Opinion
No. D040916.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. MICHELE DEKKER, Defendant and Appellant.
Michele Dekker pleaded guilty to felony drunk driving (Veh. Code, § 23153, subd. (b)) and admitted that she personally inflicted great bodily injury (GBI) resulting in a coma (Pen. Code, § 12022.7, subd. (b)). On appeal, she contends the trial court abused its discretion by not striking the GBI enhancement, because it constituted an unauthorized enhancement for a felony drunk driving offense. She argues she did not personally inflict the victims injury and the injury did not occur during the commission of a felony. She also contends the Penal Code section 2933.1 limitation on her custody credits should be lifted because the GBI enhancement was improperly imposed. We conclude the trial court made a clerical error in the abstract of judgment (see fn.1, ante) and direct the superior court to correct the error. With this correction, we affirm the judgment.
FACTS
Dekker, as part of her guilty plea, admitted she made an improper turn in front of a car driven by Matthew Cothran causing a collision that resulted in seriously injuring Cothran and those injuries led to the induction of a coma. Dekkers blood alcohol level was .24 percent when she was tested about 90 minutes after the collision.
DISCUSSION
I
Imposition of the GBI Enhancement
Dekker contends a GBI enhancement is improper, as a matter of law, for felony drunk driving because: (1) the enhancement requires proof of general criminal intent whereas the underlying offense of drunk driving can be committed with only criminal negligence; (2) injuries resulting from a negligent automobile collision are not "personally inflicted" as required by the GBI enhancement; and (3) injuries resulting from the collision do not occur during the commission of a felony as required by the GBI enhancement.
A person is guilty of felony drunk driving if he or she drives while intoxicated or with a blood alcohol level of .08 percent or more, does an act forbidden by law or neglects any duty imposed by law in driving the vehicle and that act or neglect proximately causes bodily injury to any person other than the driver. (Veh. Code, § 23153, subds. (a), (b).)
Penal Code section 12022.7, subdivision (a) provides for a consecutive three-year term of imprisonment for "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony . . . ." If the great bodily injury caused "the victim to become comatose due to a brain injury," then the punishment is increased to a consecutive prison term of five years, rather than three years. (§ 12022.7, subd. (b).) The five-year enhancement was imposed in this case.
The "personally inflict" element of the GBI enhancement requires a general criminal intent. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1166-1167; People v. Carter (1998) 60 Cal.App.4th 752, 755-756.) As used in Penal Code section 12022.7, "[t]o 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.) "To personally inflict injury, the actor must do more than take some direct action which proximately causes injury. The defendant must directly, personally, himself inflict the injury." (Id. at p. 349; People v. Cole (1982) 31 Cal.3d 568, 572-573 [the GBI enhancement applies only to a person who "directly acted to cause the injury" and who "himself [or herself] inflicts the injury"].) Thus, in People v. Rodriguez, supra, 69 Cal.App.4th 341, the court held that the trial court erred in instructing the jury that the GBI enhancement could be imposed if the jury found " an unlawful act which was a cause of such injury " and that " [a] cause of injury is an act that sets in motion a chain of events that proceed a direct, natural and possible consequence of the act, the injury, and without which the injury would not occur. " (People v. Rodriguez, supra, at pp. 346-347.) The court held the error was prejudicial. (Id. at pp. 351-352.) In Rodriguez, a police officer was injured when he fell while chasing the defendant who had escaped custody. The Rodriguez court held these facts were insufficient to support a finding that the defendant had personally inflicted the injuries; the defendant had not inflicted the injuries, "the officer injured himself." (Id. at p. 352.)
(A) Mens Rea for Felony DUI and the GBI Enhancement
Dekker asserts: "[W]here the actus reus of the underlying offense does not involve a general intent to inflict bodily injury, an enhancement pursuant to Penal Code section 12022.7 is unauthorized as a matter of law." She argues "[d]riving while intoxicated involves criminal negligence where the driver is legally intoxicated when those negligent acts are committed."
Dekkers argument is based on a premise that the mens rea for an enhancement must match the minimum mens rea applicable to the underlying offense. This premise is faulty. The purpose of an enhancement is to increase the punishment based on the particular circumstances of the crime that make it worse than the minimum required for conviction of the offense. Enhancements involve separate factual findings; they must be separately pleaded and proven. (Pen. Code, § 1170.1, subd. (e).) In other words, whether an enhancement applies in a particular case, is primarily a factual matter.
As a factual matter, the offense of felony drunk driving can be committed under circumstances where the enhancement clearly applies and therefore the enhancement would be authorized. For example, if a drunk driver used his car as a deadly weapon, ran a red light with the intent to mow down a pedestrian in the crosswalk and hit that pedestrian causing great bodily injury, all the minimum elements necessary for a conviction of felony drunk driving and for the GBI enhancement would be present. Contrary to Dekkers assertion, it cannot be said, as a matter of law, that a GBI enhancement can never be imposed in a felony drunk driving case on the basis the minimum mens rea required for felony drunk driving is less than that required for imposition of a GBI enhancement.
Dekker argues, as a matter of law, it cannot be said that felony drunk driving involves the "personal infliction" rather than the "proximate causation" of injuries. As pointed out above, felony drunk driving can involve a range of conduct. Thus, Dekker is mistaken when she claims that, as a matter of law, the GBI enhancement was improper because a felony drunk driver offense can never involve the personal infliction of great bodily injury.
In this case, Dekker admitted the GBI enhancement and thus she admitted, as a factual matter, that she personally inflicted the injuries on Cothran. Moreover, the facts of this case support a conclusion Dekker personally inflicted the injuries. People v. Guzman (2000) 77 Cal.App.4th 761, which involved similar factual circumstances, is instructive. The Guzman court, in rejecting an argument similar to the one raised by Dekker, explained:
"Here, appellant turned his vehicle into oncoming traffic. This volitional act was the direct cause of the collision and therefore was the direct cause of the injury. Appellant was not merely an accomplice. Thus, appellant personally inflicted the injury on [the victim]. Further, the accidental nature of the injuries suffered does not affect this analysis. The 1995 amendment to [Penal Code] section 12022.7 deleted the requirement that the defendant act with the intent to inflict the injury. " (Id. at p. 764.)
The Guzman court also rejected the argument the enhancement was inapplicable because another vehicle was involved in the collision or because the driver of the other car may have been partially responsible for the injuries. The court noted that "[m]ore than one person may be found to have directly participated in inflicting a single injury." (People v. Guzman, supra, 77 Cal.App.4th 761, 764.)
Dekker focuses on the Guzman courts use of the word "cause," i.e., concluding that the GBI enhancement could be imposed because the appellants "volitional act was the direct cause . . . of the injury." (People v. Guzman, supra, 77 Cal.App.4th 761, 764, italics added.) Dekker asserts the use of the word "cause" indicates the Guzman court improperly relied on a proximate cause standard (rather than on a personal infliction standard) to reach its conclusion that the GBI enhancement could be imposed. We disagree. When read in context, it is clear the Guzman court was applying the correct standard, i.e., whether the individual directly inflicted (rather than merely proximately caused) the injury to the victim. We agree with Guzman that an individual who turns his or her car in front of oncoming traffic and injures a person in the other car has directly and personally inflicted, not merely proximately caused, injury.
(B) Great Bodily Injury in the Commission of a Felony
Dekker contends the enhancement was improperly imposed because the enhancement requires that the great bodily injury be inflicted "in the commission of a felony" (Pen. Code, § 12022.7, subd. (b)), but it was the injuries that caused the drunk driving to be elevated from a misdemeanor to a felony.
To support her argument, she relies on Wilkoff v. Superior Court (1985) 38 Cal.3d 345. In Wilkoff, the issue was whether an individual could be convicted of multiple counts of felony drunk driving where the drunk driver was involved in one collision that injured multiple people. In the course of the opinion, the court stated: "[T]he act prohibited by [Vehicle Code] 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. Rather, where bodily injury proximately results from the prohibited act, the offense is elevated from a misdemeanor to a felony." (Id. at p. 352, italics omitted.) The Wilkoff court concluded "[d]efendants are not chargeable with a greater number of offenses simply because the injuries proximately caused by their single offense are greater." (Ibid.) The court noted, however, that "the Legislature may provide for increased punishment for an offense that has more serious consequences, by, for instance, . . . adding enhancements . . . ." (Ibid.) Subsequent to the Wilkoff decision, the Legislature amended the Vehicle Code to provide for increased punishment when multiple individuals were injured. (Former Veh. Code, § 23182, added by Stats. 1988, ch. 1264, § 1; see now Veh. Code, § 23558.)
Initially, it is apparent that Wilkoff did not address the issue Dekker raises, that is, whether it can be said that great bodily injuries inflicted by a drunk driver who violates a driving law are injuries that occur during "in the commission of a felony." Wilkoff only addressed whether multiple convictions of felony drunk driving can occur if multiple persons were injured as a result of the defendants drunk driving, something which is not at issue here. Wilkoffs characterization of the actus reus of the offense of felony drunk driving as not including the causing of bodily injury was made in the context of the issue it was addressing and constitutes mere dicta as to the argument Dekker raises.
Here, the issue is whether the offense is completed before the infliction of the injuries. The offense of felony drunk driving is not completed prior to the infliction of the injuries; it is the infliction of the injuries that raises the offense from a misdemeanor to a felony. Thus, great bodily injuries that are inflicted by a drunk driver who violates a driving law are injuries that are inflicted in the commission of a felony.
We conclude the section GBI enhancement was properly imposed in this case.
II
Penal Code Section 2933.1 Reduction of Credits
Penal Code section 2933.1 reduces presentence and postconviction credits to 15 percent, inter alia, when a person has been convicted of a felony where he or she inflicted great bodily injury on any person other than an accomplice. (Pen. Code, §§ 2933.1, subd. (a), 667.5, subd. (c)(8).) Dekker argues this reduction was improper because the GBI enhancement was unauthorized and should have been stricken. We have rejected this argument in part I, ante. Therefore, we find no error in the reduction of credits pursuant to Penal Code section 2933.1.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment to show the conviction of section 23153, subdivision (b) and forward a certified copy of the amended abstract of judgment to the Department of Corrections.
WE CONCUR: HALLER, J., OROURKE, J. --------------- Notes: Dekkers written guilty plea form, and the court minutes reflect that Dekker pleaded guilty to subdivision (b) of Vehicle Code section 23153. The reporters transcript indicates Dekker pleaded guilty to driving with a blood alcohol level of above .08 percent, making an improper turn, and causing injury, i.e., she pleaded guilty to the offense described in section 23153, subdivision (b). The abstract of judgment reflects a conviction of section 23153, subdivision (a), i.e., driving under the influence rather than driving with a blood alcohol level of .08 percent or more. The abstract of judgment appears to be erroneous.