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People v. Hunter

California Court of Appeals, Fourth District, Second Division
Oct 22, 2010
No. E049708 (Cal. Ct. App. Oct. 22, 2010)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. No. RIF127942 David A. Gunn, Judge.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Michael T. Murphy, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

RAMIREZ P. J.

On January 11, 2006, defendant and appellant Shirley Ann Hunter was driving; her nine-year-old granddaughter was a front seat passenger. Defendant was under the influence of prescription medications; her vehicle crossed over into the oncoming lane and collided head-on with the victim’s vehicle. The victim died from multiple blunt force injuries caused during the collision. A jury convicted defendant of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a); count 1) and causing bodily injury while driving under the influence (Veh. Code, § 23153, subd. (a); count 2). The jury also found that, as to count 2, defendant personally inflicted great bodily injury on the victim (Pen. Code, § 12022.7, subd. (a)) and a minor under 14 years of age was a passenger in the vehicle (Veh. Code, § 23572, subd. (a)(1)). Imposition of sentence was suspended, and the trial court placed defendant on probation.

Defendant contends, and the People agree, that the count 2 conviction and allegation findings must be reversed because count 2 is a lesser included offense of count 1. They are correct. “Vehicle Code section 23153, subdivision (a) is necessarily included in Penal Code section 191.5. One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of Penal Code section 191.5 has occurred.” (People v. Miranda (1994) 21 Cal.App.4th 1464, 1468.) Accordingly, we reverse the count 2 conviction and otherwise affirm.

In the alternative, defendant contends that the Vehicle Code section 23572 allegation should be vacated because the jury was not instructed on that allegation. Because we reverse the count to which that allegation was attached, we do not address this contention.

DISPOSITION

The count 2 conviction for causing bodily injury while driving under the influence (Veh. Code, § 23153, subd. (a)) is reversed, and the related enhancement findings (Pen. Code, § 12022.7, subd. (a); Veh. Code, § 23572, subd. (a)(1)) are stricken. In all other respects, the judgment is affirmed.

We concur: KING J., MILLER J.


Summaries of

People v. Hunter

California Court of Appeals, Fourth District, Second Division
Oct 22, 2010
No. E049708 (Cal. Ct. App. Oct. 22, 2010)
Case details for

People v. Hunter

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SHIRLEY ANN HUNTER, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Oct 22, 2010

Citations

No. E049708 (Cal. Ct. App. Oct. 22, 2010)