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Name: People v. Julian
Case #: D057741
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/08/2011

The sentence in a vehicular manslaughter case may be enhanced for great bodily injury, within the meaning of Penal Code section 12022.7, for persons who were injured in addition to the sentence for manslaughter. Julian was sentenced to the upper term of four years for the manslaughter of the driver of the other vehicle. That sentence was enhanced by five years pursuant to section 12022.7, subdivision (b) for injuries to the driver’s daughter who suffered a coma, and another three years pursuant to section 12022.7, subdivision (a) for injuries to a second daughter who suffered a broken back. A second manslaughter count, based on the subsequent death of the daughter in a coma, was enhanced with two great bodily injury enhancements as well, for injuries to the deceased driver and the daughter with a broken back, but that sentence was stayed pursuant to section 654. Section 12022.7, subdivision (g), providing that the enhancement shall not apply to murder or manslaughter or if the infliction of great bodily injury is an element of the offense, is intended to bar an enhancement for injuries inflicted on the homicide victim. However, the enhancement applies to great bodily injuries sustained by any other person (other than an accomplice). To permit the defendant to benefit because the injuries to the daughter with a coma resulted in her subsequent death would be “a grotesque interpretation of the statute” and lead to “absurd consequences.” There was no double punishment for the fatal injuries which resulted in a five year enhancement because the manslaughter conviction for the same victim was stayed pursuant to section 654.

There was no error by imposing two section 12022.7, subdivision (a) enhancements for the daughter with a broken back on each of the two manslaughter convictions. Section 1170.1, subdivision (g) provides that when two or more enhancements could be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of the enhancements shall be imposed. However, the statute, by its terms, did not prevent an enhancement added to each of the manslaughter counts growing out of a single person’s injuries.

Where a defendant has not challenged his ability to pay the maximum restitution fine, either before or after its imposition, the issue may not be raised for the first time on appeal. Penal Code section 1202.4, subdivision (d) states that in setting the amount of the fine the court shall consider any relevant factors, including, but not limited to, the defendant’s inability to pay, the seriousness and gravity of the offense, the extent to which any other person suffered any losses as a result of the crime, and the number of victims. Here the trial court commented on the devastation to a family and the father’s emotional trauma. Any error is waived by failing to bring the ability to pay issue to the court’s attention when these other factors were being considered.