binkerd, at p. 1149.) Applying this reasoning here, we agree that appellant could not be properly convicted of both killing (under the Penal Code) and injuring (under the Vehicle Code) the same victim. Thus, appellant's convictions on counts 2 and 3 must be stricken insofar as they are premised on offenses committed against the manslaughter victim Diana Strickland.
The record indicates the trial court did not impose any sentence enhancements on count 2, but that it did impose and then stay three one-year multiple-victim enhancements (Veh. Code, § 23558) on count 3. For the same reasons discussed above, the third enhancement, which was based on the death of Strickland, must be stricken.
However, reversal of counts 2 and 3 is not required. Unlike in Miranda and Binkerd, the alleged victims of the felony drunk-driving counts also included victims that survived the accident. The rationale in those decisions is clearly inapplicable to the offenses committed against the non-manslaughter victims in this case. Hence, appellant was not convicted for lesser included offenses, and remains convicted on counts 2 and 3, as to the non-manslaughter victims, Alicia, Jesus, and Isavilla C. (Cf. People v. McFarland (1989) 47 Cal.3d 798, 804 (McFarland) [defendant who, in a single incident, commits manslaughter as to one victim and felony drunk driving as to another, may be punished for both offenses].)
We reject as unpersuasive appellant's argument that, even excluding the manslaughter victim, the felony drunk-driving counts are lesser included offenses of vehicular manslaughter while intoxicated. The authority he cites does not support this argument. (See Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349 ["one instance of drunk driving is chargeable as only one count of felony drunk driving (i.e., one count of [Veh. Code,] § 23153, subd. (a) and one count of subd. (b)) even if more than one person is injured thereby"], fn. omitted.) We further observe that, consistent with the principles set forth in Wilkoff, appellant was properly charged with only one count each of violating subdivision (a) and subdivision (b) of Vehicle Code section 23153.
II. Section 654 and Count 2
Next, appellant contends that, under section 654, he may not be punished for both count 1 and count 2 because both offenses arose out of the same act. Appellant acknowledges that there is an exception to the prohibition of section 654 where multiple victims are injured by a single act of violence. But he argues the exception does not apply in this case because the crime of vehicular manslaughter while intoxicated without gross negligence is not a crime of violence. We disagree.
"The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not applicable where ... one act has two results each of which is an act of violence against the person of a separate individual.' [Citations.]" (Neal v. State of California (1960) 55 Cal.2d 11, 20-21 (Neal), italics added.)
In McFarland, supra, 47 Cal.3d 798, the California Supreme Court addressed the issue of whether a defendant who killed one person and seriously injured two others during a single episode of drunk driving could be separately punished for vehicular manslaughter and drunk driving. (Id. at p. 800.) The court reiterated the general rule: "'A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act ... where the act prohibited by the statute is centrally an "act of violence against the person."' [Citation.]" (Id. at p. 803.) Because vehicular manslaughter with gross negligence is "[p]lainly" a crime of violence against the person, the court concluded that the defendant could "properly be punished for injury to a separate individual that results from the same incident." (Id. at p. 804, fn. omitted.)
Appellant claims McFarland is inapplicable to this case because, unlike the defendant there, appellant was convicted of vehicular manslaughter while intoxicated without gross negligence. Thus, appellant argues "[g]ross negligence is the pivotal element that makes vehicular manslaughter a crime of violence. Without an element of gross negligence, vehicular manslaughter cannot be deemed a crime of violence, within the meaning of the multiple-victim exception."
We disagree with appellant's argument, which does not find direct support in the decisions he cites, and conclude that McFarland's analysis applies equally to the crime of vehicular manslaughter while intoxicated without gross negligence (§ 191.5, subd. (b)) as it does to the crime with gross negligence (§ 191.5, subd. (a)). The central act prohibited by section 191.5 is "the unlawful killing of a human being" while driving intoxicated. (§ 191.5, subds. (a) & (b).) We have no hesitancy in concluding that a defendant who kills another human being as a result of driving while intoxicated has committed "an act of violence ... by a means likely to cause harm to several persons." (Neal, supra, 55 Cal.2d at p. 20.) Because count 1 was a crime of violence, the multiple-victim exception to section 654 was applicable and the trial court in this case properly imposed concurrent terms on counts 1 and 2.
III. Section 654 and Count 5
The reporter's transcript reflects the trial court ultimately stayed the term it imposed on count 5 under section 654, but the stay does not appear in the sentencing minute order. Although respondent argues it is unnecessary to correct the sentencing minute order because the stay correctly appears in the abstract of judgment, in an abundance of caution, we shall direct the trial court to prepare a corrected sentencing minute order reflecting that appellant's sentence on count 5 was stayed under section 654.
IV. Stay on the "Use" of Count 3 for Penal and Administrative Consequences
The trial court stayed the sentence on count 3, driving with a blood alcohol level of .08 percent or higher (Veh. Code, § 23153, subd. (b)), pursuant to section 654. Appellant contends that the trial court should have specified that the stay included a permanent embargo on the use of the conviction on count 3 for "penal or administrative purposes."
Appellant bases his contention on this court's decisions in People v. Duarte (1984) 161 Cal.App.3d 438, 207 (Duarte)and People v. Conner (1986) 176 Cal.App.3d 716 (Conner).In Duarte, the defendant was convicted, inter alia, of violating subdivisions (a) and (b) of Vehicle Code section 23153. Both convictions arose from a single act of drunk driving. We affirmed the convictions but noted that, although the defendant's sentence on the second conviction was stayed in accordance with well-established section 654 practice, the risk remained that both convictions might be used to enhance future punishment. We reasoned:
"Having suffered two convictions and one punishment, defendant remains exposed to the use of the two convictions to enhance future punishment. The Vehicle Code contains an increasing number of sections which penalize recidivism. These sections ordinarily refer to prior 'convictions' without qualifying them to exclude multiple convictions arising from a single driving occasion. By only staying punishment on one of the two convictions, another court at another time may have to determine whether the defendant has one or two 'priors[.]'" (Duarte, supra, 161 Cal.App.3d at p. 447.)To avoid multiple enhancements based on a single act of illegal driving, we modified the judgment by ordering that "the use of the [second] conviction ... as a prior conviction for penal and administrative purposes, be stayed ...." (Id. at p. 448.) In Conner, this court was also faced with multiple convictions arising out of a single act of drunk driving; we followed Duarte and stayed the use of the lesser conviction for sentencing and administrative purposes. (Conner, supra, 176 Cal.App.3d at p. 719; see discussion in People v. Pearson (1986) 42 Cal.3d 351, 362 (Pearson).)
While we still agree with the basic premise of Duarte and Conner, we find that it is not strictly necessary to order a stay on the use of appellant's conviction on count 3. Section 654 automatically precludes the use of a conviction for which the sentence was stayed pursuant to that section, unless the Legislature explicitly declares otherwise. (Pearson, supra, 42 Cal.3d at p. 363.) Neither in Pearson nor in Duarte or Conner was the court faced with an argument that sentence enhancements were improperly imposed in the case under review. Rather, in each case the court was concerned with the potential application of enhancement statutes to the sentences which were stayed in the case under review. (Pearson, supra, 42 Cal.3d at pp. 360-361; Duarte, supra, 161 Cal.App.3d at pp. 447-448; Conner, supra, 176 Cal.App.3d at pp. 718-719.) However, the California Supreme Court recognized in Pearson, and reiterated in People v. Benson (1998) 18 Cal.4th 24, that legislation enacted after the date of a conviction can permit the use of that conviction for enhancement or other purposes in a subsequent prosecution, even if the sentence was stayed in the original proceeding. (People v. Benson, supra, 18 Cal.4th at p. 29, citing Pearson, supra, 42 Cal.3d at p. 361.) It should be noted that in Pearson, the court did not order a stay on the use of the stayed counts. Rather, the court merely stated the rule that section 654 precludes the use of a conviction as to which the sentence has been stayed, unless the Legislature expressly allows its use for enhancement or other purposes in a subsequent proceeding. (Pearson, supra, 42 Cal.3d at p. 363.)
Because the use of appellant's current stayed conviction to enhance his sentence in any future prosecution or administrative proceeding depends upon the laws in effect at that time, we decline to order the trial court to stay the use of that conviction. If the occasion arises, appellant can assert the bar of section 654, as construed in Pearson.
Finally, we reject appellant's claim that, because this case is "DUI related," under Duarte and Conner, the "administrative fees" imposed with respect to stayed counts 3 and 5—i.e., the $30 court security fee (§ 1465.8) and $30 court facilities assessment (Gov. Code, § 70373)—must also be stayed. Nothing in Duarte or Conner supports appellant's claim. The court security fee and court facilities assessment are mandatory as to each count and are not subject to a section 654 stay. (People v. Crittle (2007) 154 Cal.App.4th 368, 371; People v. Woods (2010) 191 Cal.App.4th 269, 272.)
V. Section 4019 Credit
Appellant, who committed the current offenses on January 27, 2010 and was sentenced on May 5, 2010, contends he is entitled to additional conduct credit under an amendment to section 4019 that became effective January 25, 2010 (hereafter, amended section 4019). As appellant recognizes, the amendment's increase does not apply to defendants who were convicted of a serious felony within the meaning of section 1192.7. (Amended § 4019, subds. (b)(2) & (c)(2).) However, appellant contends—contrary to his counsel's concession at sentencing—that his conviction of vehicular manslaughter while intoxicated without gross negligence (§ 191.5, subd. (b)) does not constitute a serious felony within the meaning of section 1192.7, and, therefore, the trial court erred in failing to award him the increased conduct credits provided by amended section 4019. Assuming appellant's contention is properly before us, we reject it on the merits.
Section 1192.7, subdivision (c) provides a list of specific offenses that constitute serious felonies (e.g., § 1192.7, subd. (c)(1) "[m]urder or voluntary manslaughter"). In addition to these specifically enumerated offenses, section 1192.7, subdivision (c)(8) defines a serious felony as "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm[.]" Further, section 1192.8, lists several offenses, including vehicular manslaughter while intoxicated without gross negligence (i.e., "any violation of Section 191.5"), that constitute serious felonies within the meaning of section 1192.7, subdivision (c)(8), "when any of these offenses involve[s] the personal infliction of great bodily injury on any person other than an accomplice ...." (§ 1192.8, subd. (a).) The Legislature adopted section 1192.8 to codify two decisions, including People v. Gonzales (1994) 29 Cal.App.4th 1684. (§ 1192.8, subd. (b).) The Gonzales court held that "by virtue of subdivision (c)(8) of Penal Code section 1192.7, ... gross vehicular manslaughter while intoxicated ... will be a serious felony if in the commission of the crime the defendant personally inflicts great bodily injury on any person other than an accomplice." (Gonzales, supra, 29 Cal.App.4th at p. 1694.)
Section 1192.8 provides, in its entirety: "(a) For purposes of subdivision (c) of Section 1192.7, 'serious felony' also means any violation of Section 191.5, paragraph (1) of subdivision (c) of Section 192, subdivision (a), (b), or (c) of Section 192.5 of this code, or Section 2800.3, subdivision (b) of Section 23104, or Section 23153 of the Vehicle Code, when any of these offenses involve the personal infliction of great bodily injury on any person other than an accomplice, or the personal use of a dangerous or deadly weapon, within the meaning of paragraph (8) or (23) of subdivision (c) of Section 1192.7. [¶] (b) It is the intent of the Legislature, in enacting subdivision (a), to codify the court decisions of People v. Gonzales, 29 Cal. App. 4th 1684, and People v. Bow, 13 Cal. App. 4th 1551, and to clarify that the crimes specified in subdivision (a) have always been, and continue to be, serious felonies within the meaning of subdivision (c) of Section 1192.7."
Despite appellant's mistaken assertions to the contrary, the crime of vehicular manslaughter while intoxicated without gross negligence (former § 192, subd. (c)(3)) has always been included in the list of crimes that may constitute a serious felony since the relevant amendment to section 1192.8 was originally enacted. (See Stats. 1996, ch. 645 (A.B. 1895) § 3.) It was not until after the Legislature moved the crime from former section 192, subdivision (c)(3) to current section 191.5, subdivision (b), that it correspondingly deleted the reference to former section 193, subdivision (c)(3) in section 1192.8, subdivision (a). (See Stats. 2006, ch. 91 (A.B. 2559) §§ 1 & 2; see also Stats. 2007, ch 757 (A.B. 678) § 9.) The forgoing history of the relevant amendments to section 1192.8 directly refutes appellant's assertions that "it does not appear that the Legislature ever intended to designate vehicular manslaughter while intoxicated without gross negligence . as a serious felony" and that "[v]ehicular manslaughter without gross negligence worked its way into ... section 1192.8 only as a result of renumbering." (Italics added.)
Appellant appears to have accidentally misquoted two decisions to support his assertions in this regard. In footnote 3 on page 28 of his opening brief, appellant quotes language ostensibly from People v. Wood (2000) 83 Cal.App.4th 862, asserting that it shows section 1192.8, subdivision (a), as it then existed, did not refer to former section 192, subdivision (c)(3). However, the Wood court directly and accurately quoted the existing version of section 1192.8 as providing, in relevant part: "'(a) For purposes of subdivision (c) of Section 1192.7, "serious felony" also means any violation of ... paragraph (1) or (3) of subdivision (c) of Section 192 (People v. Wood, supra, 83 Cal.App.4th at pp. 866-867, italics added; see also Stats. 1999, ch. 706 (A.B. 1236), § 12 [promulgating version of section 1192.8 cited by the Wood court].)
Appellant also misattributes the following quotation to the court in Binkerd, supra, 155 Cal.App.4th 1143: "A conviction for violating section 192, subdivision (c)(3), is not a strike, a violent felony, or a serious felony under section 1192.7, subdivision (c)." We can find neither this quotation nor the idea it expresses anywhere in the Binkerd decision. Instead, the quotation appears to derive from an erroneous "Lexis/Nexis Headnotes" attached to the decision by the online legal research company.
We further find that the stipulated factual basis for the plea was sufficient to show that appellant personally inflicted great bodily injury in his commission of the offense of vehicular manslaughter while intoxicated as required under section 1192.8 for the offense to constitute a serious felony within the meaning of section 1192.7, subdivision (c). "To 'personally inflict' an injury is to directly cause an injury, not just to proximately cause it." (People v. Rodriguez (1999) 69 Cal.App.4th 341, 347.) Before appellant entered his plea, counsel stipulated to a factual basis "based on the reports" The details of the police reports in this case, which were summarized in the probation officer's report quoted above, show that appellant directly caused the accident by driving into oncoming traffic. He thus personally inflicted, and not just proximately caused, great bodily injury.
Appellant does not claim that the facts in the probation officer's report fail to show he directly caused the accident or personally inflicted great bodily injury. Rather, he asserts that, by pleading guilty to the crime of vehicular manslaughter while intoxicated, he only admitted the elements of the offense, including that the victim's death was "the proximate result" (§ 191.5, subd. (b)) of his action, and that the court could not properly rely on the stipulated factual basis for the plea to find that he personally inflicted great bodily injury, which was not an element of the offense. However, the authority he relies on to support his assertion is not analogous to the circumstances or legal issues presented here. In People v French (2008) 43 Cal.4th 36 (French),one of the issues was whether the trial court could rely on the factual basis set forth by the prosecutor to find the facts necessary to impose an upper term sentence without a jury trial. (See Blakely v. Washington (2004) 542 U.S. 296.) After the prosecuting attorney set forth the factual basis for the defendant's plea, defense counsel was asked whether she believed there was a sufficient factual basis for the plea. She responded: "'I believe the People have witnesses lined up for this trial that will support what the D.A. read in terms of the factual basis, and that's what they'll testify to.'" The California Supreme Court concluded that, under the circumstances before it, in which defense counsel was careful not to agree to the truth of the prosecutor's statement, the stipulation to the factual basis "[could] not reasonably be construed as an admission by the defendant sufficient to satisfy ... Sixth Amendment requirements ...." (French, supra, at p. 51, fn. omitted.)
Because the trial court could properly find that appellant's conviction under section 191.5 constituted a serious felony within the meaning of section 1192.7, the court did not err in failing to award appellant additional conduct credits under amended section 4019.
DISPOSITION
Appellant remains convicted on counts 1 through 5. Appellant's convictions on counts 2 and 3, and the third multiple-victim enhancement attached to count 3, are stricken insofar as they are premised on offenses committed against the manslaughter victim, Diana Strickland. The trial court is directed to prepare a new abstract of judgment in accordance with this disposition, to prepare a corrected sentencing minute order showing the sentence on count 5 was stayed under section 654, and to forward the new abstract of judgment and corrected sentencing minute order to the appropriate agencies. In all other respects, the judgment is affirmed.
HILL, P.J. WE CONCUR: DAWSON, J. DETJEN, J.