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

The PEOPLE, Plaintiff and Respondent, v. Anthony C. COSKO, Defendant and Appellant.

Cr. 43877.

Decided: February 21, 1984

Morgan, Cheroske & Reamer and John J. Cheroske, Torrance, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Gary R. Hahn and Robert S. Henry, Deputy Attys. Gen., for plaintiff and respondent.

Anthony Cosko appeals the judgment entered following a court trial in which he was convicted of vehicular manslaughter (Pen.Code, § 192, subd. 3(a)), causing death while driving “under the influence” (Veh.Code, § 23153, subd. (a)), and causing death while driving with a blood-alcohol level of 0.10 percent or more (Veh.Code, § 23153, subd. (b)).  The convictions were based on a fatal collision that occurred June 20, 1982.

 Appellant contends that he was improperly convicted of two counts of driving under the influence, one for violating Vehicle Code section 23153, subdivision (a), and another for violating subdivision (b) of the same section, based on one incident.   We conclude that the Legislature added the 0.10 percent blood-alcohol offense subdivision (subd. (b)) to facilitate proof of driving under the influence and that it did not intend a single driving under the influence incident to result in two driving under the influence convictions under Vehicle Code section 23153.

We are not concerned with the question of double charging, which is within the prosecutor's discretion, or with double punishment, which is clearly prohibited by Penal Code section 654.   The question of double conviction, however, requires analysis of the legislative intent behind the addition of the 0.10 percent subdivision.

 A person may only suffer convictions that the Legislature intended.   (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631–632, 87 Cal.Rptr. 481, 470 P.2d 617.)   Thus a person may not be properly convicted of multiple offenses that the Legislature did not intend.   For instance, the familiar rule prohibiting convictions of both theft and receiving the property stolen in the theft (e.g., People v. Jaramillo (1976) 16 Cal.3d 752, 757, 129 Cal.Rptr. 306, 548 P.2d 706) is based on a judicial determination that the receiving stolen property statute (Pen.Code, § 496) was enacted by the Legislature to reach the “fence” who did not commit the theft, making convictions for both mutually inconsistent.  (People v. Tatum (1962) 209 Cal.App.2d 179, 183–184, 25 Cal.Rptr. 832.)   The well-established rule prohibiting simultaneous convictions of both a greater and a lesser included offense (e.g., People v. Cole (1982) 31 Cal.3d 568, 582, 183 Cal.Rptr. 350, 645 P.2d 1182) is another example of a limitation on multiple convictions based on judicial interpretation of legislative intent.   The principle behind the prohibition in Penal Code section 1023 against subsequent prosecution of a greater offense is that “to convict of the greater would be to convict twice of the lesser.”  (People v. Krupa (1944) 64 Cal.App.2d 592, 598, 149 P.2d 416.)   The rule has been applied to multiple convictions obtained in a single trial as to the greater and lesser offenses because the same rationale applies.   (People v. Greer (1947) 30 Cal.2d 589, 598–599, 184 P.2d 512.)

In People v. Lobaugh (1971) 18 Cal.App.3d 75, 95 Cal.Rptr. 547, the court held that the rule that a criminal course of conduct resulting in injury to multiple victims constitutes multiple offenses was inapplicable to felony driving under the influence.  (Id., at p. 79, 95 Cal.Rptr. 547.)   The court analyzed the intent behind the statute and reasoned that a single occurrence of driving under the influence that results in injury to more than one person constitutes but one count of the offense because the concern of the statute is prevention of driving under the influence.  (Ibid.)

The imposition of two simultaneous counts of driving under the influence, one for being under the influence of alcohol and one for having a 0.10 percent blood-alcohol level, is another example of multiple convictions not intended by the Legislature.

The two offenses, though separate (Burg v. Municipal Court (1983) 35 Cal.3d 257, 265, 198 Cal.Rptr. 145, 673 P.2d 732), are quite similar.   The elements required for conviction of subdivision (a) are that a person, while under the influence of alcohol or drugs or both, does an unlawful act or neglects a duty in the driving of the vehicle that causes death or bodily injury to another person.  (Veh.Code, § 23153, subd. (a).)  Proof of the element of being under the influence is aided by a statutory rebuttable presumption that a person with a blood-alcohol content of 0.10 percent or more is under the influence.  (Veh.Code, § 23155.)   The elements of subdivision (b) are precisely the same as those of subdivision (a), with the exception that subdivision (b) applies to people with a blood-alcohol level of 0.10 percent rather than those who are under the influence.  (Veh.Code, § 23153, subd. (b).)  Thus proof of a violation of subdivision (b) creates a presumption of a violation of subdivision (a).   Proof of the two offenses may differ in that it is possible to rebut the presumption that a person with a 0.10 percent blood-alcohol level is under the influence.

However, the Legislature added the 0.10 percent misdemeanor (Veh.Code, § 23152, subd. (b)) and felony (Veh.Code, § 23152, subd. (b)) offenses precisely because of its determination that having a 0.10 percent blood-alcohol level indicates that one is under the influence.  “Scientific evidence and sad experience demonstrate that any driver with 0.10 percent blood alcohol is a threat to the safety of the public and to himself.  [Citations.]  Section 23152, subdivision (b), represents a legislative determination to that effect.  [Citations.]”  (Burg v. Municipal Court, supra, 35 Cal.3d at pp. 267–268, 198 Cal.Rptr. 145, 673 P.2d 732;  People v. Lewis (1983) 148 Cal.App.3d 614, 617–618, 196 Cal.Rptr. 161;  see also Assem.Comm. on Crim. Justice, Bill Analysis, Assem. Bill No. 7, Apr. 6, 1981, p. 4 [“The underlying basis of AB 7 is that the prosecutor need not prove a person ‘under the influence’ because as a matter of public policy, all persons are impaired at 0.10% blood alcohol”];  Sen.Comm. on Jud.Rep., 1981–82 Reg.Sess., Assem. Bill No. 7, p. 2 [“Proponents indicate that every person regardless of tolerance to alcohol is significantly impaired in his or her ability to drive at the 0.10% blood alcohol level”];  but see Wallace v. Municipal Court (1983) 140 Cal.App.3d 100, 108–109, 189 Cal.Rptr. 886 [offenses are essentially different because someone with a 0.10 percent blood-alcohol level is not necessarily under the influence].)

There is no question that the Legislature intended both subdivisions to punish the same conduct in the same manner;  the difference is that one subdivision uses a subjective measure of impairment, being under the influence, while the other uses an objective measure, having a 0.10 percent blood-alcohol level.   (See Burg v. Municipal Court, supra, 35 Cal.3d at pp. 263–264, 198 Cal.Rptr. 145, 673 P.2d 732.)   A person with a 0.10 percent blood-alcohol content could be convicted of violating subdivision (b) and acquitted of violating subdivision (a) (see People v. Lewis, supra, 148 Cal.App.3d at p. 620, 196 Cal.Rptr. 161) for conduct that could support conviction under either subdivision simply because violation of subdivision (a) is more difficult to prove.  (Burg v. Municipal Court, supra, 35 Cal.3d at p. 263, 198 Cal.Rptr. 145, 673 P.2d 732;  cf. DeWoody v. Superior Court (1970) 8 Cal.App.3d 52, 56–57, 87 Cal.Rptr. 210.)

Our conclusion that the Legislature did not intend the routine driving under the influence offense to result in two convictions is supported by the terms of the sentencing scheme for repeat offenders enacted by the Legislature at the same time that the 0.10 percent offenses were added.  (Stats.1981, ch. 940, § 32, pp. 3571–3578.)   For instance, Vehicle Code section 23180 applies to “any person [ ] convicted of a first violation of Section 23153.”  (Emphasis added.)  Vehicle Code section 23185 prescribes more serious punishment for a person convicted of felony driving under the influence with “a prior offense which resulted in a conviction of a violation of Section 23152 or 23153.”  (Emphasis added.)  Vehicle Code section 23190 requires harsher punishment if the person has “two or more prior offenses which resulted in convictions of violations of Section 23152 or 23153 or both.”   This sentencing scheme clearly does not contemplate routine double convictions.

The general rule in the case of an improper combination of convictions is that the less serious offense is vacated while the more serious stands.  (E.g., People v. Cole, supra, 31 Cal.3d at p. 582, 183 Cal.Rptr. 350, 645 P.2d 1182.)   Since neither the under the influence offense nor the 0.10 percent offense is more serious than the other, the determination which conviction should stand is a discretionary matter.

At this point we have completed the only portion of this opinion that meets the criteria for publication listed in California Rules of Court, rule 976(b).   Our resolution of the remaining issues is contained in an unpublished appendix.

Appellant's conviction for violating Vehicle Code section 23153, subdivision (a), is vacated.   The judgment is otherwise affirmed.

DALSIMER, Associate Justice.

SPENCER, P.J., and L. THAXTON HANSON, J., concur.