People v. Cook

Filed 2/5/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S215927

v. )

) Ct.App. 4/2 E054307

VICTORIA SAMANTHA COOK, )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. SWF10000834

____________________________________)

When a defendant is convicted of a crime, the sentence for that crime may

sometimes be enhanced if the defendant “personally inflicts great bodily injury on

any person.” (Pen. Code, § 12022.7, subd. (a).)1 Defendant was convicted of

three counts of gross vehicular manslaughter. We must decide whether the

sentence for the gross vehicular manslaughter of one victim may be enhanced for

defendant‟s infliction of great bodily injury on other victims. The question

requires us to interpret section 12022.7, subdivision (g), which provides that the

1 All further statutory references are to the Penal Code unless otherwise

indicated. Penal Code former section 12022.7, the provision at issue here, was

repealed in 2010, operative January 1, 2012. (Stats. 2010, ch. 711, § 4.) Current

section 12022.7 was enacted in 2010, operative January 1, 2012 (Stats. 2010, ch.

711, § 5) and “continues former Section 12022.7 without change” (Nonsubstantive

Reorganization of Deadly Weapons Statutes (June 2009) 38 Cal. Law Revision

Com. Rep. (2009) p. 341).

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enhancement “shall not apply to murder or manslaughter” or “if infliction of great

bodily injury is an element of the offense.”

We conclude that subdivision (g) of section 12022.7 means what it says:

Great bodily injury enhancements do not apply to a conviction for murder or

manslaughter. A defendant convicted of murder or manslaughter who also

commits crimes against other victims may be convicted of those additional crimes

and, to the extent the sentencing laws permit, punished separately for them. But

the sentence for manslaughter may not be enhanced for the infliction of great

bodily injury as to anyone. Accordingly, we reverse the judgment of the Court of

Appeal to the extent it held defendant‟s manslaughter conviction is subject to any

great bodily injury enhancement.

I. FACTS AND PROCEDURAL HISTORY

The facts of the crime are largely irrelevant to the sentencing issue before

us. In essence, on June 2, 2009, while driving a Ford Fusion, defendant Samantha

Victoria Cook was involved in an automobile accident in which three persons

were killed and a fourth seriously injured. The evidence supported a jury finding

that defendant caused the accident by speeding and driving recklessly.

A jury found defendant guilty of three counts of gross vehicular

manslaughter, one count each for the three persons who died. (§ 192, subd.

(c)(1).) As to the first count, the jury also found true three allegations that

defendant personally inflicted great bodily injury. Two of the great bodily injury

allegations related to the two victims who died and were the subject of the other

two manslaughter convictions. The third related to the person who was injured but

survived. This person was not the subject of any other charge or conviction.

The trial court sentenced defendant to state prison for a total of nine years

eight months, consisting of the midterm of four years for the first manslaughter

conviction, one year four months (one-third of the midterm) for each of the other

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two manslaughter convictions, and three years for the great bodily injury

enhancement as to the victim who was injured but survived. The court struck the

punishment for the great bodily injury enhancements as to the victims who died.

On appeal, defendant argued that section 12022.7, subdivision (g), prohibits

all of the great bodily injury enhancements. The Court of Appeal upheld the

enhancement as to the surviving victim, but reversed the enhancements as to the

manslaughter victims. We granted the Attorney General‟s petition for review,

which presented only the question of whether the Court of Appeal erred in

reversing the enhancements as to the manslaughter victims. We later requested

and received supplemental briefing on the additional question of whether any great

bodily injury enhancement was proper.

II. DISCUSSION

A. Background

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 or attempted felony shall be punished by an additional and

consecutive term of imprisonment in the state prison for three years.”

Subdivisions (b), (c), (d), and (e) of that section, which do not apply in this case,

provide longer enhancements for the infliction of specified kinds of great bodily

injury. Subdivision (f) of that section defines “ „great bodily injury.‟ ” Section

12022.7, subdivision (g), the provision we are interpreting, provides: “This

section shall not apply to murder or manslaughter or a violation of Section 451

[arson] or 452 [unlawfully causing a fire]. Subdivisions (a), (b), (c), and (d) shall

not apply if infliction of great bodily injury is an element of the offense.”

No one disputes that section 12022.7, subdivision (g), prohibits enhancing a

manslaughter or murder conviction for inflicting great bodily injury on the person

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who is the subject of that conviction. The question before us is when, if ever, a

manslaughter conviction may be enhanced for the infliction of great bodily injury

on other victims during the commission of the manslaughter. Here, during the

commission of manslaughter as to one of the victims, defendant killed (and thus

inflicted great bodily injury on) two other victims and inflicted great bodily injury

on another victim, who survived. We must decide whether defendant‟s sentence

for one of the manslaughter convictions may be enhanced for any of the other

great bodily injuries defendant inflicted and, if so, which ones.

Several cases have considered when, if ever, a great bodily injury

enhancement may attach to a murder or manslaughter conviction, with

inconsistent results. We will first review the cases. Then we will consider what

the proper rule should be.

B. The Cases

Until recently, to the extent they confronted this question, the cases

generally assumed or stated that section 12022.7‟s great bodily injury

enhancement simply does not apply to murder or manslaughter. For example, in

deciding a different question, the Court of Appeal in People v. Valencia (2000) 82

Cal.App.4th 139, 143, stated that “a section 12022.7 great bodily injury

enhancement may not enhance a murder conviction.”

Closer on point is People v. Beltran (2000) 82 Cal.App.4th 693 (Beltran).

There, the defendant, while fleeing from the police in a vehicle, collided with

another vehicle, killing one person and seriously injuring a second. He was

convicted of evading a pursuing peace officer causing serious injuries to others

(Veh. Code, § 2800.3) and vehicular manslaughter. As to the Vehicle Code count,

the jury found true two great bodily injury enhancements — one for the deceased

victim, who was the subject of the vehicular manslaughter conviction, and one for

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the surviving victim. No great bodily injury enhancement was alleged as to the

vehicular manslaughter count. The Court of Appeal considered whether the

enhancements as to the Vehicle Code count were valid. It noted that “[u]nder

section 12022.7 [former] subdivision (f) [now subdivision (g)] the enhancements

could not be based on Beltran‟s count 3 conviction of vehicular manslaughter.

The only basis for the enhancements is the count 1 conviction of evading a peace

officer under Vehicle Code section 2800.3.” (Beltran, at p. 696.) But the court

also found that the enhancements were invalid as to the Vehicle Code violation

because infliction of great bodily injury is an element of that offense. For this

reason, it reversed both great bodily injury enhancements. It drew no distinction

between the enhancement for the deceased victim and that for the surviving

victim.

The first case to permit a great bodily injury enhancement to attach to a

manslaughter conviction was People v. Verlinde (2002) 100 Cal.App.4th 1146

(Verlinde). There, the defendant was involved in an accident in which one person

was killed and two seriously injured. As relevant here, she was convicted of gross

vehicular manslaughter while intoxicated. As to the manslaughter conviction, the

jury also found true two great bodily injury enhancements, one each for the two

surviving victims. The Court of Appeal reversed one of the enhancements for

reasons not relevant here, but upheld the second enhancement. It rejected the

defendant‟s argument that neither enhancement was valid under section 12022.7,

subdivision (g).

The Verlinde court explained why, in its view, the great bodily injury

enhancement could properly attach to the manslaughter conviction. “Section

12022.7 does not define a separate offense, but rather is a legislative attempt to

punish more severely those crimes that result in great bodily „on any person.‟

(§ 12022.7, subd. (a); see also People v. Parrish (1985) 170 Cal.App.3d 336, 344.)

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The language of section 12022.7, subdivision (g) does not limit application of the

statute to this vehicular manslaughter case where, in addition to the homicide

victim, two other victims suffered great bodily injury. The statutory exemption for

murder and manslaughter is intended to bar imposition of an enhancement for the

injuries inflicted on the homicide victim, who obviously has suffered great bodily

injury. Thus, the statutory exemption prevents prohibited dual punishment for the

same crime. (See § 654.) „When a defendant engages in violent conduct that

injures several persons, he may be separately punished for injuring each of those

persons, notwithstanding section 654. [Citation.]‟ (People v. Champion (1995) 9

Cal.4th 879, 934-935.) Verlinde‟s argument is inconsistent with a fundamental

objective of our penal justice system, namely „that one‟s culpability and

punishment should be commensurate with the gravity of both the criminal act

undertaken and the resulting injuries.‟ (People v. Hill (1994) 23 Cal.App.4th

1566, 1574.) Furthermore, a fundamental principle of statutory construction is

that the language of a statute should not be given a literal meaning if doing so

would result in absurd consequences which the Legislature did not intend.

(Younger v. Superior Court (1978) 21 Cal.3d 102, 113.)” (Verlinde, supra, 100

Cal.App.4th at pp. 1168-1169.)

Section 12022.7‟s application to murder or manslaughter next arose in

People v. Weaver (2007) 149 Cal.App.4th 1301 (Weaver). There, the defendant

pleaded guilty to gross vehicular manslaughter while intoxicated (§ 191.5, subd,

(a)) and admitted the truth of a great bodily injury enhancement allegation. The

enhancement did not concern the subject of the manslaughter conviction, but

rather, another victim who survived. Relying on Verlinde, supra, 100 Cal.App.4th

1146, the Court of Appeal upheld the enhancement. It “note[d] the express

language of section 12022.7, subdivision (a) does not limit its application to a

specific victim of a felony offense. Rather, it applies to great bodily injuries

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sustained by „any person other than an accomplice.‟ (§ 12022.7, subd. (a), italics

added.)” (Weaver, at p. 1330.) It found section 12022.7‟s language “sufficiently

broad to include persons other than the victim of a victim-specific felony offense

who sustain great bodily injury during the defendant‟s commission of that

offense.” (Ibid.) “Furthermore,” the court noted, “it is generally appropriate that a

defendant be subject to greater punishment for committing an offense if his or her

commission of that offense causes injuries to multiple persons. [Citations.] It is

consistent with our criminal justice system to impose greater punishment on

Weaver for the great bodily injuries she personally inflicted on [the surviving

victim] during her commission of the section 191.5, subdivision (a) offense that

caused [the deceased victim‟s] death.” (Id. at p. 1331.)

Weaver also found support for its conclusion in People v. Oates (2004) 32

Cal.4th 1048, where we upheld multiple enhancements under former section

12022.53, subdivision (d) (enhancement for discharging a firearm and causing

great bodily injury), and in People v. Ausbie (2004) 123 Cal.App.4th 855, where

the Court of Appeal upheld multiple great bodily injury enhancements for a single

conviction of assault by means of force likely to produce great bodily injury, a

crime that does not require, as an element, the actual infliction of great bodily

injury. (Weaver, supra, 149 Cal.App.4th at pp. 1331-1335.)

The Weaver court found Beltran, supra, 82 Cal.App.4th 693, “inapposite,”

apparently because its holding concerned the Vehicle Code section 2800.3

conviction rather than the manslaughter conviction. (Weaver, supra, 149

Cal.App.4th at p. 1335, fn. 35.) Citing Verlinde, supra, 100 Cal.App.4th 1146, it

also disagreed with Beltran‟s conclusion that no great bodily injury enhancement

would apply to a manslaughter conviction. It said the Beltran court reached that

conclusion “[w]ithout any substantive reasoning.” (Weaver, at p. 1335, fn. 35.)

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The next case to consider this question was People v. Julian (2011) 198

Cal.App.4th 1524 (Julian). There, the defendant was involved in an accident in

which one person (Terri Keller) was killed immediately, one (Amanda Keller)

died after being in a coma for several months, and a third (Alexis Keller) was

badly injured but survived. A jury convicted the defendant of two counts of

vehicular manslaughter while intoxicated without gross negligence (§ 191.5, subd.

(b)), count 1 for Terri‟s death and count 2 for Amanda‟s death. The defendant was

charged with no substantive count as to Alexis, the surviving victim. The jury also

found true two great bodily injury enhancement allegations as to each

manslaughter count. As to Terri, the two allegations were for the coma Amanda

suffered before she died and for Alexis‟s injuries. Because section 12022.7,

subdivision (b), imposes a five-year enhancement for great bodily injury “which

causes the victim to become comatose due to brain injury,” the enhancement

regarding Amanda‟s coma was for five years. The allegations as to Amanda were

for Terri‟s death and Alexis‟s injuries.

The trial court in Julian sentenced the defendant to prison for 12 years for

Terri‟s manslaughter, consisting of the upper term of four years for the

manslaughter itself, five years for Amanda‟s coma, and three years for Alexis‟s

great bodily injury. The court also imposed a sentence for Amanda‟s

manslaughter with the two three-year great bodily injury enhancements attached to

that count. But to avoid punishing the defendant twice for Amanda‟s and Alexis‟s

injuries, the court stayed that sentence under section 654, which prohibits multiple

punishment for a single act or omission. (Julian, supra, 198 Cal.App.4th at p.

1526.)

Relying in part on Weaver, supra, 149 Cal.App.4th 1301, and Verlinde,

supra, 100 Cal.App.4th 1146, the Julian court upheld all of the great bodily injury

enhancements and the sentence. It noted that in Weaver and Verlinde, the great

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bodily injury enhancement was not for a victim who died but for a victim who

survived. But it concluded that although two of the victims in the case before it

“died as a result of their injuries and their deaths support Julian‟s manslaughter

convictions, in this case their injuries also support enhancements under section

12022.7. [¶] As we did in Verlinde and Weaver, we narrowly construe the

exception set forth in section 12022.7, subdivision (g). Under section 12022.7,

subdivision (g), when a defendant is convicted of murder or manslaughter, that

conviction may not be enhanced with the injury the victim of the murder or

manslaughter necessarily suffered. However, injuries caused to other victims of

the defendant‟s conduct may serve as enhancements under section 12022.7.”

(Julian, supra, 198 Cal.App.4th at p. 1530.)

The court noted that, regarding the injuries the surviving victim suffered,

Weaver and Verlinde were indistinguishable. It then turned to the question

regarding the victim who died. “This brings us then to the injuries Amanda

suffered. The fact Amanda died from her injuries cannot, by itself, prevent those

injuries from being used as an enhancement to Julian‟s punishment for Terri‟s

death. Amanda‟s injuries were just as distinct from Terri‟s injuries as Alexis‟s

injuries and under Verlinde and Weaver their separate and distinct nature permits

the injuries to be used as an enhancement. [Citations.] To hold Alexis‟s injuries

will support an enhancement but, because she died, Amanda‟s injuries will not,

would permit a defendant, such as Julian, to benefit to some extent from the fact

one of his multiple victims died rather than survived. We of course must reject

such a grotesque interpretation of the statute. As we stated in Verlinde, „a

fundamental principle of statutory construction is that the language of a statute

should not be given a literal meaning if doing so would result in absurd

consequences.‟ (Verlinde, supra, 100 Cal.App.4th at pp. 1168-1169.)

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“Moreover, the fact Amanda‟s fatal injuries led to a second distinct

manslaughter conviction did not prevent the trial court from imposing a section

12022.7, subdivision (b) enhancement to Terri‟s manslaughter based on Amanda‟s

injuries. Under section 654 Julian could not and was not punished twice for the

fatal injuries Amanda suffered. [Citations.] As we have noted, although

Amanda‟s fatal injuries were the basis for both the five-year enhancement

imposed for Terri‟s death and the four-year upper term imposed for the second

manslaughter conviction, the trial court properly stayed execution of the second

manslaughter sentence under section 654. Thus, a broader interpretation of

section 12022.7, subdivision (g) is not necessary to avoid dual punishment.”

(Julian, supra, 198 Cal.App.4th at pp. 1530-1531.)

This brings us to the case we are now reviewing. Agreeing with Verlinde,

supra, 100 Cal.App.4th 1146, and Weaver, supra, 149 Cal.App.4th 1301, and

rejecting Beltran, supra, 82 Cal.App.4th 693 (which it observed had “rel[ied]

exclusively on the language of section 12022.7, subdivision (g)”), the Court of

Appeal upheld the great bodily injury enhancement for the victim who survived.

But it disagreed with Julian, supra, 198 Cal.App.4th 1524, regarding the victims

who died and were the subject of separate manslaughter convictions. It reversed

the great bodily injury enhancements as to those victims.

The court explained that “although we do not construe section 12022.7,

subdivision (g) as broadly as does Beltran, neither do we agree it should be

construed as narrowly as does Julian. . . . Subdivision (g) would appear to mean

what it clearly reads, i.e., the enhancement does not attach with regard to a victim

of murder or manslaughter for which a conviction on the substantive count has

been obtained. Moreover, Julian‟s holding results in a pleading shell game where

a manslaughter charge as to victim A is enhanced with the great bodily injury of

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B, simultaneously charging the defendant with the manslaughter of B with an

attached enhancement for A.”

The court recognized Julian‟s concern that the defendant should not benefit

from the fact one of the victims died, but it found that rationale “does not

necessarily withstand scrutiny.” It explained that “in Julian the People could have

merely pled the first count of manslaughter against Terri Keller with the section

12022.7 enhancements as to both Alexis Keller and Amanda Keller without

charging a second count of manslaughter against Amanda and have obtained the

same sentencing result. Indeed, in the instant case the People did not charge

defendant for any substantive crime for the injuries sustained by [the surviving

victim]. Rather, they merely attached the [section 12022.7,] subdivision (a)

enhancement to the count 1 charge. This most likely reflects the People‟s

determination that any substantive crime they could have charged defendant with

for injuries sustained by [the surviving victim] would have resulted in lesser

punishment than simply alleging the enhancement for those injuries. [¶] In the

alternative, in Julian, the People could have pled the case exactly as they did, but

moved for dismissal of the count 2 charge and attached enhancements pursuant to

section 1385 [, which permits the court to dismiss an action] at the time for

sentencing — again, resulting in the same potential sentence for the defendant

without violating the statutory language of section 12022.7, subdivision (g).”

The court also believed that “any problem concerning the degree of

punishment for the charge of vehicular manslaughter while intoxicated without

gross negligence at issue in Julian being less than that for the section 12022.7,

subdivision (b) enhancement [five years for the coma] is something that should be

dealt with by the Legislature, not by judicial violation of the clear language of

section 12022.7, subdivision (g).” The court concluded that “however noble, the

desire to punish a defendant more extensively for the perceived egregiousness of

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her crimes does not justify violating the statutory prohibitions on imposing section

12022.7 enhancements with regard to victims for which defendant has already

been convicted of a homicide. Therefore, we shall reverse the true findings on the

section 12022.7, subdivision (a) enhancements with respect to [the other

manslaughter victims].”

The most recent case to consider this question is Hale v. Superior Court

(2014) 225 Cal.App.4th 268 (Hale). There, the defendant was involved in an

accident in which three persons were killed. He was charged with three counts of

vehicular manslaughter while intoxicated (§ 191.5, subd. (b)), one count for each

of those who died. Each of the three counts included two great bodily injury

enhancement allegations under section 12022.7, one each for the other two

deceased victims, for a total of six great bodily injury allegations. In a pretrial

writ matter, the Court of Appeal ordered all of the enhancement allegations

dismissed.

The Hale court distinguished Weaver, supra, 149 Cal.App.4th 1301, and

Verlinde, supra, 100 Cal.App.4th 1146, on the ground that they “did not involve as

here a [great bodily injury] enhancement alleged for a deceased victim‟s injuries,

where the deceased victim was also a named victim of another manslaughter count

arising out of the same facts and charged in the same case against the defendant.”

(Hale, supra, 225 Cal.App.4th at p. 272.) But it believed those cases “cast doubt

on the validity of such duplicative prosecution. Verlinde expressly rejected the

proposition in dicta, explaining that subdivision (g)‟s „statutory exemption for

murder and manslaughter is intended to bar imposition of an enhancement for the

injuries inflicted on the homicide victim, who obviously suffered great bodily

injury.‟ (Verlinde, at p. 1168.) Put another way, the guilty verdict on a

manslaughter count necessarily includes a finding of great bodily injury, and the

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sentencing range the Legislature has prescribed for manslaughter necessarily

includes punishment for the injuries the defendant inflicted on the victim.

“Weaver reached the same conclusion. Weaver criticized as „[w]ithout any

substantive reasoning‟ a case holding that section 12022.7 did not apply at all in

vehicular manslaughter cases, even as an enhancement for injuries suffered by

other victims besides the deceased victim. (Weaver, supra, 149 Cal.App.4th at p.

1335, fn. 35, criticizing People v. Beltran (2000) 82 Cal.App.4th 693, 695.) As

pertinent here, in upholding on appeal a [great bodily injury] enhancement for

victims other than the deceased, the Weaver court implicitly concluded the

enhancement did not apply to a victim for whom the defendant faced manslaughter

charges. (Weaver, at pp. 1330-1335.)” (Hale, supra, 225 Cal.App.4th at pp. 272-

273.)

While apparently acquiescing in Verlinde‟s and Weaver‟s holdings (which

Hale‟s facts did not implicate), the Hale court disagreed with Julian‟s extension of

those cases to permit a great bodily injury enhancement of one manslaughter count

for injuries suffered by another, separately charged, manslaughter victim. It

described Julian, supra, 198 Cal.App.4th 1524, as not barring the attachment of a

great bodily injury “enhancement based on one victim‟s fatal injuries to a

manslaughter count pertaining to another victim, even if the defendant is also

charged and convicted of manslaughter for the first victim’s death. The court

implicitly found dispositive the pleading artifice of attaching an enhancement to

one count rather than another. (Julian, at p. 1530.)” (Hale, supra, 225

Cal.App.4th at p. 273.)

As did the Court of Appeal in this case, the Hale court recognized Julian‟s

concern that the defendant should not benefit from the fact a victim died rather

than was seriously injured but survived. But it believed that “Julian‟s

interpretation . . . introduces its own anomaly in which the bar on [great bodily

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injury] enhancements in subdivision (g) applies only in single-victim vehicular

homicides. Julian acknowledges subdivision (g) bars a [great bodily injury]

enhancement where the same victim is named in the underlying count (Julian,

supra, 198 Cal.App.4th at p. 1530), as in a single-victim accident. But according

to Julian, the bar is circumvented in multiple-victim accidents by simply attaching

a [great bodily injury] enhancement for a deceased victim‟s injuries to a

manslaughter count for another victim. Yet nothing in the statutory language

suggests the Legislature intended to limit subdivision (g) to vehicular

manslaughter cases involving one victim, but allow [great bodily injury]

enhancements in multiple-victim cases.

“Proscribing punishment is the Legislature‟s domain, and we conclude the

legislative proscription in subdivision (g) means what it says. The statutory

language plainly states a [great bodily injury] enhancement „shall not apply to

murder or manslaughter . . . .‟ (Subd. (g), italics added.) Removing any

conceivable doubt, subdivision (g) further provides a [great bodily injury]

enhancement „shall not apply if infliction of great bodily injury is an element of

the offense‟ (italics added). Great bodily injury is by definition inherent in a

murder or manslaughter victim‟s injuries that result in death. Consequently, great

bodily injury is necessarily proven when the victim‟s death is proven as an

element of those offenses. By statutory command, a [great bodily injury]

enhancement therefore „shall not apply.‟ (Subd. (g).) We must give effect to this

plain language.” (Hale, supra, 225 Cal.App.4th at pp. 274-275, fn. omitted.)

The Hale court did “not find subdivision (g) ambiguous. We must interpret

the statute according to its terms because „ “the words the Legislature chose are

the best indicators of its intent.” ‟ (People v. Ramirez (2010) 184 Cal.App.4th

1233, 1238.) . . . The statutory purpose of the Legislature‟s [great bodily injury]

enhancement regime is not to maximize punishment under every pleading artifice

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a prosecutor can devise, but instead to „deter[] the use of excessive force and the

infliction of additional harm beyond that inherent in the crime itself.‟ (People v.

Wolcott (1983) 34 Cal.3d 92, 108.) The great bodily injuries a vehicular

manslaughter victim suffers are inherent in the offense that causes his or her death,

and therefore precluded by subdivision (g) as a basis for enhancement.” (Hale,

supra, 225 Cal.App.4th at pp. 275-276.)

Responding to the district attorney‟s argument that the statute should not be

interpreted to allow a defendant to benefit from the fact the victims died, the Hale

court noted that potential anomalies of this kind will exist under any interpretation

of section 12022.7, subdivision (g). “The absurdity argument does not aid the

district attorney precisely because of peculiarities in the punishment of drunk

driving offenders. Simply put, the district attorney‟s charging artifice does not

result in longer imprisonment for a drunk driving offender who commits vehicular

manslaughter than one who only injures his victims. In other words, the district

attorney‟s charging methodology does not correct the absurdity he identifies. If

Hale had severely injured his victims instead of causing their deaths, it appears he

would face a maximum prison term of 12 years. Specifically, a defendant faces a

potential upper term of three years for causing „bodily injury‟ while driving under

the influence (Veh. Code, § 23153, subds. (a) &(b), 23554; see Pen. Code, § 18

[providing for upper term of three years where felony punishment is unspecified]),

which may be enhanced by three years for causing great bodily injury [citations].

A great bodily injury enhancement may be imposed for each victim without

violating section 654 [citation], resulting in a total term of 12 years when the

defendant injures three victims. This figure exceeds the maximum 10 years‟

imprisonment the district attorney seeks for the vehicular homicides he alleges

Hale committed.” (Hale, supra, 225 Cal.App.4th at pp. 276-277.)

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The Hale court stated that a “sentencing disparity does not necessarily

render a statutory scheme absurd because it is the Legislature‟s prerogative to affix

punishment. [Citation.] But the disparity here is glaring and unjust. It inures,

however, to Hale‟s benefit and therefore furnishes him no basis for an equal

protection or disproportionate punishment claim. The district attorney has no

corresponding constitutional claims to assert against the disparity. More to the

point, we may not simply rewrite the statutory scheme, purporting to sit as a super-

Legislature. Here, as discussed, the express exclusion in subdivision (g) precludes

the prosecutor‟s duplicative charging theory for the victim‟s great bodily injuries

necessarily subsumed in their deaths. We appeal to the Legislature to correct this

manifest sentencing disparity by ensuring proportional punishment for offenders

who commit vehicular manslaughter.” (Hale, supra, 225 Cal.App.4th at p. 277.)

Finally, the Hale court “observe[d] that charging a defendant with „only‟

one count of vehicular manslaughter and attaching to that count two [great bodily

injury] enhancements for two additional deceased victims technically avoids

violating subdivision (g)‟s bar on a [great bodily injury] enhancement for the same

injuries subsumed in a manslaughter count for the same victim. Charging in this

manner potentially yields the same 10-year term the district attorney seeks here,

specifically a four-year upper term on the manslaughter count and three years on

each of two [great bodily injury] enhancements for two additional deceased

victims.” (Hale, supra, 225 Cal.App.4th at p. 277, fn. 4.) Noting that the district

attorney did not charge the case in that manner, the court expressed no opinion on

the point. (Ibid.)

C. The Proper Rule

After reviewing these cases, we see that the relatively early case of Beltran,

supra, 82 Cal.App.4th 693, stated in dicta that no great bodily injury enhancement

16

can attach to a murder or manslaughter conviction, and held that no such

enhancement can attach to a crime for which infliction of great bodily injury is an

element. Verlinde, supra, 100 Cal.App.4th 1146, Weaver, supra, 149 Cal.App.4th

1301, and the Court of Appeal in this case disagreed with Beltran and permitted a

great bodily injury enhancement for a surviving victim to attach to a manslaughter

conviction, at least when the surviving victim is not the subject of a separate

charge. Julian, supra, 198 Cal.App.4th 1524, permitted any great bodily injury

enhancement to attach to a manslaughter conviction other than one for the charged

victim, including enhancements for victims who are the subject of separate

manslaughter charges. The Court of Appeal in this case and Hale, supra, 225

Cal.App.4th 268, disagreed with Julian and refused to permit a great bodily injury

enhancement to attach to a manslaughter conviction for victims who are the

subject of separate manslaughter counts. We must determine the correct rule.

We conclude that Beltran, supra, 82 Cal.App.4th 693, was correct, and the

later cases erred when they began to find exceptions to section 12022.7,

subdivision (g)‟s command that great bodily injury enhancements “shall not apply

to murder or manslaughter.” Subdivision (g) means what it says — great bodily

injury enhancements simply do not apply to murder or manslaughter. The Weaver

court and the Court of Appeal here criticized Beltran for relying exclusively on

subdivision (g)‟s language without additional substantive reasoning, but doing so

was reasonable given the simplicity and clarity of that language. As the Hale

court noted, the statutory language is the best indicator of the Legislature‟s intent.

(Freedom Newspapers, Inc. v. Orange County Employees Retirement System

(1993) 6 Cal.4th 821, 826.)

Noting that subdivision (a) of section 12022.7 applies to someone who

“inflicts great bodily injury on any person other than an accomplice” (italics

added), and arguing that the statute must be read as a whole, the Attorney General

17

contends that subdivision (g)‟s limitation applies only to the victim of the charged

murder or manslaughter and not to “any” other victim. But subdivision (g)‟s plain

language is not so limited. It simply states that the section, meaning all of section

12022.7, does not apply to murder or manslaughter.

The Court of Appeal in this case said it was interpreting section 12022.7,

subdivision (g), to “mean what it clearly reads, i.e., the enhancement does not

attach with regard to a victim of murder or manslaughter for which a conviction on

the substantive count has been obtained.” But that subdivision does not clearly so

read. Its clear reading is the unqualified statement that the great bodily injury

enhancement “shall not apply to murder or manslaughter” (§ 12022.7, subd. (g)),

not the qualified statement that the enhancement “shall not apply to murder or

manslaughter with regard to a victim of murder or manslaughter for which a

conviction on the substantive count has been obtained.” If the latter had been the

Legislature‟s intent, it would not have used the simple, unqualified language it

employed.

With considerable justification, the Court of Appeal here criticized Julian‟s

holding as “result[ing] in a pleading shell game where a manslaughter charge as to

victim A is enhanced with the great bodily injury of B, simultaneously charging

the defendant with the manslaughter of B with an attached enhancement for A.”

But then the court suggested what could justifiably be called its own pleading shell

game — that the prosecutor might avoid the bar on great bodily injury

enhancements for a victim who is the subject of a separate conviction simply by

charging only one count of manslaughter, or if a second manslaughter count is

originally charged, by later moving to dismiss the second manslaughter count.

We think the correct approach, one that comports with section 12022.7,

subdivision (g)‟s language, is to prohibit any such pleading shell games. The

prosecution can charge a defendant for each manslaughter the defendant

18

committed and, if appropriate, for crimes committed against surviving victims,

and the court can sentence the defendant for each crime against separate victims

for which the defendant is convicted to the extent the sentencing laws permit. The

Verlinde court interpreted subdivision (g) as permitting a manslaughter conviction

to be enhanced for injuries suffered by a surviving victim in order to avoid “absurd

consequences which the Legislature did not intend.” (Verlinde, supra, 100

Cal.App.4th at p. 1169.) But it did not identify what those absurd consequences

might be. We see nothing absurd in charging and punishing a defendant

separately for whatever crimes that defendant committed against separate victims.

The Verlinde and Weaver courts argued that the defendant should be

punished commensurately with the gravity of the criminal act and its result, and a

defendant who injures more than one person should be subject to greater

punishment than a defendant who injuries only one person. (Verlinde, supra, 100

Cal.App.4th at p. 1168; Weaver, supra, 149 Cal.App.4th at p. 1331.) But reading

subdivision (g) as requiring the prosecution to charge a defendant with separate

crimes against separate victims, and permitting the court to sentence the defendant

for those crimes, does punish more severely a defendant who injures multiple

persons. Here, defendant was convicted of three counts of vehicular

manslaughter. The court sentenced her to prison for the midterm of four years for

one of the manslaughters and consecutive terms of one year four months (one-

third of the midterm) for the other two manslaughters. Presumably, if defendant

had been charged with and convicted of a crime as to the surviving victim, the

court could have imposed a consecutive sentence for that crime.

Thus, imposing a consecutive sentence for each crime committed against a

separate victim would punish a defendant who injures more than one person more

severely than a defendant who injures only one person. To be sure, in cases of

vehicular manslaughter, the increase in punishment for additional persons injured

19

will be less if we interpret section 12022.7, subdivision (g), to mean what it says

than it would be under an interpretation that permits great bodily injury

enhancements for other victims to attach to a manslaughter conviction. This is

because the statutory punishment for vehicular manslaughter is relatively short and

even shorter for additional victims. The vehicle manslaughter conviction of this

case is punishable by two, four, or six years. (§ 193, subd. (c)(1).) A consecutive

sentence for additional convictions would be for one-third of the middle term of

four years, or one year four months. (§ 1170.1, subd. (a); see People v. Felix

(2000) 22 Cal.4th 651, 655.) One year four months is shorter than the three-year

great bodily injury enhancement specified in section 12022.7, subdivision (a), and

even more so than the longer enhancements specified in other subdivisions of that

section, such as section 12022.7, subdivision (b)‟s five-year enhancement for

causing a coma. This means that if the sentence for the one manslaughter victim

may be enhanced for other victims‟ great bodily injuries, then the sentence for the

manslaughter of the other victims would always be subsumed by the enhancement.

But section 193, subdivision (c)(1), establishes what the Legislature has

determined is the appropriate punishment for vehicular manslaughter, and section

1170.1, subdivision (a), establishes what the Legislature has determined is the

proper way to sentence consecutively when there are multiple victims. As the

Hale court indicated, the Legislature‟s purpose is not to maximize the punishment

under any pleading artifice imaginable, but to impose the punishments it

established by statute. (See Hale, supra, 225 Cal.App.4th at p. 275.)

As the Attorney General argues and the Julian court noted, to permit

enhancement for injuries a surviving victim suffered, but not to permit

enhancement for the death of other victims, could result in a defendant who

merely injured additional victims receiving a longer total sentence than a

defendant who killed the additional victims. For this reason, the Julian court held

20

that if, as Verlinde and Weaver had concluded, a great bodily injury enhancement

for a surviving victim can attach to a manslaughter victim, so too must a great

bodily injury for one manslaughter victim attach to the conviction for a different

manslaughter victim. If one accepts the holdings of Verlinde and Weaver, Julian‟s

extension of those holdings was a reasonable effort to avoid the obvious anomaly

of making the potential sentence longer when additional victims survived than

would be possible when the additional victims had died. But Julian‟s holding

separates the law ever farther from section 12022.7, subdivision (g)‟s language

than did Verlinde‟s or Weaver‟s. Rather than supporting Julian‟s extension of the

earlier cases, we think the problems that have arisen demonstrate that Verlinde and

Weaver erred in permitting any great bodily injury enhancement to attach to a

manslaughter conviction. The answer to the potential anomaly is not to disregard

subdivision (g)‟s plain language, but instead simply to mandate that a defendant

receive the punishment prescribed for each crime committed against each victim.

We must also note that, as the Hale court explained, it appears that no

interpretation of section 12022.7, subdivision (g), is guaranteed to eliminate all

possible anomalies. Fact patterns might exist in which crimes could be charged in

such a way that a defendant who merely injured might face a longer potential

sentence than one who killed. (See Hale, supra, 225 Cal.App.4th at pp. 276-277.)

Because of the complexity of today‟s sentencing rules, other potential anomalies

might exist.2 But no anomaly exists in this case, and we are unaware of any case

2 For an example of a sentencing anomaly this court has confronted, see

People v. King (1993) 5 Cal.4th 59, 64-70, where a literal interpretation of

interrelated statutes would have meant that some juveniles convicted of first

degree murder would be eligible to be committed to the former California Youth

Authority (CYA) rather than sentenced to state prison, but the same juveniles who

merely attempted to commit first degree murder would be ineligible for such a

commitment. To avoid an absurd result the Legislature could not have intended,

(footnote continued on next page)

21

where the potential anomaly Hale noted has actually arisen. If a case arises in

which a defendant who merely injured faces a longer potential sentence than if

that defendant had killed, the courts can consider the problem, and what to do, at

that time and in that case. And, of course, as the Hale court recognized, the

Legislature can change the sentencing laws anytime it chooses to do so.

Finally, the Weaver court found support for its conclusion in People v.

Oates, supra, 32 Cal.4th 1048, and People v. Ausbie, supra, 123 Cal.App.4th 855.

(Weaver, supra, 149 Cal.App.4th at pp. 1331-1335.) Those cases might support a

conclusion that, in some situations, multiple great bodily injury enhancements can

attach to a single crime, a point on which we express no opinion. But neither case

concerned the attachment of great bodily injury enhancements to manslaughter or

murder, and thus they provide no support for Weaver‟s interpretation of section

12022.7, subdivision (g).

For these reasons, we conclude that no great bodily injury enhancement can

attach to a conviction for murder or manslaughter.3

(footnote continued from previous page)

we interpreted the statutes to make such juveniles who either commit or attempt to

commit first degree murder eligible for a CYA commitment. (Id. at pp. 69-70.)

3 We express no opinion regarding the question, not presented here, of

whether and, if so, how great bodily injury enhancements may attach to other

crimes for a defendant who is convicted of murder or manslaughter as well as

those other crimes.

22

III. CONCLUSION

We reverse the judgment of the Court of Appeal and remand the matter to

that court for further proceedings consistent with this opinion. We also disapprove

People v. Julian, supra, 198 Cal.App.4th 1524, People v. Weaver, supra, 149

Cal.App.4th 1301, and People v. Verlinde, supra, 100 Cal.App.4th 1146, to the

extent they are inconsistent with this opinion.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

23

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Cook

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 222 Cal.App.4th 1

Rehearing Granted

__________________________________________________________________________________

Opinion No. S215927

Date Filed: February 5, 2015

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Dennis A. McConaghy*

__________________________________________________________________________________

Counsel:

Thomas K. Macomber, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland,

Assistant Attorney General, Steven T. Oetting, Lise Jacobson and Tami Falkenstein Hennick, Deputy

Attorneys General, for Plaintiff and Respondent.

*Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to article VI, section

6 of the California Constitution.

1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Thomas K. Macomber

3403 Tenth Street, Suite 752

Riverside, CA 92501

(951) 314-3745

Tami Falkenstein Hennick

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2274

2