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People v. Knight4/1/2004
At a court trial, appellant Scott Eugene Knight was convicted of gross vehicular manslaughter while intoxicated (Count 2) (Pen.Code, § 191.5, subd. (a)); driving under the influence of drugs or alcohol causing injury (Count 3) (Veh.Code, § 23153, subd. (a)); driving with a blood alcohol level of .08 or above and causing injury (Count 4) (Veh.Code, § 23153, subd. (b)); and hit and run with injury or death (Count 5) (Veh.Code, § 20001, subd. (b)). [FN1] The court found true the allegations in Counts 3 and 4 that appellant suffered a prior conviction within seven years for an alcohol-related reckless driving on October 16, 2000, and that appellant personally inflicted great bodily injury on the victim (Pen.Code, § 12022.7). The court also found true the enhancement alleged in Count 5 that appellant fled the scene after committing a violation of Penal Code section 191.5 (Veh.Code, § 20001, subd. (c).) [FN2] The court acquitted appellant of second degree murder (Count 1) (Pen.Code, § 187).
FN1. The court found that appellant violated the law by crossing into the opposing lane of traffic and over to the opposing shoulder in violation of Vehicle Code section 21650 and struck and injured the victim.
FN2. Count 5 alleged: "On or about March 17, 2001, [appellant] did commit a felony, namely, a violation of Section 20001(A) of the California Vehicle Code, Hit and Run, in that [appellant] did willfully and unlawfully, and knowingly, being a driver of a vehicle involved in an accident resulting in injury or death to a person other than himself, fail, refuse, or neglect to give to the injured person or to a traffic or police officer at the scene of the accident his name and address, the registration number of said vehicle, and the name of the owner of said vehicle, or to exhibit his operator's license; or to render reasonable assistance to the injured person or to perform the duties specified in Vehicle Code Sections 20002 and 20004.[ ] It is further alleged that [appellant] fled the scene of this crime after committing a violation of Penal Code Section 191.5 as described in Vehicle Code Section 20001(C)."
The court sentenced appellant to the mid-term of six years for Count 2 and a consecutive term of five years for the Vehicle Code section 20001, subdivision (c) enhancement, which the court deemed an enhancement to Count 2 for sentencing purposes. The court stayed the sentences on all other counts and enhancements pursuant to Penal Code section 654.
On appeal, appellant contends (1) there was insufficient evidence to support the hit and run conviction and the fleeing the scene enhancement allegation; (2) his conviction on Counts 3 and 4 should be reversed because they are lesser included offenses of gross vehicular manslaughter while intoxicated, and if not, Penal Code section 191.5 precludes charging appellant with felony drunk driving under Vehicle Code section 23153; and (3) the great bodily injury enhancements must be stricken. As we shall explain, we agree with appellant's contentions and will modify the judgment accordingly.
FACTS
In 2000 and early 2001, appellant was a sergeant in the U.S. Army assigned to the army recruiting station in Merced. On October 16, 2000, appellant suffered a "wet reckless" conviction, a violation of Vehicle Code section 23103 pursuant to Vehicle Code section 23103 .5.
On March 16, 2001, appellant arrived at Maloney's Bar and Grill in the late afternoon or early evening. Appellant drank between three to five whiskey and cokes. A couple of hours later, appellant became overly loud; after appellant's waitress told the bar manager he had had enough to drink, the bar manager told the waitress to stop serving appellant. The bar manager believed appellant was on his way to becoming drunk and i
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