Filed 4/27/17 P. v. Soinila CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
JARED SOINILA,
Defendant and Appellant.
A149582

(Mendocino County
Super. Ct. No.
SCUKCRCR 16-84956)


Defendant Jared Soinila appeals a judgment imposing a six-year prison sentence upon his guilty plea to gross vehicular manslaughter while intoxicated. His attorney has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no issues and requesting the court to make an independent review of the record. Defendant has filed a supplemental brief presenting a substantial issue, prompting the court to request further briefing from counsel on that issue. Having reviewed the record and the supplemental briefing that has been submitted, we conclude there was no error or need for further briefing.
The underlying facts were summarized in the defendant’s statement in mitigation submitted to the trial court as follows. “On February 27, 2016, at approximately 7:50 p.m., the defendant . . . caused a fatal accident on Vichy Springs Road, Ukiah. He was driving his 2009 silver Toyota Tacoma at an unsafe speed, while under the influence of alcohol. He cut a corner, and he lost control of his vehicle, overcorrecting into the oncoming lane and into the victim’s vehicle. The collision resulted in the death of Mr. Juan Juan, the driver, and serious injuries to Mrs. Juan Juan, the front passenger. [¶] On the day of the tragedy, [defendant] had been fishing and drinking beer at the Dams. He then decided to take a ride and finish drinking some hard apple cider he had left over. When he started home, he drove way too fast for the road conditions and his state of inebriation.” Defendant’s supplemental brief elaborates much more fully on the underlying facts but adds none that affect the analysis of the case.
Defendant was charged in a two-count information with violations of Penal Code section 191.5, subdivision (a) (gross vehicular manslaughter while intoxicated) (count one) and Vehicle Code section 23153, subdivision (b) (causing bodily injury while driving with more than .08 percent blood alcohol) (count two). Count one was enhanced pursuant to Vehicle Code section 23558, alleging death or great bodily injury to more than one person. Count two was enhanced by allegations of great bodily injury pursuant to Penal Code section 12022.7, subdivision (a), and having a blood alcohol content of 0.15 or higher pursuant to Vehicle Code section 23578. At sentencing, the trial court denied defendant’s request for probation and sentenced him to the midterm of six years in state prison on count one. On count two, he was sentenced to the midterm of two years plus three years for the great bodily injury enhancement, to be served concurrently with the sentence on count one. The allegation pursuant to Vehicle Code section 23558, alleging death or great bodily injury to more than one person, was stayed pursuant to Penal Code section 654. Restitution to the victim as well as the standard fines and fees were ordered.
Defendant timely filed a notice of appeal and requested a certificate of probable cause, stating that he wished to ensure that his conviction constituted only a single “strike” and alleging that his attorney did not “follow through with her due diligence as far as submitting crucial mitigating factors.” The trial court granted the request for a certificate of probable cause.
The record reflects that defendant, represented by counsel, knowingly and voluntarily waived preliminary hearing and his trial rights. Although defendant’s request for a certificate of probable cause indicates defendant’s belief that counsel could have submitted additional materials in support of his request for probation or a mitigated term, the record provides no basis to support this claim. To the contrary, the record reflects that favorable character references were submitted to the probation department and included in the probation department report to the court, and that counsel presented a persuasive submission substantiating defendant’s remorse and steps he had taken after the accident to address his drinking problem and the depression he experienced when “overwhelmed by his actions that resulted in the death of another person.” The court imposed a midterm concurrent sentence, well within statutory limits and substantially less than the aggravated and consecutive terms requested by the prosecutor and the eight-year eight-month sentence recommended by the probation department.
In his supplemental brief, defendant raises an issue apparently not previously considered during the course of these proceedings. He argues that the conviction on count two must be reversed because the offense is a lesser included offense of the crime charged in count one. Although the issue was not raised in the trial court, it is purely a legal issue based on facts that are undisputed and may be raised for the first time on appeal. (People v. Scott (2012) 203 Cal.App.4th 1303, 1311; People v. Carr (1974) 43 Cal.App.3d 441, 444-445.)
Following receipt of defendant’s supplemental brief, we requested counsel to address the following question: “Recognizing that separate convictions may not be predicated on the fact that each is based on injury to a different victim of a single accident caused by driving under the influence of an alcoholic beverage (Wilkoff v. Superior Court (1985) 38 Cal.3d 345; People v. Subramani (1985) 173 Cal.App.3d 1106), must defendant’s conviction under count two be reversed because based on a lesser included offense of the crime charged in count one? (People v. Miranda (1994) 21 Cal.App.4th 1464.)” The Attorney General acknowledges that a violation of Vehicle Code section 23153 is necessarily a lesser included offense of Penal Code section 191.5, subdivision (a), so that a person cannot be convicted of both offenses if there is only one victim of a single accident. And the Attorney General does not dispute that under Wilkoff Vehicle Code section 23153 is violated only once even if there are multiple victims of an accident caused by drunk driving. Nonetheless, the Attorney General correctly argues that if in a single accident a drunk driver kills one victim and injures a second victim, the driver may, as in the present case, be convicted of both the Penal Code section 191.5, subdivision (a) violation as to one victim and the Vehicle Code section 23153 violation as to the second victim. Because vehicular manslaughter with gross negligence is an act of violence against the person and Penal Code section 654 does not preclude multiple punishments if multiple injuries result from a single act of violence, the Supreme Court held in People v. McFarland (1989) 47 Cal.3d 798, a person committing vehicular manslaughter may also be punished for injury to a separate individual that results from the same accident. Defendant’s counsel argues that the reasoning of the majority in McFarland “is flawed” and urges the view of Justice Mosk’s dissent, that only a single punishment is permissible in this circumstance. (See id. at pp. 806-807.) However, McFarland involved facts virtually identical to those in the present case. This court is bound to follow that decision. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450.)
Disposition
The judgment is affirmed.

Pollak, J.

We concur:

McGuiness, P.J.
Siggins, J.