Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County No. JJL24075, Juan Ulloa, Judge.
IRION, J.
The juvenile court declared Juan Y. a ward of the court (Welf. & Inst. Code, § 602) after sustaining allegations that he committed vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), five counts of reckless driving causing specific bodily injuries (Veh. Code, § 23105, subd. (a)) and driving without a driver's license (Veh. Code, § 12500, subd. (a)). The court placed Juan on probation and ordered him returned to his parents in Mexico.
Juan appeals, contending the court erred by making true findings on five counts of reckless driving causing specific bodily injuries because there was only one instance of reckless driving even though numerous individuals were injured. Juan also contends two of the probation conditions—prohibiting the possession of aerosol containers of paint and prohibiting possession of a pager or cell phone—were improperly imposed. Additionally, Juan claims the court erred by failing to declare whether the offenses were felonies or misdemeanors as required by Welfare and Institutions Code section 702, and the case must be remanded for the court to make this declaration.
The Attorney General concedes that Juan is correct with respect to the three contentions.
FACTS
On April 27, 2008, Juan drove a green Suburban van from Mexico into the United States. A total of 22 people were inside the Suburban, which was chased by a border patrol vehicle at high speeds on Interstate 8. The Suburban exited the freeway at Drew Road traveling at approximately 90 miles per hour and traveled through a series of S-curves. As the Suburban approached a 90-degree curve with a posted 15-mile-per-hour limit, it was traveling "[a]t least" 75 miles per hour. The Suburban went into a counterclockwise skid and rolled over. Maria Medina Sanchez, a passenger, was ejected; she died at the scene. Maria Flor Gonzales Figeroa lost consciousness and suffered a fractured arm. At least 10 people in the van were injured.
Loss of consciousness and a bone fracture are among the eight injuries specified in Vehicle Code section 23105, subdivision (b). (Veh. Code, § 23105, subd. (b)(1) & (3).)
DISCUSSION
Juan contends a single act of reckless driving cannot result in five true findings for violating Vehicle Code section 23105. He is correct, as the Attorney General acknowledges.
In Wilkoff v. Superior Court (Wilkoff) (1985) 38 Cal.3d 345, 349, superseded by statute on another ground as noted in People v. Arndt (1999) 76 Cal.App.4th 387, 393-394, our Supreme Court held that "a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute -- the gravamen of the offense -- has been committed more than once." Wilkoff was charged with multiple counts of felony driving under the influence (Veh. Code, § 23153) arising out of a single incident in which six persons were injured or killed. Our high court held that only one count could be charged because the actus reus of the offense did not include causing bodily injury. (Wilkoff, supra, at p. 352.) "A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act only where the act prohibited by the statute is centrally an 'act of violence against the person.' [Citation.]" (Id. at p. 351.)
Subsequent to the Wilkoff decision, the Legislature amended the Vehicle Code to provide for increased punishment when multiple individuals were injured as a result of drunk driving. (Former Veh. Code, § 23182, added by Stats. 1988, ch. 1264, § 1; see now Veh. Code, § 23558.)
Here the gravamen of the offense—driving recklessly—was committed only once and was not an act of violence against the person. The number of counts sustained against Juan cannot be based on the number of people who were injured as a result of his reckless driving. Counts 2 through 5 of driving recklessly causing specific injuries must be reversed and the maximum period of confinement modified.
Juan contends the probation conditions prohibiting him from possession of aerosol cans of paint and a pager or cell phone were improperly imposed because they were not pronounced orally at the disposition hearing. The Attorney General concedes these two probation conditions (Nos. 24 and 25) should be stricken because the court's oral pronouncement regarding sentencing controls when there is a conflict with the clerk's minute order. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2.)
The Attorney General also acknowledges that the case must be remanded for the juvenile court to declare whether the vehicular manslaughter count (count 1) and the reckless driving causing specific bodily injuries count (count 6) are felonies or misdemeanors. Welfare and Institutions Code section 702 provides in pertinent part: "If the minor is found to have committed an offense which would in the case of an adult be punished alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." Penal Code section 192, subdivision (c)(1) is a wobbler offense. (Pen. Code, § 193, subd. (c)(1).) Vehicle Code section 23105 is a wobbler. (Veh. Code, § 23105, subd. (a).)
DISPOSITION
The matter is remanded to the juvenile court to strike four of the five counts of reckless driving causing specific bodily injuries (Veh. Code, § 23105, subd. (a)). Counts 2 through 5 are to be stricken, and the court shall modify the maximum period of confinement accordingly. The court is also ordered to strike Nos. 24 and 25 of the probation conditions. Additionally, the court is ordered to exercise its discretion and declare whether the vehicular manslaughter count and the reckless driving causing specific bodily injuries are felonies or misdemeanors.
In all other respects, the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McDONALD, J.