People v. Lobaugh

• Decision Date: 15 June 1971
• Docket Number: Cr. 8617
• Citation: 18 Cal.App.3d 75,95 Cal.Rptr. 547
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Ray LOBAUGH, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 547

95 Cal.Rptr. 547

18 Cal.App.3d 75

PEOPLE of the State of California, Plaintiff and Respondent, v. Billy Ray LOBAUGH, Defendant and Appellant.

Cr. 8617.

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

June 15, 1971.

R. Eugene Vernon, Oakland, for defendant-appellant.

Evelle J. Younger, Atty. Gen., State of Cal., Robert R. Granucci, Louise H. Renne, Deputy Attys. Gen., San Francisco, for plaintiff-respondent.

ELKINGTON, Associate Justice.

Billy Ray Lobaugh was convicted by jury verdicts of seven felony charges which may be described as follows:

Count 1: Felony drunk driving, causing bodily injuries to one Russell Hanson (Veh.Code, § 23101);

Count 2: Felony drunk driving, causing bodily injuries to one Ellen Mae Waldecker (Veh.Code, § 23101);

Count 3: Felony drunk driving, causing bodily injuries to one Charles Leonard Goggins (Veh.Code, § 23101);

Count 4: Felony hit and run (Veh.Code, § 20001);

Count 5: Kidnaping (Pen.Code, § 207); a lesser offense included within a charge of kidnaping one Donald Adcock for the purpose of robbery (Pen.Code, § 209);

Count 6: Kidnaping of one Carol Ann Geer for the purpose of robbery (Pen.Code, § 209);

Count 7: Robbery (2d degree) of one Donald Adcock (Pen.Code, § 211).

Lobaugh was thereafter sentenced to state prison on each of the seven counts, with the provision that the execution of sentence on counts 1 and 2 be stayed until the sentence and conviction on count 3 shall become final. With the exception of counts 1 and 2, all sentences were ordered to run concurrently with each other. The appeal is from the judgment.

We first direct our inquiry to the contention that the evidence was insufficient to sustain the Vehicle Code violations, counts 1, 2, 3 and 4.

Under the 'substantial evidence' rule (see People v. Reilly, 3 Cal.3d 421, 425, 90 Cal.Rptr. 417, 475 P.2d 649) the jury could, and we must presume they did, find the following facts to be true.

Lobaugh and three other persons, Russell Hanson, Ellen Mae Waldecker and Charles Leonard Goggins (named respectively in counts 1, 2 and 3) met around 5 or 5:30 p.m. on July 7, 1964. They started driving around in Lobaugh's automobile. The party purchased two quarts of wine and later bought another gallon. Throughout the evening they took turns drinking the wine. As the night progressed Lobaugh changed his behavior from 'pretty nice' to 'sort of mean.' Around 10:30 p.m. Lobaugh was driving the car at a very fast speed estimated at 90 miles per hour. To one of the passengers it appeared that he was either drunk or just driving in a 'crazy' manner. At that point Lobaugh's car, passing another car, went out of control and off the road coming to rest upside down and ablaze. Each of the passengers suffered serious bodily injuries in the accident.

Extricating himself from the vehicle, and without rendering aid to the passengers, one of whose clothing was afire, Lobaugh made his way back to the road. A passing motorist saw the blazing automobile and stopped his car. As he got out Lobaugh appeared and 'said he wanted me to take him to the Pittsburg Hospital.' Logaugh, who had 'a slight liquor smell,' got in the car. As they drove off he asked the driver to 'look for a fellow whom he said had fallen out of the car' onto the road. After being driven about a quarter mile Lobaugh grabbed the driver around the neck and said, 'This is a gun. Do what I tell you and you won't be hurt.' The driver was again told to take Lobaugh to the hospital. Asked about Lobaugh's appearance the driver testified, 'it appeared that he was injured. * * * I saw some blood on his nose. It seemed to be trickling down his nose. He must have been cut, or something, I don't know.'

Vehicle Code section 23101, the violation of which was charged in counts 1, 2, and 3, provides: 'Any person who, while under the influence of intoxicating liquor, or under the combined influence of intoxicating liquor and any drug, drives a vehicle and when so driving does any act forbidden by law or neglects any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person other than himself is guilty of a felony * * *.'

From the evidence we have related the jury could reasonably have concluded that Lobaugh (1) was driving his vehicle 'under the influence of intoxicating liquor,' (2) that while doing so he violated Vehicle Code section 22349 (65- mile per hour maximum speed limit), section 22350 (basic speed law) and section 23103 (reckless driving), (3) thereby proximately causing bodily injury to each of his three passengers.

Lobaugh's first contention is that at most, one, not three, section 23101 violation is established by the evidence.

At least initially in our consideration of this point we are not concerned with multible punishment or multiple prosecution for an act or acts resulting in more than one crime. Rather the question is whether violation of section 23101 results in as many offenses as there are persons injured. Pointing to the three persons injured by Lobaugh's conduct, the People urge the familiar rule that where a course of criminal conduct results in injury to multiple victims, multiple offenses are committed. (See Neal v. State of California, 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 357 P.2d 839; 2 Witkin, Cal.Crimes, § 954, pp. 908--909.)

We have 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, 43 Cal.App.2d 298, 300, 110 P.2d 704 (referring to Vehicle Code section 501, predecessor to section 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.' The unlawful act denounced by the Vehicle Code is the 'mere act of driving a vehicle upon a public highway while intoxicated'; the act is either a misdemeanor (Veh.Code, § 23102, formerly § 502), or a felony (Veh.Code, § 23101, formerly § 501), depending on whether personal injuries result therefrom. (See People v. Thurston, 212 Cal.App.2d 713, 717, 28 Cal.Rptr. 254; In re Ryan, 61 Cal.App.2d 310, 313, 142 P.2d 769; People v. Levens, 28 Cal.App.2d 455, 459, 82 P.2d 698; People v. Freeman, 16 Cal.App.2d 101, 103, 60 P.2d 333.) The felony section (Veh.Code, § 23101, formerly § 501) simply 'graduate(s) the punishment according to the (more serious) consequences of the forbidden act * * *.' (Layport v. Rieder, 37 Cal.App.2d Supp. 742, 746, 94 P.2d 96, 98, disapproved on other grounds in Heald v. Friis-Hansen, 52 Cal.2d 834, 839, 345 P.2d 457.)

We are cognizant of the result reached in People v. Young, 224 Cal.App.2d 420, 424, 36 Cal.Rptr. 672, holding that where personal injury to two persons resulted from one act in violation of section 23101, multiple convictions and punishment are proper. But there it was simply urged that Penal Code section 654 'does not prohibit multiple punishment which concerns multiple victims,' a general proposition with which the court concurred. And the authorities we have cited appear neither to have been presented to nor considered by the court; the holding of People v. Young is therefore of questionable authority. (See 3 Witkin, Cal. Procedure, p. 2456.)

Since Lobaugh has been sentenced on the count 3, section 23101 charge, with execution of sentence stayed on the similar counts 1 and 2, the convictions on the latter counts should and will be set aside.

Next, Lobaugh contends that no Vehicle Code section 20001 violation as charged by count 4, was established by the evidence.

Vehicle Code section 20001, he so-called 'felony hit and run' statute, provides, as relevant: 'The driver of any vehicle involved in an accident resulting in injury to any person, other than himself, or death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004. ( ) Any person failing to comply with all the requirements of this section under such circumstances is guilty of a public offense * * *.'

Section 20003, among other things, requires that such a driver '* * * shall render to any person injured in the accident reasonable assistance, including the carrying or the making arrangements for the carrying of such person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary * * *.'

As indicated Lobaugh left the scene of the accident ambulatory and apparently only slightly injured. He left behind him three injured passengers, one of whom suffered third degree burns over 35 percent of his body, lost the use of his left arm and hand, and was required to have his left leg amputated. He made no effort to render the assistance required by sections 2001 and 20003. From this evidence the jury reasonably found a violation of Vehicle Code section 20001 as charged in count 4.

The additional section 20001 contention based upon Byers v. Justice Court, 71 Cal.2d 1039, 80 Cal.Rptr. 553, 458 P.2d 465, is without merit; that decision was overruled by the United States Supreme Court in California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9.

It follows that count 4 of the information must be affirmed.

We proceed now to a consideration of Lobaugh's kidnaping and robbery convictions under counts 5, 6 and 7. Substantial evidence found in the record and relating to those convictions now follows.

Our earlier factual narrative ended with Lobaugh threatening a passing motorist with a gun and asking to be taken to the hospital. The motorist was Donald Adcock. As they proceeded Lobaugh said he wanted Adcock's identification. Adcock produced his wallet whereupon...