Defendant may not be punished for both personal infliction of great bodily injury to victims in vehicular manslaughter case and inflicting bodily injury to multiple victims. Elder was convicted of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and other driving-while-intoxicated offenses. The jury found true allegations that he personally inflicted great bodily injury (GBI) on three people in the commission of the offense (Pen. Code, § 12022.7, subd. (a)) and inflicted bodily injury to multiple victims (Veh. Code, § 23558). His prison term included two years for the bodily injury to multiple victims and three consecutive three-year terms for the GBI enhancements. On appeal he challenged the imposition of both types of enhancements for injuries to the same victims. Held: Reversed and remanded. Vehicle Code section 23558 provides for a sentencing enhancement of one year for each additional victim, for any person who causes bodily injury to more than one victim in certain vehicular offenses. In 1999, the Legislature amended section 23558 to provide that the enhancement applies notwithstanding Penal Code section 1170.1, subdivision (g), which provides that only one GBI enhancement for infliction of injuries to the same victim in the commission of a single offense may be imposed. However, this amendment was intended to clarify that, despite section 1170.1, subdivision (g), multiple section 23558 enhancements could be imposed for each additional victim injured during the same offense. The amendment does not allow both a GBI enhancement and a multiple victim enhancement for the same victims. Further, Penal Code section 654 bars multiple punishment based on the same act or omission.

Defendant’s motion to suppress evidence of his blood alcohol content (BAC) was properly denied. Elder moved to suppress blood test results which showed his BAC approximately one hour after the collision was 0.17 percent. Although Elder signed a consent to draw his blood, the time that he signed the form appeared to be after the time his blood was drawn. Thus, Elder claimed he did not validly consent to the search. However, a police officer testified that Elder signed the consent form before his blood was drawn and the trial court’s determination that this testimony was credible was supported by substantial evidence. The trial court’s finding that Elder consented to the search ended the inquiry regarding a possible Fourth Amendment violation, because consent is an exception to the warrant requirement.

The trial court did not abuse its discretion by denying defendant’s discovery request for evidence of other traffic collisions in the same area. The trial court denied Elder’s motion to compel discovery of California Highway Patrol records relating to traffic collisions in the same location as in his case (Pen. Code, § 1054 et seq.). Of the categories of materials listed in section 1054.1, which must be produced to the defense, the only applicable choice is “any exculpatory evidence” (§ 1054.1, subd. (e)). However, the material Elder requested is not potentially exculpatory. If there was a history of collisions in the subject area this would not dispel Elder’s gross negligence of driving three times the roadway’s posted speed limit while entering a curve. Nor would a history of “repeated mistakes” by other drivers coming from the same direction as the victim make it more likely that she made the same error, thus possibly constituting an intervening cause of the collision, because it would render the “mistake” reasonably foreseeable by Elder. Even if there was an error in denying discovery of the records, it was harmless.

The trial court did not err in excluding evidence of the deceased driver’s blood alcohol content (BAC). The prosecution moved in limine to exclude evidence of the victim’s contributory negligence, including her BAC. Before the trial court ruled on the motion, the parties stipulated the victim’s BAC was measured at 0.07 percent, and that this stipulation would be read to the jury. Once this agreement was made, the trial court had no reason to rule on the prosecution’s motion. Having entered into the stipulation, the doctrine of invited error precludes Elder from now challenging the manner in which this evidence was handled. Further, because the trial court never ruled on the motion, there is nothing regarding this issue for Elder to raise on appeal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/H042189.PDF