Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. FWV040333 of San Bernadino County, Michael R. Libutti, Judge.
AARON, J.
I.
INTRODUCTION
A jury found Yvonne Sinclair guilty of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) (counts 1, 2), driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) (count 3), and driving with a blood alcohol level of above.08 percent causing injury (Veh. Code, § 23153, subd. (b)) (count 4). With respect to both counts 3 and 4, the jury also found true that Sinclair personally inflicted great bodily injury on three victims (Kara Maes, Sergio Lopez, and Vanessa Nava), in violation of section 12022.7, subdivision (a).
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
The trial court sentenced Sinclair to an aggregate term of 13 years eight months in prison ─ the upper term of 10 years on count 1, two years on count 2, and one year eight months on count 3. The sentence on count 3 was comprised of eights months for the underlying offense, and one year for the great bodily injury enhancement as to victim Nava. The sentences on all three counts were to run consecutively. The court imposed and stayed the sentences on the great bodily injury enhancements on count 3 as to victims Maes and Lopez, pursuant to section 654, and imposed and stayed the sentences on count 4 as to both the offense and all three great bodily injury enhancements, pursuant to section 654.
The trial court did not specify which of the three great bodily enhancements (§ 12022.7, subd. (a)) it was staying on count 3, pursuant to section 654. We conclude that the court intended to stay the two sentence enhancements pertaining to Maes and Lopez. As discussed in part III.A., post, the trial court erred in failing to strike the convictions on counts 3 and 4, and the related enhancements, insofar as those convictions and enhancements pertain to Maes and Lopez.
II.
FACTUAL BACKGROUND
On January 20, 2006, Sinclair went to a nightclub with four other women, including Nava, to celebrate Sinclair's birthday. Shortly before 2:00 am., Sinclair and the four other women left the club in Sinclair's new Hummer sports utility vehicle. Shortly after leaving the nightclub, Sinclair began to drive at a high rate of speed. While driving at approximately 80 miles per hour on a road with a posted speed limit of 40 miles per hour, Sinclair's Hummer collided with another vehicle. The driver of the other vehicle, Maes, and her passenger, Lopez, died as a result of the collision. Nava suffered serious injuries. A preliminary alcohol screening test that was performed shortly after the collision revealed that Sinclair had a blood alcohol level of.138 percent.
III.
DISCUSSION
A. Sinclair's convictions on counts 3 and 4 and the related great bodily injury enhancements must be stricken insofar as those convictions and enhancements pertain to Maes and Lopez.
Sinclair claims that her convictions on count 3 (Veh. Code, § 23153, subd. (a)) and count 4 (Veh. Code, § 23153, subd. (b)), and the related sentence enhancements, must be reversed insofar as those convictions and enhancements pertain to Maes and Lopez. Sinclair argues that because she was convicted of the greater offense of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) with respect to Maes and Lopez (counts 1 and 2), she may not also be convicted of violations of Vehicle Code section 23153, driving under the influence of alcohol causing injury, or driving with a blood alcohol greater than.08 percent causing injury, as to the same victims based on the same conduct, because Vehicle Code section 23153 is a necessarily included offense of section 191.5, subdivision (a).
Sinclair's claim raises a pure "legal question." (People v. Ramirez (2009) 45 Cal.4th 980, 983, fn. 3 (Ramirez) [whether an offense is a necessarily included offense of another is a "legal question"].) Accordingly, we apply a de novo standard of review. (People v. Butler (2003) 31 Cal.4th 1119, 1127.)
1. Governing law
"In California, a single act or course of conduct can lead to convictions 'of any number of the offenses charged.' [Citations.] However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses. [Citations.]" (Ramirez, supra, 45 Cal.4th at p. 984.) In applying the bar against multiple convictions for necessarily included offenses, a court must "inquire whether all the statutory elements of the lesser offense are included within those of the greater offense. In other words, if a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense. [Citations.]" (Id. at p. 985.)
Section 191.5, subdivision (a) provides:
"Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140,[] 23152,[] or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence."
Vehicle Code section 23140 provides in relevant part: "(a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."
Vehicle Code section 23152 provides in relevant part: "(a) It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle. [¶] (b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle."
Vehicle Code section 23153 provides in relevant part:
"(a) It is unlawful for any person, while under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and 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.
"(b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood 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."
In People v. Miranda (1994) 21 Cal.App.4th 1464, 1468, the court concluded that Vehicle Code section 23153 is a necessarily included offense of former section 191.5, subdivision (a). At the time Miranda was decided, former section 191.5, subdivision (a) required that the People prove, among other elements, that the defendant violated either Vehicle Code section 23152 or Vehicle Code section 23153. The Miranda court rejected the People's argument that section 23153 was not a necessarily included offense of former section 191.5, subdivision (a) because one could commit a violation of former section 191.5, subdivision (a) without necessarily violating Vehicle Code section 23153 ─ such as, by violating Vehicle Code section 23152. Without specifically referring to Vehicle Code section 23152, the Miranda court rejected this argument, reasoning:
The Miranda court quoted former section 191.5, subdivision (a) as prohibiting " 'the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23152 or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.' [Citation.]" (Miranda, supra, 21 Cal.App.4th at p. 1468.)
"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. The People do not suggest how a victim could be killed by a moving vehicle and not incur injury in the process. We cannot envision such a scenario, nor is one created by a hyper technical reading of Penal Code section 191.5. Appellant's conviction of violating Vehicle Code section 23153, subdivision (a) cannot stand." (Miranda, supra, 21 Cal.App.4th at p. 1468.)
Although not clearly stated in the opinion, the Miranda court may have intended to conclude that any defendant who violates former section 191.5, subdivision (a) and Vehicle Code section 23152, will also have violated Vehicle Code section 23153, in light of the requirement in section 191.5 that "the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence." (Miranda, supra, 21 Cal.App.4th at p. 1468.)
In addition to Vehicle Code sections 23152 and 23153, the Legislature has since amended section 191.5 to provide that a violation of section 191.5, subdivision (a) may also be predicated on a violation of Vehicle Code section 23140, which prohibits minors from driving with a blood alcohol content of 0.05 percent or more. (See People v. Goslar (1999) 70 Cal.App.4th 270, 277-278 [noting statutory amendment].) Thus, it now appears to be possible for a minor to violate section 191.5 without violating Vehicle Code section 23153 in those cases in which the violation of section 191.5, subdivision (a) is predicated upon a violation of Vehicle Code section 23140.
In People v. Binkerd (2007) 155 Cal.App.4th 1143 (Binkerd), the court relied on Miranda in concluding that Vehicle Code section 23153 is a necessarily included offense of former section 192, subdivision (c), which required that the defendant commit a "violation of Section[s] 23140, 23152, or 23153 of the Vehicle Code...." (Binkerd, supra, 155 Cal.App.4th at p. 1147, quoting former section 192, subdivision (c).) The Binkerd court specifically rejected the People's argument that Vehicle Code section 23153 is not a necessarily included offense of section 192, subdivision (c)(3) because a violation of section 192 may be predicated upon the violation of Vehicle Code section 23140. (Binkerd, supra, 155 Cal.App.4th at p. 1148.) The Binkerd court noted that the defendant in that case "was over the age of 21 at the time and could not be charged with violating Vehicle Code section 23140." (Binkerd, supra, at p. 1149.)
Former section 192, subdivision (c), which defined the crime of vehicular manslaughter while intoxicated without gross negligence, is now codified in section 191.5, subdivision (b). (Binkerd, supra, 155 Cal.App.4th at p. 1143, fn. 1.) As noted in the text, section 191.5, subdivision (a) defines the crime of vehicular manslaughter while intoxicated with gross negligence, commonly referred to as gross vehicular manslaughter while intoxicated.
In this case, the probation report states that Sinclair is 29 years old.
The People cite both Miranda and Binkerd in their brief, and concede that a violation of Vehicle Code section 23153 is a necessarily included offense of section 191.5, subdivision (a). Accordingly, we assume that Miranda and Binkerd were correctly decided, and that Vehicle Code section 23153 is a necessarily included offense of section 191.5, subdivision (a).
2. Application
In this case, the jury verdicts did not expressly state the names of the victims of the underlying offenses on counts 1 through 4. However, with respect to each count, the jury found that Sinclair committed the offenses as alleged in the information. The information alleged that Maes was the victim in count 1, Lopez was the victim in count 2, and Maes, Lopez, and Nava were the victims in both counts 3 and 4. The three verdict forms on the section 12022.7, subdivision (a) enhancements on count 3, and the three verdict forms on the section 12022.7, subdivision (a) enhancements on count 4, expressly stated the names of the victims to which the enhancements applied. Thus, the jury found that Sinclair personally inflicted great bodily injury on Maes, Lopez, and Nava, in violation of section 12022.7, subdivision (a) on both counts 3 and 4.
It is thus clear from the information and the verdict forms on the underlying offenses that the jury found Sinclair guilty of driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)) (count 3), and driving with a blood alcohol level of above.08 percent causing injury (Veh. Code, § 23153, subd. (b)) (count 4) with respect to Maes, Lopez, and Nava. In addition, with respect to both counts 3 and 4, the jury found true that Sinclair personally inflicted great bodily injury on Maes, Lopez, and Nava, in violation of section 12022.7, subdivision (a).
In light of the fact that Vehicle Code section 23153 ─ driving under the influence of alcohol causing injury, or driving with a blood alcohol level greater than.08 percent causing injury, is a necessarily included offense of section 191.5, subdivision (a) ─ gross vehicular manslaughter while intoxicated, Sinclair's convictions on counts 3 and 4 must be stricken insofar as they are premised on offenses committed against Maes and Lopez. Further, as Sinclair contends, and the People concede, the section 12022.7, subdivision (a) enhancements attached to those counts as to Maes and Lopez must also be stricken.
Sinclair acknowledges that "the [Vehicle Code] section 23153 convictions [on counts 3 and 4] as to Nava are proper." Sinclair therefore remains convicted on counts 3 and 4 as to Nava. The one-year section 12022.7, subdivision (a) enhancement on count 3 pertaining to Nava shall remain imposed, and the section 12022.7, subdivision (a) enhancement as to victim Nava on count 4 shall remain imposed and stayed pursuant to section 654.
The People's brief could be read to suggest that the section 12022.7, subdivision (a) enhancement on count 4 as to victim Nava must also be stricken. We see no basis for such action, and Sinclair has presented no argument in this regard on appeal.
B. Sinclair forfeited her claim that the trial court erred in relying on factors that are inherent in the elements of section 191.5, subdivision(a) in imposing an upper term on count 1.
Sinclair claims that the trial court erred in relying on factors that she maintains are inherent in the elements of section 191.5, subdivision (a), in imposing an upper term on count 1. Specifically, Sinclair claims that the trial court erred in relying on the fact that she engaged in violent conduct and egregious conduct, and that she constitutes a serious danger to society. Sinclair forfeited this contention by failing to raise it in the trial court.
1. Factual and procedural background
In January 2009, the probation officer filed a probation report, prior to Sinclair's sentencing hearing. In the report, the probation officer recommended that Sinclair be sentenced to the upper term on count 1. With respect to aggravating factors, the probation officer stated that "[t]he crime involved threat of great bodily harm," and that Sinclair had "engaged in violent conduct, which indicates [that she is] a serious danger to society."
Both factors are specified as circumstances in aggravation in California Rules of Court, rule 4.421.
Defense counsel filed a statement in mitigation. In the statement, defense counsel argued that Sinclair should be sentenced to the lower term on count 1. Defense counsel noted that Sinclair had no prior criminal record. Further, defense counsel stated that she had submitted numerous letters to the court demonstrating that Sinclair was highly regarded in both her profession and her community. In addition, defense counsel argued that Sinclair had shown great remorse in the case, and that the case represented an isolated incident in her life. Finally, counsel argued that Sinclair's blood alcohol level on the night of the collision was not as high as in other cases.
At the sentencing hearing, defense counsel acknowledged that the probation officer's report recommended that the court impose an upper term sentence on count 1. Defense counsel did not raise any objection to the probation officer's recommendations with respect to the aggravating factors that the probation officer alleged existed in the case. However, defense counsel did reiterate her request that the court impose a lower term sentence on count 1.
The prosecutor urged the court to impose the upper term on count 1. The prosecutor argued in part:
Although the trial court stated at the sentencing hearing that it had reviewed the prosecutor's four page sentencing memorandum, the record on appeal does not contain the memorandum.
"This is a woman who planned a birthday party, who went down there, obviously drank a lot of alcohol, driving this huge Hummer H2 vehicle, driving 80 miles per hour.... [W]hen you're driving a vehicle that big on a highway like that, twice the speed limit, and you're full throttle... not even... braking just to slow down a little bit as you go through an intersection. [¶] [Sinclair's] at 100 percent wide open throttle as she's going through the intersection. She T bones our victim's car, kills [those] two kids."
The prosecutor argued further:
"I've spent a lot of time mulling it over, because... my initial thought was that, you know, probably a midterm case. But when you look at all the evidence together and just coupled with how egregious her driving was ─ I mean, you actually are going to be hard pressed to come up with scenarios where you have worse driving where the charge is gross vehicle manslaughter [rather than murder]."
At the conclusion of the hearing, the court imposed an upper term sentence on count 1, stating:
"As to the criteria affecting the sentence, the court looks to the circumstances in aggravation under rule 4.421 and quite simply, having heard the case, and the facts and the conduct, [the court] find[s]that under the aggravated term it is violent conduct, that Ms. Sinclair participated in that was of a serious danger to society, no doubt, in a big way. [¶] The mitigation factor, if any, pales in comparison in that she has no prior record, and the Court knows that. But the Court believes in weighing all of the factors presented, all the items that probation mentioned, that the egregiousness of the conduct and the dangerousness of the conduct severely outweighs any mitigating factors."
2. Governing law
California Rules of Court, rule 4.420(d) provides: "A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term." Notwithstanding this rule, "[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.]" (People v. Weaver (2007) 149 Cal.App.4th 1301, 1322, fn 22. (Weaver)). In Weaver, this court applied this principle in concluding that the trial court had not erred in finding that the "horrific" circumstances surrounding the defendant's commission of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) constituted an aggravating circumstance. (Weaver, supra, 149 Cal.App.4th at p. 1322.)
In People v. Scott (1994) 9 Cal.4th 331, 350 (Scott), the California Supreme Court acknowledged that a trial court may not "use a fact constituting an element of the offense either to aggravate or to enhance a sentence." However, the Scott court held that, "complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (Id. at p. 356.) The Scott court specifically held that among the types of claims included within this rule are "cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, mis weighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons." (Id. at p. 353, italics added.)
3. Application
Sinclair claims that the trial court erred in relying on factors that she maintains are inherent in the elements of section 191.5, subdivision (a). Sinclair did not raise this contention in the trial court. Her claim is thus forfeited. (Scott, supra, 9 Cal.4th at p. 354.) We reject Sinclair's argument that her counsel's objection in the trial court to the "imposition of the upper term," preserved her appellate claim that the trial court erred in relying on improper circumstances in aggravation in sentencing her. (See People v. de Soto (1997) 54 Cal.App.4th 1, 7 [holding that "broad brush, general nature of... objections raised at sentencing," do not preserve specific claims of sentencing error urged on appeal].)
We also decline Sinclair's request, raised for the first time in her reply brief, that we consider whether trial counsel was ineffective for failing to object to the aggravating factors on which the court relied. (See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 [" ' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before" ' "].) We decline Sinclair's request, also raised for the first time in reply, that we use our inherent power to review the issue on the merits, notwithstanding her forfeiture of the claim.
IV.
DISPOSITION
Sinclair remains convicted on counts 1 through 4. Sinclair's convictions on counts 3 and 4 are stricken insofar as they are premised on offenses committed against Maes and Lopez. The section 12022.7, subdivision (a) enhancements attached to counts 3 and 4 as to Maes and Lopez are stricken. The trial court is directed to prepare a new abstract of judgment in accordance with this disposition, and to forward the abstract of judgment to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
I CONCUR: McCONNELL, P. J.
I CONCUR IN THE RESULT: HALLER, J.