WILKOFF v. PEOPLE (1984)

OPINION

In this original proceeding we conclude an intoxicated motorist who commits a Vehicle Code violation which causes injury to more than one victim can be prosecuted and convicted for as many counts of felony drunk driving (Veh.Code, § 23153, subds. (a) and (b)) as there are victims.¹

I

Shortly before one in the morning on August 13, 1983, petitioner is alleged to have caused a four vehicle collision by committing an unsafe lane change on Pacific Coast Highway in Huntington Beach while driving under the influence of alcohol.   Six other persons were injured, one fatally.   In addition to a count of vehicular manslaughter, the prosecution filed a count of driving under the influence of alcohol (Veh.Code, § 23153, subd. (a)) and a count of driving with a blood alcohol level of .10 or above (Veh.Code, § 23153, subd. (b)) with respect to each victim,² a total of thirteen counts.³

Petitioner brought a motion to dismiss ten of the drunk driving counts pursuant to Penal Code section 995 based on People v. Lobaugh (1971) 18 Cal.App.3d 75, 95 Cal.Rptr. 547 and People v. Moore (1971) 20 Cal.App.3d 444, 97 Cal.Rptr. 601, which hold only a single count of felony drunk driving can arise from the act of committing a violation of law while driving under the influence even though more than one person is injured.⁴  The superior court denied the motion, and we denied a petition for extraordinary relief in the belief petitioner had an ample and adequate remedy by means of appeal.   The Supreme Court granted a petition for hearing, however, and transferred the matter to us with directions to issue the alternative writ.

II

Several preliminary matters bear mention.   First, the prosecution aptly notes a very practical problem in reviewing the issue pretrial.   At present each individual victim is specifically named in a separate count.   Which counts of driving under the influence and driving at or over .10 are to remain for trial if the writ must issue?   Are all the victims to be lumped in one count?   Must the prosecution gamble and elect but one possible victim?   Can the names of the victims be dropped altogether and the allegation of injury or death to another be stated in general terms?   Fortunately, we need not face these questions and the attendant practical difficulties any of the potential answers might entail;  for we believe the information is correct as it stands and respectfully disagree with the holdings in Lobaugh and Moore.

Second, we need not and do not resolve the question of multiple punishment for the same act in this proceeding (Pen.Code, § 654).  “It is well settled that section 654 of the Penal Code proscribes only double punishment but does not bar double convictions.”  (People v. Rocha, supra, 80 Cal.App.3d 972, 975, 146 Cal.Rptr. 81, citing cases;  People v. Young (1964) 224 Cal.App.2d 420, 424, 36 Cal.Rptr. 672.)   Petitioner has yet to be convicted, much less sentenced.

III

In People v. Young, supra, there were two victims, one injured and one killed, in an accident with the intoxicated defendant who crossed the center divider.   Young was convicted of vehicular manslaughter and two counts of felony driving under the influence (formerly Veh.Code, § 23101).   The court sentenced him to state prison concurrently on the driving under the influence charges, but purported to impose an additional and consecutive sentence for the manslaughter.   The Court of Appeal held consecutive sentences for driving under the influence and manslaughter relating to the same victim violated the provisions of Penal Code section 654:  “Appellant first contends he may not be punished for the injuries caused to both his victims, since injury to both resulted from the same act.   Here appellant is in error, for Penal Code section 654 upon which he relies does not prohibit multiple punishment which concerns multiple victims.  (Neal v. State of California [1960] 55 Cal.2d 11, 20, 21 [9 Cal.Rptr. 607, 357 P.2d 839].)  Appellant correctly contends, however, and the Attorney General admits, that appellant has been subjected to multiple punishment for his single act concerning the victim Mrs. Winn.  (See People v. Tideman [1962] 57 Cal.2d 574, 580–581 [21 Cal.Rptr. 207, 370 P.2d 1007];  2 Witkin, Cal.Crimes, 900–916.)  Penal Code section 654 not only prohibits multiple punishment of offenses listed in the Penal Code, but applies to punishment provided by other codes also.  (See People v. Brown [1958] 49 Cal.2d 577, 591, footnote 4 [320 P.2d 5].)  Here appellant has been sentenced for a violation of the Penal Code (§ 192, subdivision 3(a)) and for violation of the Vehicle Code (§ 23101).   Both offenses arise out of his single act.  Penal Code section 654 is clearly applicable, and although we do not reverse the conviction, the sentence as to one offense must be reversed and set aside.”  (People v. Young, supra, 224 Cal.App.2d at p. 424, 36 Cal.Rptr. 672.)

Thus, Young specifically permits separate drunk driving convictions for each victim and explicitly approves multiple punishment.  (A concurrent sentence was imposed in Young, but a concurrent sentence is nonetheless a sentence.   The appropriate procedure in cases controlled by Penal Code section 654 is to stay imposition of sentence on the barred counts, the stay to become permanent upon completion of the sentence on the unstayed count.)   Multiple convictions and consecutive sentences have long been allowed in multi-victim vehicular manslaughter cases, as well.  (People v. Eagles (1982) 133 Cal.App.3d 330, 183 Cal.Rptr. 784;  People v. De Casaus (1957) 150 Cal.App.2d 274, 309 P.2d 835.)

People v. Lobaugh, supra, 18 Cal.App.3d 75, 95 Cal.Rptr. 547, is apparently the first case to drift from the principle permitting multiple convictions in single act violent crimes involving more than one victim.   Lobaugh was convicted of three counts of felony drunk driving (among other things) arising out of a single accident and was sentenced on only one count.   The trial court stayed imposition of sentence on the other two until the “sentence and conviction ․ shall become final” on the first, the procedure to be utilized when Penal Code section 654 bars sentencing on the stayed counts.   (People v. Lobaugh, supra, 18 Cal.App.3d at p. 78, 95 Cal.Rptr. 547.)

The Court of Appeal, however, took this charitable failure of the trial court to precisely follow Young even further and “concluded that a person who has violated section 23101 whether one, or several, persons be injured thereby, has committed but one offense.   Unlike the usual ‘multiple victim’ case, here the fundamental concern of the state is not the outrage done the victims, but rather the prevention of ‘drunken driving’ and the punishment of those who so conduct themselves.   It was said in People v. Chatham [1941] 43 Cal.App.2d 298, 300 [110 P.2d 704] (referring to Veh.Code, § 501, predecessor to § 23101), ‘․ it is not the receiving of the injury that concerns the state, but the causing of such injuries which the state seeks to minimize.’ ”  (Id., at p. 79, 95 Cal.Rptr. 547.) ⁵

Chatham is not on point, in our view.   There was but one victim in that case, which is also true of the other cases Lobaugh relies upon, except one (and the issue addressed there is so wide of the mark it is impossible to tell if multiple charges were even filed).

The question in Chatham was whether due process or equal protection is offended by the imposition of felony punishment on intoxicated motorists who are unlucky enough to be involved in injury accidents, when those fortunate inebriated drivers who injure no one are subject only to misdemeanor prosecution.  Chatham merely held the Legislature could properly punish more severely those offenders who cause injury, despite the indistinguishable mental state of the two classes of defendants.   Thus, Chatham has nothing to do with the problem presented in Lobaugh, and if anything, arguably supports the notion that, notwithstanding the pure chance involved, an offender could be potentially subject to greater and greater punishment depending on whether others are injured and, if so, how many.

Lobaugh cites five other cases in support of its position:  People v. Thurston (1963) 212 Cal.App.2d 713, 717, 28 Cal.Rptr. 254;  In re Ryan (1943) 61 Cal.App.2d 310, 313, 142 P.2d 769;  People v. Levens (1938) 28 Cal.App.2d 455, 459, 82 P.2d 698;  People v. Freeman (1936) 16 Cal.App.2d 101, 103, 60 P.2d 333;  and Layport v. Rieder (1939) 37 Cal.App.Supp.2d 742, 746, 94 P.2d 96.   None is on point.   In fact, as we noted previously, none even involves multiple victims with one irrelevant exception, the Freeman case.

The intoxicated motorist in People v. Thurston, supra, 212 Cal.App.2d 713, 28 Cal.Rptr. 254 severely injured his lone passenger when he struck an unoccupied parked vehicle.   On appeal he claimed the evidence was insufficient to prove “he did some act forbidden by law or neglected a duty imposed by law in the driving of such vehicle.”  (Id., at pp. 714–715, 28 Cal.Rptr. 254.)

In re Ryan, supra, 61 Cal.App.2d 310, 142 P.2d 769 also involved an injury, this time fatal, to a single passenger in a vehicle which went off an embankment.   The issue in the Ryan writ proceeding was the same as in Thurston, sufficiency of the evidence.  People v. Levens, supra, 28 Cal.App.2d 455, 82 P.2d 698 is virtually identical.   The intoxicated motorist's sole passenger was injured in a collision with an unoccupied vehicle, and the issue on appeal was sufficiency of the evidence.

People v. Freeman, supra, 16 Cal.App.2d 101, 60 P.2d 333 involved a fatal injury to a passenger.   The issue on appeal was the sufficiency of the evidence to sustain an involuntary manslaughter verdict.   Although two other passengers were seriously injured, the opinion does not even reveal whether felony drunk driving charges were filed as to them.

Finally, Layport v. Rieder, supra, 37 Cal.App.Supp.2d 742, 94 P.2d 96 is a case involving an allegedly usurious note.⁶  Its only conceivable application to the question we consider is the following quotation:  “If the Usury Law is not repealed and is ‘in full force and effect’, it stands as written, and the effect is that while an agreement for interest on a loan at a rate greater than 10 per cent is illegal—made so by the Constitution—it does not subject the lender to the punishment for a misdemeanor or the penalty of repaying treble the amount of the interest he receives unless the rate exceeds 12 per cent.   Such an application of the Constitution and the law is not without reason, and finds its analogue in provisions of the criminal law which either fix a heavier punishment for a second offense or a higher degree of the offense, or graduate the punishment according to the consequences of the forbidden act.   For examples of the latter see sections 500, 501, 502, and 505 of the Vehicle Code.” ⁷  (Id., at p. 746, 94 P.2d 96, our emphasis.)

The import of Layport to the issue involved here and in Lobaugh is obviously dubious.   To the extent it supplies any meager light, the case does support “graduate[d] ․ punishment according to the consequences of the forbidden act” (ibid.), in other words, possible multiple punishment for multiple victims.   We have also carefully examined Lobaugh's specific page references to the Thurston, Ryan, Levens, and Freeman cases.   The only statement of law approved by the Freeman court at the cited page (16 Cal.App.2d at p. 103, 60 P.2d 333) is, “The mere act of driving a vehicle upon a public highway while intoxicated is an unlawful act.”   Each of the specific page references in the other cases repeats this mundane proposition.   In other words, apparently, because it is a misdemeanor to drive while intoxicated, offenders who injure more than one victim can be prosecuted for but one felony count.   This non sequitur is so obviously self-refuting we see no reason to consider it further.

People v. Moore, supra, 20 Cal.App.3d 444, 97 Cal.Rptr. 601 followed the Lobaugh holding a short time later.   Although repeating some of the language of the Lobaugh majority, Moore appears to place greater stock on the theory of the concurring opinion:  “The question of ‘bodily injury’ is only of materiality in that it aggravates the offense.”  (People v. Lobaugh, supra, 18 Cal.App.3d at p. 84, 95 Cal.Rptr. 547 (conc. opn. of Sims, J.).)   True, but the question is, how much aggravation is permitted?   If a defendant commits mayhem on two persons with the same bullet, is there but one offense because bodily injury “is only of materiality in that it aggravates the offense” from a felonious assault?   Obviously not.   The correct rule is “that where multiple acts of violence occur against multiple victims, the course of conduct is divisible.”  (People v. Beamon (1973) 8 Cal.3d 625, 638, fn. 10, 105 Cal.Rptr. 681, 504 P.2d 905.)

Lobaugh and Moore spawned a benighted series of cases which held there could be but one robbery conviction in multiple victim robberies where a single item of property was removed from the joint possession of the victims, and the remaining counts would have to be reduced to the allegedly lesser included offense of assault with a deadly weapon (People v. Childs (1980) 112 Cal.App.3d 374, 169 Cal.Rptr. 183;  People v. Higgins (1972) 28 Cal.App.3d 771, 104 Cal.Rptr. 925;  People v. Guerin (1972) 22 Cal.App.3d 775, 99 Cal.Rptr. 573).   Ominously, all three cases were specifically disapproved by the Supreme Court in People v. Ramos (1982) 30 Cal.3d 553, 589, footnote 16, 180 Cal.Rptr. 266, 639 P.2d 908, reversed and remanded on other grounds sub nom., California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).⁸  The court explained, “Without actually acknowledging what it was doing, the Guerin court in effect chose to read the robbery statute (Pen.Code, § 211) to require multiple takings in order to sustain multiple convictions.   We do not read the legislative intent so narrowly.   Robbery is not merely the felonious taking of personal property.   Such a taking, without more, is only theft.   To constitute robbery the property must be removed from the possession and immediate presence of the victim against his will, and such removal must be by force or fear.   When two or more persons are in joint possession of a single item of personal property, the person attempting to unlawfully take such property must deal with all such individuals.   All must be placed in fear or forced to unwillingly give up possession.   To the extent that any threat may provoke resistance, and thus increase the possibility of actual physical injury, a threat accompanied by a taking of property from two victims' possession is even more likely to provoke resistance.”  (Id., at p. 589, fn. omitted, 180 Cal.Rptr. 266, 639 P.2d 908.)

Ramos was not accused of injuring more than one victim in a single drunk driving incident;  or, we suspect, Lobaugh and Moore would have fallen as well.   We have found nothing in the cases they rely on or in the subsequent development of the law which supports the continued viability of their holdings.

For example, the claim that the intent of the drunken motorist somehow makes a difference in determining whether multiple felony drunk driving convictions can arise from the same accident is wholly without a legal basis.   In the words of Justice Kaus, “[appellant's] argument is that the basic rule, recognized in Neal v. State of California [supra] 55 Cal.2d 11, 20–21 [9 Cal.Rptr. 607, 357 P.2d 839], that multiple victims justify multiple punishments is inapplicable where a defendant's conduct consists of ‘mere’ negligence.   The law is to the contrary.  (People v. Lockheed Shipbuilding Constr. Co. (1977) 69 Cal.App.Supp.3d 1, 12–14 [138 Cal.Rptr. 445].)  In any event, the argument misses the point even if it were correct:  it would only affect the issue of multiple punishment, as distinguished from the question of multiple violations.”  (In re Frank F., supra, 90 Cal.App.3d 383, 386–387, 153 Cal.Rptr. 375;  see also People v. Eagles, supra, 133 Cal.App.3d 330, 183 Cal.Rptr. 784 and People v. De Casaus, supra, 150 Cal.App.2d 274, 309 P.2d 835.)

 All that remains to consider is the spurious theory of Lobaugh that “the fundamental concern of the state is not the outrage done the victims, but rather the prevention of ‘drunken driving’ and the punishment of those who so conduct themselves.”  (People v. Lobaugh, supra, 18 Cal.App.3d at p. 79, 95 Cal.Rptr. 547.)   The primary purpose of drunk driving laws is public safety, not some abstract disdain for the tipsy motorist.   If Lobaugh's above quoted holding is reduced to its logical conclusion, all drunk drivers must be treated as misdemeanants, no matter how long the list of the wounded.   The Legislature has chosen to punish those who cause injury with more severity than those who do not, however, although the difference results from pure chance.   Having thus clearly expressed a policy of imposing responsibility for an unintended occurrence in the offense of drunk driving, it is entirely nonsensical to conclude the Legislature meant to limit the number of such convictions to one, without respect to the number of victims.

 If the Legislature intended to so narrow the scope of the statute, it could have simply used the phrase “any other person or persons” in the description of the offense of felony drunk driving.   But it did not.   In our view, as the statute is presently written, the intoxicated motorist may suffer as many felony drunk driving convictions as there are injured victims.⁹  The peremptory writ is denied.   The alternative writ is discharged.

FOOTNOTES

1.   We use the term “felony drunk driving” to refer both to the traditional offense of driving under the influence (Veh.Code, § 23153, subd. (a)) and the recently devised offense of driving at a blood alcohol level of .10 or higher (Veh.Code, § 23153, subd. (b)).  (See fn. 2, post.)   Since all persons are under the influence at .10 according to the weight of current scientific opinion, the offenses actually are the same, but with somewhat different elements of proof.  (People v. Lewis (1983) 148 Cal.App.3d 614, 619–620, 196 Cal.Rptr. 161.)

2.   Vehicle Code section 23153 then provided, “(a) It is unlawful for any person, while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes death or bodily injury to any person other than the driver.  [¶] (b) It is unlawful for any person, while having 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes death or bodily injury to any person other than the driver.  [¶] For purposes of this subdivision, percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood.  [¶] In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.10 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.  [¶] (c) In proving the person neglected any duty imposed by law in the driving of the vehicle, it is not necessary to prove that any specific section of this code was violated.”

3.   The information contains a fourteenth count alleging a violation of section 20001 of the Vehicle Code, commonly called felony hit and run.   This section also requires proof of injury to another;  but the prosecution did not file it in multiple counts here, although it claimed the right to do so at oral argument.   We have located no case on point;  but where there is but one accident, there is really only one “accident scene” to depart.   Drunk driving with injuries is not limited by “accident scenes” or specific accidents, but rather injuries proximately caused to any other person.   Also, unlike drunk driving, leaving the scene of an accident is not a violent offense, and the so-called “single object rule” applicable to nonviolent offenses would thus permit but one conviction.  (2 Witkin, Cal.Crimes (1983 Supp.) § 954B, p. 439;  People v. Gardner (1979) 90 Cal.App.3d 42, 46–48, 153 Cal.Rptr. 160, collecting cases.)

4.   The defense, correctly, does not challenge the two varieties of drunk driving charges alleged in conjunction with the manslaughter count.   (See In re Frank F. (1979) 90 Cal.App.3d 383, 386, 153 Cal.Rptr. 375 and People v. Rocha (1978) 80 Cal.App.3d 972, 976, 146 Cal.Rptr. 81.)

5.   The context of the Chatham quotation illustrates its irrelevance to the issue:  “Appellant argues it makes no difference to the person injured whether he was hurt by a sober man or an intoxicated man, and contends that the receiving of bodily injuries is the gist of the offense.   In this, however, appellant is in error,—it is not the receiving of the injury that concerns the state, but the causing of such injuries which the state seeks to minimize.”  (People v. Chatham, supra, 43 Cal.App.2d at p. 300, 110 P.2d 704.)

6.   Layport was disapproved on a usury treble damages issue in Heald v. Friis-Hansen (1959) 52 Cal.2d 834, 839, 345 P.2d 457.

7.   Predecessor statutes regulating drinking and driving offenses.

8.   The lesser included offense theory was also subsequently discredited.  (People v. Wolcott (1983) 34 Cal.3d 92, 98, 192 Cal.Rptr. 748, 665 P.2d 520;  People v. Vorbach (1984) 151 Cal.App.3d 425, 430, 198 Cal.Rptr. 712.)

9.   There is also confusion developing over the question of how many convictions per victim are permitted where guilty verdicts are returned under both subdivision (a) and (b) of section 23153 of the Vehicle Code.   Rather than dismiss one and sentence on the other as has been suggested (see People v. Cosko (1984) 152 Cal.App.3d 54, 199 Cal.Rptr. 289, relying in part on Lobaugh ), we believe the more prudent approach would be to impose judgment on a single merged offense of section 23152, subdivisions (a)/(b).  (Wharton's Criminal Procedure (12th ed. 1975) § 294, pp. 133–137.)   Otherwise, the People suffer the unnecessary risk of the trial court sentencing on the subdivision which is vulnerable on appeal while dismissing the one which is not.

CROSBY, Associate Justice.

TROTTER, P.J., and WALLIN, J., concur.