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People v. Munger4/14/2004
h he or she is convicted. The court shall order imposition of the middle term unless there are circumstances in aggravation or mitigation. The court shall state its reasons for its enhancement choice on the record at the time of sentencing. [ ] ... [ ]
"(h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense."
Section 1170.1, subdivision (g), at the time of Munger's offense, provided: "When two or more enhancements may be imposed for the infliction of great bodily injury in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm."
Section 12022.7, subdivision (h) is susceptible to two reasonable interpretations. One interpretation is a prohibition only against imposing for the same offense additional terms under more than one of subdivision (a), (b), (c), or (d) for injury to one person. For example, if there is one underlying offense, an enhancement under subdivision (b) for injury to a person causing paralysis cannot be imposed in addition to an enhancement under subdivision (c) for an injury to the same person 70 years of age or older. Therefore, if as a result of one offense a person 70 years of age or older suffers an injury causing paralysis, only one five-year enhancement term may be imposed. This interpretation places no limit on the number of enhancement terms that may be imposed for a single offense under a single subdivision, if more than one person is injured and fits within that subdivision or another subdivision.
An equally reasonable interpretation of section 12022.7, subdivision (h) is a prohibition against imposing for the same offense more than one section 12022.7 enhancement regardless of the applicable subdivision or number of persons injured. The second interpretation is consistent with section 1170.1, subdivision (g) in effect at the time of Munger's offense. That subdivision then provided if there was a single offense, only one great bodily injury enhancement could be imposed: the greatest applicable enhancement. Because section 12022.7 provides for the great bodily injury enhancements referred to in section 1170.1, subdivision (g), the latter section limited the imposition of section 12022.7 enhancements to one if there is a single offense, regardless of the number of victims. Section 1170.1, subdivision (g) was amended effective 2003 to refer to "great bodily injury on the same victim in the commission of a single offense" (Stats.2002, ch. 126, § 1, pp. 554-555 (AB 2173)) and to limit the enhancement to one as to that victim. This change in the statute implies that section 1170.1, subdivision (g) prior to 2003 was not victim specific and limited the great bodily injury enhancements to one for a single offense regardless of the number of victims.
*8 Sections 12022.7, subdivision (h) and 1170.1, subdivision (g) are susceptible to different rational interpretations with regard to their application to a single offense with multiple victims. Under these circumstances the statutes are to be construed most favorably to the defendant. (People v. Hernandez (2003) 30 Cal.4th 835, 869.) Here the statutory construction most favorable to Munger is that under section 12022.7, subdivision (h) and section 1170.1, subdivision (g), only one enhancement of five years may be imposed for the single offense of violating Vehicle Code section 23153, subdivision (a), even though two persons were injured within the ambit of section 12022.7, subdivision
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