Wilkoff v. Superior Court of Orange County3/18/1985
SUPREME COURT OF CALIFORNIA
L.A. No. 31942
1985.CA.41092 ; 696 P.2d 134; 38 Cal. 3d 345; 211 Cal. Rptr. 742
March 18, 1985
JOAN KATHRYN WILKOFF, PETITIONER,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, RESPONDENT; THE PEOPLE, REAL PARTY IN INTEREST
Ronald Y. Butler, Public Defender, Frank Scanlon, Assistant Public Defender, James Dean Allen, Vicki Briles and Leonard Gumlia, Deputy Public Defenders, for Petitioner.
No appearance for Respondent.
Cecil Hicks, District Attorney, Michael R. Capizzi, Assistant District Attorney, William W. Bedsworth and Randell L. Wilkinson, Deputy District Attorneys, for Real Party in Interest.
Darryl W. Genie as Amicus Curiae.
Opinion by Broussard, J., expressing the unanimous view of the court. Bird, C. J., Mosk, J., Kaus, J., Reynoso, J., Grodin, J., and Lucas, J., concurred.
Broussard
The issue in this case is whether one instance of driving under the influence which causes injury to several persons is chargeable as one count of driving under the influence or as several.
The pertinent statute is Vehicle Code section 23153, which at the time of the accident in question provided, in relevant part:
"(a) It is unlawful for any person, while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug, to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes death or bodily injury to any person other than the driver.
"(b) It is unlawful for any person while having 0.10 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and, when so driving, do any act forbidden by law or neglect any duty imposed by law in the driving of the vehicle, which act or neglect proximately causes death or bodily injury to any person other than the driver."
Defendant petitions this court for relief from denial of her motion to set aside counts IV through XIII of the information, pursuant to Penal Code section 995.
The information alleges that at approximately 12:45 a.m. on August 13, 1983, defendant executed an improper lane change on the Pacific Coast
Highway in Huntington Beach, California, which resulted in a four-vehicle collision causing the death of one individual and injuring five others. It is further alleged that the blood alcohol level in the sample extracted from defendant was 0.19 percent.
Defendant was charged with one count of vehicular manslaughter for the one death she caused. (Pen. Code, § 192.) She was also charged with a count of driving under the influence of alcohol (§ 23153, subd. (a)) and a count of driving with a blood alcohol level of 0.10 or above (§ 23153, subd. (b)) for each of the six persons injured or killed. Thus, defendant was charged with 13 counts in all.
Defendant brought a motion to dismiss ten of the drunk driving counts, arguing that only one count of section 23153, subdivision (a) and one count of subdivision (b) can arise from a single incident of driving under the influence. The trial court denied the motion to strike the repetitive counts and defendant petitions
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