Sufficient evidence supported defendant’s conviction for reckless driving (Veh. Code, § 23103) where he attempted to pass two vehicles with no visibility of oncoming traffic and caused a head-on collision. Defendant was driving to work on a two-lane road at night. He attempted to pass a car and box-type truck in front of him at a point in the road where he could not see oncoming traffic. He hit a car head-on, severely injuring its occupants. He was convicted of reckless driving and a great bodily injury enhancement was found true. He appealed. Held: Affirmed. Reckless driving requires proof the person drove a vehicle on a highway with wanton disregard for the safety of persons or property. Wanton disregard means the defendant is aware that his actions present a substantial and unjustifiable risk of harm and he ignores that risk. In this case, although there were broken lines on the stretch of road where the collision occurred indicating passing was permitted, that does not mean it was proper for defendant to attempt to pass two cars without clear visibility of oncoming traffic. Passing is only legal if it is safe. And passing is not safe unless a driver, before attempting to pass another car, can see that the left lane is free from traffic and that there is enough room in the right lane to overtake the slower vehicle without cutting it off. Because defendant had no idea whether it would be safe to pass, he acted with wanton disregard for the safety of others.

It was appropriate to attach a great bodily injury enhancement to the reckless driving conviction because great bodily injury is not an element of the offense. Penal Code section 12022.7 provides for a three-year sentence enhancement where a defendant personally inflicts great bodily injury on a non-accomplice in the commission of a felony. The enhancement does not apply to any crime in which infliction of great bodily injury is an element of the offense (subd. (g)). In this case, defendant was convicted of reckless driving under Vehicle Code section 23103 and Vehicle Code section 23105, which permits reckless driving to be charged as a felony if the offense causes certain enumerated injuries. Though Vehicle Code section 23105 provides for enhanced sentencing, this section does not define a criminal act and is therefore not a substantive offense. It is a sentencing provision that mandates an alternate, elevated base term for defendants convicted of particularly serious forms of reckless driving. Because great bodily injury is not an element of the substantive offense of reckless driving (Veh. Code, § 23103), the prohibition contained in section 12022.7, subdivision (g) does not apply. [Editor’s Note: Appellant filed a petition for review. While the petition was pending, the Court learned that appellant died. The Court granted review and transferred the case to the Court of Appeal with directions to enter an order in the case permanently abating all proceedings with respect to defendant and to require the trial court to enter an order to that effect. However, it appears the opinion is still published.]

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/revpub/B284215.PDF