Opinion
—Carlos Jose Gutierrez appeals from convictions entered upon guilty pleas to one count of vehicular manslaughter (count 1) (Pen. Code, § 192, subd. (c)(3)); one count of felony drunk driving (count 2) (Veh. Code, §23153, subd. (a)); and one count of driving with a revoked license (count 3) (Veh. Code, § 14601, subd. (a)). Appellant was sentenced to the middle term of six years on count 1, a consecutive eight months (one-third middle term) on count 2, and a concurrent eight months on count 3, to be served in the California Youth Authority. He contends that the trial court erred in imposing consecutive sentences;, relying on еlements of the crimes as factors in aggravation; failing to impose a mitigated term; and denying probation.
Statement of Facts
The accident underlying appellant’s offenses occurred on the evеning of May 23,1985, on the southbound portion of Highway 101 in the Fulton area. When California Highway Patrol Officer Kissinger reported to the scene he found appellant had driven off the shoulder of the rоad, crashed through a cyclone fence and wood fence, and hit some piping and trees. He had reportedly swerved around an automobile into the center divider, then swerved
Officer Kissinger learned that appellant, Arrendondo and Olmedo, age 19, 24 and 20 respectively, had met Joann Boyd, Kimberly Souza, Thea Dawn Souza and Wendy Coleman, all teenagers, at a parade in Healdsburg and were to give the girls a ride home. When the girls entered the car there was an empty 12-pack of Budweiser beer on the rear floorboard. Appellant stopped at a store where one of the male passengers bought another 12-pack of beer. While waiting, appellant took a bicycle parked outside the store and placed it in the trunk of his car. Appellant had been drinking beer, and continued to do so after the stop.
Appellant became irate when another driver pulled in front of him, chased the оther car at over 80 miles per hour, and threw beer cans at it. On a number of occasions appellant took his hands off the steering wheel while traveling at 90 miles per hour or more, causing Joann Boyd to steer the car. The passengers asked appellant to slow down; Wendy Coleman and Dawn Souza asked to get out, which appellant allowed after spinning the car around twice. Appellant once returned to ask the girls to get back into the car, but they refused.
Kimberly Souza reported that appellant was driving at over 100 miles per hour оnce they reached the freeway. Shortly before the accident, while the car was travelling at 110 miles per hour, appellant had again taken his hands off the wheel leaving Joann Boyd to steer. Appellant was steering at the time of the accident.
When Officer Kissinger questioned appellant at the hospital just before surgery, appellant stated that the rеason he had been driving so fast was that he was drunk. Appellant’s blood alcohol level, tested within two hours of the accident, was .17 percent. His driver’s license had been suspended at thе time of the accident.
I.
Consecutive Sentences
Appellant contends that imposition of consecutive sentences on counts 1 and 2 violates the prohibition in Penal Code section 654 against multiple рunishment for a single act or omission.
People v. McNiece, supra,
Penal Code section 192, subdivision (c)(3), of which appellant was convicted in count 1, defines vеhicular manslaughter as the “unlawful killing of a human being without malice” while “[d]riving a vehicle in violation of Section 23152 or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to fеlony, and with gross negligence; or driving a vehicle in violation of Section 23152 or 23153 of the Vehicle code and in the commission of a lawful act which might produce death, in an unlawful manner, and with grоss negligence." Vehicle Code section 23153, subdivision (a), of which appellant was convicted in count 2, provides that: “It is unlawful for any person, while under the influence of an alcoholiс 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
While both statutes pertain to drunken driving, Wilkoff teaches that they are vitally different in that the actus reus prоhibited by Penal Code section 192, subdivision (c)(3), is homicide, the unlawful killing of a human being, while the actus reus of Vehicle Code section 23153 is “the act of driving a vehicle while intoxicated and, when so driving, violаting any law relating to the driving of a vehicle.” (Wilkoff v. Superior Court, supra,
This difference is significant because “[a] defendant may be properly convicted of multiple counts for multiple victims of a single criminal aсt only where the act prohibited by the statute is centrally an ‘act of violence against the person.’ ” (Wilkoff v. Superior Court, supra,
The fact situations in the present case and in McNiece involved neither multiple counts of vehicular manslaughter nor multiple counts оf drunk driving, but a single count of each. McNiece viewed a conviction under Penal Code section 192, subdivision (c)(3) as involving the same “basic act” of driving while under the influence of alcohol as that under Vehicle Code section 23153, relying on the statement in Wilkoff that “ ‘[ujnlike 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.’ ” (
II.-IV.
Judgment affirmed.
Smith, J., and Benson, J., concurred.
Appellant’s petition for review by the Supreme Court was denied May 21, 1987.
Notes
Penal Code section 654 provides: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an aсquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.”
Vehicle Code section 23153, subdivision (b) parallels seсtion 23153, subdivision (a) but substitutes reference to blood alcohol level of 0.10 percent or more for the language “while under the influence.” Vehicle Code section 23152, also referred to in Penal Code section 192, subdivision (c)(3), prohibits driving “under the influence” or with blood alcohol level of 0.10 percent or more without causing bodily injury.
The information in count 2 referred to injury to both Souzа and Boyd.
Where convictions of drunk driving and vehicular manslaughter result from the death of a single victim, Penal Code section 654 prohibits multiple punishment because the two statutes were violated by the same act. (People v. McAlister (1985)
See footnote, ante, page 596.