Filed 4/28/15
                           CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                     DIVISION ONE

                               STATE OF CALIFORNIA



THE PEOPLE,                                       D065478

        Plaintiff and Respondent,

        v.                                        (Super. Ct. No. SCD175729)

MONICA RUSCONI,

        Defendant and Appellant.



        APPEAL from an order of the Superior Court of San Diego County, David J.

Danielsen, Judge. Affirmed.



        Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Seth Friedman and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.

        Recently, our Supreme Court held that where a defendant has suffered two prior

convictions growing out of a single act, involving a single victim, only one of the

convictions may be treated as a strike within the meaning of the three strikes law (Pen.
Code, §§ 667, subds. (b)-(i), 1170.12). (People v. Vargas (2014) 59 Cal.4th 635, 646-

649 (Vargas).) Contrary to defendant and appellant Monica Rusconi's argument on

appeal here, Vargas does not require any relief from the 25-year-to-life sentence she is

now serving following her conviction of a third strike: felony driving while intoxicated

after having been previously convicted of vehicular manslaughter while under the

influence of alcohol. (Veh. Code, former § 23550.5, subd. (b).)

       Although arguably Vargas represents a change in the law which might permit us

to revisit three strikes sentences that are otherwise final, because the two strikes Rusconi

challenges at this point grow out of an incident in which she killed two bicyclists and was

convicted of two counts of manslaughter, the holding in Vargas has no application here.

For decades, our courts have consistently determined that where multiple victims have

been injured by a single violent act, a defendant may be punished separately for each

victim of his or her violence. This principle has been so well accepted for such a lengthy

period of time that we have no doubt that when the Legislature and then the People

enacted our three strikes law in 1994, they were aware of it and fully expected it would

be applied in three strikes cases.

                       FACTUAL AND PROCEDURAL BACKGROUND

       A. Manslaughter Convictions

       On April 11, 1986, Rusconi pled guilty to two counts of vehicular manslaughter

(Pen. Code, former § 192, subd. (c)(3))1 and one count of felony hit and run. Her plea

was subject to People v. West (1970) 3 Cal.3d 595 and included a Harvey waiver (People



1      All further statutory references are to the Penal Code, unless otherwise indicated.
                                              2
v. Harvey (1979) 25 Cal.3d 754). The manslaughter convictions grew out of an incident

in which, while driving under the influence of alcohol, Rusconi drove her car onto the

shoulder of a narrow road and hit two bicyclists, both of whom died. After she hit the

victims, Rusconi walked away from the scene of the accident.

           Following her guilty plea, Rusconi was sentenced to a total of 10 years in prison:

she received the upper term of eight years on one manslaughter count, half the midterm

or two years on the second count of manslaughter, and sentencing on the felony hit and

run was stayed.2

           B. Postrelease Convictions

                  1. 1997 Conviction

           In 1997, following her release from prison, Rusconi was convicted of driving

under the influence, driving with a blood alcohol level in excess of 0.08 percent, driving

on a suspended license, and driving with an open container of alcohol in her vehicle.

(Veh. Code, §§ 14601.2, subd. (a), 23152, subds. (a) & (b), 23225.) These convictions

grew out of a high-speed incident in which, while driving intoxicated, she nearly hit

another vehicle and collided head on into a light post. She was sentenced to six months

in jail.

                  2. 2005 Conviction

           In 2005, Rusconi was convicted of two counts of driving under the influence of

alcohol and two counts of driving with a blood alcohol level in excess of 0.08 percent.

(Veh. Code, § 23152, subds. (a) & (b).) With respect to each conviction, it was also


2     We have taken judicial notice of Rusconi's change of plea, minutes reflecting the
change of plea, and the abstract of judgment entered in the 1986 case.
                                                3
found true that Rusconi had suffered a prior manslaughter conviction under Penal Code

former section 192 subdivision (c)(3) and that each conviction was therefore a felony.

(See Veh. Code, former § 23550.5, subd. (b).) These convictions grew out of an incident

in which Rusconi was intoxicated and rear-ended a car that had stopped in front of her;

she initially left the scene of the accident when she got into an argument with the driver

of the car she hit.

       In the 2005 case, Rusconi moved under People v. Superior Court (Romero) (1996)

13 Cal.4th 497, 529-530 (Romero) to strike one of her prior manslaughter convictions as

a strike and her motion was denied. In light of the two prior manslaughter strikes,

Rusconi was sentenced to concurrent 25-year-to-life sentences on two counts; sentencing

on the other two counts was stayed. Rusconi appealed from the 2005 conviction and

argued, among other matters, that the trial court had abused its discretion in denying her

Romero motion. We rejected her contentions and affirmed her conviction.

       C. These Proceedings

       In May 2013, Rusconi filed a petition under Proposition 36 (§ 1170.126) in which

she sought relief from her 25-year-to-life sentence. In light of the fact that two of her

prior convictions were for manslaughter, the trial court found that Rusconi was ineligible

for relief under the terms of the statute. Rusconi filed a timely notice of appeal.

                                   ISSUES ON APPEAL

       Rusconi concedes that her prior conviction for manslaughter precludes relief under

Proposition 36. (See § 1170.126, subd. (e)(3).) Nonetheless, she asserts that in light of

Vargas, her 2005 sentence was unauthorized and that, as such, she may challenge it at

anytime. She asks that, if she is precluded from raising this question on appeal from the

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order denying her relief under Proposition 36, we treat her appeal as a petition for habeas

corpus and remand the case to the trial court with instructions that she be sentenced in a

manner consistent with her interpretation of Vargas.

       As we explain, Vargas provides no basis for relief from the 25-year-to-life

sentence imposed in 2005. Accordingly, we affirm the trial court's order denying her

relief under Proposition 36 and decline her request to treat her appeal as a petition for a

writ of habeas corpus.

                                              I

       In 1999, the defendant in Vargas was charged with and convicted of carjacking

and robbery growing out of a single act in which she took the victim's car by force. Some

years later, she was convicted of first degree burglary (§ 459), grand theft (§ 487, subd.

(a)), and conspiracy to commit grand theft (§ 182, subd. (a)(1)); with respect to each of

the later felony charges, it was alleged that her 1999 carjacking and robbery convictions

were separate strikes within the meaning of the three strikes law. The defendant moved

to have her carjacking conviction stricken, and her motion was denied. The Supreme

Court reversed and held that, in the unusual circumstance presented when a defendant's

single act committed against a single victim gives rise to multiple felony convictions,

only one of those convictions may be treated as a strike in later criminal proceedings.

       In reaching this conclusion, the court noted that in People v. Fuhrman (1997) 16

Cal.4th 930 and People v. Benson (1998) 18 Cal.4th 24 (Benson), it had previously held

that multiple crimes may constitute multiple strikes when crimes are tried together

(Fuhrman) or even when, because the multiple crimes occur during a single course of

conduct, punishment of only one crime is imposed and punishment is stayed under

                                              5
section 654 with respect to the other crimes (Benson). (Vargas, supra, 59 Cal.4th at pp.

638-639.)

       In particular, in distinguishing Benson, where the defendant unlawfully entered the

victim's apartment and then stabbed her 20 times and was convicted of residential

burglary and assault with the intent to commit murder, the court in Vargas stated:

"[B]ecause the Three Strikes law states specifically that a 'stay of execution of sentence'

does not disqualify a conviction from being a strike, a stay under section 654 did not

affect whether a felony conviction qualified under the Three Strikes law. (Benson, supra,

18 Cal.4th at pp. 28–31.) Thus, 'the language of section 1170.12, subdivision (b)(1),

unequivocally establishes that the electorate intended to qualify as separate strikes each

prior conviction that a defendant incurred relating to the commission of a serious or

violent felony, notwithstanding the circumstance that the trial court, in the earlier

proceeding, may have stayed sentence on one or more of the serious or violent felonies

under compulsion of the provisions of section 654.' (Benson, supra, at p. 31.)" (Vargas,

supra, 59 Cal.4th at p. 642.)

       However, in Vargas, the court went on to rely heavily on language in Benson,

which suggested that in cases involving a single act giving rise to multiple convictions,

only one strike occurs: "Benson also rejected the defendant's argument that permitting a

conviction for which punishment was stayed to qualify as a strike would lead to

'"dramatic and harsh results"' (Benson, supra, 18 Cal.4th at p. 35), explaining that '[i]n the

absence of any constitutional infirmity, . . . we are not at liberty to alter the intended

effect of a statute on such grounds.' (Id. at p. 36.) But as if presaging the current case,

Benson continued: 'It is worth noting . . . that our decision in Romero, supra, 13 Cal.4th

                                               6
497, affirms that a trial court retains discretion in such cases to strike one or more prior

felony convictions under section 1385 if the trial court properly concludes that the

interests of justice support such action.' (Ibid.) The court expounded on this point in an

accompanying footnote, adding: 'Because the proper exercise of a trial court's discretion

under section 1385 necessarily relates to the circumstances of a particular defendant's

current and past criminal conduct, we need not and do not determine whether there are

some circumstances in which two prior felony convictions are so closely connected—for

example, when multiple convictions arise out of a single act by the defendant as

distinguished from multiple acts committed in an indivisible course of conduct—that a

trial court would abuse its discretion under section 1385 if it failed to strike one of the

priors.' (Benson, supra, at p. 36, fn. 8, italics added.) [¶] Thus, although Benson

concerned only whether a conviction for which punishment was stayed qualified as a

strike under the Three Strikes law, the opinion nonetheless suggests that a trial court

should dismiss one of two prior strike convictions if they were based on the same act."

(Vargas, supra, 59 Cal.4th at pp. 642-643, italics omitted.)3

       In rejecting the Attorney General's contention that a defendant whose single prior

act gave rise to two crimes poses a greater risk to the public and hence is later subject to

the maximum sentence imposed by the three strikes law, the court stated: "We would

agree had the offender committed more than one act, whether separately or during a

continuous course of conduct, as in Benson, supra, 18 Cal.4th 24. As we stated in

Benson, 'the electorate and the Legislature rationally could—and did—conclude that a


3      In Vargas, the court also relied on similar language in People v. Sanchez (2001) 24
Cal.4th 983, 993.)
                                               7
person who committed additional violence in the course of a prior serious felony (e.g.,

shooting or pistol-whipping a victim during a robbery, or assaulting a victim during a

burglary) should be treated more harshly than an individual who committed the same

initial felony, but whose criminal conduct did not include such additional violence.' (Id.

at p. 35.) But where, as here, an offender committed but a single act, we disagree she

poses a greater risk to society merely because the Legislature has chosen to criminalize

the act in different ways. The Legislature is free to criminalize an act in multiple ways,

but that it has done so does not of itself make an offender more blameworthy, or more

dangerous, within the meaning of the Three Strikes law." (Vargas, supra, 59 Cal.4th at

pp. 646-647, fn. omitted.)

       Because the defendant's prior convictions were based on a single act, the court

concluded that treating her then current offense as a third strike was inconsistent with the

intention and spirit of the three strikes law. (Vargas, supra, 59 Cal.4th at p. 647.)

                                              II

       As the Attorney General notes, although the language in the Supreme Court's

opinion in Vargas refers to a single act giving rise to multiple criminal convictions, and

in that sense arguably applies here, where a single act of driving under the influence gave

rise to multiple offenses, the court in Vargas was not required to consider and did not

purport to consider treatment of a single act giving rise not only to multiple offenses but

also involving multiple victims of violence.4 It is of course axiomatic that a case is not



4      We note that both Benson and People v. Sanchez, supra, 24 Cal.4th 983, which the
court relied on in Vargas, like Vargas, also involved multiple offenses committed against
a single victim.
                                              8
precedent for an issue which the court did not consider. (See Ginns v. Savage (1964) 61

Cal.2d 520, 524, fn. 2 [opinions must be understood in light of the facts and issues before

the appellate court; they are not authority for a proposition not considered or analyzed by

the court]; see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 509, p. 572 [what

constitutes a rule of decision].)

       The absence of any discussion in Vargas of multiple victims of violence is more

than an abstract or esoteric distinction. Over the last 50 years, our Supreme Court has

repeatedly and in varying sentencing contexts restated the principle that an offender who

injures more than one victim in a single act of violence is more culpable than the offender

who only injures a single victim and may be punished separately with respect to each

victim: "'The purpose of the protection against multiple punishment is to insure that the

defendant's punishment will be commensurate with his criminal liability. A defendant

who commits an act of violence with the intent to harm more than one person or by a

means likely to cause harm to several persons is more culpable than a defendant who

harms only one person. For example, a defendant who chooses a means of murder that

places a planeload of passengers in danger, or results in injury to many persons, is

properly subject to greater punishment than a defendant who chooses a means that harms

only a single person. This distinction between an act of violence against the person that

violates more than one statute and such an act that harms more than one person is well

settled. Section 654 is not ". . . applicable where . . . one act has two results each of

which is an act of violence against the person of a separate individual." [Citations.]'

[Citation.]" (People v. Oates (2004) 32 Cal.4th 1048, 1063, quoting Neal v. State of

California (1960) 55 Cal.2d 11, 20–21.)

                                              9
       Thus, the distinction between the culpability of criminals who injure one victim

and the far greater culpability of criminals who injure more than one victim, and the

latter's subjection to multiple punishments, was well settled long before adoption of the

three strikes law in 1994. (See Neal v. State of California, supra, 55 Cal.2d at pp. 20-21.)

It is not reasonable to believe the authors of the three strikes law nonetheless intended

that, under the new law, violent offenders who injure multiple victims should be treated

like offenders who only injure one individual. Such a dramatic and lenient departure

from the severe punishment the law had already recognized the perpetrators of multi-

victim violence deserve would be at direct odds with the overall purpose of the three

strikes law. As the court in Vargas, supra, 59 Cal.4th at page 647 recognized: "In

requiring severe punishment the Three Strikes law responded to a belief that prior law

contained too many loopholes favoring criminals, and that judges exercised too much

discretion in reducing an offender's overall punishment. When these loopholes and

discretion were added together, the perception was that serious and violent criminals who

committed multiple crimes were allowed to escape their just desserts. (Ballot Pamp.,

supra, rebuttal to argument against Prop. 184, p. 37 ['soft-on-crime judges, politicians,

defense lawyers and probation officers care more about violent felons than they do

victims. They spend all of their time looking for loopholes to get rapists, child molesters

and murderers out on probation, early parole, or off the hook altogether.'].)"

       In sum then, the holding in Vargas does not extend to offenders such as Rusconi

who have suffered multiple convictions growing out of a single act but who violently

injure more than one victim. Even if the holding in Vargas had the retroactive effect of

rendering as unauthorized a class of similar three strikes sentences—a question we need

                                             10
not and do not reach—it would not provide any basis for relief here.

                                     DISPOSITION

      The order denying Rusconi's petition for relief under section 1170.126 is affirmed.



                                                                       BENKE, Acting P. J.

WE CONCUR:


HUFFMAN, J.


O'ROURKE, J.




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