PEOPLE v. WEAVER

Filed 4/9/07; pub. order 4/19/07 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Story continued from Part I

There is no empirical evidence in the appellate record showing that the "usual" victim of gross vehicular manslaughter has absolutely no advance warning or ability to attempt to avoid the defendant's car. On the contrary, one can envision many situations involving gross vehicular manslaughter (whether a section 191.5, subdivision (a) offense or otherwise) in which the victim has at least some advance notice or warning of the imminent risk posed by the defendant's car, thereby allowing him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable than Sigalov and Mara in this case. Weaver's car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed. Despite the late-night darkness, its headlights were off. In contrast, the Sigalovs' car was traveling in the proper direction at a normal rate of speed and had its headlights on. Based on those circumstances, the trial court could have reasonably concluded Sigalov and Mara were particularly vulnerable because they, apparently unlike "usual" victims of gross vehicular manslaughter, had absolutely no advance warning or ability to attempt to avoid the oncoming car.

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 offense when compared to other section 191.5, subdivision (a) offenses, as well as the physical and emotional injuries and monetary loss Weaver inflicted on the victims of her offense. The trial court implicitly concluded, and we cannot presume otherwise, that "other instances" of section 191.5, subdivision (a) offenses do not involve the same egregious circumstances as in this case. (Rule 4.414(a)(1).) Furthermore, the trial court properly considered the "dreadful loss" to the victim's family because rule 4.414 does not require the physical and emotional injuries or economic losses of the victim and/or the victim's family be particularly great or unusual in comparison to other instances of section 191.5, subdivision (a) offenses. (Rule 4.414(a)(4), (a)(5).) Rather, the physical and/or emotional injuries and the monetary losses inflicted on the victim and/or the victim's family should be considered by a trial court in all cases in deciding whether to grant or deny probation. (Ibid.)

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).^[1] Also, in Weaver's statement in mitigation, she listed and discussed circumstances (1) through (4), above, in support of her request for probation.^[2] 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.^[3] She argues a defendant's youth is not listed as a factor in rule 4.414, but is listed as factor in rule 4.413(c)(2)(C), which only applies in unusual cases when probation is presumptively disfavored by statute. However, as noted above, rule 4.408(a) allows a court to consider additional factors not listed in the sentencing rules, provided those additional factors are stated on the record and are reasonably related to the decision being made. Because Weaver's youth is reasonably related to the court's decision whether to grant or deny probation, we conclude the court properly considered her youth as factor that would support a grant of probation.

E

Although we 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 ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]"].) We conclude any error the trial court may have made in denying probation was harmless.

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 those 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) 35 Cal.4th 1238, 1257, overruled on another ground in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 859] (hereafter Cunningham) [holding California's determinate sentencing law violates the Sixth Amendment of the United States Constitution to the extent it permits imposition of an upper term based on facts found by a trial court or by a preponderance of the evidence].)^[4] "The trial court must impose the middle term unless it finds circumstances mitigating or aggravating the offense. [Citation.]" (People v. Leung, supra, 5 Cal.App.4th at p. 508.) "Because the middle term is the presumptive term, the sentencing court need not state reasons for selecting it, as it must for selection of either the lower or upper term. [Citations.]" (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2006 ed.) Felony Sentencing,  37.8, p. 1080.)

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.^[5] She also argues there is insufficient evidence to support the trial court's finding that the circumstances relating 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."^[6] 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) 45 Cal.App.4th 1677, 1694, disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123.) As we concluded in part I ante, there is substantial evidence to support a finding that Sigalov and Mara, in the circumstances of this case, were in fact particularly vulnerable victims of Weaver's crime. There is no empirical evidence in the appellate record showing that the "usual" victim of gross vehicular manslaughter has absolutely no advance warning or ability to attempt to avoid the defendant's car. On the contrary, one can envision many situations involving gross vehicular manslaughter (whether a section 191.5, subdivision (a) offense or otherwise) in which the victim has at least some advance notice or warning of the imminent risk posed by the defendant's car that allows him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable than Sigalov and Mara in this case. Weaver's car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed. Despite the late-night darkness, its headlights were off. In contrast, the Sigalovs' car was traveling in the proper direction at a normal rate of speed and had its headlights on. Based on those circumstances, the trial court could have reasonably concluded Sigalov and Mara were particularly vulnerable because they, apparently unlike "usual" victims of gross vehicular manslaughter, had absolutely no advance warning or ability to attempt to avoid the oncoming car.

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 harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." The trial court's description of the offense as "horrific" may fall within that rule. In any event, rule 4.408(a) authorizes a trial court to consider "additional criteria reasonably related to the decision being made." The trial court could reasonably conclude the "horrific" nature of Weaver's offense was reasonably related to its sentencing choice. Therefore, it properly considered that factor as an aggravating circumstance.^[7] Furthermore, contrary to Weaver's assertion, there is substantial evidence to support the trial court's finding that her offense was horrific. Weaver argues the evidence submitted in support of her motion to recall shows her conduct was not horrific and may have not constituted gross negligence. However, in sentencing Weaver, the trial court did not have that evidence before it and therefore we need not address that subsequently-filed evidence.^[8] In any event, assuming arguendo the trial court had received evidence at the time of sentencing showing Weaver had not planned to drive that night while intoxicated and decided to do so only after she became intoxicated when her then-boyfriend pleaded with her to come home, the trial court could nevertheless reasonably conclude Weaver's conduct in deciding to drive and her actions in driving while intoxicated were horrific.

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.^[9] (Cf. People v. Leung, supra, 5 Cal.App.4th at p. 508 ["The middle term need not be additionally justified."].)

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, 127 S.Ct. 856. We requested the parties submit, and have received and considered, supplemental briefs on the effect, if any, of Cunningham on this case. We asked the parties to address the question whether Cunningham requires a resentencing hearing in this case because the trial court, in imposing the middle six-year term, considered aggravating and mitigating circumstances not found true by a jury beyond a reasonable doubt.

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, 127 S.Ct. at p. 862.) Furthermore, "an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance." (Id. at p. 868.) Cunningham concluded: "In accord with [Blakely v. Washington (2004) 542 U.S. 296] therefore, the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum." (Id. at p. 868, italics added.) Accordingly, Cunningham held:

"Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendi's[Apprendi v. New Jersey (2000) 530 U.S. 466] bright-line rule: Except for a prior conviction, 'any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' [Citation.]" (Id. at p. 868.)

In rejecting the California Supreme Court's contrary conclusion in People v. Black, supra, 35 Cal.4th 1238, Cunningham stated: "Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment." (Cunningham, supra, at p. 859.)

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 to 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).)^[10] Furthermore, rule 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 term. As Cunningham noted, only a fact that increases a sentence beyond its prescribed statutory maximum (e.g., the middle term under California's DSL) requires its submission to a jury and proof beyond a reasonable doubt. (Cunningham, supra, at p. 868; Apprendi, supra, 530 U.S. at p. 490.)

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, 1 Cal.4th at p. 492 ["When a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]"].) Accordingly, we conclude that any error the trial court may have made in imposing the middle term was harmless.

III

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 sentenced 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 section 654, the trial court stayed imposition of the one-year enhancement under Vehicle Code section 23558.

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) 77 Cal.App.4th 761 stated: "Section 12022.7 is a legislative attempt to punish more severely those crimes that actually result in great bodily injury. [Citation.] It applies except where serious bodily injury is already an element of the substantive offense charged. [Citation.]" (Id. at p. 765.)

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 bodily 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) 108 Cal.App.4th 455, 463, italics added.) "The 'special over the general' rule, which generally applies where two substantive offenses compete, has also been applied in the context of enhancement statutes. [Citation.] The rule does not apply, however, unless 'each element of the "general" statute corresponds to an element on the face of the "specific" [sic] statute' or 'it appears from the entire context that a violation of the "special" statute will necessarily or commonly result in a violation of the "general" statute.' [Citations.]" (People v. Coronado (1995) 12 Cal.4th 145, 153-154, quoting People v. Jenkins (1980) 28 Cal.3d 494, 502.) In Jenkins, the California Supreme Court stated: "[T]he courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the 'special' statute will necessarily or commonly result in a violation of the 'general' statute, the [preemption] rule may apply even though the elements of the general statute are not mirrored on the face of the special statute." (Jenkins, at p. 502, second italics added.) However, even if either of the two alternative tests are satisfied, the special statute will not be applied under the preemption doctrine if the Legislature intended the general statute to apply. (People v. Sainz (1999) 74 Cal.App.4th 565, 572; Jones, at p. 464.)

Weaver does not assert that the first alternative test of the preemption doctrine applies (i.e., that each element of section 12022.7, subdivision (a) corresponds to an element on the face of Vehicle Code section 23558).^[11] 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 section 12022.7, subdivision (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.^[12] 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 greatbodily 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, 76 Cal.App.4th at p. 393 ["The conduct triggering the application of Vehicle Code section 23182 [predecessor to Vehicle Code section 23558] will not necessarily result in the application of section . . . 12022.7."].)

In any event, we conclude the legislative intent of section 12022.7, subdivision (a) shows its greater three-year enhancement was intended to apply despite the potential availability of lesser enhancements. "A plain reading of . . . section 12022.7 indicates the Legislature intended it to be applied broadly." (People v. Sainz, supra, 74 Cal.App.4th at p. 574 [concluding former Veh. Code,  23190, subds. (b) & (c), as the purported special statute, did not preclude imposition of a section 12022.7 enhancement].) "[T]he Legislature may provide for increased punishment for an offense that has more serious consequences by, for instance, . . . adding enhancements . . . ." (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 352, superseded by statute on another ground as noted in People v. Arndt, supra, 76 Cal.App.4th at pp. 393-394.) The purpose of Vehicle Code section 23558 "is to increase the potential punishment available in certain cases where an alcohol- or drug-impaired individual operating a vehicle or watercraft causes an accident which results in multiple injuries, not to limit the use of another otherwise applicable enhancement [e.g., section 12022.7]." (People v. Arndt, supra, 76 Cal.App.4th at p. 394, italics added.) We cannot conclude the Legislative intended only a one-year enhancement be imposed under Vehicle Code section 23558 when a defendant commits a section 191.5, subdivision (a) offense and personally inflicts great bodily injury (which conduct would otherwise result in imposition of a three-year enhancement under section 12022.7, subdivision (a)). (Cf. People v. Corban (2006) 138 Cal.App.4th 1111, 1118-1119 [defendant did not show the Legislature intended section 12022.95, as the purported special statute, to apply instead of section 12022.7, subdivision (d)].)

Story continued as Part III

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^[1] 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)).

^[2] The prosecution's statement in aggravation also listed and discussed circumstances (1) through (4), above, albeit not in a manner favorable to Weaver.

^[3] 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.)

^[4]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, 127 S.Ct. at p. 862.) It further stated: "[T]he middle term prescribed in California's law, not the upper term, is the relevant statutory maximum." (Id. at p. 858.)

^[5] 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.

^[6] 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.

^[7] 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) 51 Cal.App.4th 558, 562.)

^[8] 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.

^[9] 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.

^[10] As noted above, 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.)

^[11] 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) 76 Cal.App.4th 387, 393.)

^[12] 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).