*1 Dist., 15, 1971.] No. 8617. First Div. One. June [Crim. PEOPLE, Plaintiff and
THE Respondent, LOBAUGH, RAY Defendant and
BILLY Appellant.
Counsel Vernon, R. Eugene under Court for appointment Appeal, Defendant and Appellant.
Evelle J. General, Attorney Robert R. Granucci and Louise H. Younger, Renne, General, for Deputy Attorneys Plaintiff and Respondent.
Opinion ELKINGTON,J. Billy Ray was convicted verdicts by jury seven felony which charges be described as may follows:
Count 1: Felony drunk driving, causing to one bodily injuries Russell (Veh. Code, Hanson 23101); §
Count 2: Felony drunk driving, causing bodily to one Ellen Mae injuries (Veh. Code, Waldecker 23101); §
Count 3: drunk to one Charles Felony driving, bodily causing injuries Code, (Veh. 23101); Leonard Goggins § Code,
Count 4: (Veh. hit and run 20001); Felony § ); within offense included (Pen. lesser § Count 5: Kidnaping (Pen. one Donald Adcock purpose charge Code, 209); of robbery 6: of one Carol Ann Geer for
Count Kidnaping (Pen. Code, 209); Donald Adcock (2d
Count 7: of one Robbery degree) §211). to state on each of the seven thereafter sentenced
Lobaugh prison counts, 2 with the 1 and execution of sentence on counts provision until the sentence and conviction become final. stayed of count shall 2, theWith of counts 1 and to run exception all sentences were ordered with each other. The concurrently is from the appeal judgment.
We first direct our to the contention that the evidence was insuf- inquiry violations, 2, ficient to sustain the 1, Vehicle Code counts and 4: Reilly, Cal.3d (see People evidence” rule Under the “substantial could, 417, 649]) and we must 421, 475 P.2d jury did, find the facts to be. true. they following presume Hanson, Mae Waldecker Ellen Russell three other persons, and Lobaugh 1, 2 and counts in (named respectively Leonard Goggins and Charles 7, started around driving July They on 5 or 5:30 p.m. around met and wine two purchased quarts party automobile. Lobaugh’s took turns drink- the evening they Throughout another bought gallon. later his behavior from Lobaugh changed wine. As the night progressed ing was driving 10:30 Lobaugh of mean.” Around p.m. to “sort “pretty nice” hour. To one of the. at 90 miles at a fast estimated very speed per the car in a was drunk or “crazy” that he either just driving it passengers appeared car, car, went out of another At Lobaugh’s passing manner. point down and to rest ablaze. Each control and off road coming upside in the accident. suffered serious bodily injuries passengers vehicle, and aid to the himself front without Extricating rendering afire, of whose made back one his clothing Lobaugh way passengers, to the road. A saw the automobile and motorist passing blazing stopped his car. As he out and “said he me to take got wanted Lobaugh appeared smell,” to him the who had “a Pittsburg Lobaugh, slight Hospital.” liquor in the car. As drove off he asked the driver to “look for a got they fellow whom he said had fallen out of the onto driven being car” the road. After said, about a and mile the driver the neck quarter grabbed around Lobaugh “This is Do what I gun. tell and won’t be hurt.” The driver was you you told to take again to the Asked about Lobaugh Lobaugh’s hospital. appear- testified, ance the driver “it he that was ... I saw some appeared injured. blood his on nose. It seemed to be down his nose. He must have trickling cut, been I don’t know.” something, in counts of which was
Vehicle Code section violation charged who, and while the influence intoxi- provides: under “Any person or under the combined influence of and cating liquor, intoxicating liquor drives a when forbidden any by vehicle and so does act drug, driving any vehicle, law or neglects law the of such any duty driving imposed which act or neglect proximately causes other bodily injury any person than himself of a ...” guilty felony. have we have related the could reasonably
From evidence jury (1) was his “under the influence concluded that vehicle driving (2) violated Code that while so he Vehicle intoxicating liquor,” doing limit), section 22349 maximum section 22350 (65-mile-per-hour speed (basic law) (reckless (3) section driving), thereby proxi speed each bodily of his three mately causing injury passengers. *5 most, one, three, first is that
Lobaugh’s contention at not section 23101 violation is established the by evidence.
At least in our are initially consideration of this we not con point cerned with or for an act or acts multiple punishment multiple prosecution in more than one resulting crime. the Rather whether violation question of section 23101 results in as offenses as there are many injured. persons to the Pointing three persons conduct, injured the by Lobaugh’s People the familiar urge rule that where a course of criminal conduct results in victims, to injury multiple offenses are v. (See committed. Neal multiple California, State 11, 55 607, Cal.2d 20 839]; P.2d Cal.Rptr. [9 357 of 2 Witkin, Crimes, Cal. 954, 908-909.) § pp.
We concluded that a who has violated section 23101 have whether person one, several, has one committed but offense. persons injured thereby, case, Unlike the usual victim” here the fundamental concern of “multiple victims, is not the state the done the but outrage rather the of prevention “drunken and the of those so driving” who conduct themselves. punishment Chatham, 298, People It was in v. 43 said 300 P.2d Cal.App.2d [110 704] Code, §501, 23101), to Veh. . “. . it (referring is not predecessor § state, causing the that the concerns the the receiving but injury minimize.” such state injuries which the seeks The unlawful 80 vehicle of driving the “mere act the Code is Vehicle
act denounced by intoxicated”; a misdemeanor act is either while a public highway upon 23101, Code, 23102, 502), (Veh. § or a (Veh. felony § formerly § therefrom. 501), result whether personal injuries on formerly depending § Thurston, 254]; 713, v. 212 717 (See People Cal.Rptr. [28 Cal.App.2d Levens, 769]; 310, People v. Ryan, P.2d In re 61 313 Cal.App.2d [142 Freeman, 455, 16 698]; Cal.App.2d v. People 459 P.2d 28 [82 Cal.App.2d 23101, for 101, 333].) (Veh. P.2d section felony [60 to the merly “graduate^] according [more simply punishment Rieder, v. (Layport act. .” forbidden . . consequences serious] 742, 96], P.2d on other Supp. grounds Cal.App.2d disapproved [94 Friis-Hansen, 834, 457].) Heald v. 2d 52 Cal. P.2d 839 [345 Young, v. People Cal.App. reached in the result cognizant We are to two 420, 672], injury that where personal holding 2d 23101, con of section multiple from one act violation resulted persons urged are But there it simply victions and punishment proper. which not punishment Penal Code section 654 “does multiple prohibit victims,” the court' with which concerns a general proposition multiple to have been And the we have cited neither concurred. authorities appear court; Young People to nor considered the holding presented by Witkin, (See Cal. is therefore Procedure questionable authority. (1954) 2456.) p. 3,
Since has been sentenced on the count section 23101 Lobaugh charge, 1 and the con- with execution sentence on similar counts stayed victions on latter counts should and will be set aside.
Next, section viola contends no Vehicle Code tion, as count was established charged by evidence. statute, Code
Vehicle section hit and *6 so-called run” “felony as “The relevant: driver vehicle involved in an accident provides, any himself, in to resulting other than or death of injury any person, any person shall the vehicle at the immediately stop scene the accident and shall fulfill the of Sections 20003 and 20004. requirements person Any [f] to with failing all the comply this section under such circum- requirements stances is of a guilty public offense. . . .” 20003, a driver “. . . shall things, that such
Section other among requires assistance, including to in the accident reasonable person render any injured or the the of such person for carrying making arrangements carrying to a for medical or if it is physician, surgeon surgical treatment hospital . .” treatment . necessary. apparent
As indicated left the scene of the and accident Lobaugh ambulatory
81 He left behind him three only slightly injúred. injured passen- apparently one of whom suffered over 35 of his gers, third burns degree body, percent hand, lost the use of his left his left arm and and was to have leg required He made no to sections effort render the assistance amputated. by required 20001 and 20003. From a this evidence the found violation jury reasonably of Vehicle Code section as in 4. count charged v. Justice Byers contention based
The additional section 20001
upon
merit;
Court,
465],
P.2d
is without
It follows that count of the information must be affirmed. now and We to a consideration of Lobaugh’s robbery proceed kidnaping and convictions under counts evidence found Substantial record and to those convictions now follows. relating
Our earlier factual ended threatening narrative with Lobaugh passing with a and to be gun motorist taken to the The motorist asking hospital. was Donald Adcock. As said he wanted Adcock’s they Lobaugh proceeded Adock identification. his wallet looked at produced whereupon Lobaugh wallet,” some and identification “through and part currency [the] then his “stuck it in Further on Adcock was able pocket.” to door open of the car off, and out. jump wallet, then drove “the Lobaugh keeping, (The and all.” money wallet was later found Lobaugh’s possession This police.) incident was the of the subject counts and 7 convictions and kidnaping robbery, respectively. conviction, The count 6
Code, 209), was based upon following testimony.
Somewhat later that Mrs. Geer was driving along Carol Ann evening road for her who was home from work. husband late looking getting Another car cut in front of her and forced to emerged her stop. Lobaugh from other vehicle he needed He then the door saying opened help. over, said, Mrs. car and “Move want Geer’s I to drive.” lady screamed while told to “be managed her shut She Lobaugh up.” quiet car, her; her from her while so with escape taking purse doing *7 had and She was and grabbed her ripped jacket. by Lobaugh pursued caught car; and back to the had she while dragged her apparently dropped purse Geer to Mrs. continued scream and was running. told again by Lobaiigh to said accident, “shut He that he had been in an up.” and that “he had to that after get were him.” was away, Mrs. Geer concerned about police had. had that he In stated her husband. to her Lobaugh response questions, the man with a and that he an accident a fellow black Ford thought driving Ford, a she imag- was dead. Since Mrs. husband was black Geer’s driving if believed that she ined that the dead man husband. She also her might went with then she could later and She notify police. appellant, escape asked if she could drive the and he As she drove she Lobaugh car agreed. saw a car told to coming from but her nearby driveway, “keep Lobaugh and he had to driving” that a if she did not do what he told her. gun use in accident had an he that he been was continued to say As she driving told had He also Mrs. fellow who was out. jumped and that the driving so one think As Mrs. to no would anything wrong. Geer drive “normal” When asked where her was located. Lobaugh Geer continued driving purse seats,” “it’s in between the he find it but she that to responded attempted He could not. then became excited and accused Mrs. Geer purposely on it the street in order to let know who she was. She dropping people them, saw car. car finally As started follow police police Lobaugh told her to turn and in However, left drive a normal fashion. “all of a sudden” six or and cars forced her approximately eight police converged car to drawn, with forced stop. guns get out police, Lobaugh and car under him arrest. placed (count 7) of Donald Atkins was conviction the robbery
Lobaugh’s In briefs on makes evidence. clearly appeal his supported to the no contention contrary. have, however, concluded two con
We Lobaugh’s kidnaping 207), (Pen. victions—count of Donald Adcock and kidnaping count Ann Carol Geer kidnaping 209)—must be reversed. Our follow. reasons trial was on concluded October
Lobaugh’s In its (count instructions the court defined this jury “kidnaping” manner: takes other any person who and unlawfully forcibly
“Every person or into county, state or him into another country, and carries this state so the will without same against of the county, doing another part carried, is To constitute so guilty consent of the kidnaping. ffl] person or otherwise mov- forcibly there must be a the crime of carrying who, will, his into the for some distance of the taken person against ing not but the law does or control another custody person, require be carried or distance or the one thus taken moved any long particular distance.” *8 crime; 6) of (count the the of
Defining for “kidnaping robbery” purpose the were jury told: robbery to commit or another who carries kidnaps away
“Any person The . . necessary with commit . of intent to robbery, guilty kidnaping another a of person, elements of this crimo are: forcible carrying moving will, the intent his for some with distance against specific purpose out and commit commit the intent to carry robbery robbery, although need not be intent and only the purpose.” Daniels, 1969, 2, People
On October v. Court in California Supreme 897, 225], 71 Cal.2d P.2d the elements redefined Cal.Rptr. [80 of the of crime for the of as Penal kidnaping purpose robbery, proscribed Code section It held 1139) that the offense is not committed where (p. “the movements of the victim are merely incidental to the commission of and do not robbery increase the risk of harm over and substantially above that necessarily in the crime of itself. present . . .” In robbery Mutch, v. People 4 Cal.3d 721, 633], 482 P.2d it was Cal.Rptr. [93 held that the of rule Daniels retroactive, even to extent of fully granting post-conviction relief thereunder. then count 6. Since were instructed as to Lobaugh jury erroneously law,
we cannot as a matter of that of Mrs. say, Geer Lobaugh’s asportation was a for the cause will remanded to kidnaping purpose robbery, court for a retrial of that issue. superior P.2d (1970)
In
v.
Resolution of other raised points to counts and 6 by Lobaugh relating has become unnecessary.
84 7; is 4 it on counts and as to the convictions
The is affirmed judgment 1, 2, reversed as to the counts 5 and convictions.
Molinari, J., P. concurred. SIMS, counts 1 J. in the the convictions on I concur decision reversing “any act.” 2. It is that and clear Vehicle Code section proscribes “bodily injury’ The it of that question only materiality aggravates the offense. The fact that there the are several victims cannot transform act into offenses. single multiple and the convictions as it reverses the decision insofar
I dissent from on counts 5 and 6. sentences the did not contain refinements the instructions in this case
Although (1969) Daniels Cal.2d People on law v. by the statutory engrafted (1971) People Mutch 225], 459 P.2d and applied Cal.Rptr. [80 633], I Cal.3d 389 482 P.2d do not find any prejudice in that omission. the transport was gunpoint at what he thought was forced
Adcock the rejected The distance. jury for an and himself defendant appreciable of rob- the was for that such purpose’ theory transportation prosecution’s for of securing transportation It for the then was purpose bery. apparently which that to other than to a either the stated going hospital purpose defendant, enabling for the was to take purpose the victim willing (Veh. for the accident defendant to criminal responsibility escape as to an 20001). opinion is not raised I do not venture Since point § the defendant be for both whether can sentenced simple kidnaping 209), (Veh. Code, when the and hit and run felony former is with the intent and committed objective accomplishing con- latter. In event and authorize any are offenses they separate separate victions. establish was jury’s verdicts Adcock apparently
an and not related afterthought, so the defendant may kidnaping convicted and sentenced for both and robbery. of Mrs. as of law that the kidnaping it be said a matter cannot
Although evidence there was robbery, ample Geer was kidnaping an move It does that she was forced to to sustain that finding. appear distance, could it is to me incomprehensible jury appreciable find that she not to an increased risk harm under subjected possibly evidence; the circumstances revealed I would affirm on counts 5 and for the lack of judgment prejudice *10 under both the Watson and Chapman (See People v. Shirley (1970) tests. 10 Cal.App.3d 853]; 274-275 People Cal.Rptr. [88 Ramirez (1969) 665].) 356-357 Cal.App.3d
A for a Sims, J., was denied petition rehearing was of July that the opinion should be petition granted.