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Name: People v. Corban
Case #: A110662
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 04/21/2006

The prosecution may allege a great bodily injury enhancement under either Penal Code section 12022.7(d) or 12022.95 because neither statute is more specific than the other. The defendant pleaded no contest to involuntary manslaughter after her two-year-old son died when she locked him in a car with the windows closed on a hot day. She admitted a great bodily injury enhancement under Penal Code section 12022.7, subdivision (d). On appeal and in a related habeas petition, she argued that she could not have been lawfully charged with that enhancement because the enhancement in section 12022.95 was more specific, and that defense counsel was ineffective for failing to raise this issue prior to sentencing. The People argued that the defendant could not raise this issue on appeal without a certificate of probable cause, but the court held that this was a challenge to the propriety or legality of the sentence and thus no certificate was necessary. However, the court found no indication that the Legislature intended for section 12022.95 to supplant section 12022.7, subdivision (d), and thus the prosecution had discretion to select which of the two enhancements should be charged in any given case.