Opinion
Megan Elizabeth Weaver appeals a judgment entered following her guilty plea to one count of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) 1 and her admission of the truth of an allegation she personally inflicted great bodily injury on another person in the commission of that offense (§ 12022.7, subd. (a)). On appeal, Weaver contends the trial court erred by (1) denying her request for probation; (2) imposing the middle six-year term for her section 191.5, subdivision (a) offense; and (3) imposing a consecutive three-year enhancement under section 12022.7, subdivision (a). She also contends: (1) her conviction of only one offense precludes a court from considering it as two prior serious felony convictions within the meaning of section 1192.7, subdivision (c)(8) and the three strikes law (§ 667, subds. (b)-(i)); and (2) the victim restitution fine imposed by the trial court must be offset by the amount paid by her insurance company.
FACTUAL AND PROCEDURAL BACKGROUND 2
On August 19, 2004, Weaver graduated from San Diego State University. Celebrating her graduation with friends (including Jaylin Ruiz), Weaver consumed several shots of alcohol (Jagermeister).
About 1:00 a.m. on August 20, Ed Thurston, driving his car eastbound on Highway 56 about two to four miles from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car did not have its headlights on and was traveling in the fast lane at a speed of over 70 miles per hour. After it passed him, Thurston saw that the car also did not have its rear taillights on.
Also about 1:00 a.m., Jose Garcia, driving his car eastbound on Highway 56 about one-half mile from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car had its headlights on and was traveling in the fast lanе at a speed of 80 to 90 miles per hour. Garcia swerved to the right to avoid colliding with the car and then swerved left, lost control of his car, and drove into bushes and rocks in the highway’s
Also about 1:00 a.m., Scott Tempus, driving his car eastbound on Highway 56 about one-quarter mile from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. 3 The car had its headlights on and was traveling in the slow lane. After Tempus swerved to avoid the car, the other car merged onto the northbound lanes of Interstate 5 heading south (i.e., the opposite direction of oncoming traffic).
Also about 1:00 a.m., Anatoly Sigalov (Sigalov) was driving his car northbound on Interstate 5 just south of the on-ramp or transition to eastbound Highway 56. His wife Mara was sitting in the front passenger seat. Sigalov was traveling about 65 miles per hour, with his car’s headlights on, when he saw the reflection of his headlights on the front windshield of an oncoming car, which was only about a “yard away.” The other car did not have its headlights on. Weaver was the other car’s driver. Without time for Sigalov to react, the two cars collided head-on. 4
Both cars sustained substantial damage. Mara died from blunt force trauma suffered in the collision. Sigalov suffered cracked ribs and a dislocated right hip, requiring surgery to repair his pelvis.
While being transported in an ambulance, Weaver told an emergency medical technician that she had been drinking. He smelled alcohol on her breath. At 3:45 a.m,, blood was drawn from Weaver. Testing of that blоod sample showed Weaver’s blood-alcohol content (BAC) was 0.151 percent. Her blood sample also tested positive for the presence of cocaine, suggesting she had. consumed cocaine about two to three hours before the blood was drawn. 5
On December 10, an information was filed, charging Weaver with five counts: (1) gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); (2) driving under the influence, causing injury (Veh. Code, § 23153, subd. (a)); (3) driving with a BAG of 0.08 percent or greater and causing injury (Veh. Code, § 23153, subd. (b)); (4) driving the wrong way on a divided highway and causing injury (Veh. Code, § 21651, subds. (b) & (c)); and (5) hit-and-run driving (Veh. Code, § 20002, subd. (a)). The information also alleged that: (1) in committing counts 1 through 3, Weaver caused bodily injury or death (Veh. Code, § 23558); (2) in committing count 1, she personally inflicted great bodily injury on Sigalov (§ 12022.7, subd. (a)); (3) in committing counts 2 through 4, she personally inflicted great bodily injury on Mara and Sigalov (§ 12022.7, subd. (a)); and (4) regarding counts 1 through 4, her offenses constituted serious felonies within the meaning of section 1192.7, subd. (c)(8) because she inflicted great bodily injury on Mara and Sigalov.
On December 14, the trial court denied probation and sentenced Weaver to the middle term of six years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement, for a total term of nine years. 6 Pursuant to section 654, the trial court stayed imposition of the one-year enhancement under Vehicle Code section 23558. The court also imposed a restitution fine of $229,479, “subject to modification upward or downward on the application by counsel and a hearing can be held.” It expressly retained jurisdiction to address the issue of restitution and to amend the judgment.
On February 6, 2006, Weaver filed a notice of appeal.
On March 20, Weaver filed a motion to recall her sentence pursuant to section 1170, subdivision (d), requesting that the trial court recall its sentence, impose the lower four-year term for count 1, and strike the enhancement for her infliction of great bodily injury. 7 Attached to her motion were declarations of her former boyfriend (Jacob Ramsey) and Danielle Steinke, who was at the party, explaining some of the events preceding the incident and why Weaver drove her car that night while intoxicated. Based on those declarations, her motion argued in part that she intended to stay overnight at her friend Ruiz’s house and had not planned to drive her car that night, but did so only after her then boyfriend (Ramsey) called and asked her to come home to Spring Valley.
On March 21, the trial court denied Weaver’s motion. 8
DISCUSSION
I
Denial of Probation
Weaver contends the trial court abused its discretion by denying her request that she be granted probation. She argues the trial court considered improper factors and did not consider relevant factors.
A
At Weaver’s sentencing, the trial court received and considered the probation report, the prosecution’s statement in aggravation, Weaver’s statement in mitigation, and letters from, and testimonies of, family and friends of both Mara and Weaver
After hearing arguments of counsel, the trial court found Weaver was genuinely remorseful and was not a chronic partygoer in college. It also noted the “dreadful” injuries suffered by Sigalov. The court stated that in sentencing Weaver, its job was to apply the law to this case while considering “the framework of protecting society, meting out an appropriate punishment deterring others, hopefully preventing other crimes and achieving some degree of uniformity in sentencing.” The court noted that California Rules of Court, rule 4.414 10 guided its consideration of whether to grant or deny probation. The court stated:
“There are factors that weigh on both sides [i.e., granting or denying probation]. Certainly in favor of grant of probation is this young woman’s youth, her lack of significant record, just one speeding ticket and her absence of actual malice in this case[, h]er genuine remorse and her ability to comply with the conditions of probation if probation were granted.
“On the other side of the [equation] lies the horrific nature of this offense. The dreadful loss to this family, the fact that Ms. Weaver . .. did not stop her driving after the first near miss, the high blood alcohol, the presence of drugs. I find the drug was cocaine. . . .
“Mr. Sigalov, I think, unknowingly touched on another factor that I think was important and that is the vulnerability of him and his wife. They’re driving on a highway in a lane that they’re lawfully allowed to drive on at a speed they’re lawfully allowed to drive. And one does not expect this to happen under those circumstances.”
Considering those factors, the trial court denied probation as “not appropriate.”
B
“All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise.”
(People
v.
Aubrey
(1998)
“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]”
(People v. Birmingham
(1990)
Rule 4.410 provides:
“(a) General objectives of sentencing include:
“(1) Protecting society;
“(2) Punishing the defendant;
“(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;
“(4) Deterring others from criminal conduct by demonstrating its consequences;
“(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;
“(6) Securing restitution for the victims of crime; and
“(7) Achieving uniformity in sentencing.
“(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case.”
Regarding a trial court’s decision whether to grant or deny probation, rule 4.414 provides:
“Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the.defendant.
“(a) Facts relating to the crime
“Facts relating to the crime include:
“(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [][]... [][]
“(3) The vulnerability of the victim;
“(4) Whether the defendant inflicted physical or emotional injury;
“(5) The degree of monetary loss to the victim;
“(6) Whether the defendant was an active or a passive participant;
“(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; HQ . . . HI]
“(b) Facts relating to the defendant
“Facts relating to the defendant include:
“(1) Prior record of criminal conduct. . . ; HQ . . . HD
“(3) Willingness to comply with the terms of probation;
“(4) Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;
“(5) The likely effect of imprisonment on the defendant and his or her dependents;
“(6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction;
“(7) Whether the defendant is remorseful; and
“(8) The likelihood that if not imprisoned the defendant will be a danger to others.”
In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rules 4.406(b)(2) & 4.408(a).) Unless the record affirmatively shows otherwise, a trial сourt is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)
“The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance
C
Weaver argues the trial court considered improper factors in deciding whether to grant or deny probation.
11
She asserts the trial court improperly considered “victim vulnerability.” However, rule 4.414(a)(3) expressly lists “[t]he vulnerability of the victim” as a relevant fact relating to the crime that should be considered by a trial court in deciding whether to grant or deny probation. In this case, although the probation report did not list that factor, the prosecution’s statement in aggravation
did
list the “vulnerability of the victim” as a reason supporting denial of probation, stating: “Both Anatoly and Mara Sigalov were vulnerable victims, in the sense that they never had a chance to defend themselves against the defendant. The [Sigalovs] were driving on á highway in the darkness of the night. They were driving legally, and safely. They were driving the speed limit, with the headlights of their car on. The defendant was driving towards them at approximately 70 miles per hour, heading in the wrong direction, with her headlights off. The [Sigalovs] were completely vulnerable to the defendant’s actions.” The trial court expressly relied on the vulnerability of the victims as a factor in deciding to deny probation, stating: “[A]nother factor that I think was important ... is the vulnerability of [Sigalov] and his wife. They’re driving on a highway in a lane that they’re lawfully allowed to drive on at a speed they’re lawfully allowed to drive. And one does not expect this to happen under those circumstances.” Victim “[vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act.”
(People v. Smith
(1979)
Although Weaver argues Sigalov and Mara were not “particularly” vulnerable victims, that finding is not required under rule 4.414(a)(3) and, in any event, the record supports a finding they were, in fact, particularly vulnerable victims. Citing
People
v.
Bloom
(1983)
holding in the circumstances of this case.
15
In any event, assuming arguendo
Weaver also argues the trial court erred by improperly considering the “horrific nature of this offense,” which included the “dreadful loss” to the
victim’s family, Weaver’s continuation of driving after the “near miss” prior to the collision, her high BAC, and the presence of cocaine in her system. However, rule 4.414(a)(1) expressly provides that a trial court should consider “[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime.” Also, rule 4.414 provides that the trial court should consider “[w]hether the defendant inflicted physical or emotional injury” (rule 4.414(a)(4)) and “[t]he degree of monetary loss to the victim” (rule 4.414(a)(5)). Therefore, the trial court properly considered the “horrific nature,” or the nature, seriousness, and circumstances, of Weaver’s
D
Weaver also contends the trial court erred by not considering certain circumstances that would have supported a decision to grant probation. She argues the trial court should have considered the following circumstances: (1) her crime was unlikely to recur (rule 4.414(a)(7)); (2) it was unlikely that she would be a danger to others were she not imprisoned (rule 4.414(b)(8)); (3) the likely effect of imprisonment on her (rule 4.414(b)(5)); (4) the adverse collateral consequence on her life because of her conviction (rule 4.414(b)(6)); and (5) the physical and emotional injuries that she inflicted on herself (rule 4.408(a)). Although the trial court did not expressly state it considered some or all of those circumstances, we note the probation report listed three of them (namely, circumstances 2, 3, and 4, listed above). 16 Also, in Weaver’s statement in mitigation, she listed and discussed circumstances 1 through 4, above, in support of her request for probation. 17 Because the trial court expressly stated on the record that it received and considered both of those documents, we presume the court did, in fact, consider those circumstances even though it did not expressly restate, recite, or otherwise refer to each one. As we noted above, unless the record affirmatively shows otherwise, a trial court is. deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.) Regarding circumstance 5 suggested by Weaver, we also presume the trial court was aware of, and considered, the circumstances of Weaver’s physical and emotional injuries in denying probation, despite the fact neither the court, nor any of the sentencing documents (including Weaver’s own statement in mitigation), expressly referred to those injuries as a circumstance supporting a grant of probation.
Finally, Weaver argues the trial court improperly considered her youth as a factor that would support a grant of probation.
18
E
Although wе conclude the trial court did not abuse its discretion or otherwise err in considering circumstances regarding the grant or denial of probation, we further note that Weaver has not made any attempt to carry her appellate burden to show the errors purportedly made by the court were prejudicial. Alternatively stated, assuming arguendo the trial court erred as Weaver asserts, she has not shown it is reasonably probable the court would have granted her probation had it not so erred.
(People v. Price
(1991) 1
Cal.4th 324, 492 [
II
Imposition of Middle Six-year Term
Weaver contends the trial court abused its discretion by imposing the middle six-year term for her section 191.5, subdivision (a) offense. She argues the trial court considered certain improper factors as aggravating circumstances.
A
After hearing arguments of counsel and denying probation, the trial court addressed the issue of what term of imprisonment to impose for Weaver’s section 191.5, subdivision (a) offense, stating:
“With respect to the charge of manslaughter that brings us here today, there are three sentencing ranges. There is a sentencing range of three terms. These are four years, six years and ten years: the lower, the middle, and the upper term respectively. The Rules of Court direct that I look at the circumstances in aggravation and thosе in mitigation and that I weigh those and balance those. Those circumstances again look at the offense and the offender. There can be aggravated as well as mitigated circumstances about the offense and aggravated and mitigated circumstances about the offender.
“At the risk of oversimplifying it, if there is an aggravated offense with an aggravated offender, then the upper term is called for. That’s the ten-year term. If there is a mitigated offense with a mitigated offender, then the lower term is called for. That’s the term of four years. If one part of the coin is aggravated and the other part is mitigated,the court is asked to weigh qualitatively and quantitatively these factors and decide the appropriate term.
“Here the offense is aggravated. I have described that. I don’t need to describe it again. I don’t need to make people listen to that anymore. It is a dreadful loss and a horrifying event. The circumstances regarding Ms. Weaver are in this court’s mind entirely mitigating, but for her decision to drive that night, which perhaps none of us will fully understand.
“I, therefore, conclude that the midterm of . six years is appropriate with respect to the substantive charge . . . .”
Accordingly, the trial court imposed the middle six-year term for Weaver’s section 191.5, subdivision (a) offense.
B
A section 191.5, subdivision (a) offense (gross vehicular manslaughter while intoxicated) is punishable by imprisonment for four, six, or 10 years. (§ 191.5, subd. (c).) Section 1170, subdivision (b) provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms,
the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. . . . The court shall set forth on the record the facts and reasons for imposing the upper or lower term
. . . .” (Italics added.) Rule 4.420(a) provides: “When a sentence of imprisonment is imposed . . . , the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170[, subdivision] (b) and these rules.
The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or
mitigation.” (Italics added.) Pursuant to section 1170, subdivision (b) and rule 4.420(a), “[t]he middle term is the presumptive term.” (Levenson, Cal. Criminal Procedure (2006-2007) Sentencing, § 25:50, p. 1134.) The California Supreme Court stated: “[S]ection 1170, subdivision (b) can be characterized as establishing the middle term sentence as a presumptive sentence.”
(People v. Black
(2005)
C
Weaver argues the trial court abused its discretion by imposing the middle six-year term for her section 191.5, subdivision (a) offense because it erroneously relied on certain improper aggravating circumstances. 20 She also argues there is insufficient evidence to support the trial court’s finding that the circumstances relаting to the offense were aggravating.
Weaver asserts the trial court erred by relying on victim vulnerability as an aggravating circumstance. Citing
Bloom
and
Piceno,
discussed above, she argues victim vulnerability cannot be an aggravating circumstance because all victims of gross vehicular manslaughter are vulnerable. She argues all such offenses are “horrific” and all losses suffered by victims’ families are “dreadful.”
21
However, rule 4.421(a)(3) provides that circumstances in aggravation include whether “[t]he victim was particularly vulnerable.” “ ‘[P]articular vulnerability’ is determined in light of the ‘total milieu in which the commission of the crime occurred . . . .’ [Citation.]”
(People v. Dancer
(1996)
To the extent Weaver argues the trial court could not consider whether the offense was “horrific” or argues there is insufficient evidence to support that finding, we note rule 4.421(a)(1) permits a trial court to consider as an aggravating circumstance whether the offense “involved great violence, great bodily
Furthermore, contrary to Weaver’s assertion, we conclude the trial court reasonably considered as aggravating circumstances her continuation of driving after the “near-miss” prior to the collision, her high BAC, and the presence of cocaine in her system. There is substantial evidence to support those findings and rule 4.408(a) authorized the trial court to consider them in making its sentencing choice. Although Weaver argues those circumstances were not unlike circumstances. in other section 191.5, subdivision (a) offenses, there is no requirement under rule 4.408 or 4.421 (or otherwise) that those circumstances be particularly egregious in comparison with other like offenses.
We conclude the trial court properly considered the aggravating circumstances of Weaver’s offense in imposing the middle six-year term.
24
(Cf.
People
v.
Leung, supra,
D
On January 22, 2007, after the parties’ briefs were filed in this appeal, the United States Supreme Court issued its opinion in
Cunningham, supra,
549 U.S. at p._ [
In
Cunningham,
the court noted California’s determinate sentencing law (DSL) and relevant sentencing rules “direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts—whether related to the offense or the offender—beyond the elements of the charged offense.”
(Cunningham, supra,
Weaver argues: (1) the
“Blakely
waiver” in her change of plea form did not waive her right to proof of aggravating factors beyond a reasonable doubt; and (2) the trial court’s imposition of the middle term in the circumstances of this case violated her Sixth Amendment rights. Assuming arguendo Weaver’s change of plea form did not waive her right tо proof of aggravating factors beyond a reasonable doubt, we nevertheless conclude the trial court properly imposed the middle six-year term. As she concedes, under California’s sentencing laws, the middle term is the statutory presumptive term and a trial court can impose that term without stating its reasons. (§ 1170, subd. (b).)
25
Furthermore, rule 4.420(a) provides in part: “The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” Because under section 1170, subdivision (b) and
Cunningham
the relevant statutory maximum sentence under California’s DSL is the middle term, the Sixth Amendment is not implicated when a trial court imposes the middle
The fact the trial court considered the circumstances involving the offender (i.e., her personal circumstances) “entirely mitigating,” did not make the lower four-year term (rather than the middle six-year term) the presumptive or relevant statutory maximum for purposes of the Sixth Amendment as discussed in Apprendi and Cunningham. Although the trial court weighed those mitigating circumstances against the aggravating circumstances of the offense in choosing to impose the middle six-year term, the presumptive or relevant statutory maximum remained the middle term at all times. Under California’s DSL and the Sixth Amendment, as interpreted by Apprendi and Cunningham, there is no “shifting” relevant statutory maximum, as Weaver apparently asserts, where a trial court initially considers some mitigating circumstances (e.g., which, by themselves, might support imposition of a lower term), then considers other aggravating circumstances, and ultimately imposes the middle term after weighing all of the circumstances. Accordingly, the trial court’s imposition of the middle six-year term in the circumstances of this case did not violate or implicate the Sixth and Fourteenth Amendments.
E
Although we conclude the trial court did not abuse its discretion or otherwise err in considering aggravating and mitigating circumstances in imposing the middle six-year term for Weaver’s section 191.5, subdivision (a) offense, we further note she has not made any attempt to carry her appellate burden to show the errors purportedly made by the court were prejudicial. Alternatively stated, assuming arguendo the trial court erred as Weaver asserts, she has not shown it is reasonably probable the court would have imposed the lower four-year term had it not so erred.
(People v. Price, supra,
Ill
Section 12202.7, Subdivision (a) Enhancement
Weaver contends the trial court erred by imposing a three-year enhancement under section 12202.7, subdivision (a) for great bodily injury she personally inflicted on Sigalov in committing the section 191.5, subdivision (a) offense.
A
Weaver pleaded guilty to gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and admitted the truth of the allegations that in committing that offense she personally inflicted great bodily injury on Sigalov (§ 12022.7, subd. (a)) and caused bodily injury or death (Veh. Code, § 23558). The trial court sentеnced Weaver to the middle term of six years for her section 191.5, subdivision (a) offense and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement, for a total term of nine years. Pursuant to
B
Section 12022.7, subdivision (a) provides: “Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony . . . shall be punished by an additional and
consecutive term of imprisonment in the state prison for three years.” Section 12022.7, subdivision (g) provides: “This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivision[] (a) . . . shall not apply if infliction of great bodily injury is an element of the offense.”
People v. Guzman
(2000)
In comparison, Vehicle Code section 23558 provides: “Any person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of [Vehicle Code] Section 23153 of this code or in violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bоdily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements which may be imposed pursuant to this section is three.”
C
Weaver asserts the trial court erred by imposing the three-year section 12022.7, subdivision (a) enhancement rather than the. one-year Vehicle Code section 23558 enhancement because the latter statute (i.e., Veh. Code, § 23558) is the more specific statute and therefore preempts application of the more general statute (i.e., § 12022.7, subd. (a)).
“The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct
and intended
that the specific statute would apply exclusively to the charged conduct. [Citations.]”
(People v. Jones
(2003)
Weaver does
not
assert that the first alternative test of the preemption doctrine applies (i.e., that each element of § 12022.7, subd. (a) corresponds to an element on the face of Veh. Code, § 23558).
26
Rather, she asserts the second alternative test applies and thereby requires imposition of only the one-year enhancement under Vehicle Code section 23558 (and not the three-year enhancement under § 12022.7, subd. (a)). She argues that because a violation of Vehicle Code section 23558 (the special statute) will
commonly
result in a violation of section 12022.7, subdivision (a) (the general statute), the preemption doctrine applies and requires imposition of only the Vehicle Code section 23558 enhancement
27
However, our review of those statutes does not support, that assertion. Vehicle Code section 23558 applies to a defendant who “proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of [Vehicle Code] Section 23153 of this code or in violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code.” Accordingly, its provisions may apply to three separate offenses: (1) driving while intoxicated and proximately causing bodily injury (Veh. Code, § 23153); (2) gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); and (3) vehicular manslaughter while intoxicated but without gross negligence (§ 192, subd. (c)(3)). Because Vehicle Code section 23558 can
apply, when the defendant drives while intoxicated and only
proximately
causes
bodily
injury, we cannot conclude Vehicle Code section 23558 will
commonly
result in a violation of section 12022.7, subdivision (a), which statute requires
personal
infliction of
great bodily
injury. Furthermore, our independent review of the appellate record shows it does not contain any empirical evidence proving that driving while intoxicated and proximately causing bodily injury also commonly results in personal infliction of great bodily injury. Although Weaver argues a section 191.5, subdivision (a) offense commonly results in personal infliction of great bodily injury, that offense is only one of the three offenses listed in Vehicle Code section 23558. (Cf.
People v. Arndt, supra,
D
Weaver also asserts the trial court erred by imposing the three-year section 12022.7, subdivision (a) enhancement because she pleaded guilty only to a charged section 191.5, subdivision (a) offense, which is “victim-specific” (i.e., Mara was the victim of that offense), thereby precluding a section 12022.7, subdivision (a) enhancement for her personal infliction of great bodily injury on the other person injured in the collision (e.g., Sigalov). Although she notes that in
People v. Verlinde
(2002)
In
Verlinde,
we rejected the defendant’s argument that a section 12022.7, subdivision (a) enhancement could not apply because section 12022.7, subdivision (g) precludes application of section 12022.7’s enhancement provisions to murder and manslaughter offenses. We stated:
We are not persuaded by Weaver’s attempt to avoid the application of
Verlinde
to her case based on the difference that the defendant in
Verlinde
was convicted of both a “victim-specific” offense and a “non-victim-specific” offense. There is no logical reason to preclude application of section 12022.7, subdivision (a) when a defendant personally inflicts great bodily injury on persons other than the victim of a “victim-specific” offense, but to allow its application when those other persons were injured in the commission of a “non-victim-specific” offense. For example, in
Arndt
the trial court imposed a separate section 12022.7 enhancement for each of the three persons on whom the defendant personally inflicted great bodily injury in the commission of one “non-victim-specific” offense (i.e., Veh. Code, § 23153, subd. (a)).
(People v. Arndt, supra,
76 Cal.App.4th at pp. 391-392.)
Arndt
upheld imposition of the three separate section 12022.7 enhancements because the defendant “inflicted great bodily injury on three separate persons.” (
Weaver does not persuade us that section 12022.7, subdivision (a) is inapplicable in a case involving only a “victim-specific” murder or manslaughter offense where a person other than the deceased victim sustains great bodily injury. First, and most importantly, we note the express language of section 12022.7, subdivision (a) does
not
limit its application to a specific
victim
of a
In an analogous case, the California Supreme Court in
People
v.
Oates, supra,
“In several respects, the language of section 12022.53 supports imposing multiple subdivision (d) enhancements under the circumstances here. First, by its terms, the subdivision (d) enhancement applies to ‘any person’ who, ‘in the commission of’ a specified felony, ‘personally and intentionally discharges a firearm and proximately causes great bodily injury ... or death, to any person other than an accomplice.’ (Italics added.) Based on the single injury to Barrera, the requirements of a subdivision (d) enhancement are met as to each of defendant’s five attempted murder convictions, including those not involving the attempted murder of Barrera; ... in the commission of each [attempted murder] offense, defendant ‘personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury’ to a person ‘other than an acсomplice.’ (§ 12022.53, subd. (d).)
“Notably, the parties here agree that the phrase, ‘any person other than an accomplice,’ does not mean ‘the victim’ of the underlying crime. For example, defendant asserts in his brief that the elements of a subdivision (d) enhancement ‘require the imposition of the enhancement even if the injured person is not a victim of crime, such as if he or she was injured by a stray bullet.’ Thus, ‘[i]f there is a qualifying substantive offense, if a firearm is intentionally discharged, and if anyone (but an accomplice), i.e.,' either the victim or a nearby “non-victim”—a person who is injured but is not the victim of an enumerated offense—suffers great bodily injury, the enhancement attaches to the offense.’ In other words, as defendant explains, ‘the “any person other than an accomplice” language is sufficiently indisputable to ensure the imposition of the enhancement if a person other than the victim of the qualifying felony suffers a great bodily injury.’ This reading of the statute is consistent with our recent statement that, as ‘[a]pplied to a defendant/shooter, this enhancement is arguably unambiguous: a defendant who is convicted of a specified felony [,] and is found to have intentionally and personally discharged a firearm proximately causing great bodily injury or death when committing that felony, is subject to section 12022.53, subdivision (d). [Citation.]’ [Citation.] It is also consistent with the fact that the Legislature knows how to limit enhancements to harm done to a ‘victim’ when that is its intent. (See § 12022.8 [imposing enhanced punishment for ‘inflict[ing] great bodily injury ... on any victim’]; see also People v. Miller[, supra,] 18 Cal.3d [at p.] 881, fn.. 5 [, 135 Cal.Rptr. 654 558 P.2d 552 ] . . . [enhancement statute that ‘expressly provides for its application upon great bodily injury to a “victim” rather than to a “person” ’ does not apply ‘in the case of injury to persons who, unfortunately, are incidentally caught up in the events constituting the crime’].)” (People v. Oates, supra, 32 Cal.4th at pp. 1055-1056.) Oates concluded: “Because the requirements of the subdivision (d) enhancement have been satisfied as to each of defendant’s attempted murder convictions, subdivision (f) of section 12022.53 requires
Oates also rejected the defendant’s argument that his proffered interpretation of analogous language in section 12022.7 precluded application of section 12022.53 enhancements as to offenses not involving the injured person, stating:
“Defendant also argues that we should construe section 12022.53, subdivision (d), like section 12022.7, which, in language similar to section 12022.53, subdivision (d), provides an enhancement for anyone ‘who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony.’ (§ 12022.7, subd. (a).) According to defendant, ‘[n]o reported case has held that more [section 12022.7] enhancements than the actual number of injuries may be found and imposed’ or that such an enhancement may be found and ‘imposed not only on [the conviction involving] the injured victim but also as to [the convictions involving] the uninjured victims as well.’ Defendant argues we should similarly interpret subdivision (d).
“Defendant’s argument is unpersuasive. Notwithstanding his assertions, defendant concedes that ‘[t]here is “no intimation” in section 12022.7’ that ‘ “only one such enhancement could be employed in any given case” ’ where only one person suffers injury. Moreover, defendant cites no case—and we have found none—supporting his construction of section 12022.7. On the other hand, as defendant notes, in People v. Moringlane (1982)127 Cal.App.3d 811 , 815-817 [179 Cal.Rptr. 726 ] (Moringlane), the trial court imposed three ‘bodily injury’ enhancements, presumably under section 12022.7, based on the defendant’s infliction of a singlе injury on one of the three people he simultaneously assaulted. Although the appellate court later held that multiple enhancements were improper, it based its decision on section 654, not on the construction of section 12022.7. [Citation.] Moreover, given Moringlane's holding in 1982 that section 654 bars imposition of multiple enhancements, it is not surprising that no reported case has considered whether section 12022.7 itself authorizes multiple enhancements under the circumstances here. Finally, defendant cites—and we find—nothing in the legislative history of section 12022.7 to support his interpretation of that statute. Because nothing supports defendant’s construction of section 12022.7, his argument based on that construction fails.” (People v. Oates, supra, 32 Cal.4th at pp. 1060-1061, fns. omitted,)
Accordingly, the California Supreme Court upheld the trial court’s imposition of all five section 12022.53, subdivision (d) enhancements.
(People v. Oates, supra,
In an apposite case involving interpretation of section 12022.7,
People
v.
Ausbie
(2004)
“We . . . construe section 12022.7, subdivision (h) as limiting the sentencing court to one of the subdivision (a), (b), (c), or (d) enhancements for each injured victim, but not as prohibiting the court from imposing a section 12022.7 enhancement for each victim of a single offense when there are multiple victims who suffered great bodily injury.
“Our construction of section 12022.7, subdivision (h) is consistent with the general principle that the law requires greater punishment when there are multiple victims. This state has long recognized thatmultiple punishment is proper when a single act of violence injures or kills multiple victims. [Citations.]” (People v. Ausbie, supra, 123 Cal.App.4th at pp. 864-865, italics added.)
Therefore,
Ausbie
upheld the trial court’s imposition of two section 12022.7, subdivision (a) enhancements relating to only one victim-specific section 245, subdivision (a)(1) offense.
(People
v.
Ausbie, supra,
Based on Verlinde, Oates and Ausbie, we conclude a section 12022.7, subdivision (a) enhancement may apply to a victim-specific offense (e.g., a § 191.5, subd. (a) offense) even when the ostensible victim of that offense was not, for purposes of section 12022.7, subdivision (a), the person on whom the defendant personally inflicted great bodily injury in the commission of that offense. The trial court properly imposed the three-year section 12022.7, subdivision (a) enhancement. Weaver does not cite, and we have not found, any case in support of her argument to the contrary. 35
IV
Section 1192.7, Subdivision (c)(8) Allegations
Weaver contends her conviction of only one offense precludes a court from considering that conviction as two prior serious felony convictions within the meaning of section 1192.7, subdivision (c)(8) and the three strikes law (§ 667, subds. (b)-(i)). She apparently is concerned that the true findings on the two section 1192.7, subdivisiоn (c)(8) allegations related to her one “serious felony” conviction would allow a court in the future to treat her as having two prior “strike” convictions. 36 Weaver argues: “The allegations will be used to support separate strikes under Penal Code section 667, subds. (b)-(i), in the event that Ms. Weaver is convicted of a felony in the future.” She therefore argues only one section 1192.7, subdivision (c)(8) allegation should apply to her one section 191.5, subdivision (a) offense.
However, the trial court in this case did
not
make any decision whether Weaver’s
V
Victim Restitution Fine
Weaver contends the victim restitution fine imposed by the trial court must be offset or reduced by the amount paid by her insurance company. She states her insurance company paid the victim(s) of her offense $200,000, thereby requiring an equivalent reduction in the victim restitution fine of $229,269.97 imposed by the trial court pursuant to section 1202.4. 38
However, the record on appeal does not show her insurance company paid $200,000 to the victim(s) of Weaver’s offense. Weaver asserts: “Defense counsel submitted in the statement of [mitigation] evidence showing that Ms. Weaver’s insurance company paid the $200,000 policy limit to the Sigalovs.” In support of that assertion, she cites page 149 of the clerk’s transсript, which is a copy of a letter attached to her statement in mitigation. That letter, dated February 24, 2005, is from David A. Delbon, an attorney apparently representing Sigalov, to Brian McCarthy, Weaver’s defense attorney. In that letter, Delbon states in part: “Further to my recent telephone message, plaintiff/claimant Anatoly Sigalov has agreed to accept CSAA’s policy limit of $100,000 on the wrongful death claim, and a separate $100,000 on his own personal injury claim. We are in the process of exchanging closing papers which will include a Release of All Demands to be signed on both claims by Anatoly Sigalov. Once the documents are signed and the draft is forwarded to claimant, the civil matter will be resolved. We expect to close our file within the next four weeks.” It is clear from the content of that letter that the pending settlement of Sigalov’s claims had not yet been finalized in writing and Weaver’s insurance company had not yet paid any money to Sigalov. Therefore, that letter does not support her assertion that her insurance company had, in fact, paid $200,000 to Sigalov as a victim of her offense. Absent proof that her insurance company paid that amount to Sigalov as a victim of her offense, there is no basis on which to offset or otherwise reduce the amount of the victim restitution fine imposed by the trial court.
In any event, as the People note, in imposing the victim restitution fine at the sentencing hearing, the trial court expressly retained jurisdiction to modify the amount imposed on application of either
Section 1202.4, subdivision (f) provides that a victim restitution fine may be established, or presumably modified, by the trial court after the sentencing hearing, stating in part: “If the amount of loss cannot be ascertained at the time of sentencing, the restitution order shall include a provision that the amount shall be determined at the direction of the court.” That is in effect what the trial court did in this case. Furthermore, section 1202.4, subdivision (f)(1) provides a defendant with a right to a hearing on the amount of a victim restitution fine, stating: “The defendant has the right to a hearing before a judge to dispute the determination of the amount of restitution. The court may modify the amount, on its own motion or on the motion of the district attorney, the victim or victims, or the defendant. If a motion is made for modification of a restitution order, the victim shall be notified of that motion at least 10 days prior to the proceeding held to decide the motion.” The appellate record does not show that Weaver (or the prosecutor or Sigalov) requested a hearing to modify the amount of the victim restitution fine imposed by the trial court at Weaver’s sentencing. Therefore, to the extent Weaver wishes the amount of that fine to be offset or reduced by all or part of any payment made by her insurance company to Sigalov, she must first follow the appropriate procedures set forth in section 1202.4 by requesting a modification hearing and obtaining an order of the trial court on that request. She may then seek relief in the appellate court for any purported error by the trial court. We conclude Weaver’s contention is premature and we need not address its substance. 39
DISPOSITION
The judgment is affirmed.
Nares, Acting P. J., and McIntyre, 1, concurred.
A petition for a rehearing was denied May 3, 2007, and appellant’s petition for review by the Supreme Court was denied July 25, 2007, SI52392. Werdegar, J., did not participate therein.
Notes
All statutory references are to the Penal Code unless otherwise specified.
Because Weaver pleaded guilty before trial, the factual summary is based on the preliminary hearing transcript and probation report filed in this case.
Tempus’s roommate, John Davis, and Tempus’s daughter were passengers in his car.
Based on the damage to his car, Sigalov, as an owner of an automobile body shop, estimated Weaver’s car was traveling at a speed of over 100 miles per hour.
At the preliminary hearing, a prosecution expert testified that for about 15 to 20 minutes after consuming cocaine, Weaver would have felt its euphoric effеcts, including a sense of confidence, but would be sensitive to bright lights. Thereafter, Weaver would “crash,” feel paranoid, and have blurred vision. Furthermore, her sensitivity to bright lights would become greater. Cocaine, combined with alcohol, decreases a person’s reaction time and increases paranoia, depression, and blurred vision.
The probation report filed prior to Weaver’s sentencing noted that during an interview she stated she could not remember much about the night of the incident. She remembered graduating from college and celebrating with friends in Del Mar by drinking several shots of Jagermeister and thereafter only remembered waking up in the hospital.
On May 3, 2006, we granted Weaver’s unopposed request to augment the appellate record with copies of her motion to recall and the trial court’s minute order denying that motion.
Weaver’s appeal does not challenge the trial court’s denial of her motion to recall her sentence.
In previously finding an evidentiary basis to support Weaver’s guilty plea, the trial court considered the preliminary hearing transcript.
All rule references are to the California Rules of Court.
For purposes of this opinion, we assume, without deciding, that Weaver did not forfeit or waive this contention by not timely objecting to the trial court’s consideration of all or some of the purported improper factors.
We presume that Smith’s description of victim “vulnerability” also applies in the instant rule 4.414(a)(3) context.
Sigalov estimated Weaver’s car was traveling at a speed of over 100 miles per hour. Based on the testimonies of other percipient witnesses, her car was traveling at least 70 miles per hour.
Interpreting the term “particularly vulnerable” for purposes of rule 4.421(a)(3),
Bloom
stated: “There are few individuals as ‘defenseless, unguarded, unprotected, accessible, assailable and susceptible’ as those who have the misfortune of being in the wrong place at the wrong time when a drunk driver takes to the road. All victims of drunk drivers are ‘vulnerable victims,’ but it is precisely because they are
all
vulnerable that Carrie Lee cannot be considered to be vulnerable ‘in a special or unusual degree, to an extent greater than in other cases.’ [Citation.] While we can visualize extraordinary situations in which a drunk driving victim might be considered to be ‘particularly vulnerable,’ such a situation is not present here, and therefore the court erred in applying rule 421(a)(3) to this case.”
(People
v.
Bloom, supra,
In what apparently is dicta because the court reversed the defendant’s gross vehicular manslaughter conviction on which the challenged sentence was based, McNiece stated the trial court erred by denying probation based on the victim’s vulnerability. (People v. McNiece, supra, 181 Cal.App.3d at pp. 1053, 1058-1059.) In so doing, McNiece relied on Bloom and its requirement that a victim be “particularly” vulnerable for that factor to be considered aggravating and supportive of sentencing a defendant to an upper term. (McNiece, at pp. 1058-1059.) However, rule 4.414(a)(3) does not include a requirement that a victim be “particularly” vulnerable for that factor to be considered in granting or denying probation. Because we believe McNiece erred by relying on Bloom and rule 4.421(a)(3)’s language for aggravating circumstances for imposing an upper term, rather than the express language of rule 4.414(a)(3) for circumstances to be considered in granting or denying probation, we disagree with its reasoning and conclusion and therefore decline to apply it to the circumstances in this case. In so doing, we note there is a substantial difference between merely selecting an upper, middle, or lower term (as in Bloom) and deciding to effectively excuse a defendant from serving any prison term by granting probation. Therefore, the omission in rule 4.414(a)(3) of any requirement that a victim be “particularly” vulnerable effectively (and, in our opinion, appropriately) makes a victim’s vulnerability more frequently applicable in a trial court’s weighing whether to grant or deny probation than when a trial court, having denied probation, considers whether to impose a lower, middle, or upper term. Accordingly, the praсtical effect of that difference appears to be that a trial court, in any given case, may be somewhat more inclined to deny probation if it applies rule 4.414(a)(3) as we interpret it than if it applies the rule 4.421(a)(3) standard (per Bloom & McNiece) in deciding whether to grant or deny probation.
The probation report included as circumstances favoring a grant of probation: (1) “[i]mprisonment would likely have a negative effect on the defendant in that she has never served any significant time in custody” (rule 4.414(b)(5)); (2) “[t]he felony conviction will have adverse collateral consequences on the defendant’s life, specifically on her life[-]long career goals” (rule 4.414(b)(6)); and (3) “[i]t appears unlikely that the defendant will be a danger to others if not imprisoned” (rule 4.414(b)(8)).
The prosecution’s statement in aggravation also listed and discussed circumstances (1) through (4), above, albeit not in a manner favorable to Weaver.
The trial court stated in part: “Certainly in favor of grant of probation is this young -woman’s youth, her lack of significant record, just one speeding .ticket and her absence of actual malice in this case], h]er genuine remorse and her ability to comply with the conditions of probation if probation were granted.” (Italics added.)
Cunningham
stated in part: “In sum, California’s DSL [determinate sentencing law], and the rules governing its application, direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts—whether related to the offense or the offender—beyond the elements of the charged offense.”
(Cunningham, supra,
For purposes of this opinion, we assume, without deciding," that Weaver did not forfeit or waive this contention by not timely objecting to the trial court’s consideration of all or some of the purported improper circumstances.
We presume Sigalov’s physical injuries were not considered by the trial court in imposing the middle six-year term because those injuries were the basis of the separate three-year section 12022.7, subdivision (a) enhancement imposed by the court.
We presume the “horrific” circumstances surrounding Weaver’s offense considered by the trial court were not elements of her section 191.5, subdivision (a) offense and therefore were properly considered. “[W]here the facts surrounding the charged offense exceed the minimum necessary to establish the elements of the crime, the trial court can use such evidence to aggravate the sentence. [Citation.]”
(People v. Castorena
(1996)
Weaver does not challenge on appeal the trial court’s order denying her motion to recall her sentence. Therefore, any additional evidence submitted in support of that motion cannot be considered in determining whether there is substantial evidence to support the trial court’s earlier decision to impose the middle six-year term.
We note Weaver’s brief repeatedly argued there was insufficient evidence to support the imposition of the “upper” term of six years. However, as noted above, six years is the middle term and therefore that term is the presumptive sentence for a section 191.5, subdivision (a) offense. Weaver apparently attempts to characterize the trial court’s decision to not impose the lower four-year term as in effect imposing an upper term.
As noted аbove, section 1170, subdivision (b) provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime, . . . The court shall set forth on the record the facts and reasons for imposing the upper or lower term. . . .” (Italics added.)
Nevertheless, we note each element of section 12022.7, subdivision (a) does not correspond to an element of Vehicle Code section 23558. Section 12022.7, subdivision (a) requires “great bodily injury” while Vehicle Code section 23558 requires only “bodily injury.”
(People
v.
Arndt
(1999)
Weaver concedes that a violation of Vehicle Code section 23558 (the special statute) will not necessarily result in a violation of section 12022.7, subdivision (a) (the general statute).
Regarding the second person injured other than the deceased victim, we remanded the matter for a determination whether he was an accomplice within the meaning of section 12022.7, subdivision (a), which, if found to be true, would preclude the imposition of a second three-year section 12022.7, subdivision (a) enhancement.
(People v. Verlinde, supra,
Section 12022.53, subdivision (d) provides: “[A]ny person who, in the commission of a felony specified in subdivision (a) [e.g., murder or attempted murder] . . . , personally and intentionally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” (Italics added.)
A fifth section 12022.53 enhancement was imposed in connection with the attempted murder offense involving the person who actually sustained the great bodily injury. (People v. Oates, supra, 32 Cal.4th at pp. 1053-1054.)
Section 12022.53, subdivision (f) provides: “If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment.”
In a concurring opinion joined by Justices Kennard and Moreno, Justice Werdegar essentially agreed with the majority opinion’s reasoning, stating in part: “The drafters of section 12022.53, subdivision (d), however, did not limit its application to qualifying offenses involving great bodily injury to the victim of the underlying offense, but, rather, offenses in the commission of which the defendant causes great bodily injury to ‘any person other than an accomplice.’ Moreover, there may be circumstances—as when a qualifying offense has been committed against an uninjured victim but not the injured victim—-in which imposing a subdivision (d) enhancement for injury to someone other than the victim of the underlying crime will best fit the punishment to the crime. The majority is thus probably correct that subdivision (d)’s specification that the injurious discharge of a firearm must have occurred ‘in the commission of’ the underlying qualifying felony was not intended to limit enhancements to cases where the victim in that felony sustained great bodily injury. Nor does any other language in the statute clearly limit the number of subdivision (d) enhancements that may be imposed based on a single gunfire injury.” (People v. Oates, supra, 32 Cal.4th at pp. 1070-1071 (conc. opn. of Werdegar, J.), italics added.)
Although the information in
Ausbie
apparently did not specify which of the two injured persons was the ostensible victim of the section 245, subdivision (a)(1) offense, for purposes of analogy
Ausbie
is apposite to this case because there presumably was only one victim of that assault and therefore the other injured person, as in this case, was not the ostensible victim of the offense underlying the section 12022.7, subdivision (a) enhancement.
(People v. Ausbie, supra,
Section 12022.7, subdivision (h) provides: “The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense.”
To the extent Weaver relies on
People
v.
Beltran
(2000)
We further note that Weaver’s victim-specific argument in this part IIID. is logically inconsistent with her argument in part IIIC., ante, that a one-year Vehicle Code section 23558 enhancement should apply instead of a three-year section 12022.7, subdivision (a) enhancement. Under Weaver’s instant argument, neither enhancement could apply in the circumstances of this case.
Weaver admitted the allegations related to her section 191.5, subdivision (a) offense, including an allegation that in committing that offense she personally inflicted great bodily injury on Mara within the meaning of section 1192.7, subdivision (c)(8) and an allegation that in committing that offense she personally inflicted great bodily injury on Sigalov within the meaning of section. 1192.7, subdivision (c)(8).
To the extent Weaver argues her admission of the truth of the two section 1192.7, subdivision (c)(8) allegations may affect her placement status in prison, the appellate record does not show that her prison placement has, in fact, been affected by those admissions. If, and when, those admissions affect her prison placement, she may then seek whatever recourse may be available to her.
We note, but do not resolve, the apparent discrepancy between the amount of the victim restitution fine reflected in the reporter’s transcript (i.e., $229,479) and the amount reflected in the clerk’s transcript (i.e., $229,269.97).
Although Weaver cites
People v. Jennings
(2005)