Opinion
A128125
12-05-2011
THE PEOPLE, Plaintiff and Respondent, v. NICOLE M. OGULIN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Lake County Super. Ct. No. CR910534)
Nicole M. Ogulin (appellant) was convicted, following a jury trial, of two Vehicle Code violations: driving under the influence and proximately causing bodily injury, and driving with a blood-alcohol level of 0.08 percent or more and proximately causing bodily injury. The jury also found true two great bodily injury (GBI) allegations. On appeal, she contends (1) the preemption doctrine prohibited application of the GBI enhancement to the Vehicle Code convictions, and (2) application of the GBI enhancement to the Vehicle Code convictions violated her right to equal protection and due process. We shall affirm.
PROCEDURAL BACKGROUND
Appellant was charged by amended information with gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)); vehicular manslaughter while intoxicated (former § 192, subd. (c)(3)); driving under the influence of alcohol/drugs and proximately causing bodily injury (Veh. Code, § 23153, subd. (a)); and driving with a blood-alcohol level of 0.08 percent or more and proximately causing bodily injury (Veh. Code, § 23153, subd. (b)). The information further alleged, as to both Vehicle Code offenses, that appellant personally inflicted GBI (§ 12022.7, subd. (a)).
All further statutory references are to the Penal Code unless otherwise indicated.
Following a jury trial, the jury found appellant not guilty of the two manslaughter offenses, but found her guilty of both Vehicle Code offenses. The jury also found true the GBI allegations.
On February 19, 2010, the trial court placed appellant on formal probation for five years.
On April 1, 2010, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Because the facts of this case are not necessary to resolution of the issues raised on appeal, we shall use the probation officer's report to briefly summarize them.
"On the evening of February 8, 2006, [appellant] and five other young women went riding on all-terrain vehicles (ATVs) in the mountains above Lucerne. Witnesses stated that they took beer with them, as well as a vodka mixed drink in a jug. At about 1:30 on the following morning, an ATV driven by [appellant] (then nineteen years old) with Jessica Selva (then twenty years old) as a passenger, ran off the gravel and dirt roadway on Bartlett Springs Road, coming to rest about fifty feet down a steep brushy embankment.
"Both [appellant] and Jessica were airlifted to Santa Rosa Memorial Hospital. [Appellant] suffered head injuries, facial fractures, and a severe laceration near her right eye. Jessica had severe head injuries, and was taken off life support that afternoon.
"[Appellant] was unconscious after the accident, so that no interviews or field sobriety tests were conducted. However, a blood sample drawn at the [hospital] at about 4:12 a.m. showed a blood alcohol content of 0.14%."
DISCUSSION
I. Preemption
Appellant contends the preemption doctrine prohibited application of the GBI enhancement to the Vehicle Code convictions.
A. Trial Court Background
Near the end of trial, appellant argued that the GBI enhancements were improperly alleged because such an enhancement is inapplicable when the victim dies. The court stated that, if the jury returned guilty verdicts on the Vehicle Code offenses and true findings on the GBI allegations, a hearing would be held before sentencing on this question because it would then become a sentencing issue. After the jury found appellant guilty of the Vehicle Code offenses and found true the GBI allegations, the parties briefed and argued the issue. The trial court ultimately found that it was proper to allege the GBI enhancements and declined to strike them.
B. Legal Analysis
"[W]hen the Legislature has enacted a specific statute addressing a specific matter, and has prescribed a sanction therefor, the People may not prosecute under a general statute that covers the same conduct, but which prescribes a more severe penalty, unless a legislative intent to permit such alternative prosecution clearly appears." (Mitchell v. Superior Court (1989) 49 Cal.3d 1230, 1250.)
Here, according to appellant, vehicular manslaughter while intoxicated (former § 192, subd (c)(3), now § 191.5, subd. (b)) is the specific statute, addressing intoxicated driving that causes death, while the Vehicle Code violations (Veh. Code § 23153) for driving intoxicated and causing injury, with a GBI enhancement (§ 12022.7), constitute the general statute. Respondent, however, asserts that the preemption doctrine does not come into play here, where the so-called general statute is actually comprised of both a substantive statute and a GBI enhancement statute. (Compare People v. Coronado (1995) 12 Cal.4th 145, 153 [finding that "[t]he 'special over the general' " rule applied to compare a sentence enhancement with a substantive offense].) Thus, respondent states, when analyzing the two statutes without the three-year GBI enhancement appended to the Vehicle Code offenses, the general Vehicle Code statute actually provides for a less severe punishment than the more specific vehicular manslaughter while intoxicated offense. (See former § 193, subd. (c)(3) ["[V]iolation of paragraph (3) of subdivision (c) of [former] Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for 16 months or two or four years"]; accord, § 191.5, subd. (c)(2); Veh. Code, § 23554 [first violation of Veh. Code, § 23153 is punished by imprisonment in the state prison for 16 months or two or three years (see § 18), or "in a county jail for not less than 90 days nor more than one year"].)
Former section 192, subdivision (c)(3), provided: "Driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence."
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."
Section 12022.7, subdivision (a), 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."
Because in this case the specific statute has a greater penalty than the more general statute, respondent is correct that the preemption doctrine does not apply. (See Mitchell v. Superior Court, supra, 49 Cal.3d at p. 1250 ["special over general" rule does "not purport to limit the People's discretion to prosecute under a general statute that provides a sanction less severe than that called for under a specific statute"].) Rather, this case involves appellant's acquittal of the greater offenses and conviction of two other properly charged counts that constituted lesser included offenses (see People v. Binkerd (2007) 155 Cal.App.4th 1143, 1149 (Binkerd)), along with true findings on the GBI enhancements that were alleged as to those lesser included offenses.
In her reply brief, appellant concedes "that under normal circumstances, the preemption doctrine may not be applicable when an enhancement is considered as part of one of the offenses," even while arguing that the preemption doctrine should nonetheless apply in this unusual case in which the statutory application is patently unfair.
II. Equal Protection and Due Process
Appellant contends that application of the GBI enhancement to the Vehicle Code convictions violated her right to equal protection and due process because "no rational, legitimate reason exists for the great disparity in the punishment" for vehicular manslaughter while intoxicated and the Vehicle Code violations with the GBI enhancements in a case, such as this, where the injured person dies. Appellant observes that the lowest possible prison term for either of the Vehicle Code violations (16 months), together with the three-year GBI enhancement, is greater than the highest possible term for the vehicular manslaughter while intoxicated violation (four years). (See part I, B, ante). In addition, the GBI enhancement made the Vehicle Code violations "violent felonies" under section 667.5, subdivision (c)(8). This designation in turn caused appellant's conduct credits to be limited to 15 percent under section 2933.1, subdivision (c), and also will permit the Vehicle Code offenses to be alleged as prior strikes under section 667, subdivision (d)(1), in any future felony prosecution. According to appellant, there is no rational reason for the same conduct to be treated in such a disparate manner.
Subdivision (c)(8) of section 667.5 defines a "violent felony," as, inter alia, "[a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 . . . ."
Assuming for the sake of appellant's argument that equal protection and due process comparisons involving vehicular manslaughter on the one hand and the DUI offenses and the GBI enhancements on the other hand are appropriate, we find no constitutional violation.
In United States v. Batchelder (1979) 442 U.S. 114, 123-124 (Batchelder), the United States Supreme Court addressed the circumstance in which a prosecutor chooses to prosecute a defendant under one of two similar statutes: "This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. [Citations.] Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. [Citations.]"
The Batchelder court continued: "[T]here is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. [Citations.] Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. [Citations.]" (Batchelder, supra, 442 U.S. at p. 125; see also People v. Wilkinson (2004) 33 Cal.4th 821, 839 [in rejecting defendant's equal protection challenge, our Supreme Court concluded that Legislature could reasonably have found "that the ostensible 'lesser' offense of battery without injury sometimes may constitute a more serious offense and merit greater punishment than the 'greater' offense of battery accompanied by injury"].)
Appellant attempts to distinguish Batchelder, arguing that, in this case, "there is no identifiable legislative history which compels the conclusion that a prosecutor in a death case may charge one with vehicular manslaughter while intoxicated and/or also DUI causing injury with a GBI enhancement." She points to language in a Supreme Court case that she claims shows a contrary legislative intent. In People v. Wilkoff (1985) 38 Cal.3d 345, 350, footnote 6 (Wilkoff), our Supreme Court addressed the difference in the way multiple victims are treated under Vehicle Code section 23153 and former section 192, stating in a footnote: "While the moral culpability of a drunk driver who causes death and a drunk driver under the same circumstances who merely causes injury may be the same, the Legislature has chosen to draw a line at this point by defining one crime in terms of an act of violence against the person ('unlawful killing') and placing it in the Penal Code, while defining the other in terms of an act of driving and placing it in the Vehicle Code. The Legislature has made this line even more clear through recent amendments to the drunk driving and manslaughter statutes. Effective January 1, 1984, an intoxicated driver who kills another person is no longer chargeable with that death under the Vehicle Code, but may only be charged under the manslaughter statutes of the Penal Code. [Citations.]" (Accord, People v. McFarland (1989) 47 Cal.3d 798, 804 [quoting Wilkoff].)
Although neither party discusses the amendments mentioned in Wilkoff, the court apparently was referring to the removal of the word "death" from Vehicle Code section 23153, leaving in only the reference to causing "injury," and the addition of the offense of vehicular manslaughter while intoxicated to the Penal Code. (See Wilkoff, supra, 38 Cal.3d at p. 350, fn. 6, citing Stats. 1983, ch. 937, § 1, amending Veh. Code, § 23153 and § 192.) In light of the amendments to which the Supreme Court referred, we do not read the comment in Wilkoff as foreclosing prosecution under the Vehicle Code when a victim dies. Instead, the court was simply noting that the reference to driving while intoxicated and causing death was now listed as a manslaughter crime in the Penal Code. Thus, the court's statement that an intoxicated driver was no longer chargeable "with that death" under the Vehicle Code (Wilkoff, at p. 350, fn. 6) does not mean that such a driver whose conduct caused a death could, for that reason, no longer be charged with driving while intoxicated and causing injury. Rather, it means that to literally be charged with the death, the defendant would have to be charged under the Penal Code.
Appellant also cites several other examples that she asserts show the inappropriateness of charging a death under Vehicle Code section 23153, with a GBI allegation, rather than under the Penal Code as manslaughter. (See § 12022.7, subd. (g) [GBI enhancement "shall not apply to murder or manslaughter"]; In re Gomez (2009) 179 Cal.App.4th 1272, 1281, fn. 6, disapproved on another ground in In re Pope (2010) 50 Cal.4th 777, 785, fn. 3 [describing "quirk" in law that classifies driving under the influence causing injury, with a GBI enhancement, a "violent felony," while excluding from list of violent felonies more serious charge of gross vehicular manslaughter while intoxicated, which suggests that such a classification "might not have been the result intended by those enacting the statutory scheme"]; People v. Binkerd, supra, 155 Cal.App.4th at p. 1150 [appellate court found that sentencing defendant on both vehicular manslaughter while intoxicated and "the lesser included offense of Vehicle Code section 21353, with a great bodily injury enhancement under section 12022.7 as alleged . . . for the injuries suffered by the deceased victim . . . circumvents the statutory scheme for vehicular manslaughter"].)
It is true that where, as here, a GBI enhancement is found true, a conviction for driving while intoxicated under the Vehicle Code may have more serious consequences than a conviction for vehicular manslaughter while intoxicated under the Penal Code, and could therefore seem anomalous. (See People v. Gomez, supra, 179 Cal.App.4th at p. 1281, fn. 6.) However, given that such a result is not unconstitutional under current law, it is for the Legislature, not this court, to determine whether such a statutory scheme is appropriate.
We do agree with appellant that there is something anomalous about the fact that someone convicted of a lesser included offense can ultimately receive a harsher penalty due to the imposition of an enhancement that is not applicable to the greater offense, particularly given that this effect is the opposite of what the jury here presumably intended when it acquitted appellant of the greater offense and found her guilty of the lesser. Still, we are not persuaded that it rises to the level of a constitutional violation.
Accordingly, appellant's equal protection and due process challenges cannot succeed.
For the same reasons already discussed, we also conclude that appellant's claim, raised in her reply brief, that any sentence imposed in this case would be unauthorized (see People v. Scott (1994) 9 Cal.4th 331, 354) is without merit.
DISPOSITION
The judgment is affirmed.
Kline, P.J.
We concur:
Lambden, J.
Richman, J.