People v. McFarland

• Decision Date: 09 January 1989
• Docket Number: No. S003612,S003612
• Citation: 765 P.2d 493,47 Cal.3d 798,254 Cal.Rptr. 331
• Court: California Supreme Court
• Parties: , 765 P.2d 493 The PEOPLE Plaintiff and Respondent, v. Donald Joseph McFARLAND, Jr., Defendant and Appellant.

Page 331

254 Cal.Rptr. 331

47 Cal.3d 798, 765 P.2d 493

The PEOPLE Plaintiff and Respondent, v. Donald Joseph McFARLAND, Jr., Defendant and Appellant.

No. S003612.

Supreme Court of California In Bank.

Jan. 9, 1989.

[47 Cal.3d 800] Peter W. Cowan, San Diego, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., M. Howard Wayne, Pat Zaharopoulos, William M. Wood and Janelle B. Davis, Deputy Attys. Gen., for plaintiff and respondent.

KAUFMAN, Justice.

We granted review in this matter to resolve a conflict among the Courts of Appeal as to whether Penal Code section 654 ¹

precludes separate punishment where a drunk driver kills one victim and injures another in the same driving accident. We conclude that under these circumstances section 654 does not prohibit separate punishment.

FACTS AND PROCEDURAL HISTORY

On April 27, 1986, defendant Donald Joseph McFarland, Jr., while driving north on Carlsbad Boulevard in the County of San Diego, slammed into the rear of a car that was stopped at an intersection waiting for the light to change. The driver of the waiting vehicle, Steven Herbert, died of massive injuries sustained in the collision. His wife, Joan, and their son, Yancy, survived the collision but suffered severe injuries. It was later determined that defendant was driving with a blood alcohol level of 0.27 percent.

Defendant entered a negotiated plea of nolo contendere to one count of vehicular manslaughter with gross negligence (former § 192, subd. (c)(3), now contained in § 191.5), ² and two counts of causing bodily injury while driving under the influence of alcohol (Veh.Code, § 23153, subd. (a)) (felony drunk driving). ³ The court imposed the middle term of six years imprisonment for vehicular manslaughter, the mid-term of two years for each of the felony drunk driving offenses to run concurrent with the manslaughter sentence, and two consecutive one-year enhancements for injury to the two injured victims pursuant to Vehicle Code section 23182. ⁴ The total aggregate term was eight years.

On appeal, defendant argued that section 654 ⁵ prohibits his being sentenced for both the manslaughter and the felony drunk driving convictions. The Court of Appeal, noting that the districts appeared to be evenly divided on the issue (compare We granted review to resolve the division of authority among the Courts of Appeal concerning the propriety of separate punishment where one drunk-driving incident results in multiple injuries and separate convictions of felony drunk driving and vehicular manslaughter. We conclude that the decision of the Court of Appeal upholding the imposition of separate punishments for manslaughter and felony drunk driving was correct, and therefore affirm the judgment.

                People v. McNiece (1986) 181 Cal.App.3d 1048, 226 Cal.Rptr. 733, with People v. Gutierrez (1987) 189 Cal.App.3d 596, 234 Cal.Rptr. 531), concluded that separate punishment was permissible.  However, in reliance on Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134, the court concluded that defendant could be sentenced for only one conviction of felony drunk driving.  Moreover, the Attorney General conceded that the two enhancements for injury to the two injured victims were improper under section 1170.1. 6  Having concluded that defendant could properly be sentenced for only one felony drunk driving violation, and having accepted the concession of the Attorney General concerning the impropriety of the enhancements, the Court of Appeal remanded for resentencing
                

DISCUSSION

In Wilkoff v. Superior Court, supra, 38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134, we held that a defendant cannot be charged with multiple counts of felony drunk driving under Vehicle Code section 23153, subdivision (a), where injuries to several people result from one act of drunk driving. Our holding was based upon the express language of the statute, which defines the offense principally in terms of driving while intoxicated rather than the injuries which result therefrom, as well as evidence that the Legislature clearly intended only one violation of the statute regardless of the number of victims. (Id. at pp. 352-353, 211 Cal.Rptr. 742, 696 P.2d 134.) The legislative intent, we concluded, indicated "that one instance of driving under the influence which causes injury to several persons is chargeable as only one count of driving under the influence." (Id. at p. 353, 211 Cal.Rptr. 742, 696 P.2d 134.)

In so holding, however, we observed "[b]y way of contrast, ... [that] the actus reus of vehicular manslaughter is homicide--the unlawful killing of a human being." (38 Cal.3d at p. 349, 211 Cal.Rptr. 742, 696 P.2d 134.) Though the issue was not squarely before us, we used the occasion to approve a nearly unbroken line of Court of Appeal decisions holding that "a defendant [who] commits several homicides in the course of a single driving incident ... has committed the act prohibited by the statute several times." (Id. at pp. 349-350, 211 Cal.Rptr. 742, 696 P.2d 134; see People v. De Casaus (1957) 150 Cal.App.2d 274, 280, 309 P.2d 835; In re Frank F. (1979) 90 Cal.App.3d 383, 386, 153 Cal.Rptr. 375; People v. Eagles (1982) 133 Cal.App.3d 330, 342-343, 183 Cal.Rptr. 784; cf. People v. Jones (1985) 164 Cal.App.3d 1173, 1181-1182, 211 Cal.Rptr. 167.) This rule is consistent, we explained, with the settled principle that multiple punishment is permissible where a single act of violence injures or kills multiple victims. (Wilkoff v. Superior Court, supra, 38 Cal.3d at pp. 351-352, 211 Cal.Rptr. 742, 696 P.2d 134; see Neal v. State of California (1960) 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 357 P.2d 839; People v. Miller (1977) 18 Cal.3d 873, 885, 135 Cal.Rptr. 654, 558 P.2d 552.) As we explained in People v. Miller, supra, 18 Cal.3d 873, 135 Cal.Rptr. 654, 558 P.2d 552, when a defendant " 'commits an act of violence with the intent to harm more than one The question presented here is whether separate punishment is permissible where a defendant, in a single incident, commits voluntary manslaughter as to one victim, in violation of former section 192, subdivision (c)(3), and drunk driving resulting in injury to a separate victim, in violation of Vehicle Code section 23153, subdivision (a). As noted earlier, the Courts of Appeal have divided on this issue. (See People v. Gutierrez, supra, 189 Cal.App.3d 596, 234 Cal.Rptr. 531 [separate sentences permissible]; People v. McNiece, supra, 181 Cal.App.3d 1048, 226 Cal.Rptr. 733 [ § 654 prohibits separate sentences].)

person or by means likely to cause harm to several persons,' his greater culpability precludes application of section 654." (Id. at p. 885, 135 Cal.Rptr. 654, 558 P.2d 552, quoting Neal v. State of California, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.)

We conclude the general rule permitting multiple punishments when multiple injuries result from a single act of violence, governs this matter. As noted above, "A defendant may properly be convicted of multiple counts for multiple victims of a single criminal act ... where the act prohibited by the statute is centrally an 'act of violence against the person.' " (Wilkoff v. Superior Court, supra, 38 Cal.3d at p. 351, 211 Cal.Rptr. 742, 696 P.2d 134, quoting Neal v. State of California, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839, italics added; see also People v. Gutierrez, supra, 189 Cal.App.3d at p. 601, 234 Cal.Rptr. 531.) Plainly, vehicular manslaughter with gross negligence constitutes a crime of violence against the person. (Wilkoff v. Superior Court, supra, 38 Cal.3d at pp. 350-352, 211 Cal.Rptr. 742, 696 P.2d 134.)

Thus, we are satisfied that where, as here, a defendant commits vehicular manslaughter with gross negligence--an act of violence against the person--he may properly be punished for injury to a separate individual that results from the same incident. ⁷

Defendant contends that the foregoing conclusion is contrary to our holding in Wilkoff v. Superior Court, supra, 38 Cal.3d 345, 211 Cal.Rptr. 742, 696 P.2d 134. Not so. As explained earlier, our holding was premised upon the apparent legislative intent that only one violation of Vehicle Code section 23513, subdivision (a) was contemplated regardless of the number of persons injured. We discern no such legislative intent when a drunk driver kills one individual and injures another. The defendant who commits an act of violence by means likely to injure more than one person is properly subject to separate punishment. (Neal v. State of California, supra, 55 Cal.2d at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.)

Though it might be argued that the moral culpability of the drunk driver who causes death is the same as the drunk driver who causes injury to multiple victims, as we noted in Wilkoff the Legislature has clearly distinguished the two crimes: "[T]he Legislature has chosen to draw a line at this point by defining one crime in terms of an act of violence against the person ('unlawful killing') and placing it in the Penal Code, while defining the other in terms of an act of driving and placing it in the Vehicle Code." (38 Cal.3d at p. 350, fn. 6, 211 Cal.Rptr. 742, 696 P.2d 134.) Indeed, the Legislature reinforced this distinction in 1983 by amending the manslaughter and drunk driving statutes to provide that an intoxicated driver who kills another person is not chargeable under the Vehicle Code, but may only be charged under the manslaughter statutes of the Pen.Code. (Stats.1983, ch. 937, § 1, amending Veh.Code, § 23153 and Penal Code, § 192; see Wilkoff v. Superior Court, supra, 38 Cal.3d at p. 350, fn. 6, 211 Cal.Rptr. 742, 696 P.2d 134.)

Defendant also cites the recent Court of Appeal decision in People v. McNiece, supra, 181 Cal.App.3d 1048, 226 Cal.Rptr. 733, which held that separate convictions of drunk driving and vehicular...