People v. Meno

322 Cal.Rptr.3d 215

The PEOPLE, Plaintiff and Respondent,

v.Peter J. MENO, Defendant and Appellant.

D081878

Court of Appeal, Fourth District, Division 1.

Filed June 20, 2024

APPEAL from a judgment of the Superior Court of San Diego County, Evan P. Kirvin, Judge. Affirmed as modified, with directions. (Super. Ct. No. SCD288239)

Laura Vavakin, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina and Elizabeth M. Renner, Deputy Attorneys General, for Plaintiff and Respondent.

KELETY, J.

INTRODUCTION

A jury convicted Peter J. Meno of two counts each of vehicular manslaughter while intoxicated with ordinary negligence (counts 1 and 2; Pen. Code § 191.5, subd. (b)),¹ one count of driving under the influence of alcohol (DUI) causing bodily injury (counts 3; Veh. Code § 23153, subd. (a)), and one count of driving with a blood alcohol content (BAC) of 0.08 percent or more causing injury (counts 4; Veh. Code § 23153, subd. (b)). The jury also found true several associated allegations, including that Meno inflicted great bodily injury upon two separate victims as to each of counts 3 and 4. At sentencing, the trial court found that the convictions on counts 3 and 4 were necessarily included offenses of counts 1 and 2. However, due to the associated enhancements, the potential sentence for counts 3 and 4 was greater than that for counts 1 and 2.

After hearing argument from the parties, the trial court concluded that it had discretion to dismiss either counts 1 and 2 or counts 3 and 4 and that it was in the interest of justice to dismiss counts 1 and 2. The court imposed the two-year middle term on count 3, with an additional three years for each of the two great bodily injury enhancements, and stayed the punishment for count 4, for a combined term of eight years in prison. Meno asserts this was error and that the trial court was required to sentence him under the more serious, or greater, convictions in counts 1 and 2. He asserts further that, even if the trial court did not err by sentencing him on counts 3 and 4, it was required to stay the second great bodily injury enhancement along with the stay of punishment for count 4. We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Since the present appeal is limited to issues related to sentencing, it is not necessary to describe the underlying accident in detail. Suffice to say, Meno was driving under the influence of alcohol at a high rate of speed and hit a curb and then a tree. Two passengers in his vehicle died as a result.

The People charged Meno with two counts—one as to each victim—of gross vehicular manslaughter while intoxicated in violation of section 191.5, subdivision (a) (counts 1 and 2); one count of DUI causing injury in violation of Vehicle Code section 23153, subdivision (a) (counts 3); one count of driving with a BAC of 0.08 percent or more causing injury in violation of Vehicle Code section 23153, subdivision (b) (counts 4); one count of driving under the influence of alcohol/drugs causing injury in violation of Vehicle Code section 23153, subdivision (g) (count 5);² and one count of driving with a suspended license in violation of Vehicle Code section 14601.1, subdivision (a) (count 6). The amended information included special allegations, among others, that Meno personally inflicted great bodily injury as to the deceased victim named in each of counts 1 and 2, and as to each of the two victims in counts 3 and 4.

At the conclusion of evidence, the jury acquitted Meno of the charged offenses in counts 1 and 2, but found him guilty of the lesser included offenses of vehicular manslaughter while intoxicated with ordinary negligence under section 191.5, subdivision (b). In addition, the jury found true allegations that Meno was driving at an unsafe speed for the conditions and that he personally inflicted great bodily injury in violation of section 1192.7, subdivision (c)(8).³

As to counts 3 and 4, the jury found Meno guilty of DUI causing injury and driving with a BAC of 0.08 percent or more causing injury in violation of Vehicle Code section 23153, subdivisions (a) and (b), respectively. The jury also found true allegations that Meno was driving at an unsafe speed for the conditions pursuant to Vehicle Code section 22350, that he violated his duty to exercise ordinary care and proper control of the vehicle, and that he personally inflicted great bodily injury on each of the two victims in violation of sections 12022.7, subdivision (a)⁴ and 1192.7, subdivision (c)(8). Finally, as to count 6, the jury found Meno guilty of driving with a suspended license in violation of vehicle code section 14601.1, subdivision (a).

In their sentencing brief, the People acknowledged that DUI causing injury was a "lesser" included offense to vehicular manslaughter while intoxicated, with either gross or ordinary negligence, and that the convictions for both could not stand simultaneously. The People asked the trial court to vacate counts 1 and 2 and sentence Meno under counts 3 and 4, despite counts 3 and 4 being the necessarily included offenses, because counts 3 and 4 carried a longer potential sentence. Meno asserted that the trial court did not have such discretion and had to vacate the convictions in counts 3 and 4, as well as the attached great bodily injury enhancements.

The trial court agreed with the People. It -found that it had discretion to dismiss either counts 1 and 2 or counts 3 and 4. It chose to dismiss counts 1 and 2 in the interest of justice. The court imposed the middle term of two years on count 3, with an additional term of three years for each of the two great bodily injury enhancements. The court stayed the punishment for count 4 and imposed a concurrent sentence of 180 days on count 6, for a combined term of eight years in prison.

Meno filed a timely notice of appeal.

DISCUSSION

I. The Trial Court Did Not Err by Dismissing Counts 1 and 2

[1] A defendant may be charged with—and in some cases convicted of— multiple crimes arising out of the same conduct. (§§ 654, 954; People v Reed (2006) 38 Cal.4th 1224, 1226-1227, 45 Cal. Rptr.3d 353, 137 P.3d 184 (Reed).) "Section 954 generally permits multiple conviction[s]. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same ‘act or omission.’ When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment[s], the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (Reed, at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.)

[2–4] However, under a judicially created exception to the general rule, a defendant may not be convicted of multiple offenses for the same act where one of the offenses is a necessarily included offense of the other; rather, the trial court must vacate one of two convictions before sentencing. (Reed, supra, 38 Cal.4th at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184; People v. Ramirez (2009) 45 Cal.4th 980, 984, 89 Cal.Rptr.3d 586, 201 P.3d 466; People v. Vasquez (2021) 63 Cal.App.5th 107, 114, 277 Cal.Rptr.3d 473 (Vasquez).) " ‘ "The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense." ’ " (People v. Miranda (1994) 21 Cal.App.4th 1464, 1467, 26 Cal.Rptr.2d 610 (Miranda).) Or, put another way, " ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ " (Reed, at p. 1227, 45 Cal.Rptr.3d 353, 137 P.3d 184.)

[5, 6] Courts often use the terms "necessarily included offense" and "lesser included offense" interchangeably "in determining whether the rule against multiple convictions applies in any given case." (People v. Sloan (2007) 42 Cal.4th 110, 115, fn. 2, 64 Cal.Rptr.3d 137, 164 P.3d 568.) As the court in Vasquez explained, "the generally understood rule is that appellate courts should ‘reverse the conviction for the included offense and direct the entry of a dismissal of the less serious crime,’ " and that the included offense is also "usually the ‘less serious crime,’ meaning it carries lesser punishment." (Vasquez, supra, 63 Cal.App.5th at p. 115, 277 Cal. Rptr.3d 473.) But that is not always the case.

This case presents a somewhat unusual scenario in which a jury convicted the defendant under two separate statutes but the arguably less serious of the convictions—DUI causing injury—carried a longer potential sentence. Violations of section 191.5, subdivision (b) and Vehicle Code section 23153 are punishable under similar triads of 16 months for the low term and two years for the middle term, but section 191.5, subdivision (b) carries a slightly higher maximum term of four years, while section 23153 falls under the standard triad with a maximum term of three years. (See § 191.5, subd. (c)(2) [16 months, 2 years, 4 years]; Veh. Code § 23554 [first offense under 23153 punishable under standard triad]; § 1170, subd. (h)(1) [standard triad is 16 months, 2 years, 3 years].)

Here, though, the associated great bodily injury enhancements resulted in a longer potential sentence as to counts 3 and 4. The jury made similar factual findings regarding the infliction of great bodily injury as to each count, but because of differences in the way that the different offenses must be charged (which we explain in more detail post), the jury was presented with slightly different allegations for each. Counts 1 and 2 alleged separate charges as to each victim with a single great bodily injury allegation, while counts 3 and 4 alleged a single violation of two separate statutes, respectively, as to both victims, along with two separate great bodily injury allegations each, one...