Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA331416, Drew E. Edwards, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr., and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendant and appellant Harry Avakyan guilty of leaving the scene of an accident and of multiple counts of felony drunk driving. On appeal, he contends that there was insufficient evidence to support his conviction for felony drunk driving; that he could not be convicted of multiple counts of felony drunk driving; that he is entitled to additional custody credits under Penal Code section 4019; and that an enhancement alleged under Vehicle Code section 23558 and found true by the jury must be stricken. We agree that defendant cannot be convicted of multiple counts of felony drunk driving; that the enhancement must be stricken; and that there is an error in the award of custody credits. We therefore reverse the judgment in part and affirm it in part.
All further undesignated statutory references are to the Vehicle Code.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
A. Prosecution case.
Unjoo Kang, Camille Kozuki and Cathy Mai were makeup artists. On the evening of October 25, 2007, they and Rose Vu (Mai’s mother) went to the Cabana Club in Hollywood for a fundraiser at which they were doing the makeup. The club was off Sunset and Cahuenga, which had two northbound and two southbound lanes.
Tu Phuong Vu.
Kozuki drove the women in her car, a white Honda Civic. They finished working around 11:00 p.m. Because they had to load the car with makeup and equipment, Kozuki drove to a quiet area on Cahuenga and parked the car “halfway in” and “reared in” near a driveway. Kozuki put on her hazard lights. Cars were parked in front of Kozuki’s car, but were far from the back of the car. They finished putting their things into the car. Kang walked to the curb while Kozuki shut the trunk. Kang was standing directly behind the car, and Kozuki was about a foot and a half to her left, while Mai and Vu were to Kang’s right. A Mercedes ran into the Honda, hitting Kang and Kozuki. Neither Kang nor Kozuki or Mai heard anything before the Mercedes hit the Honda. Mai did not see the Mercedes swerve to avoid the Honda, but she saw it stop briefly after hitting it and the passenger side door opened.
The four women gave varying descriptions of how the Honda was parked. Kozuki and Kang said the car was not double parked, and Kozuki added that the car was not blocking the No. 2 lane, although it was about four to five feet from the curb. Vu said that a portion of the car was blocking the travel lane. Mai said that the car was “sort of” double-parked, and although it wasn’t blocking a lane of traffic, it was blocking it quite a bit.
Walid Amini was on Cahuenga, passing Sunset, when he heard a loud crack and saw a black Mercedes rear end a white Honda, pinning a girl between the cars. The Mercedes “smeared off” to the left. It was a “little bit sideswipe and then breaking away free to go out.” Before hitting the Honda, the Mercedes did not try to stop. The Mercedes drove away slowly for about 15-25 yards because a second person was being dragged under the car. The person broke loose and was run over, and the Mercedes sped up and went north on Cahuenga.
Two people were in the Mercedes. Amini thought the driver was Mexican, but he might have been Armenian, although Amini did not put that in his report to the police. The passenger was slightly shorter than the driver, had a shaved head, was younger with skin darker than the driver’s, and was kind of “Latin [or] Mexican-looking.” At trial, Amini was “[v]ery certain” that defendant was the driver. According to Amini, the Honda was parked against the curb with some cars in front of it and some cars behind it further back, around 30 feet. It wasn’t blocking a driveway or the lanes.
Vahe Ksajikian was driving eastbound on Sunset, near Cahuenga. It was crowded. While he was stopped at a light, a Mercedes S class traveling northbound at about 65 to 70 miles per hour on Cahuenga ran a red light. The speed limit was about 35 miles per hour. The Mercedes had severe front-end damage. Ksajikian noticed some commotion on Cahuenga. About five minutes later, Ksajikian saw the Mercedes again, this time near the Arclight theatre. Two light skinned men were in the car, and Ksajikian thought that they were either African-American or Hispanic. Ksajikian wrote down the Mercedes’s license plate number, which he gave to Officer Robian Tango, a collision investigator who arrived at the scene.
Officer Tango described the area as having no obstructions that would hinder visibility. After running the license plate number, Officer Tango discovered that the car was registered to defendant, so the officer went to defendant’s nearby residence. A black Mercedes with a license plate number matching the one Ksajikian gave to Officer Tango was in the driveway. The car had fresh damage to its front and what appeared to be fresh blood in the cracked headlight lens. White paint was also on the front bumper. The airbags had deployed.
While still outside, Officer Tango heard what sounded like a shotgun blast or gunshot coming from inside defendant’s residence. After back-up arrived, defendant came out. Inside defendant’s home was a shotgun, and there was a hole in one wall that looked as if it was from a shotgun blast. A spent casing was also recovered.
Defendant had bloodshot, watery eyes, and he smelt of alcohol. Defendant’s palms were bruised and his knees had abrasions, which were probably caused by his knees hitting the dashboard. He had a red rash on the left side of his neck, which could have been caused by a seat belt. In Officer Michael McGann’s opinion, defendant was the driver of the Mercedes, based on his injuries.
Later, around 2:20 a.m. at the police station, Officer McGann administered field sobriety tests to defendant. A horizontal nystagmus test indicated a high blood alcohol concentration level of about.3. Defendant failed Romberg, walk and turn, one legged stand, and finger-to-nose tests. Having failed those tests, the officer arrested defendant and had him take a breathalyzer test. His blood alcohol level was.15, which was above the legal limit of.08. A second test at 2:42 a.m. yielded the same result. A criminalist testified that anyone with a blood alcohol level of.15 would be too impaired to drive a car. Alcohol slows down brain function and inhibits the ability to multitask and to perform divided attention tasks, such as driving. If defendant’s blood alcohol level was.15 at 2:30 a.m., his blood alcohol level would have been.12 to.19 three hours before, when the collision occurred.
Officer McGann also investigated the crash scene. Kozuki’s car was at a 45-degree angle on the street. The back of the car was smashed, as was the front from hitting cars in front of it. When officers arrived, Kozuki was in the number two lane closest to the curb, and Kang was behind the Honda. The area was well lit. There were post-impact tire marks indicating that the Honda traveled about 24 feet upon impact. No marks consistent with braking were found. The speed limit in the area was 35 miles per hour, but in Officer McGann’s opinion, that was probably too fast for a Thursday night at 11:00 because of the many pedestrians and that it was a blind corner. That the Honda was illegally parked was a contributing factor to the collision. In his opinion, the driver of the Mercedes violated section 21954, subdivision (b), by failing to exercise due caution around pedestrians, and violated section 22350, driving at an unsafe speed for roadway conditions.
Kozuki was in the hospital for six days and immobile for two months, and her injuries included a broken pelvis, facial fracture, lacerations, a sprained ankle, and road burns. Kang was in the hospital for about three weeks and she was unable to walk for eight months. Her pelvis and legs were crushed, she had temporary brain trauma, and she had no short term memory. She uses a brace and a cane.
II. Procedural background.
Trial was by jury. On June 16, 2009, the jury found defendant guilty of count 1, leaving the scene of an accident (§ 20001, subd. (a)); counts 2 (Kozuki) and 5 (Kang), driving under the influence causing injury (§ 23153, subd. (a)); and counts 3 (Kozuki) and 6 (Kang), driving with a.08 percent blood alcohol causing injury (§ 23153, subd. (b)). As to counts 2, 3, 5 and 6, the jury found true bodily injury enhancement allegations under section 23558 and Penal Code section 12022.7, subdivision (a). The jury found defendant not guilty of count 4, discharge of a firearm with gross negligence (Pen. Code, § 246.3, subd. (a)).
On July 10, 2009, the trial court sentenced defendant to one year on count 1 and to the midterm of two years on count 2 plus three years for the great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)) plus one year, for a total of six years. The sentences on counts 3, 5 and 6 were stayed under Penal Code section 654. The court also did not impose additional time under sections 23558 and Penal Code section 12022.7, subdivision (a), as to the stayed counts. The court awarded defendant 36 days of custody credits.
The stayed sentences were: count 3, two years; count 5, two years; and count 6, two years.
DISCUSSION
I. Sufficiency of the evidence.
Defendant contends that there was insufficient evidence to support his conviction for the four counts of felony drunk driving (counts 2, 3, 5 and 6) because there was insufficient evidence he failed to exercise due care for the safety of a pedestrian on a roadway. We disagree.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[, ] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, ... that... does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
To be convicted of violating subdivision (a) of section 23153, the defendant must have driven a vehicle while under the influence of alcohol or drugs and have concurrently done an act forbidden by law or neglected a duty imposed by law, which act proximately caused bodily injury to another person. Subdivision (b) has the same elements, except that the first element states it is unlawful for a person having.08 blood alcohol level to engage in the unlawful act. “ ‘To satisfy the second element [of both subdivisions], the evidence must show an unlawful act or neglect of duty in addition to driving under the influence.’ [Citation.]” (People v. Weems (1997) 54 Cal.App.4th 854, 858.) The defendant’s ordinary negligence may satisfy the second element. (Ibid.; see also § 23153, subd. (c).)
Section 23153 provides: “(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 any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving. [¶] (c) In proving the person neglected any duty imposed by law in driving the vehicle, it is not necessary to prove that any specific section of this code was violated.”
There are a wide variety of acts or omissions that may satisfy the requirement that the defendant committed an unlawful act while driving. (People v. Capetillo (1990) 220 Cal.App.3d 211, 216-217; People v. Armitage (1987) 194 Cal.App.3d 405, 416.) The unlawful act or neglect defendant was said to have committed here was violating section 21954, failing to exercise due care for pedestrian safety upon a roadway. A person can fail to exercise due care for a pedestrian’s safety by, for example, hitting a person in either a marked or unmarked crosswalk. (See People v. Walker (1968) 266 Cal.App.2d 562, 568-569 [“[d]efendant admitted not seeing the victim, and it could be inferred that defendant failed to exercise due care and neglected a duty imposed by law”].)
Section 21954 provides: “(a) Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard. [¶] (b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway.”
Defendant argues that the evidence was insufficient to show he violated section 21954, because he was traveling 20 miles per hour (below the 35 miles per hour speed limit) just before hitting the Honda, and because the Honda was double parked in an area that had a blind intersection. Defendant concludes that the only reasonable inference that can be drawn from this evidence is he hit a double parked car while driving at a reasonable speed.
Amini testified he wasn’t sure how fast the Mercedes was going, but that he “would say” its speed was 20 miles per hour or less.
Based on a review of the totality of the evidence, however, that was not the only reasonable inference that could be drawn. There was some dispute in the record about how the Honda was parked. Of the four women present during the entire incident, two said it was not double parked while the other two women said it was blocking the lane of traffic, although they differed on to what extent. A witness, Amini, said that the Honda was not blocking any lanes of traffic. Officer McCann, who witnessed only the aftermath of the collision, said that the illegal parking of the Honda contributed to the accident. It was therefore not entirely clear how much of the Honda, if any, was in the lane of traffic.
But even if the jury assumed that the Honda was blocking the travel lane to some degree, the jury still could have reasonably concluded that defendant did not exercise due care. The Honda was white and its hazard lights were on. There was evidence that oncoming traffic had an unobstructed view of the area, which was well lit. The area was crowded and it was not prudent to travel at even the 35 miles per hour speed limit. None of the women heard anything before the Mercedes struck the Honda, and there were no tire marks indicating that the driver braked or tried swerve to avoid hitting the car. Therefore, notwithstanding evidence that defendant was driving at a speed less than the posted 35 miles per hour and that the Honda was illegally parked-evidence that the jury may or may not have credited-the jury could have concluded that a driver exercising due care would have seen the Honda and avoided it or braked. Sufficient evidence therefore supported the felony drunk driving convictions.
II. Defendant committed only one act of driving under the influence.
Defendant was convicted of two counts of driving under the influence and causing injury under section 23153, subdivision (a) (counts 2 (Kozuki) and 5 (Kang)) and of two counts of driving with a.08 percent blood alcohol level and causing injury under subdivision (b) of the same section (counts 3 (Kozuki) and 6 (Kang)). Defendant contends he can be convicted only of one count of driving under the influence (§ 23153, subd. (a)) and of one count of driving with a.08 percent blood alcohol level (§ 23153, subd. (b)). Defendant is correct.
A person who commits one instance of driving under the influence that causes injury to several persons can be convicted of only one count of violating section 23153. (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353 (Wilkoff).) In Wilkoff, the defendant, who had a blood alcohol level of.19 percent, made an improper lane change that resulted in a multiple-car collision causing the death of one person and injuries to five others. (Id. at pp. 347-348.) She was charged with, among other things, six counts of violating section 23153, subdivision (b). The court held that five of the counts had to be set aside, because where the actus reus the statute prohibits is committed once, multiple counts are improper. (Wilkoff, at p. 349.) In contrast to crimes defined in terms of an act of violence against the person (e.g., murder), “the act prohibited by section 23153 is defined in terms of an act of driving: the driving of a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle. The actus reus of the offense does not include causing bodily injury.” (Wilkoff, at p. 352.) Thus, under Wilkoff, where one act of driving injures multiple victims, section 23153 is violated once.
Similar to Wilkoff, defendant here engaged in one act of driving his Mercedes while intoxicated and hitting one car, next to which Kang and Kozuki were standing. Although defendant’s act injured two people, he could be charged with only one violation of subdivision (a) and one violation of subdivision (b) of section 23153.
Defendant does not dispute that he could be convicted of one count of violating subdivision (a) of section 23153 and of one count of violating subdivision (b) of section 23153.
The Attorney General responds that defendant committed not one but two acts of driving. Wilkoff noted that if a driver collides with one car and is involuntarily propelled into a second car, only one instance of driving has occurred. (Wilkoff, supra, 38 Cal.App.3d at p. 349, fn. 4.) “But if a driver collides with the first car and then voluntarily drives further and collides with a second car, then two acts of driving have occurred and the driver may be charged with two counts of felony drunk driving.” (Ibid.) The Attorney General argues that defendant collided with the Honda twice: it first collided with the Honda, hitting Kang; then, in the words of the witness Amini, the Mercedes “smeared off” to the left, hitting and dragging Kozuki. The Attorney General thus concludes that defendant hit the Honda and Kang first, and instead of stopping, chose to flee the scene by going around the Honda and hitting Kozuki.
The evidence does not support applying the distinction Wilkoff made between one act of driving and two. The phrase Amini used to describe how defendant’s Mercedes collided with the Honda-smeared off-is ambiguous and does not connote two separate events. Rather, Kang and Kozuki were injured at either the same moment or the briefest of moments separated the time when Kang was injured from when Kozuki was injured. In any event, the evidence was that the accident was one continuous, indivisible act. What happened does not show that there were two voluntary acts of driving, for example, that defendant first hit Kang and then made some wholly separate and distinct maneuver and hit Kozuki. The Attorney General interprets the evidence in a manner that strains the record.
Defendant therefore could be convicted of only one count under section 23153, subdivision (a), and of one count under section 23153, subdivision (b). Because the trial court imposed sentence on count 2, we order count 5 stricken, and we also order the trial court to strike either count 3 or 6, which are the counts arising under subdivision (b) of section 23153.
III. Penal Code section 4019.
In his opening brief, defendant contends that he is entitled to additional presentence custody credits under the amended version of Penal Code section 4019, which some courts have held applies retroactively. But, as the People point out in the respondent’s brief, defendant was convicted of a serious felony because a great bodily injury enhancement allegation was found true under Penal Code section 12022.7, subdivision (a). (Pen. Code, § 1192.7, subd. (c)(8) [a serious felony includes “any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice”].) Any person who is convicted of a felony offense listed in Penal Code section 667.5, subdivision (c) shall accrue no more than 15 percent of worktime credit. (Pen. Code, § 2933.1, subd. (a).) A great bodily injury enhancement under Penal Code section 12022.7 is listed in Penal Code section 667.5, subdivision (c). Defendant’s custody credits are therefore subject to the 15 percent limitation in Penal Code section 2933.1, which he concedes in his reply brief.
IV. The section 23558 enhancement.
The jury found true great bodily injury allegations under section 23558 and Penal Code section 12022.7, subdivision (a), as to counts 2, 3, 5 and 6. Penal Code section 12022.7, subdivision (a), provides that any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. Section 23558 provides that 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 shall receive an enhancement of one year for each additional injured victim. Notwithstanding any other provision of law, the trial court may strike the enhancement if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.
The court below chose not to impose the additional one year under section 23558, because it imposed a three-year sentence under Penal Code section 12022.7 for great bodily injury. Under the express terms of section 23558, the enhancement should have been stricken, as defendant contends.
But the People, while not disputing that striking the enhancement is the usual procedure, argues that remand is instead necessary so that the trial court can impose an additional enhancement. Defendant was convicted of counts 2 (Kozuki) and 5 (Kang), violating section 23153, subdivision (a), and of counts 3 (Kozuki) and 6 (Kang), violating section 23153, subdivision (b), and the jury found true enhancements under section 23558 and Penal Code section 12022.7, subdivision (a), as to those four counts. The trial court imposed sentence on count 2 and stayed the sentences on counts 3, 5 and 6, and we explained why the trial court must strike count 5 and either count 3 or count 6 under Wilkoff.
The Attorney General, however, argues that the court must impose a bodily injury enhancement for each victim; for example, it should have imposed the Penal Code section 12022.7 enhancement as to each victim or it should have imposed the Penal Code section 12022.7 enhancement for one victim and the section 23558 for the other victim. But the court imposed and stayed the sentences on counts 3, 5 and 6, and, moreover, we have ordered the trial court to strike count 5 and to strike either count 3 or count 6 (both of which were stayed), thereby leaving count 2 which alleged only one Penal Code section 12022.7 enhancement and one section 23558 enhancement. The court has already exercised its discretion to impose the Penal Code section 12022.7 enhancement and not to impose the section 23558 enhancement.
Nothing more need be done, other than to strike the section 23558 enhancement as to count 2, and the People’s authority to the contrary is misplaced. People v. Arndt (1999) 76 Cal.App.4th 387, held that a court is authorized to impose more than one Penal Code section 12022.7 enhancement for one count of felony drunk driving. Three Penal Code section 12022.7 enhancements were alleged in Arndt (one for each of three victims) under the single count, whereas here count 2 alleged only one enhancement for one victim. (See also People v. Ausbie (2004) 123 Cal.App.4th 855, 864 [trial court could impose two Penal Code section 12022.7 enhancements for two victims that were alleged under a single count].) Remand is not warranted.
DISPOSITION
The judgment is reversed in part and affirmed in part. The trial court is instructed to strike count 5 and to strike either count 3 or count 6. The trial court is ordered to reduce defendant’s custody credits under Penal Code section 2933.1. The trial court is further ordered to strike the Vehicle Code section 23558 enhancement in count 2. The clerk of the superior court is directed to amend the abstract of judgment accordingly and to forward the amended abstract of judgment to the Department of Corrections. The judgment is otherwise affirmed.
We concur: KLEIN, P. J., KITCHING, J.