People v. Grabham

Filed 8/31/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A160384
v.
JAMES WILLIAM GRABHAM, (Sonoma County Super. Ct.
JR., No. SCR731481)
Defendant and
Appellant.
A jury convicted defendant James William Grabham, Jr. of
violating Vehicle Code1 section 23152, subdivision (a) (section
23152(a)) and section 23152, subdivision (b) (section 23152(b)).
Defendant argues that section 23152(a) and (b) are different
statements of the same offense and Penal Code section 954
therefore requires vacatur of one of his convictions. As have
other courts, we conclude that section 23152(a) and (b) are
separate offenses and defendant may properly be convicted of
both. Accordingly, we will affirm the judgment.
BACKGROUND
On September 21, 2019, California Highway Patrol Officers
Herve and Bethay passed a pickup truck and saw the driver,
All further statutory references are to the Vehicle Code
1
unless otherwise stated.
1
defendant, looking down at his cellphone. When Officer Herve
slowed his vehicle and began to follow defendant, he noticed
defendant’s vehicle registration had expired. Officer Bethay, who
sat in the passenger seat, confirmed the expiration. Although
Officer Herve had not noticed any signs of impaired driving, he
initiated a traffic stop due to defendant’s cellphone use and
expired registration.2
Officer Herve approached defendant’s truck on the
passenger side and saw a 12-pack of beer on the bench seat.
Officer Herve smelled alcohol coming from the truck and noticed
defendant’s eyes were red and watery, both signs that a person
may be intoxicated. Defendant also slurred his speech and
struggled to follow directions, so Officer Herve decided to conduct
a full DUI investigation.
Defendant’s performance in several field sobriety tests
indicated he was under the influence of alcohol. Officer Herve
then arrested defendant and administered a breath test. The
first test reported a blood alcohol content (BAC) of 0.12, and the
second test reported a BAC of 0.11. Officer Herve testified that
defendant was “definitely too impaired to drive and continue
driving.”
Samantha Evans, a criminalist with the California
Department of Justice, gave expert testimony on the effects of
alcohol on the human body. Evans stated her opinion as follows:
2After watching a video of the incident during trial, Officer
Herve testified that defendant may have been swerving and
driving on the white line.
2
“At an alcohol level of a .12 or .11, I would say somebody is too
impaired to operate a motor vehicle safely.” When asked whether
there was a “generally accepted” level at which someone would be
too impaired to operate a motor vehicle, Evans testified that “in
[her] opinion” someone would be “too impaired to operate a motor
vehicle safely at an alcohol level of .08 percent and higher.”
However, she explained that a person who had developed a
tolerance to alcohol can learn to mask outward signs of physical
impairment from alcohol consumption.
A jury found defendant guilty of driving under the
influence (DUI) of an alcoholic beverage (§ 23152(a)) and driving
with a 0.08 BAC (§ 23152(b)). After defendant waived his right to
a jury trial on his prior conviction, the court found the
enhancement allegations under section 23550.5 to be true. The
court sentenced defendant to three years in state prison but
suspended execution of the sentence. Defendant was instead
placed on three years of probation on the condition that he
participate in a residential treatment program.
Defendant filed a timely notice of appeal.
DISCUSSION
Contending that section 23152(a) and section 23152(b)
constitute a single offense, defendant asks us to vacate one of his
convictions pursuant to Penal Code section 954. People v.
Subramani (1985) 173 Cal.App.3d 1106 (Subramani) and People
v. Duarte (1984) 161 Cal.App.3d 438 (Duarte) addressed
subdivisions (a) and (b) of section 23153, a nearly identical
statute providing the felony counterpart to section 23152, and
3
both courts held that section 23153, subdivisions (a) and (b)
describe separate offenses. As Subramani and Duarte foreclose
defendant’s argument, he asks us to reconsider those authorities
in light of recent Supreme Court decisions discussing Penal Code
section 954’s prohibition on multiple convictions for the same
offense in other statutory contexts. For the reasons set forth
below, we conclude that the Supreme Court authorities cited by
defendant do not support his contention that section 23152(a) and
section 23152(b) constitute the same offense.
I. Governing Legal Principles
A. Section 23152
Section 23152(a) makes it unlawful for “a person who is
under the influence of any alcoholic beverage to drive a vehicle.”
Under this provision, the People must prove that: “(1) a person,
(2) while under the influence of alcohol, (3) drove a vehicle.”
(People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 5 (McNorton);
CALCRIM No. 2110.) A person is “under the influence” of alcohol
when he or she “ ‘no longer has the ability to drive a vehicle with
the caution characteristic of a sober person of ordinary prudence
under the same or similar circumstances.’ ” (People v.
Weathington (1991) 231 Cal.App.3d 69, 78. Section 23152(b)
makes it unlawful for “a person who has 0.08 percent or more, by
weight, of alcohol in his or her blood to drive a vehicle.” Under
this provision, the People must prove that: (1) the defendant
drove a vehicle; and (2) when the defendant drove the vehicle, his
or her BAC was 0.08 percent or more. (CALCRIM No. 2111; see
McNorton, supra, 91 Cal.App.4th at p. Supp. 5.)
4
B. Penal Code Section 954
Penal Code section 954 provides in relevant part, “An
accusatory pleading may charge two or more different offenses
connected together in their commission, or different statements of
the same offense or two or more different offenses of the same
class of crimes or offenses, under separate counts . . . . The
prosecution is not required to elect between the different offenses
or counts set forth in the accusatory pleading, but the defendant
may be convicted of any number of the offenses charged.”
The California Supreme Court has repeatedly held that a
single act can support multiple charges and multiple convictions.
(People v. White (2017) 2 Cal.5th 349, 354 (White); People v.
Vidana (2016) 1 Cal.5th 632, 637 (Vidana); People v. Sanders
(2012) 55 Cal.4th 731, 736.) Penal Code section 954, however,
prohibits “multiple convictions for a different statement of the
same offense when it is based on the same act or course of
conduct.” (Vidana, at p. 650; see id. at pp. 637, 647 [section 954
prohibits convictions for both grand theft by larceny and
embezzlement based on the same course of conduct because they
constitute different statements of the same offense of theft].)3
Whether two statues or statutory provisions describe the
same offense “turns on the Legislature’s intent in enacting [the]
3 In addition, although multiple convictions may be based
upon a single criminal act or indivisible course of conduct, section
954 prohibits multiple convictions when “one offense is
necessarily included in the other.” (People v. Benavides (2005)
35 Cal.4th 69, 97.) Grabham does not argue that either of his
section 23152 convictions is necessarily included in the other.
5
provisions, and if the Legislature meant to define only one
offense, we may not turn it into two.” (People v. Gonzalez (2014)
60 Cal.4th 533, 537 (Gonzalez).) The language of a statute
provides the best evidence of statutory intent, but we do not
consider this language in isolation. (Ibid.) We look instead “to
the entire substance of the statute . . . to determine the scope and
purpose of the provision at issue.” (Ibid.) “We must
harmonize “ . . . parts of a statutory enactment . . . by considering
the particular clause or section ‘at issue’ in the context of the
statutory framework as a whole.” (Ibid.) Where “ ‘the statutory
language is susceptible of more than one reasonable construction,
we can look to legislative history in aid of ascertaining legislative
intent.’ ” (Id. at pp. 537–538.)
C. Burg, Subramani, and Duarte
In Burg v. Municipal Court (1983) 35 Cal.3d 257, 261
(Burg), the main authority relied on by Subramani and Duarte to
support their conclusions that subdivisions (a) and (b) of section
23153 are separate crimes, the California Supreme Court held
that section 23152(b) gave constitutionally adequate notice of the
conduct it prohibits. In the course of so holding, the Court
summarized the historical context leading to the enactment of
section 23152(b). (Id. at pp. 262–265.) Prior to the enactment of
subdivision (b), California criminalized only “ ‘driving under the
influence,’ ” a prohibition fortified by a rebuttable presumption
that a driver was “under the influence” with a BAC of 0.10 or
6
higher.4 (Id. at p. 263.) Under this subjective standard of
intoxication, however, many defendants were escaping criminal
liability by raising doubts as to whether they were in fact “under
the influence,” notwithstanding a high BAC, because conviction
required a showing that alcohol had “ ‘so far affected the nervous
system, the brain, or muscles as to impair to an appreciable
degree the ability to operate a vehicle in a manner like that of an
ordinarily prudent and cautious person in full possession of his
faculties.’ ” (Id. at p. 264.) The Legislature therefore enacted
section 23152(b) “[i]n an attempt to address the continuing threat
to public safety posed by drinking drivers.” (Ibid.) In contrast to
the originally-enacted “ ‘driving under the influence’ ” charge
under section 23152(a), no proof of the defendant’s subjective
state of intoxication is necessary to convict a defendant under
section 23152(b). (Id. at p. 263.) Instead, a conviction under
section 21352(b) requires only proof that the defendant drove
with a BAC above the statutory limit. (§ 23152, subd. (b);
Hamilton v. Gourley (2002) 103 Cal.App.4th 351, 360–361, 363
(Hamilton) [relying on Burg to hold that section 23152(b) “is not
synonymous with, and in fact requires a lesser quantum of proof
than driving under the influence of alcohol”].) Section 23152(b)
thus “represent[ed] a legislative determination that public safety
is endangered when a person drives a motor vehicle while having
a specified percentage . . . or more by weight of alcohol in his
4Section 23152(b) has since been amended to lower the
BAC required for a conviction to 0.08. (Stats. 1990, ch. 708, § 1,
eff. Jan. 1, 1991; see McKinney v. Department of Motor Vehicles
(1992) 5 Cal.App.4th 519, 526, fn. 6.)
7
blood,” regardless of whether the driver was “in fact under the
influence.” (Burg, supra, 35 Cal.3d at pp. 264, 265.)
Citing Wallace v. Municipal Court (1983) 140 Cal.App.3d
100, 108 (Wallace), Burg explained that section 23152(b)
“establishe[d] a new and separate offense.” (Burg, supra,
35 Cal.3d at p. 265, italics added.) In Wallace, the question was
whether section 23152(a) and section 23152(b) were different
offenses for purposes of Penal Code section 853.6, subdivision
(e)(3), which bars prosecution of a misdemeanor charged in a
notice to appear if the prosecution fails to file the notice to appear
or formal complaint within 25 days of arrest. (Wallace, at p. 104.)
The court held the two subdivisions are not the same offense,
explaining that section 23152(b) has a distinct “essence” from
section 23152(a) because “a driver with a blood-alcohol level of
0.10 percent or more commits an offense under [23152(b)], even
though he may have the ability to drive his vehicle with the
caution characteristic of a sober person.” (Wallace, at p. 109.)
Following Burg, Subramani and Duarte held that
subdivisions (a) and (b) of section 23153 describe separate
offenses.5 Both courts recognized that the criminal act of driving
5 As previously noted, section 23153 is the felony
counterpart to section 23152. (Subramani, supra,
173 Cal.App.3d at p. 1111.) Section 23153 provides, in relevant
part, “(a) It is unlawful for a person, while under the influence of
any alcoholic beverage, to drive a vehicle and concurrently do any
act forbidden by law, or neglect any duty imposed by law in
driving the vehicle, which act or neglect proximately causes
bodily injury to any person other than the driver. [¶] (b) It is
unlawful for a person, while having 0.08 percent or more, by
weight, of alcohol in his or her blood to drive a vehicle and
8
with a blood alcohol level of 0.10 percent or greater is not an
alternative definition of “driving under the influence[,]” and that
neither subdivision of section 23153 is a lesser included offense of
the other. (Subramani, supra, 173 Cal.App.3d at p. 1111; Duarte,
supra, 161 Cal.App.3d at p. 446.) Dual convictions, the courts
held, are therefore “both possible and proper.” (Duarte, at p. 446;
see Subramani, at p. 1111.)
II. Recent Supreme Court Authority on Section 954
A. People v. Gonzalez
In Gonzalez, our Supreme Court considered whether oral
copulation of an unconscious person (Pen. Code, § 288a, subd. (f))6
and oral copulation of an intoxicated person (id., subd. (i))
describe two statements of the same offense or two separate
offenses for purposes of Penal Code section 954. (Gonzalez,
supra, 60 Cal.4th at p. 535.) Relying on the text of the statute,
the Court held that the two subdivisions constitute separate
offenses. (Id. at p. 539.) The Court first noted that the
subdivisions “differ in their necessary elements–an act of oral
copulation may be committed with a person who is unconscious
but not intoxicated, and also with a person who is intoxicated but
not unconscious–and neither offense is included within the
other.” (Ibid.) The Court further reasoned that the subdivisions
concurrently do any act forbidden by law, or neglect any duty
imposed by law in driving the vehicle, which act or neglect
proximately causes bodily injury to any person other than the
driver.”
6Penal Code section 288a has since been renumbered to
section 287. (Stats. 2018, ch. 423, § 49, eff. Jan. 1, 2019.)
9
describe separate offenses because each subdivision sets forth
distinct elements and prescribes specific punishments,
explaining: “That each subdivision of section 288a was drafted to
be self-contained supports the view that each describes an
independent offense.” (Ibid.)
B. People v. Vidana
Subsequently, in Vidana, our Supreme Court held that
larceny under Penal Code section 484, subdivision(a) and
embezzlement under Penal Code section 503 describe a single
theft offense such that Vidana could not be convicted of both
under Penal Code section 954. (Vidana, supra, 1 Cal.5th at
pp. 647–648.) The Court explained that although “[l]arceny and
embezzlement have different elements and neither is a lesser
included offense of the other,” these factors “do not definitely
resolve whether larceny and embezzlement are a single offense.”
(Id. at p. 648.) In reaching its decision, the Court relied heavily
on the historical context and legislative history of relevant
statutory amendments, emphasizing that the Legislature had
sought to eliminate the “ ‘arbitrary distinctions’ ” between
larceny, embezzlement, and obtaining property under false
pretenses that made it difficult to determine which crime a
defendant had committed. (Id. at pp. 639, 648–649.) The Court
explained: “California reduced its problems with pleading and
proving” these crimes through “ ‘consolidat[ing] . . . larceny,
embezzlement and obtaining property under false pretenses, into
one crime, designated as theft.’ ” (Id. at p. 648.) In addition to
this clear expression of legislative intent to consolidate the
10
various statutes into a single theft offense, the Court reasoned
that larceny and embezzlement were alternative theories of
liability for the same offense because a jury could convict a
defendant of theft without unanimously agreeing on the method
(larceny, embezzlement, or obtaining property under false
pretenses) by which the theft was committed. (Id. at p. 643.)
Finally, the Court observed that the identical punishments for
larceny and embezzlement suggested that the two statutes are
different statements of the same offense. (Id. at p. 648.)
C. People v. White
In White, our Supreme Court followed the reasoning of
Gonzalez to hold that rape of an intoxicated person (Pen. Code,
§ 261, subd. (a)(3)) and rape of an unconscious person (id.,
subd. (a)(4)(A)) are separate offenses for purposes of Penal Code
section 954. (White, supra, 2 Cal.5th at p. 353.) The Court
recognized that, in contrast to the self-contained subdivisions of
Penal Code section 288a at issue in Gonzalez, the relevant
subdivisions in Penal Code section 261 are not self-contained, in
that subdivision (a) of section 261 “defines and uses the word
‘[r]ape’ but once,” with the subsequent subdivisions “not
repeat[ing] the word ‘rape’ ” and instead “refer[ring] back to that
original definition.” (Id. at p. 357.) Despite the fact that the rape
statute, unlike the oral copulation statute, is not self-contained,
the Court held that rape of an intoxicated person and rape of an
unconscious person constitute separate offenses in light of
legislative history indicating that major sex crimes should be
interpreted similarly to each other. (Id. at pp. 357, 359 [noting
11
that a 1986 bill “conform[ed] the criteria used to determine the
commission of each of the four major sex offenses: rape, sodomy,
oral copulation, and foreign object rape; thus, the elements of
these crimes . . . would be consistent”].) The Court found that
“[t]he intent to achieve conformity” among the major sex offenses
“strongly indicates a legislative intent that rape be treated
similarly to the other sex crimes” for purposes of Penal Code
section 954. (Id. at p. 359.) The Court saw “no suggestion that
the Legislature intended, and no reason it might have intended, a
different rule” for rape than for oral copulation. (Id. at p. 357.)
Additionally, “[w]hat [was] said in Gonzalez [citation] about
the elements of the two forms of oral copulation being different
applies equally to the two forms of rape. An act of rape ‘may be
committed with a person who is unconscious but not intoxicated,
and also with a person who is intoxicated but not unconscious[;]
neither offense is included within the other.’ ” (White, supra,
2 Cal.5th at p. 358.) Different sentencing consequences for some,
but not all, forms of rape also supported the view that
subdivisions (a)(3) and (a)(4)(A) of Penal Code section 261 are
separate offenses. (White, at p. 358.)
III. Section 23152(a) and Section 23152(b) Are Not the
Same Offense
Defendant asks us to reject Subramani and Duarte in light
of Gonzalez, Vidana, and White. We decline to do so.
A. Statutory Text and Structure
Defendant first argues that, unlike in Gonzalez where the
court held that self-contained subdivisions prohibiting oral
12
copulation of an intoxicated person and oral copulation of an
unconscious person describe separate offenses, subdivisions (a)
and (b) of section 23152 describe a single offense because they are
not self-contained. (Gonzalez, supra, 60 Cal.4th at p. 539.)
Although whether provisions are self-contained is a relevant
consideration, it is certainly not a dispositive one. (Compare
Ibid. [offenses at issue are self-contained and describe separate
offenses] with White, supra, 2 Cal.5th at p. 357 [subdivisions of
the rape statute were not self-contained but were nonetheless
held to be separate offenses].)
Defendant seeks to distinguish this case from White by
pointing out that the legislative history at issue in White
suggested that the major sex crimes of oral copulation and rape
were to be interpreted consistently (White, supra, 2 Cal.5th at
p. 357) whereas there is no legislative history suggesting that
section 23152 should be interpreted consistently with like
provisions in the Vehicle Code that have been found to constitute
separate offenses. But defendant fails to account for the
statutory structure and related portions of the Vehicle Code
demonstrating a clear legislative intent to treat subdivisions (a)
and (b) of section 23152 as separate offenses. Section 23152(a)
makes it a crime to drive under the influence of alcohol—that is,
to drive while impaired. Section 23152(b), on the other hand,
makes it a crime to drive with a BAC of more than 0.08. A crime
under section 23152(b) can be committed without violating
section 23152(a). (Hamilton, supra, 103 Cal.App.4th at p. 363.)
Further, for crimes charged under section 23152(a), section 23610
13
also provides that a BAC of 0.08 or greater creates a rebuttable
presumption that a defendant is under the influence of alcohol.
(People v. McNeal (2009) 46 Cal.4th 1183, 1197 (McNeal).) In
arguing that a violation of section 23152(b) necessarily
establishes a violation of section 23152(a), defendant would
effectively have us “convert[] a rebuttable presumption into a
conclusive one” (Hamilton, at p. 363), in violation of the plain
language of section 23610. Thus, the statutory text and statutory
framework as a whole demonstrate the Legislature’s intent to
create two separate offenses with subdivisions (a) and (b) of
section 23152.
Moreover, even if the statutory text “is not, by itself, [] an
unambiguous expression of the Legislature’s intent,” we may
“resort to additional material in ascertaining that intent.”
(People v. Brunton (2018) 23 Cal.App.5th 1097, 1107; Gonzalez,
supra, 60 Cal.4th at p. 538 [we may consider legislative history
when “the statutory language is susceptible of more than one
reasonable construction”].) The legislative history leading to the
enactment of section 23152(b) indicates a recognition that
improvement in adjudicating drunk driving offenses “may require
an effective ‘per se’ law which will expedite the handling of court
case loads.” (Governor’s Task Force on Alcohol, Drugs, and
Traffic Safety, Com. Report on Assem. Bill No. 541 (1981–1982
Reg. Sess.) Mar. 24, 1981, p.1.) As noted by our Supreme Court,
the Legislature enacted section 23152(b) in 1981 to address the
“difficulties” entailed by the fact that charges of driving under the
influence permitted a defendant to escape conviction by raising a
14
doubt as to his intoxication “ ‘no matter what his blood-alcohol
level.’ ” (McNeal, supra, 46 Cal.4th at p. 1193; see Burg, supra,
35 Cal.3d at p. 263 [Legislature adopted section 23152(b) to
address the problem of defendants escaping criminal liability for
drunk driving by raising reasonable doubts as to whether they
were driving while actually impaired].) This history thus
demonstrates the legislative intent to “create a new crime,” in
addition to and independent of the crime of driving under the
influence set forth in section 23152 (a). (McNeal, at p. 1193.)
Defendant further contends that section 23152(a) and
section 23152(b) describe the same offense because the same
punishment applies to both subdivisions. (§§ 23536, 23540,
23546.) While true, this fact does not establish that the two
subdivisions describe a single offense. In Gonzalez, for example,
both oral copulation of an unconscious person under Penal Code
section 288a, subdivision (f) and oral copulation of an intoxicated
person under Penal Code section 288a, subdivision (i) prescribed
the same sentence of three, six, or eight years, but the two
subdivisions were nonetheless found to constitute separate
offenses. (Gonzalez, supra, 60 Cal.4th at p. 538.)
In fact, the differing consequences of violations of various
subdivisions of section 23152 suggest that section 23152(a) and
23152(b) describe different crimes. In White, for example, rape of
an intoxicated person under Penal Code section 261, subdivision
(a)(3) and rape of an unconscious person under Penal Code
section 261, subdivision (a)(4)(A) prescribed the same sentence of
three, six, or eight years. (Pen. Code, § 264.) However, White
15
observed that certain sentencing enhancements applied only to
some forms of rape under Penal Code section 261, subdivision (a).
(White, supra, 2 Cal.5th at p. 358 [noting that the enhancement
under Penal Code section 667.5 applies only to paragraphs (2)
and (6) of Penal Code section 261, subdivision (a)].) These
different sentencing consequences suggested that Penal Code
section 261, subdivisions (a)(3) and (a)(4)(A) described separate
offenses. (White, at p. 358.) Although all subdivisions of section
23152 carry the same punishment under sections 23536, 23540,
and 23546, the Vehicle Code establishes that commercial driving
restrictions consequent to violations of section 23152 apply to
convictions under subdivisions (a)–(d), but not subdivisions (e)–
(g). (§§ 15300, 15302.) Similar to White, the Legislature’s
provision of differing consequences for “some, but not all”
subdivisions of section 23152 suggests that the different
subdivisions describe separate offenses. (White, at p. 358.)
B. Expert testimony
Relying on expert testimony at his trial, defendant next
asserts that section 23152(a) and section 23152(b) describe a
single offense because an individual who violates section 23152(b)
necessarily violates section 23152(a). This argument misses the
mark.
While a conviction under section 23152(a) “requires proof
that the defendant’s ability to drive safely was impaired because
he had consumed alcohol,” a conviction under section 23152(b)
requires only evidence that a defendant drove with a BAC above
the statutory limit. (McNeal, supra, 46 Cal.4th at p. 1188; Burg,
16
supra, 35 Cal.3d at p. 265 [“Although under [section 23152(b)], it
is no longer necessary to prove that the defendant was in fact,
under the influence, the People must still prove beyond a
reasonable doubt that at the time he was driving his blood
alcohol exceeded 0.10 percent”].) As a result, a conviction under
section 23152(b) “is not synonymous with, and in fact requires a
lesser quantum of proof than driving under the influence of
alcohol.” (Hamilton, supra, 103 Cal.App.4th at p. 363.)
Illustrative of this point is People v. Bransford (1994) 8 Cal.4th
885, 895, where a jury convicted one of the defendants of
violating subdivision (b) but not subdivision (a) of section 23152.
Furthermore, defendant misconstrues the expert testimony
in this case as expressing a purportedly new understanding that
a 0.08 BAC is always equivalent to being “under the influence.”
An accurate review of the transcript reveals that the expert here
merely described the “generally accepted” science relating to
when a person “may be too impaired to operate a motor vehicle
safely” and offered her personal opinion that a person is too
impaired to drive with a BAC of 0.08 or higher. In any event,
more than 35 years ago, Burg recognized the available science
indicating that “any driver with 0.10 percent blood alcohol is a
threat to the safety of the public and to himself,” but nonetheless
stated that section 23152(b) created a “new and separate offense.”
(Burg, supra, 35 Cal.3d at pp. 265, 267.)7
7Indeed, the facts of this case suggest that a defendant
may violate section 23152, subdivision (b) without violating
subdivision (a). Officer Herve initiated a traffic stop because of
defendant’s cellphone use and expired registration, not because
17
C. Legislative Purpose
Finally, defendant asserts that the Legislature’s single
purpose of “banish[ing] intoxicated drivers from our highways”
(Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367,
374) indicates that section 23152(a) and section 23152(b) describe
a single offense. He reasons that because the Legislature enacted
section 23152(b) to “ma[k]e it more difficult to avoid a criminal
conviction for the offense of driving under the influence” (ibid.),
we should follow Vidana, where the Court found that larceny and
embezzlement constitute a single offense because the Legislature
consolidated the crimes for the similar purpose of preventing
defendants from escaping “ ‘just conviction solely because of the
border line distinction existing between these various crimes.’ ”
(Vidana, supra, 1 Cal.5th at p. 642.)
Defendant fails to recognize that the Legislature
effectuated this similar purpose in opposite ways. As explained
in Vidana, the Legislature expressly stated its intent in
legislative history to combine the pre-existing offenses of larceny
and embezzlement into one crime of theft, whereas it added
section 23152(b) to the drunk driving scheme. (Burg, supra,
35 Cal.3d at p. 264; see Vidana, supra, 1 Cal.5th at p. 648.) And
unlike larceny and embezzlement, subdivisions (a) and (b) of
section 23152 are not alternative theories of liability. Rather,
section 23152(b) is a “new and separate offense” that has
he suspected defendant of driving while intoxicated. Although it
turned out that defendant’s BAC was above the statutory limit,
Officer Herve had noticed no signs of impaired driving while
following defendant.
18
different elements and that requires different (and lesser)
evidence to sustain a conviction than section 23152(a). (See
Vidana, supra, 1 Cal.5th at p. 644; Burg, supra, 35 Cal.3d at
pp. 265–266; Hamilton, supra, 103 Cal.App.4th at p. 363.)8
DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
People v. Grabham (A160384)
8Notwithstanding our conclusion that Penal Code section
954 permits Grabham to be convicted of violating both
subdivisions of section 23152, Penal Code section 654 prohibits
his being punished for both offenses. (People v. Jones (2012)
54 Cal.4th 350, 360 [section 654 prohibits multiple punishment
where two convictions were based on single act].) Grabham does
not argue that his sentence violates Penal Code section 654.
19
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Robert LaForge
Counsel:
Michael Allen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Carlos A. Martinez, Chung Mi Choi, Deputy
Attorneys General for Plaintiff and Respondent.
20