People v. Arndt, No. G021783

CourtCalifornia Court of Appeals
Writing for the CourtRYLAARSDAM; WALLIN, Acting P.J., and CROSBY
Citation69 Cal.App.4th 154,81 Cal.Rptr.2d 400
PartiesPreviously published at 69 Cal.App.4th 154 69 Cal.App.4th 154, 1999 Daily Journal D.A.R. 394, 98 Daily Journal D.A.R. 442 The PEOPLE, Plaintiff and Respondent, v. Steven Wayne ARNDT, Defendant and Appellant.
Docket NumberNo. G021783
Decision Date12 January 1999

Page 400

81 Cal.Rptr.2d 400
Previously published at 69 Cal.App.4th 154
69 Cal.App.4th 154, 1999 Daily Journal D.A.R. 394,
98 Daily Journal D.A.R. 442
The PEOPLE, Plaintiff and Respondent,
v.
Steven Wayne ARNDT, Defendant and Appellant.
No. G021783.
Court of Appeal, Fourth District, Division 3, California.
Jan. 12, 1999.

Page 401

[69 Cal.App.4th 158] Jerry D. Whatley, under appointment by the Court of Appeal, Santa Barbara, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch and Garrett Beaumont, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, J.

A jury convicted defendant Steven Wayne Arndt of felony driving while under the influence of a drug (Veh.Code, § 23153, subd. (a)) and transporting cocaine (Health & Saf.Code, § 11352, subd. (a)). On the first count, the jury also found defendant caused bodily injury to more than one victim (Veh.Code, § 23182; hereafter section 23182), and inflicted great bodily injury on three victims, one of whom became comatose due to a brain injury (Pen.Code, § 12022.7, subds. (a) & (b); hereafter section 12022.7). The trial court sentenced defendant to a 17-year, 4-month prison term, consisting of the 3-year aggravated term on count one, two 1-year enhancements under section 23182 for two of the victims, a 5-year enhancement under section 12022.7, subdivision (b) for the victim suffering a brain injury, two 3-year enhancements under section 12022.7, subdivision (a) for the other two victims, and a consecutive 1-year, 4-month sentence on count two.

Defendant attacks the sentence on several grounds. He contends that only section 23182's enhancement applies in this case, and alternatively that, Penal Code section 654 (hereafter section 654) bars multiple use of the injury enhancements. He also claims section 654 prohibits sentencing on [69 Cal.App.4th 159] both count one and count two. Finally, he argues the court erred in calculating his presentence custody conduct credits. We strike the enhancements imposed under section 23182, but otherwise affirm the judgment.

Page 402

FACTS

While under the influence of cocaine, defendant drove his car recklessly, at times reaching 100 miles per hour. He failed to stop for a red light and collided with a vehicle occupied by Vicki Schwartz, her son Ryan, and her daughter Natalie. Vicki sustained injuries to several organs, requiring surgery and several weeks of hospitalization. Natalie suffered severe lacerations to her arm and face, and required plastic surgery. Ryan remained in a coma for several weeks and is seriously brain damaged.

The police discovered drug paraphernalia in defendant's car. After medical personnel transported him to a hospital, a bag of cocaine was found in his pants.

DISCUSSION

1. Special Statute versus General Statute

Defendant claims section 23182 preempts the application of section 12022.7 in this case because it is a special statute covering the same subject matter. (See People v. Coronado (1995) 12 Cal.4th 145, 153-154, 48 Cal.Rptr.2d 77, 906 P.2d 1232; People v. Watson (1981) 30 Cal.3d 290, 295-297, 179 Cal.Rptr. 43, 637 P.2d 279.) We disagree.

The doctrine which holds that a special statute controls over a general statute has been applied to enhancements. (People v. Coronado, supra, 12 Cal.4th at pp. 153-154, 48 Cal.Rptr.2d 77, 906 P.2d 1232.) But "[t]he rule does not apply ... unless 'each element of the "general" statute corresponds to an element on the face of the "specific" [sic ] statute' or 'it appears from the entire context that a violation of the "special" statute will necessarily or commonly result in a violation of the "general" statute.' [Citations.]" (Id. at p. 154, 48 Cal.Rptr.2d 77, 906 P.2d 1232.)

Section 12022.7, subdivision (a) imposes a three year enhancement on "[a]ny person who personally inflicts great bodily injury on any person other than an accomplice in the commission ... of a felony...." Subdivision (b) increases the additional term to five years where the defendant "causes the victim to become comatose due to brain injury or to suffer paralysis...." Under section 23182, "[a]ny person who proximately causes bodily injury or death to more than one victim in any one instance of driving in [69 Cal.App.4th 160] 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 elements of section 12022.7 do not correspond to section 23182. Section 12022.7 applies when a defendant inflicts "great bodily injury on any person other than an accomplice." (§ 12022.7, subd. (a).) Section 23182 applies where a defendant inflicts "bodily injury or death" on "more than one person," and the enhancement is imposed only for "each additional injured victim." Section 12022.7 defines great bodily injury as "a significant or substantial physical injury." (§ 12022.7, subd. (e).) Under section 23153, "bodily injury" requires only proof of " 'harm or hurt to the body.' " (People v. Dakin (1988) 200 Cal.App.3d 1026, 1035-1036, 248 Cal.Rptr. 206 [two cuts on the forehead, a severe headache and stiff neck]; see also People v. Lares (1968) 261 Cal.App.2d 657, 662, 68 Cal.Rptr. 144 [acute back strain].)

The conduct triggering the application of section 23182 will not necessarily result in the application of section 12022.7. Section 23182 applies to vehicular or watercraft offenses involving driving while under the influence of alcohol or drugs that result in multiple injuries or deaths, including certain forms of manslaughter. (See Pen.Code, §§ 191.5, 192, subd. (c)(3).) Section 12022.7 applies to great bodily injury inflicted on any person other than an accomplice during a felony or attempted felony, but is expressly inapplicable in manslaughter cases. (§ 12022.7, subds. (a) & (f).)

Defendant suggests that, since section 23182 was enacted after section 12022.7, it should be construed as an exception to the latter statute. But section 23182's legislative history belies this argument. The Legislature enacted the statute in response to the Supreme Court's decision in Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134 which held the state may charge a drunk driver who injures several

Page 403

persons in a single car accident with only one count each of felony drunk driving and driving with an excessive blood alcohol level resulting in injury. (See People v. McFarland (1989) 47 Cal.3d 798, 805, 254 Cal.Rptr. 331, 765 P.2d 493.) Thus, section 23182's purpose is to increase the potential punishment available in certain cases where an alcohol or drug-impaired individual operating a vehicle or watercraft causes an accident which results in multiple injuries, not to limit the use of another otherwise applicable enhancement.

We conclude defendant's reliance on the principle that a special statute controls over a general statute is unavailing in this case. As defendant concedes, since we reject his argument on this issue, the trial court properly limited his presentence custody conduct credits to 15 percent. (See Pen.Code, §§ 667.5, subd. (c)(5), 2933.1, subd. (a).)

[69 Cal.App.4th 161] 2. Section 654

In part, section 654 declares, "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (Pen.Code, § 654, subd. (a).) The statute applies to a course of conduct violating more than one statute if the offenses were incident to one objective. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583, 55 Cal.Rptr.2d 450.)

Defendant argues the trial court violated section 654 by (1) imposing multiple section 12022.7 enhancements, (2) imposing both the section 12022.7 and the section 23182 enhancements for the same injury on two victims, and (3) imposing sentence on both count one and count two. The Attorney General claims section 654 does not apply to enhancements, and, since the evidence supports a finding defendant harbored more than one criminal objective, the trial court properly sentenced him on each count.

a. Section 654's Application to Enhancements

The first question...

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