People v. Marinovich CA5

Filed 5/24/22 P. v. Marinovich CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F082552
Plaintiff and Respondent,
(Super. Ct. No. CRF64924)
v.
AUGUSTUS MATTHEW MARINOVICH, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Tuolumne County. Kevin M.
Seibert, Judge.
Randall Conner, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Cavan
M. Cox II, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Peña, Acting P. J., Smith, J. and Snauffer, J.
Defendant Augustus Matthew Marinovich contends on appeal that his sentences
on counts 3 and 4 should be stayed pursuant to Penal Code section 654.1 The People
agree. We stay defendant’s sentences on counts 3 and 4, and affirm in all other respects.
PROCEDURAL SUMMARY
On November 2, 2020, the Tuolumne County District Attorney filed a complaint
charging defendant with gross vehicular manslaughter (§ 191.5, subd. (a), count 1);
driving under the influence of an alcoholic beverage causing injury (Veh. Code, § 23153,
subd. (a), count 2); driving with 0.08 percent blood-alcohol content causing injury (Veh.
Code, § 23153, subd. (b), count 3); and driving under the influence of alcohol and drugs
causing injury (Veh. Code, § 23153, subd. (g), count 4). The complaint further alleged as
to counts 2 through 4 that defendant personally inflicted great bodily injury (§ 12022.7,
subd. (a)) on three people and personally inflicted great bodily injury on a fourth person,
causing him to become comatose due to a brain injury and suffer paralysis (§ 12022.7,
subd. (b)).
On January 22, 2021, defendant pled guilty to all of the charges and admitted all
of the special allegations. The plea was “open” and there was no agreement as to
sentencing.
On March 5, 2021, the trial court sentenced defendant to an aggregate prison term
of 11 years four months, calculated as follows: six years on count 1 (the midterm);
eight months on count 2 (one-third of the midterm of two years) to be served
consecutively to the term in count 1, plus one year for the section 12022.7,
subdivision (a) enhancement (one-third of the three-year enhancement) and 20 months
for the section 12022.7, subdivision (b) enhancement (one-third of the five-year
enhancement); two years on count 3 to be served concurrently to the term in count 1, plus
one year for the section 12022.7, subdivision (a) enhancement (one-third of the three-year
1 All statutory references are to the Penal Code unless otherwise noted.
2.
enhancement); and two years on count 4, also to be served concurrently, plus one year for
the section 12022.7, subdivision (a) enhancement (one-third of the three-year
enhancement).
On March 19, 2021, defendant filed a notice of appeal.
FACTUAL SUMMARY
On October 26, 2020, defendant drove while under the influence of marijuana,
benzodiazepines, and alcohol, with a blood-alcohol content of 0.14 percent. While he
was driving, he crossed a double yellow line and collided with a vehicle driven by
Melissa P., killing her and seriously injuring her four minor children, Audrey S., Nathan
S., Austin S., and Jordan S. Jordan was left temporarily in a coma as a result of the crash.
He survived, but was left blind in one eye, deaf in one ear, and will require many more
surgeries in the future.
DISCUSSION
Defendant contends his sentence on counts 3 and 4 should be stayed pursuant to
section 654, because his convictions for counts 2 through 4 resulted from the same
underlying act. The People agree, as do we.
Here, defendant committed one act—driving while under the influence of drugs
and alcohol, which killed one victim, and seriously injured four others. Consequently,
defendant was convicted of four separate crimes: gross vehicular manslaughter (§ 191.5),
driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)),
driving with a blood-alcohol content greater than 0.08 percent causing injury (Veh. Code,
§ 23153, subd. (b)) and driving under the combined influence of alcohol and a drug
causing injury (Veh. Code, § 23153, subd. (g)). Defense counsel noted to the trial court
during sentencing, “I believe in Count 3 and in Count 4 are by operation of
[section] 654.” When the trial court sentenced defendant to the two-year midterm for
count 3 and the two-year midterm for count 4, to be served concurrently to the sentences
in counts 1 and 2, it stated, “That’s because of … Section 654.”
3.
Section 654 provides:
“[a]n act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in
no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars a
prosecution for the same act or omission under any other.” (§ 654,
subd. (a).)
Section 654 limits punishment for multiple offenses where the “act or omission”
or course of conduct is indivisible in time and pursued according to a single objective or
intent. (People v. Beamon (1973) 8 Cal.3d 625, 639.) A single act can be punished more
than once, however, if it impacts multiple victims. (Ibid.) The “multiple victims”
exception to section 654 applies only to crimes of violence. Section 191.5 is a crime of
violence. (See People v. McFarland (1989) 47 Cal.3d 798, 804.) Vehicle Code
section 23153 is not a crime of violence. (Wilkoff v. Superior Court (1985) 38 Cal.3d
345, 352.) Section 654 permits separate punishments when a single act of driving under
the influence kills one person and injures another. (McFarland, at p. 804.)
When the facts of the case are undisputed, as they are here, the application of
section 654 raises a question of law, which is reviewed de novo. (People v. Corpening
(2016) 2 Cal.5th 307, 312.)
As defendant’s conviction in count 1 for gross vehicular manslaughter (§ 191.5) is
considered a crime of violence but his conviction in count 2 for driving under the
influence causing injury (Veh. Code, § 23153) is not, section 654 permits separate
punishment despite both stemming from his single act of driving under the influence of
alcohol and drugs.
However, as section 654’s “multiple victims” exception does not apply to Vehicle
Code section 23153 because it is not a crime of violence, defendant’s single act of driving
under the influence of drugs and alcohol can support only one punishment under that
section, regardless of how many people are injured. Defendant was convicted and
sentenced on three counts of driving under the influence causing injury. Accordingly,
pursuant to section 654, two of those counts must be stayed. Defendant was properly
4.
convicted of four crimes but his sentences on counts 3 and 4 must be stayed pursuant to
section 654.
DISPOSITION
The sentences on counts 3 and 4 are stayed. The trial court is directed to prepare
an amended abstract of judgment and forward copies to the appropriate entities. In all
other respects, the judgment is affirmed.
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