Filed 1/16/18 P. v. Heinzel CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, K. Michael Kirkman, Judge. Affirmed.

Boyce & Schaefer and Benjamin Kington for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Katherine Ann Heinzel of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), and driving with a blood alcohol level of 0.08 percent or higher causing injury (id., subd. (b)). As to the manslaughter conviction, the jury found true the allegation that Heinzel personally inflicted great bodily injury upon the victim. (Pen. Code, § 1192.7. subd. (c)(8).) As to each of the other two convictions, the jury found true two allegations that Heinzel personally inflicted great bodily injury (id., § 12022.7, subd. (a)) and one allegation that she proximately caused bodily injury (Veh. Code, § 23558). The court sentenced Heinzel to a total term of eight years eight months in prison.[1]

Heinzel appeals. She contends the prosecution could not allege, as to the same victim, that she both personally inflicted great bodily injury under Penal Code section 12022.7, subdivision (a) and proximately caused bodily injury under Vehicle Code section 23558, based on the principle that the more general law must yield to the more specific law. A different panel of this court previously rejected the same argument in People v. Weaver (2007) 149 Cal.App.4th 1301, 1327–1328 (Weaver). Although Weaver was subsequently disapproved by our Supreme Court in People v. Cook (2015) 60 Cal.4th 922, 939 (Cook), the portion of Weaver at issue here was unaffected by this disapproval and its reasoning remains correct. We therefore affirm.

FACTS

For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.)

On November 19, 2011, at approximately 2:00 a.m., Heinzel was driving northbound on Interstate 15 at a high rate of speed, later estimated to be between 91 and 101 miles per hour. Davionne Kelly was driving with Kris W. and Brian M. on the same interstate at or around the speed limit, 70 miles per hour. Heinzel struck the back of Kelly's car, causing both to lose control, break through a guardrail, and crash down an embankment. Kelly's car flipped over several times, from front to back, and came to rest on its side, approximately 270 feet from the top of the hill. Kelly sustained serious injuries and died at the scene. Kris sprained his wrist and ankle, and he had a laceration to his head that required 17 stiches. Brian suffered life-threatening injuries, including punctured lungs, a fractured collarbone, and bleeding in his brain.

At the scene, Heinzel was disoriented and slurred her words. She was chewing gum and smelled like alcohol. A witness thought she appeared drunk. A later blood draw revealed a blood alcohol content of 0.091 to 0.092 percent. An expert opined that her blood alcohol content at the time of the crash was between 0.13 and 0.15 percent.

At trial, Heinzel admitted having several glasses of wine before driving. She did not remember the crash or its aftermath. She presented evidence that she had a medical condition, tachy-brady or "sick sinus" syndrome, that may cause temporary unconsciousness. She presented expert testimony that, based on her own account of her drinking and other activities prior to the crash, she would have had a blood alcohol content of 0.04 to 0.07.

DISCUSSION

As noted, Heinzel contends the prosecution could not allege both that she personally inflicted great bodily injury under Penal Code section 12022.7, subdivision (a) and that she proximately caused bodily injury under Vehicle Code section 23558. Both allegations were based on the injuries suffered by Kris and Brian. Heinzel relies on the principle that the more general law must yield to the more specific law, as first articulated in In re Williamson (1954) 43 Cal.2d 651, 654 (Williamson). For reasons we will explain, we disagree.

"Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be prosecuted under either statute. [Citation.] 'The rule is not one of constitutional or statutory mandate, but serves as an aid to judicial interpretation when two statutes conflict.' [Citation.] 'The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and "requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision . . . ." ' " (People v. Murphy (2011) 52 Cal.4th 81, 86 (Murphy).)

"Absent some indication of legislative intent to the contrary, the Williamson rule applies when (1) 'each element of the general statute corresponds to an element on the face of the special statute' or (2) when 'it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.' [Citation.] In its clearest application, the rule is triggered when a violation of a provision of the special statute would inevitably constitute a violation of the general statute." (Murphy, supra, 52 Cal.4th at p. 86.)

"On the other hand, if the more general statute contains an element that is not contained in the special statute and that element would not commonly occur in the context of a violation of the special statute, we do not assume that the Legislature intended to preclude prosecution under the general statute. In such situations, because the general statute contemplates more culpable conduct, it is reasonable to infer that the Legislature intended to punish such conduct more severely." (Murphy, supra, 52 Cal.4th at p. 87.) "However, that the general statute contains an element not within the special statute does not necessarily mean that the Williamson rule does not apply. 'It is not correct to assume that the [Williamson] rule is inapplicable whenever the general statute contains an element not found within the four corners of the "special" law. Rather, the 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 Williamson rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.' " (Ibid.)

In Weaver, this court addressed the exact issue Heinzel raises: whether the more general Penal Code section 12022.7, subdivision (a) must yield to the more specific Vehicle Code section 23558 under the Williamson rule. (Weaver, supra, 149 Cal.App.4th at p. 1327.) Weaver noted there was no argument that the statutes met the first Williamson test, i.e., "each element of section 12022.7, subdivision (a) corresponds to an element on the face of Vehicle Code section 23558." (Weaver, supra, at p. 1327.)[2] The defendant in Weaver instead relied on the second Williamson test, arguing that a violation of the more specific Vehicle Code statute would commonly result in a violation of the more general Penal Code statute. (Ibid.) This court disagreed: "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 [Penal Code] section 12022.7, subdivision (a), which statute requires personal infliction of great bodily injury. Furthermore, our independent review of the appellate record shows it does not contain any empirical evidence proving that driving while intoxicated and proximately causing bodily injury also commonly results in personal infliction of great bodily injury." (Weaver, supra, at pp. 1327–1328.)

In addition, Weaver concluded that the Legislature intended Penal Code section 12022.7, subdivision (a) to apply "despite the potential availability of lesser enhancements." (Weaver, supra, 149 Cal.App.4th at p. 1328.) "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., [Penal Code] section 12022.7].' " (Weaver, supra, at

p. 1328.)

Cook's disapproval of Weaver did not implicate this discussion. Cook considered whether the Penal Code section 12022.7, subdivision (a) enhancement could apply to a gross vehicular manslaughter conviction, based on the personal infliction of great bodily injury on a different victim. (Cook, supra, 60 Cal.4th at p. 924.) The question was governed by Penal Code section 12022.7, subdivision (g), which provides that the enhancement "shall not apply to murder or manslaughter" or "if infliction of great bodily injury is an element of the offense." Cook concluded that this statute "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." (Cook, supra, at p. 924.)

Cook disapproved Weaver, but only to the extent it departed from this analysis. (Cook, supra, 60 Cal.4th at p. 924.) Cook did not consider the relationship between Penal Code section 12022.7, subdivision (a) and Vehicle Code section 23558, so that portion of Weaver remains good authority. Cook provides no reason to depart from this court's analysis of that relationship in Weaver.

Heinzel argues that Cook undermined Weaver's analysis because Cook held that Penal Code section 12022.7, subdivision (a) cannot apply to manslaughter convictions. But this Penal Code enhancement was not applied to Heinzel's manslaughter conviction. It was applied to her other convictions. Cook has no bearing on such application.

Heinzel alternatively attacks Weaver on its merits. She contends that Penal Code section 12022.7, subdivision (a) will commonly apply when Vehicle Code section 23558 applies and the same defendant has been convicted of gross vehicular manslaughter under Penal Code section 191.5 based on the same incident. Whatever the truth of that assertion, it is not the correct analysis under the Williamson rule. The question is not whether the more general statute will commonly apply under certain circumstances in which the more specific statute applies. It is whether, in context, the more general statute will commonly apply whenever the more specific statute applies. (Murphy, supra, 52 Cal.4th at p. 86.)

As this court explained in Weaver, "Although [the defendant] argues a [Penal Code] 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." (Weaver, supra, 149 Cal.App.4th at p. 1328.) Another listed offense is any violation of Vehicle Code section 23153, driving under the influence of alcohol or with a blood alcohol level of 0.08 percent or more and causing injury. (Veh. Code, § 23558.) That offense does not require manslaughter at all, and Heinzel has made no attempt to show that the Vehicle Code enhancement premised on that offense would commonly result in an enhancement under Penal Code section 12022.7, subdivision (a) as well. We therefore reject her contention that Vehicle Code section 23558 must prevail over Penal Code section 12022.7, subdivision (a) based on the Williamson rule.

DISPOSITION

The judgment is affirmed.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

AARON, J.