PEOPLE v. RODRIGUEZ

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Court of Appeal, First District, Division 4, California.

The PEOPLE, Plaintiff and Respondent, v. Daniel RODRIGUEZ, Defendant and Appellant.

No. A065584.

Decided: July 31, 1995

Tom Harriman, Sebastopol, for appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Martin S. Kaye, Deputy Atty. Gen., San Francisco, for respondent.

 In this case we hold that sentence enhancements under Vehicle Code section 23182 are subject to the “double the base term” limitation of Penal Code section 1170.1, subdivision (g).

I.

Appellant Daniel Rodriguez pled no contest to felony driving with a blood alcohol content of 0.10 percent or higher and causing bodily injury under former Vehicle Code section 23153, subdivision (b), arising out of an accident that injured a passenger in his car and three passengers in another vehicle.   Appellant admitted three enhancements under Vehicle Code section 23182 (hereafter § 23182), which provides that:  “Any person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 of this code or in violation of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, shall, upon a felony conviction, receive an enhancement of one year in the state prison for each additional injured victim․  The maximum number of one year enhancements which may be imposed pursuant to this section is three.”

Appellant was sentenced to five years in state prison, representing a middle base term of two years for the drunk driving offense, plus three one-year enhancements under section 23182.   He contends that the five-year sentence violated Penal Code section 1170.1, subdivision (g)(1) (hereafter § 1170.1(g)), which provides, subject to a list of exceptions other than section 23182, that:  “The term of imprisonment shall not exceed twice the number of years imposed by the trial court as the base term․”

II.

Section 23182 was enacted in 1985 (Stats.1985, ch. 902, § 1, pp. 2878–2879) in response to Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353, 211 Cal.Rptr. 742, 696 P.2d 134, which held that there could be only one conviction of felony drunk driving where one act of drunk driving resulted in injuries to more than one person.  (See People v. McFarland (1989) 47 Cal.3d 798, 805, 254 Cal.Rptr. 331, 765 P.2d 493.)   As originally enacted section 23182 applied only to Vehicle Code section 23153 violations, but the statute was amended in 1988 (Stats.1988, ch. 1264, § 1, pp. 4199–4200) to add violations of Penal Code sections 191.5 and 192, subdivision (c)(3) as underlying offenses, to “remedy a loophole in the former law ․ which permitted sentence enhancements for additional injured victims where the defendant was convicted of felony drunk driving but not vehicular manslaughter.”  (People v. McFarland, supra, at pp. 805–806, 254 Cal.Rptr. 331, 765 P.2d 493;  see also id. at p. 802, fn. 6, 254 Cal.Rptr. 331, 765 P.2d 493.)   The People contend that an exception to the double the base term rule should be implied for enhancements under section 23182, to implement the Legislature's desire to provide for greater punishment in driving under the influence cases involving multiple victims.

Exceptions to the double the base term rule have been implied on constitutional grounds (People v. Prather (1990) 50 Cal.3d 428, 437, 267 Cal.Rptr. 605, 787 P.2d 1012 [prior prison term enhancements under Pen.Code, § 667.5, subd. (b) impliedly excepted by constitutional directive that prior felony convictions be used “without limitation” for purposes of enhancement];  People v. Garcia (1989) 211 Cal.App.3d 1096, 1102, 260 Cal.Rptr. 71 [same reasoning applied to prior felony conviction enhancements under Health & Saf.Code, § 11370.2, subd. (a) ] ), and in situations where enhancements could rarely, or never, be imposed if they were subject to the rule (People v. Pieters (1991) 52 Cal.3d 894, 899–902, 276 Cal.Rptr. 918, 802 P.2d 420 [ten-year drug quantity enhancement under Health & Saf.Code, § 11370.4 could never be imposed];  People v. Jackson (1985) 37 Cal.3d 826, 837–838, 210 Cal.Rptr. 623, 694 P.2d 736 [five-year prior serious felony enhancement under Pen.Code, § 667 could rarely be imposed];  People v. Garcia, supra, 211 Cal.App.3d at p. 1102, 260 Cal.Rptr. 71 [multiple Health & Saf.Code, § 11370.2, subd. (a) enhancements could never be imposed] ).   In the latter context, to avoid “ ‘absurd consequences which the Legislature did not intend’ ” (People v. Pieters, supra, 52 Cal.3d at p. 898, 276 Cal.Rptr. 918, 802 P.2d 420), the courts have declined to interpret the double the base term rule in a manner that would render enhancements “essentially nugatory” (id. at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420).

The established predicates for implied exceptions to the double the base term rule are absent in appellant's case.   No constitutional directive applies, and this is not an instance where the enhancements at issue could rarely, or never, be imposed if they were subject to the double the base term limit.   Under that limit, three one-year enhancements—the maximum number of enhancements under section 23182—could be imposed when the defendant is:  convicted of gross vehicular manslaughter under Penal Code section 191.5 (see Pen.Code, § 191.5, subd. (c) [base terms for this offense are four, six or ten years] );  sentenced to the aggravated term for vehicular manslaughter under Penal Code section 192, subdivision (c)(3) (see Pen.Code, § 193, subd. (c)(3) [base terms of sixteen months, two or four years] );  sentenced to the aggravated term for felony drunk driving under Vehicle Code section 23153 with less than two priors (Veh.Code, §§ 23180, 23185;  Pen.Code, § 18 [base terms of sixteen months, two or three years] );  or sentenced to the middle or aggravated term for violation of Vehicle Code section 23153 with two or more priors (Veh.Code, § 23190 [base terms of two, three or four years] ).   Thus, there is no underlying offense for which the maximum number of section 23182 enhancements may not be available.   Moreover, there is no sentence for any underlying offense to which at least one section 23182 enhancement may not be added.   A majority of section 23182 enhancements—two years out of the possible three—may be added to all sentences for every offense except the mitigated base terms for violations of Vehicle Code section 23153 with less than two priors and Penal Code section 192, subdivision (c)(3), where one section 23182 enhancement may be added.   Therefore, application of the double the base term rule limits, but does not “essentially negate,” section 23182 enhancements.

The People argue that the three-year limit on enhancements set forth in section 23182 would be mere surplusage if the double the base term rule applied.  (People v. Brookins (1989) 215 Cal.App.3d 1297, 1309, 264 Cal.Rptr. 240 [statutes should be construed to avoid surplusage].)   The People note that the aggravated base term of three years for a Vehicle Code section 23153 violation with less than two priors, in conjunction with the double the base term rule, would preclude the imposition of more than three years of enhancements for such violations, apart from any limitation in section 23182.   However, section 23182's three-year limit operates independently of the double the base term rule, insofar as it restricts enhancements under the statute to less time than would be permissible under that rule, in:  cases under Vehicle Code section 23153 with two or more priors, where the defendant receives the aggravated base term of four years;  all cases under Penal Code section 191.5, where all of the base terms are four years or more;  and cases under Penal Code section 192, subdivision (c)(3), where the defendant receives the aggravated base term of four years.   In any event, it would be possible to conclude that the double the base term rule applied to enhancements under section 23182 even if the application of the rule made the section's three-year limit superfluous in some cases.   The question is whether the double the base term rule was meant to operate as an overriding limitation notwithstanding any limitation included in section 23182.

 Insofar as it appears from the language of the statutes, the Legislature intended that the double the base term rule be applied to enhancements under section 23182.  Section 23182 enhancements are not included in section 1170.1(g)'s extensive list of exceptions to the rule.   “Under the familiar rule of construction, expressio unius est exclusio alterius, where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed.”  (People v. Harris (1989) 47 Cal.3d 1047, 1082, 255 Cal.Rptr. 352, 767 P.2d 619 [internal quotation marks omitted].)  Section 1170.1(g)'s list of exceptions has been expanded at least four times since section 23182 was enacted.  (See People v. McClanahan (1992) 3 Cal.4th 860, 865, 12 Cal.Rptr.2d 719, 838 P.2d 241 [additional exceptions added in 1987 and 1988];  Stats.1993, ch. 611, § 17.98, No. 9 West's Cal. Legis. Service, p. 2883 [adding exception];  Stats.1994, ch. 1188, § 12.7, No. 12 West's Cal. Legis. Service, p. 5952 [adding exceptions].)  “[L]egislative changes in some aspects of a statute are indicative of an intent to leave the law as it stands in the aspect not amended.”  (People v. Prather, supra, 50 Cal.3d at p. 434, 267 Cal.Rptr. 605, 787 P.2d 1012 [internal quotation marks omitted].)   Where “the Legislature has had several opportunities to make the double-the-base-term limitation expressly inapplicable ․ [i]t cannot be concluded that the failure to do so was a ‘draft[ing] oversight.’ ”  (People v. McClanahan, supra, 3 Cal.4th at p. 865, 12 Cal.Rptr.2d 719, 838 P.2d 241.)

 Invoking the general rule that “a special statute dealing expressly with a particular subject controls over a more general statute covering the same subject matter” (People v. Superior Court (Ruiz) (1986) 187 Cal.App.3d 686, 692, 234 Cal.Rptr. 214), the People contend that the three-year limitation specifically applicable to additional victim enhancements under section 23182 should be deemed to supplant the double the base term limitation generally applicable to all enhancements under section 1170.1(g).   This is one rational interpretation of section 23182, but it entirely ignores section 1170.1(g), and it is our duty to “read every statute ‘with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ ”  (People v. Pieters, supra, 52 Cal.3d at p. 899, 276 Cal.Rptr. 918, 802 P.2d 420.)   We must therefore give effect to the limitations of both statutes unless “ ‘doing so would result in absurd consequences.’ ”  (Id. at p. 898, 276 Cal.Rptr. 918, 802 P.2d 420.)

No such absurdity is evident.   The Legislature could rationally decide that defendants deserve greater punishment to the extent that their accidents involve multiple victims, but that some limit on the degree of such punishment should apply regardless of the number of injured parties.   That policy would be effectuated in cases of manslaughter under Penal Code section 191.5, where section 23182's limitation would control, and limit to three the number of victim enhancements that could have been added if they were subject only to the double the base term rule.   The Legislature could also rationally decide that the degree of punishment for multiple victims should depend to some extent on the nature and severity of the underlying offense.   That policy would be effectuated in cases of manslaughter under Penal Code section 192, subdivision (c)(3) and felony drunk driving under Vehicle Code section 23153, where the double the base term rule may control and limit the number of enhancements according to the severity of the offense.

It thus appears that section 23182's three-victim limitation may have been meant to complement rather than supplant the double the base term rule.   The People have not cited and we have not found any legislative history to the contrary.  “[W]hen a penal statute is susceptible of two reasonable constructions, it must be construed as favorably to the defendant as its language and the circumstances of its application may reasonably permit.   Strict construction of penal statutes protects the individual against arbitrary discretion by officials and judges and guards against judicial usurpation of the legislative function which would result from enforcement of penalties when the legislative branch did not clearly prescribe them.”  (People v. Bartlett (1990) 226 Cal.App.3d 244, 253, 276 Cal.Rptr. 460 [citations and internal quotation marks omitted].)   Accordingly, we conclude that the double the base term rule applies to section 23182 enhancements.

III.***

IV.

The judgment is reversed, and the case is remanded for resentencing in accordance with this opinion.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

PERLEY, Judge.

ANDERSON, P.J., and POCHÉ, J., concur.