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People v. Munger4/14/2004
(b).
The majority opinion discerns no rational interpretation of these statutes other than its own, the basis of which is that its interpretation is clear and proper. The majority opinion followed the conclusion in People v. Arndt (1999) 76 Cal.App.4th 387. In Arndt, the defendant was convicted of violating Vehicle Code section 23153 and it was found true that in connection with the violation three persons each incurred great bodily injury, two under section 12022.7, subdivision (a) and one under section 12022.7, subdivision (b). The defendant's sentence was enhanced by three years for each person injured under section 12022.7, subdivision (a) and by five years for the person injured under section 12022.7, subdivision (b). (Arndt, at pp. 391-392.) The defendant contended it was error under section 654 to impose more than one section 12022.7 enhancement because there was a conviction of only one offense. (Arndt, at pp. 392, 394.) Although the court held that section 654 applied to enhancements, a separate enhancement for each person injured was not prohibited by section 654. (Arndt, at pp. 395-398.) The defendant also contended that section 1170.1, subdivision (g) prohibited the imposition of three section 12022.7 enhancements on a single offense. (Arndt, at p. 398.) In a terse response to this contention, the Arndt court stated that all enhancements imposed under section 12022.7 constituted only one enhancement under section 1170.1, subdivision (g), and that in any event, section 12022.7, subdivision (a) controls and permits multiple enhancements for each person injured in a single offense because it provides for an enhancement if a defendant " 'inflicts great bodily injury on any person....' " (Arndt, at p. 399.)
Arndt's conclusion regarding the interplay between section 1170.1, subdivision (g) and section 12022.7 was reached without discussion or citation of authority and did not explain the effect of section 12022.7, subdivision (h). It is therefore difficult to evaluate the rationale for its conclusion. Because section 12022.7, subdivision (h) can reasonably be interpreted to limit the imposition of section 12022.7 enhancements to one term of imprisonment for the same offense, regardless of the number of persons injured, and that interpretation is at least as plausible as a contrary interpretation, the absence of discussion of subdivision (h) in the Arndt opinion makes its result unpersuasive.
*9 Following the Arndt decision, the Legislature amended section 1170.1, subdivision (g), effective 2003, to provide for a limitation on multiple bodily injury enhancements as to the same victim, a provision not present in the subdivision at the time of Munger's offense. Presumably this per victim limitation was added to change the previous law, which can reasonably be interpreted as a limitation per offense regardless of the number of injured persons. The 2003 amendment purportedly was to change the law to conform with Arndt's interpretation of subdivision (g); Arndt therefore did not correctly interpret subdivision (g) as it was drafted prior to 2003.
I would vacate the sentence imposed on Munger and direct the trial court to enter a new sentence that includes only one five-year section 12022.7, subdivision (b) enhancement. Because only one section 12022.7, subdivision (b) enhancement is authorized to be imposed, it is unnecessary to discuss whether multiple enhancements may be imposed to run concurrently.
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