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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Donald Joseph McFARLAND, Jr., Defendant and Appellant.

No. D005157.

Decided: November 17, 1987

Peter W. Cowan, San Diego, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., M. Howard Wayne and William M. Wood, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

Donald Joseph McFarland, Jr., entered a negotiated plea of guilty of one count of vehicular manslaughter (Pen.Code,1 § 192, subd. (c)(3)) and two counts of causing injury while driving under the influence of alcohol.   (Veh.Code, § 23153, subd. (a) (felony drunk driving).)   The court sentenced McFarland to serve eight years in prison:  the middle term of six years for vehicular manslaughter and a consecutive one-year enhancement for each victim of McFarland's felony drunk driving.  (Veh.Code, § 23182.)   The underlying sentence on each of the felony drunk driving counts was ordered to run concurrent to the manslaughter sentence.   McFarland appeals.

On April 27, 1986, at approximately 5:47 p.m., a traffic collision occurred between a vehicle driven by McFarland and a car occupied by Steven Herbert, his wife and their 16–year–old son.   The Herbert family was stopped at a red light when McFarland slammed into the rear of their car.   Steven Herbert died of massive head and abdominal injuries.   Both Mrs. Herbert and her son survived the collision but suffered severe injuries.   McFarland was driving with a blood alcohol level of 0.27.

McFarland first asserts section 654 prohibits his being sentenced for violating both section 192 (vehicular manslaughter) and Vehicle Code section 23153, subdivision (a) (felony drunk driving).   He is incorrect.

As is noted in Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 351, 211 Cal.Rptr. 742, 696 P.2d 134 citing Neal v. State of California (1960) 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 357 P.2d 839, a defendant may be properly convicted of multiple counts for multiple victims of a single criminal act where the act prohibited by the applicable statute is “centrally an ‘act of violence against the person.’ ”  (Id. 38 Cal.3d at p. 351, 211 Cal.Rptr. 742, 696 P.2d 134.)   Thus, a defendant can be convicted of multiple counts of section 192 arising out of one vehicular accident.  (People v. Eagles (1982) 133 Cal.App.3d 330, 342–343, 183 Cal.Rptr. 784.)

Where, however, the actus reus is not an act of violence against the person but rather as is the case with Vehicle Code section 23153, driving under the influence of alcohol, multiple counts are prohibited.   One instance of driving under the influence even where injury to many persons has resulted, is chargeable only as one count of driving under the influence.  (Wilkoff v. Superior Court, supra, 38 Cal.3d at p. 353, 211 Cal.Rptr. 742, 696 P.2d 134.) 2

The question raised by the case before us is whether Wilkoff prohibits sentencing for violation of both section 192 and Vehicle Code section 23153 where they pertain to two different victims of the same accident.

We conclude Wilkoff does not prohibit sentencing for both offenses.

Two recent cases have considered the issue now before us.   In People v. McNiece (1986) 181 Cal.App.3d 1048, 226 Cal.Rptr. 733 which McFarland relies upon, the court examined Wilkoff, supra, and held that since both section 192 and Vehicle Code section 23153 involved the act of driving under the influence of alcohol, it would be impermissible to punish a defendant as to both offenses where they arose from the same accident which killed one person and injured another.

The court in People v. Gutierrez (1987) 189 Cal.App.3d 596, 234 Cal.Rptr. 531 reached the opposite conclusion on facts virtually identical to those in McNiece and those in this case.   In rejecting the holding of McNiece, the court concludes:

“In our view, the holding in McNiece, which achieves the anomalous result that separate and distinct acts with different victims can only be punished once, erroneously ignores the distinction between the offenses of drunken driving and vehicular manslaughter and should not be followed.   The statement in Wilkoff relied upon in McNiece applies only to situations in which the defendant is charged with multiple acts of drunk driving.   However, in McNiece the defendant was charged with one count of drunk driving and a separate count of vehicular manslaughter, offenses which, as we have seen, address very different concerns.   Similarly, appellant in this case was charged in separate counts with distinct acts:  killing Joann Boyd, in violation of Penal Code section 192, subdivision (c)(3);  and driving while under the influence of alcohol, resulting in injury to Kimberly Souza, in violation of Vehicle Code section 23153.   Because the criminal acts charged were distinct and the victims different, imposition of consecutive sentences for both counts did not violate Penal Code section 654.  (Id. at p. 602, 234 Cal.Rptr. 531, fns. omitted.)

We believe Gutierrez has properly interpreted Wilkoff and choose to follow it rather than McNiece.3  As a result, we conclude the lower court could properly sentence McFarland as to both the convictions of section 192 and Vehicle Code section 23153.   However, the court could sentence McFarland on only one count of violating Vehicle Code section 23153, subdivision (a).

Additionally, McFarland contends the trial court erred in imposing the consecutive enhancements.   As indicated, the trial court imposed concurrent sentences for the two counts of felony drunk driving but imposed consecutive one-year enhancements for each victim of McFarland's felony drunk driving.   Citing section 1170.1, the prosecution concedes this was error.

The convictions are affirmed but the matter is remanded for resentencing.   (See, People v. Mink (1985) 173 Cal.App.3d 766, 771–772, 219 Cal.Rptr. 291).

In my view, suggestive dicta in Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134 strongly counsels the result we reach here and casts doubt on the validity of People v. McNiece (1986) 181 Cal.App.3d 1048, 1064, 226 Cal.Rptr. 733.   Unfortunately, Wilkoff has unintentionally contributed to the confusion in this area by failing to sufficiently distinguish two similar but separate issues.   The issue in Wilkoff was essentially one of statutory interpretation:  When the Legislature enacted the felony drunk driving statute (Veh. Code, § 23153), did it intend that injuries to more than one person arising out of the same accident be chargeable as multiple violations of the statute?   Relying on the Court of Appeal decision in People v. Lobaugh (1971) 18 Cal.App.3d 75, 95 Cal.Rptr. 547 and by analogy on its opinion in People v. Ramos (1982) 30 Cal.3d 553, 587–589, 180 Cal.Rptr. 266, 639 P.2d 908, reversed on other grounds, California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171, the Supreme Court held that the focus of the statute was on the act of driving drunk, not on the act of injuring the victim.   Accordingly, only a single conviction was proper notwithstanding that the accident produced multiple victims.

The issue in this case is analytically distinct from that which confronted the courts in Wilkoff, Lobaugh and Ramos.   It turns not on the scope of a substantive criminal statute but rather on the application of Penal Code section 654,1 which applies generally to all criminal statutes.   Section 654 says nothing about whether a defendant may be properly convicted of multiple offenses.   It provides only that if convicted, he may not be multiply punished if a single act gave rise to the multiple convictions.2  (People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552;  People v. Tideman (1962) 57 Cal.2d 574, 586–587, 21 Cal.Rptr. 207, 370 P.2d 1007.)

The crux of the problem in applying section 654 to a given fact situation is the difficulty in defining the “act” involved.   As the Supreme Court explained in Neal v. State of California (1960) 55 Cal.2d 11, 19, 9 Cal.Rptr. 607, 357 P.2d 839:

“Few if any crimes ․ are the result of a single physical act.  ‘Section 654 has been applied not only where there was but one “act” in the ordinary sense ․ but also where a course of conduct violated more than one statute and the problem was whether it comprised a divisible transaction which could be punished under more than one statute within the meaning of section 654.’   (People v. Brown [ (1958) 49 Cal.2d 577] 591 [320 P.2d 5].)

“Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.   If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.”

The focus of this inquiry was further clarified in People v. Beamon (1973) 8 Cal.3d 625, 638, 105 Cal.Rptr. 681, 504 P.2d 905:  “The Brown–Neal test thus appears to enlarge the literal language of section 654 by including as an ‘act or omission’ a course of criminal conduct wherein multiple violations are incident to an accused's single criminal objective.   On the other hand, when an accused has embarked upon a course of conduct wherein he may be deemed to have entertained multiple criminal objectives none of which are merely incidental to any other, the meaning of ‘act or omission’ has been construed in a manner consistent with that multiple objective and what may appear on the surface to be a single act may embody separately punishable violations.”

This emphasis on the defendant's ultimate “objective,” however, caused problems for the Supreme Court almost immediately.   While it seemed relatively easy to apply to non-violent crimes or crimes involving a single victim, the court was uncomfortable with a strict application of the principle to situations involving multiple victims of violent crimes.   Thus in Neal itself, where the defendant had committed arson in an attempt to murder two individuals, the court held that while the defendant could not be punished for both the arson and the attempted murders, each attempted murder could be punished separately.   The court noted that “[a] defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person.”  (55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.)

Although the rationale underlying Neal's multiple victim exception has been criticized as being somewhat clouded (see 2 Wiktin, Cal. Crimes (1963) § 954, p. 908), I am comfortable with the notion that a defendant whose conduct intentionally endangers more than one person should be punished more severely than one who, by identical conduct, intends to endanger only one victim.   This is because the risk of injury is greater in the first instance and the defendant, in the words of Neal, is “more culpable.”

The difficulty arises in situations where the defendant has no intent to harm anyone, i.e., crimes whose mens rea requirement is satisfied by criminal negligence.   In such circumstances, the defendant's conduct creates a risk of harm to a number of persons and in that sense he is clearly culpable and deserving of punishment.   But in contrast to intentional violence directed at multiple victims, it is purely fortuitous whether criminal negligence results in a single victim or several.   If Neal's “culpability” rationale is indeed the reasoning which underlies the multiple victim exception to section 654, there is no basis for the conclusion that a defendant who negligently injures several persons is more culpable than one who through chance harms only a single victim.

I find some support for this notion in Neal's statement that the multiple victim exception applies where the defendant “commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons․”  (55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839, emphasis added.)   While the “means likely” language indicates that intent is not a strict prerequisite, I question whether an individual can commit an act of violence without at least a subjective awareness of the violent risks and consequences of his actions.  (Cf. People v. Watson (1981) 30 Cal.3d 290, 296–297, 179 Cal.Rptr. 43, 637 P.2d 279.)

I view my concerns largely as academic musings, however, in light of language in the Supreme Court's recent Wilkoff opinion.   The Wilkoff court contrasted the interpretation of the felony drunk driving statute (Veh. Code, § 23153) with vehicular manslaughter (§ 192, subd. (c)(3), noting that “[w]hen a defendant commits several homicides in the course of a single driving incident, he or she has committed the act prohibited by the statute several times.”  (38 Cal.3d at pp. 349–350, 211 Cal.Rptr. 742, 696 P.2d 134, emphasis supplied.)   Consistent with Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937 and our role as an intermediate appellate court, it would be difficult to argue in the face of this language that a single incident of drunk driving which results in multiple victims is a single “act” within the meaning of section 654.   As if to underscore this point, the Wilkoff court even discussed section 654 principles.   Although that section was not an issue in the case, a misdirected argument by the district attorney sought to justify a different interpretation of Vehicle Code section 23153 by reference to the rule of Neal v. California, supra, 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 357 P.2d 839 allowing multiple punishment where a single act of violence results in multiple victims.  (See 38 Cal.3d at pp. 350–351, 211 Cal.Rptr. 742, 696 P.2d 134.)   Responding, the court observed that “[m]ultiple counts for multiple victims of manslaughter have also been upheld, ․” citing cases rejecting the argument that section 654 precludes double punishment where a single unintentional act results in multiple deaths.  (Id. at p. 352, 211 Cal.Rptr. 742, 696 P.2d 134;  see, e.g., People v. Eagles (1982) 133 Cal.App.3d 330, 342–343, 183 Cal.Rptr. 784.)   These statements make clear to me the Supreme Court's implicit understanding that the term “act” in section 654 has become a word of art;  a separate “act” will be deemed to have been committed whenever the defendant's conduct results in a separate victim, notwithstanding it is purely fortuitous that the defendant's unintentional conduct resulted in one victim or several.   On that basis, I concur.


FN1. All statutory references are to the Penal Code unless otherwise specified..  FN1. All statutory references are to the Penal Code unless otherwise specified.

2.   While the wisdom of such a proposition is open to debate, and is addressed in the concurring opinion of Justice Wiener, the establishment of that proposition as a matter of law in this state, is not open to debate.

3.   People v. Jones (1985) 164 Cal.App.3d 1173, 1181–1183, 211 Cal.Rptr. 167 is consistent with the holding in McNiece.   However it predates and on that basis conflicts with Wilkoff.   We note Jones disapproved Eagles, supra.   However, Eagles was cited with apparent approval in Wilkoff.

1.   All statutory references are to the Penal Code unless otherwise indicated.

2.   Section 654 provides in relevant part:  “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one;  ․”

BENKE, Associate Justice.

TODD, J., concurs.

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