People v. Grabham

• Decision Date: 31 August 2021
• Docket Number: A160384
• Citation: People v. Grabham, 68 Cal.App.5th 549, 283 Cal.Rptr.3d 626 (Cal. App. 2021)
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James William GRABHAM, Jr., Defendant and Appellant.

68 Cal.App.5th 549

283 Cal.Rptr.3d 626

The PEOPLE, Plaintiff and Respondent,

v.James William GRABHAM, Jr., Defendant and Appellant.

A160384

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

Filed August 31, 2021

Michael Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Chung Mi Choi, Deputy Attorneys General for Plaintiff and Respondent.

BROWN, J.

A jury convicted defendant James William Grabham, Jr. of violating Vehicle Code ¹ section 23152, subdivision (a) ( section 23152(a) ) and section 23152, subdivision (b) ( section 23152(b) ). Defendant argues that section 23152(a) and (b) are different statements of the same offense and Penal Code section 954 therefore requires vacatur of one of his convictions. As have other courts, we conclude that section 23152(a) and (b) are separate offenses and defendant may properly be convicted of both. Accordingly, we will affirm the judgment.

BACKGROUND

On September 21, 2019, California Highway Patrol Officers Herve and Bethay passed a pickup truck and saw the driver, defendant, looking down at his cellphone. When Officer Herve slowed his vehicle and began to follow defendant, he noticed defendant's vehicle registration had expired. Officer Bethay, who sat in the passenger seat, confirmed the expiration. Although Officer Herve had not noticed any signs of impaired driving, he initiated a traffic stop due to defendant's cellphone use and expired registration.²

Officer Herve approached defendant's truck on the passenger side and saw a 12-pack of beer on the bench seat. Officer Herve smelled alcohol coming from the truck and noticed defendant's eyes were red and watery, both signs that a person may be intoxicated. Defendant also slurred his speech and struggled to follow directions, so Officer Herve decided to conduct a full DUI investigation.

Defendant's performance in several field sobriety tests indicated he was under the influence of alcohol. Officer Herve then arrested defendant and administered a breath test. The first test reported a blood alcohol content (BAC) of 0.12, and the second test reported a BAC of 0.11. Officer Herve testified that defendant was "definitely too impaired to drive and continue driving."

Samantha Evans, a criminalist with the California Department of Justice, gave expert testimony on the effects of alcohol on the human body. Evans stated her opinion as follows: "At an alcohol level of a .12 or .11, I would say somebody is too impaired to operate a motor vehicle safely." When asked whether there was a "generally accepted" level at which someone would be too impaired to operate a motor vehicle, Evans testified that "in [her] opinion" someone would be "too impaired to operate a motor vehicle safely at an alcohol level of .08 percent and higher." However, she explained that a person who had developed a tolerance to alcohol can learn to mask outward signs of physical impairment from alcohol consumption.

A jury found defendant guilty of driving under the influence (DUI) of an alcoholic beverage ( § 23152(a) ) and driving with a 0.08 BAC ( § 23152(b) ). After defendant waived his right to a jury trial on his prior conviction, the court found the enhancement allegations under section 23550.5 to be true. The court sentenced defendant to three years in state prison but suspended execution of the sentence. Defendant was instead placed on three years of probation on the condition that he participate in a residential treatment program.

Defendant filed a timely notice of appeal.

DISCUSSION

Contending that section 23152(a) and section 23152(b) constitute a single offense, defendant asks us to vacate one of his convictions pursuant to Penal Code section 954. People v. Subramani (1985) 173 Cal.App.3d 1106, 219 Cal.Rptr. 644 ( Subramani ) and People v. Duarte (1984) 161 Cal.App.3d 438, 207 Cal.Rptr. 615 ( Duarte ) addressed subdivisions (a) and (b) of section 23153, a nearly identical statute providing the felony counterpart to section 23152, and both courts held that section 23153, subdivisions (a) and (b) describe separate offenses. As Subramani and Duarte foreclose defendant's argument, he asks us to reconsider those authorities in light of recent Supreme Court decisions discussing Penal Code section 954 ’s prohibition on multiple convictions for the same offense in other statutory contexts. For the reasons set forth below, we conclude that the Supreme Court authorities cited by defendant do not support his contention that section 23152(a) and section 23152(b) constitute the same offense.

I. Governing Legal Principles

A. Section 23152

Section 23152(a) makes it unlawful for "a person who is under the influence of any alcoholic beverage to drive a vehicle." Under this provision, the People must prove that: "(1) a person, (2) while under the influence of alcohol, (3) drove a vehicle." ( People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 5, 110 Cal.Rptr.2d 930 ( McNorton ); CALCRIM No. 2110.) A person is "under the influence" of alcohol when he or she " ‘no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.’ " ( People v. Weathington (1991) 231 Cal.App.3d 69, 78, 282 Cal.Rptr. 170. Section 23152(b) ) makes it unlawful for "a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." Under this provision, the People must prove that: (1) the defendant drove a vehicle; and (2) when the defendant drove the vehicle, his or her BAC was 0.08 percent or more. ( CALCRIM No. 2111 ; see McNorton , supra , 91 Cal.App.4th Supp. at p. 5, 110 Cal.Rptr.2d 930.)

B. Penal Code Section 954

Penal Code section 954 provides in relevant part, "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts .... The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged."

The California Supreme Court has repeatedly held that a single act can support multiple charges and multiple convictions. ( People v. White (2017) 2 Cal.5th 349, 354, 212 Cal.Rptr.3d 376, 386 P.3d 1172 ( White ); People v. Vidana (2016) 1 Cal.5th 632, 637, 206 Cal.Rptr.3d 556, 377 P.3d 805 ( Vidana ); People v. Sanders (2012) 55 Cal.4th 731, 736, 149 Cal.Rptr.3d 26, 288 P.3d 83.) Penal Code section 954, however, prohibits "multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct." ( Vidana , at p. 650, 206 Cal.Rptr.3d 556, 377 P.3d 805 ; see id. at pp. 637, 647, 206 Cal.Rptr.3d 556 [ section 954 prohibits convictions for both grand theft by larceny and embezzlement based on the same course of conduct because they constitute different statements of the same offense of theft].)³

Whether two statutes or statutory provisions describe the same offense "turns on the Legislature's intent in enacting [the] provisions, and if the Legislature meant to define only one offense, we may not turn it into two." ( People v. Gonzalez (2014) 60 Cal.4th 533, 537, 179 Cal.Rptr.3d 1, 335 P.3d 1083 ( Gonzalez ).) The language of a statute provides the best evidence of statutory intent, but we do not consider this language in isolation. ( Ibid. ) We look instead "to the entire substance of the statute ... to determine the scope and purpose of the provision at issue." ( Ibid. ) "We must harmonize ... parts of a statutory enactment ... by considering the particular clause or section ‘at issue’ in the context of the statutory framework as a whole." ( Ibid. ) Where " ‘the statutory language is susceptible of more than one reasonable construction, we can look to legislative history in aid of ascertaining legislative intent.’ " ( Id. at pp. 537–538, 179 Cal.Rptr.3d 1, 335 P.3d 1083.)

C. Burg, Subramani, and Duarte

In Burg v. Municipal Court (1983) 35 Cal.3d 257, 261, 198 Cal.Rptr. 145, 673 P.2d 732 ( Burg ), the main authority relied on by Subramani and Duarte to support their conclusions that subdivisions (a) and (b) of section 23153 are separate crimes, the California Supreme Court held that section 23152(b) gave constitutionally adequate notice of the conduct it prohibits. In the course of so holding, the Court summarized the historical context leading to the enactment of section 23152(b). ( Id. at pp. 262–265, 198 Cal.Rptr. 145, 673 P.2d 732.) Prior to the enactment of subdivision (b), California criminalized only " ‘driving under the influence,’ " a prohibition fortified by a rebuttable presumption that a driver was "under the influence" with a BAC of 0.10 or higher.⁴ ( Id. at p. 263, 198 Cal.Rptr. 145, 673 P.2d 732.) Under this subjective standard of intoxication, however, many defendants were escaping criminal liability by raising doubts as to whether they were in fact "under the influence," notwithstanding a high BAC, because conviction required a showing that alcohol had " ‘so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.’ " ( Id . at p. 264, 198 Cal.Rptr. 145, 673 P.2d 732.) The Legislature therefore enacted section 23152(b) "[i]n an attempt to address the continuing threat to public safety posed by drinking drivers." ( Ibid . ) In contrast to the originally-enacted " ‘driving under the influence’ " charge under section 23152(a), no proof of the defendant's subjective state of intoxication is necessary to convict a defendant under section 23152(b). ( Id. at p. 263, ...