Wilkoff v. Superior Court

• Decision Date: 18 March 1985
• Citation: 696 P.2d 134,211 Cal.Rptr. 742,38 Cal.3d 345
• Court: California Supreme Court
• Parties: , 696 P.2d 134 Joan Kathryn WILKOFF, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; The PEOPLE, Real Party In Interest. L.A. 31942.

Page 742

211 Cal.Rptr. 742

38 Cal.3d 345, 696 P.2d 134

Joan Kathryn WILKOFF, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent The PEOPLE, Real Party In Interest.

L.A. 31942.

Supreme Court of California In Bank.

March 18, 1985.

Ronald Y. Butler, Public Defender, Frank Scanlon, Asst. Public Defender, James Dean Allen, Vicki Briles, Deputy Public Defenders, and Leonard Gumlia, Santa Ana, for petitioner.

No appearance for respondent.

Cecil Hicks, District Attorney, Michael R. Capizzi, Asst. Dist. Atty., William W. Bedsworth and Randell L. Wilkinson, Deputy Dist. Attys., for real party in interest.

Darryl W. Genis, Torrance, as amicus curiae.

BROUSSARD, Justice.

The issue in this case is whether one instance of driving under the influence which causes injury to several persons is chargeable as one count of driving under the influence or as several.

The pertinent statute is Vehicle Code section 23153, ¹ which at the time of the accident in question provided, in relevant part:

"(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." ²

Defendant petitions this court for relief from denial of her motion to set aside counts IV through XIII of the information, pursuant to Penal Code section 995.

The information alleges that at approximately 12:45 a.m. on August 13, 1983, defendant executed an improper lane change on the Pacific Coast Highway in Huntington Beach, California, which resulted in a four-vehicle collision causing the death of one individual and injuring five others. It is further alleged that the blood alcohol level in the sample extracted from defendant was 0.19 percent.

Defendant was charged with one count of vehicular manslaughter for the one death she caused. (Pen.Code, § 192.) She was also charged with a count of driving under the influence of alcohol ( § 23153, subd. (a)) and a count of driving with a blood alcohol level of 0.10 or above ( § 23153, subd. (b)) for each of the six persons injured or killed. Thus, defendant was charged with 13 counts in all.

Defendant brought a motion to dismiss ten of the drunk driving counts, arguing that only one count of section 23153, subdivision (a) and one count of subdivision (b) can arise from a single incident of driving under the influence. The trial court denied the motion to strike the repetitive counts and defendant petitions for a writ of prohibition or mandamus.

DISCUSSION

The law on the question of multiple counts of felony drunk driving has been settled in the Courts of Appeal for over 13 years, since the decision in People v. Lobaugh (1971) 18 Cal.App.3d 75, 95 Cal.Rptr. 547. The court in Lobaugh held that "a person who has violated section 23101 whether one, or several, persons be injured thereby, has committed but one offense." (Id., at p. 79, 95 Cal.Rptr. 547.) ³ Other Courts of Appeal have uniformly followed Lobaugh (People v. Moore (1971) 20 Cal.App.3d 444, 97 Cal.Rptr. 601) or discussed it as settled law. (See People v. Eagles (1982) 133 Cal.App.3d 330, 343, 183 Cal.Rptr. 784; In re Frank F. (1979) 90 Cal.App.3d 383, 386, 153 Cal.Rptr. 375; People v. Rocha (1978) 80 Cal.App.3d 972, 976, 146 Cal.Rptr. 81; People v. Lockheed Shipbuilding & Constr. Co. (1977) 69 Cal.App.3d Supp. 1, 13-14, 138 Cal.Rptr. 445.)

The district attorney asks us to reverse this line of authority and return to the contrary rule stated in People v. Young (1964) 224 Cal.App.2d 420, 424, 36 Cal.Rptr. 672. However, the issue before us was addressed in only a single sentence in Young (discussed below), and that sentence has not been explained or cited--except to question it--in the more than 20 years since its publication. The district attorney must therefore make his argument anew.

Presented with this issue for the first time, we now approve the view expressed in People v. Lobaugh that one instance of drunk driving is chargeable as only one count of felony drunk driving (i.e., one count of § 23153, subd. (a) and one count of subd. (b)) even if more than one person is injured thereby. ⁴

Our analysis begins with the recognition that a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute--the gravamen of the offense--has been committed more than once. The act prohibited by section 23153 is the act of driving a vehicle while intoxicated and, when so driving, violating any law relating to the driving of a vehicle. In Lobaugh the court found that this act was committed only once, since there was only one driving incident, despite the fact that injuries to several persons were proximately caused thereby. The emphasis in Lobaugh was on the act constituting the gravamen of the offense since, as we have said, the number of times the act is committed determines the number of times the statute is violated: "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 or a felony, depending on whether personal injuries result therefrom. The felony section simply 'graduate[s] the punishment according to the [more serious] consequences of the forbidden act.' " (People v. Lobaugh, supra, 18 Cal.App.3d at pp. 79-80, 95 Cal.Rptr. 547, citations omitted, brackets in original.) The concurring opinion of Justice Sims further pointed out that "[t]he question of 'bodily injury' is only of materiality in that it aggravates the offense [from a misdemeanor to a felony]. The fact that there are several victims cannot transform the single act into multiple offenses." (Id., at p. 84, 95 Cal.Rptr. 547, italics in original.)

By way of contrast, we apply the same analysis to the crime of vehicular manslaughter. The actus reus of vehicular manslaughter is homicide--the unlawful killing of a human being. ⁵ When a defendant commits several homicides in the course of a single driving incident, he or she has committed the act prohibited by the statute several times. Thus, the Courts of Appeal have consistently upheld multiple counts of vehicular manslaughter, while prohibiting multiple counts of felony drunk driving. "[I]t is settled that under the manslaughter statutes, each victim represents a separate violation (People v. De Casaus (1957) 150 Cal.App.2d 274, 280 ), but that in a prosecution under section 23101 of the Vehicle Code, the number of violations does not increase with each additional victim. (People v. Moore (1971) 20 Cal.App.3d 444, 450-451 ; People v. Lobaugh (1971) 18 Cal.App.3d 75, 79-80 .)" (In re Frank F., supra, 90 Cal.App.3d at p. 386, 153 Cal.Rptr. 375. Accord, People v. Eagles, supra, 133 Cal.App.3d at p. 343, 183 Cal.Rptr. 784; People v. Lockheed Shipbuilding & Constr. Co., supra, 69 Cal.App.3d Supp. 1, 13-14, 138 Cal.Rptr. 445.) ⁶

The district attorney takes issue with a statement in People v. Lobaugh-- removed from its context--that "[u]nlike 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." (People v. Lobaugh, supra, 18 Cal.App.3d at p. 79, 95 Cal.Rptr. 547.) The district attorney concludes from this sentence that the court in Lobaugh mistakenly believed that injuries caused by drunk drivers were only a secondary concern of the Legislature. However, the passage immediately following the quoted sentence ⁷ shows that the court was merely expressing the analytical notion that the act prohibited by the statute was the act of driving, not the act of injuring persons. It is preposterous to suggest--and the court in Lobaugh did not do so--that the Legislature somehow prohibited drunk driving for its own sake, and not because of the untold injuries it causes to citizens of the state. Injury to another person is, in fact, the basis upon which the offense of drunk driving is enhanced to a felony.

The district attorney next points to the familiar rule from Neal v. State of California (1960) 55 Cal.2d 11, 20, 9 Cal.Rptr. 607, 357 P.2d 839, that where a single act of violence against the person results in multiple victims, multiple punishments are permitted. This rule is an exception to Penal Code section 654, which generally prohibits multiple punishment for a single criminal act. ⁸ In Neal we explained that "[t]he purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled." (Id., at p. 20, 9 Cal.Rptr. 607, 357 P.2d 839.)

In a recent case interpreting the Neal rule, People v. Ramos (1982) 30 Cal.3d 553, 180 Cal.Rptr. 266, 639 P.2d 908, reversed...