Opinion
B226350
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSUE LUNA et al., Defendants and Appellants.
Jeffrey S. Benice for Defendants and Appellants. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA 354927)
APPEAL from a judgment of the Superior Court of Los Angeles County, Robert Perry, Judge. Affirmed.
Jeffrey S. Benice for Defendants and Appellants.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Erika D. Jackson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellants Josue Luna and Claudia Cabrera appeal from judgments of conviction after they pled no contest to leaving the scene of an accident. Appellant Cabrera also pled no contest to vehicular manslaughter. Appellants contend that the trial court committed reversible error in imposing a three-year sentencing enhancement for "great bodily injury" pursuant to Penal Code section 12022.7, subdivision (a). We disagree and affirm.
STATEMENT OF FACTS
On March 29, 2009, at approximately 3:00 a.m., Marcus Garfinkle was outside the Lambda Chi Alpha fraternity house at the University of Southern California when he was asked to walk Adrianna Bachan home. The two walked down University Avenue toward the Jefferson Boulevard and Hoover Street intersection. At the intersection, the crosswalk sign indicated that it was safe to cross. The two stepped into the intersection to cross Jefferson Boulevard and began walking in the crosswalk.
At that same time, appellants were coming home from a party and driving down Jefferson Boulevard. Appellant Cabrera was driving, and appellant Luna was in the front passenger seat. Their car struck Garfinkle and Bachan as they were driving down Jefferson. The windshield shattered, and appellant Cabrera stopped the car and got out. Garfinkle was on top of the hood of the car, with part of his body going through the broken windshield and wedged into the car. Appellant Luna had also gotten out of the car. He grabbed Garfinkle and struggled to pull him out of the car, as his body was getting caught in the broken glass of the windshield. Once he extracted Garfinkle from the car, he laid his body on the sidewalk. Appellant Luna urged appellant Cabrera to get back into the car and go. The two got into their car and drove away.
Garfinkle was severely injured as a result of the hit and run. He spent 35 days in the hospital and underwent 16 hours of surgery. Bachan sustained multiple traumatic injuries and was killed as a result of the hit and run.
PROCEDURAL HISTORY
Appellants were charged by information with leaving the scene of an accident in violation of Vehicle Code section 20001, subdivision (a). The information alleged that appellants had personally inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (a). Appellant Cabrera was also charged with vehicular manslaughter in violation of Penal Code section 192, subdivision (c)(2). After appellants pled no contest to the charges and allegations against them, the court sentenced them to the upper term of four years in state prison for leaving the scene of an accident and an additional three years in state prison for the great bodily injury enhancement. The court also sentenced appellant Cabrera to one year in state prison for vehicular manslaughter, to be served consecutively.
Appellant Luna objected at the sentencing hearing to the three-year enhancement on the ground that it was prohibited by Penal Code section 654, subdivision (a). The trial court "reject[ed] the argument that [section] 654 bars imposition of a consecutive great bodily injury sentence."
DISCUSSION
1. Penal Code Section 654, Subdivision (a) Does Not Require That the Trial Court Stay the "Great Bodily Injury" Enhancement
The trial court sentenced appellants to the high term of four years under Vehicle Code section 20001, subdivision (b)(2). That section provides in relevant part: "If the accident described in subdivision (a) results in death or permanent, serious injury, a person who violates subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years . . . ." (Veh. Code, § 20001, subd. (b)(2), italics added.) Penal Code section 12022.7, subdivision (a), under which the trial court imposed the three-year enhancement, provides: "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." (Italics added.)
Appellants' argument hinges on Penal Code section 654, subdivision (a), which provides in relevant part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Appellants contend that, because their sentences under the Vehicle Code required "death or permanent, serious injury" to the victim, and the three-year enhancement requires "great bodily injury," the enhancement violates Penal Code section 654's prohibition against multiple punishments for a single act and must be stayed. We disagree.
"Whether [Penal Code] section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence." (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
"[Penal Code] [s]ection 654 precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) The purpose of section 654 "is to insure that the defendant's punishment will be commensurate with his criminal liability." (Neal v. State of California (1960) 55 Cal.2d 11, 20.) "Thus, a defendant may not receive multiple sentences where a single criminal act results in violation of more than one criminal statute." (People v. Chaffer (2003) 111 Cal.App.4th 1037, 1044 (Chaffer).)
The appellate courts are split on whether Penal Code section 654 applies generally to sentencing enhancements. (See People v. Arndt (1999) 76 Cal.App.4th 387, 394 [collecting cases on both sides of the issue].) The California Supreme Court has recognized but not resolved the issue. (People v. Palacios (2007) 41 Cal.4th 720, 727-728 ["We are persuaded that, in enacting [Penal Code] section 12022.53 [enhancements for use of a firearm], the Legislature made clear that it intended to create a sentencing scheme unfettered by section 654. In light of this conclusion we need not address the People's argument that section 654 generally does not apply to enhancements. We leave that question for another day"].)
We need not determine whether enhancements generally are subject to Penal Code section 654, but conclude that Penal Code section 12022.7 operates as an exception to section 654. In so doing, we follow the reasoning of the appellate court in Chaffer, supra, 111 Cal.App.4th 1037, which is on point. In Chaffer, the court noted that "[s]ection 654 is a general statute that applies to all species of criminal conduct," whereas "[s]ection 12022.7 is a narrowly crafted statute intended to apply to a specific category of conduct." (Id. at p. 1045.) It further noted that section 12022.7 "represents 'a legislative attempt to punish more severely those crimes that actually result in great bodily injury.'" (Chaffer, at p. 1045, quoting People v. Guzman (2000) 77 Cal.App.4th 761, 765.) The court explained that if section 654 were applied to section 12022.7, it would nullify section 12022.7, because the enhancement always involves the same act -- i.e., "a single act or indivisible course of conduct" (People v. Hester, supra, 22 Cal.4th at p. 294) -- as the underlying offense. (Chaffer, at p. 1045.) The court recognized that, "[w]here statutes are in conflict, it is well settled that '"'["']a general [statutory] provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.["']'"'" (Ibid., quoting People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 808.) The Chaffer court thus held that section 12022.7, a specific statute, operates as an implied exception to the general provisions of section 654. (Chaffer, at p. 1046.) We agree with the reasoning of Chaffer, and therefore conclude that the trial court did not err by refusing to apply section 654 to the section 12022.7 enhancement.
We also agree with the Attorney General that People v. Harbert (2009) 170 Cal.App.4th 42, 59, is not controlling here. Harbert involved a hit and run conviction, and the Harbert court stated that the trial court had properly stayed a Penal Code section 12022.7 enhancement pursuant to Penal Code section 654. The statement was dicta, however, as the application of section 654 was not the issue on appeal. Moreover, the Harbert court provided scant explanation for this position. We therefore do not find Harbert persuasive or controlling.
2. Vehicle Code Section 20001, Subdivision (b)(2) Does Not Preempt Application of the "Great Bodily Injury" Enhancement
Chaffer and the authorities cited therein dealt with the "special over the general rule" when two statutes ostensibly conflict, but the two are not competing substantive offenses for which a defendant may be prosecuted. We note that the "special over the general" rule typically is implicated "where two substantive offenses compete." (People v. Coronado (1995) 12 Cal.4th 145, 153.) In such cases, the preemption doctrine comes into play.
Appellants invoke the preemption doctrine here, urging that Vehicle Code section 20001, subdivision (b)(2) preempts the application of Penal Code section 12022.7, because the Vehicle Code statute is a special statute covering the same conduct as the more general enhancement statute. We disagree.
"The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct." (People v. Jones (2003) 108 Cal.App.4th 455, 463.) To determine whether the preemption doctrine applies, courts have developed two alternative tests. (Ibid.)A prosecution under the general statute is prohibited if: (1) each element of the general statute corresponds to an element on the face of the specific statute; or (2) it appears from the statutory context that a violation of the specific statute will necessarily or commonly result in a violation of the general statute. (Ibid.)
Here, Vehicle Code section 20001, subdivision (b)(2) does not preempt Penal Code section 12022.7, subdivision (a). First, appellants point to nothing to indicate that the Legislature intended Vehicle Code section 20001, subdivision (b)(2) to apply "exclusively" to appellants' conduct. (See People v. Jones, supra, 108 Cal.App.4th at p. 463.) By contrast, "[a] plain reading of Penal Code section 12022.7 indicates the Legislature intended it to be applied broadly." (People v. Sainz (1999) 74 Cal.App.4th 565, 574; see also People v. Parrish (1985) 170 Cal.App.3d 336, 344.) As noted above, it is a legislative attempt to punish more severely those crimes that actually result in great bodily injury. Its very terms make it mandatory and "additional and consecutive," meaning additional to any punishment imposed for the substantive offense. (Pen. Code, § 12022.7, subd. (a).) "The statute itself clearly states the only exceptions of its application" in subdivision (g) of Penal Code section 12022.7. (People v. Sainz, supra, at p. 574.)
Second, neither of the two alternative preemption tests is satisfied here. Each element of Penal Code section 12022.7, subdivision (a) does not correspond to an element of Vehicle Code section 20001, subdivision (b)(2). Section 12022.7 applies when a defendant "personally inflicts great bodily injury." (Pen. Code, § 12022.7, subd. (a).) "[T]he meaning of the statutory language is clear: the enhancement applies only to a person who himself inflicts the injury. . . . [T]he individual accused of inflicting great bodily injury must be the person who directly acted to cause the injury." (People v. Cole (1982) 31 Cal.3d 568, 572, citations omitted.) Proximate cause is insufficient. (People v. Guzman, supra, 77 Cal.App.4th at p. 764.) There is no corresponding requirement in the Vehicle Code section that the defendant have personally inflicted great bodily harm. Indeed, a person may be convicted for a violation of Vehicle Code section 20001 even when not driving the car, as was appellant Luna in this case. (People v. Holford (1965) 63 Cal.2d 74, 81 [passengers may be found guilty of hit and run].) Moreover, Vehicle Code section 20001, subdivisions (a) and (b)(2) are not restricted to cases in which a driver's car directly strikes a pedestrian or another car. They are applicable to any accident in which the driver's car is "involved" and death or permanent, serious injury "results." (Veh. Code, § 20001, subds. (a), (b)(2).) The statute requires only that the driver's car be "connected with (an accident) in a natural or logical manner." (People v. Sell (1950) 96 Cal.App.2d 521, 523.) This is far from the requirement of Penal Code section 12022.7 that the defendant have personally and directly caused the great bodily injury. From this discussion it is clear that a violation of the hit and run statute will not necessarily or even commonly result in a violation of Penal Code section 12022.7, subdivision (a). Accordingly, Vehicle Code section 20001, subdivision (b)(2) does not preempt Penal Code section 12022.7, subdivision (a).
DISPOSITION
The judgment is affirmed.
FLIER, J.
WE CONCUR:
BIGELOW, P. J.
GRIMES, J.