Filed 5/13/15 P. v. Tubo CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B251435

                         Plaintiff and Respondent,                   (Los Angeles County
                                                                      Super. Ct. No. MA054335)
                   v.

JON ERIC TUBO,

                         Defendant and Appellant.



         APPEAL from the judgment of the Superior Court of Los Angeles County.
Eric P. Harmon, Judge. Affirmed as modified.


         Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Gerald Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, James William Bilderback II and
Kathy S. Pomerantz, Deputy Attorneys General, for Plaintiff and Respondent.


                                                 **********
       This case arises from a high-speed, single-car rollover accident in the desert near
Lancaster. Defendant and appellant Jon Eric Tubo was driving the car, under the
influence of alcohol and on a suspended license due to a prior drunk driving conviction.
One of defendant’s passengers was killed, and the other passenger sustained severe
injuries, including a broken pelvis. Defendant was convicted by jury of one count of
second degree murder, one count of driving under the influence (DUI) causing injury,
one count of driving with a blood alcohol level in excess of 0.08 percent causing injury,
one count of driving with a suspended license, and two counts of leaving the scene of an
accident. He was sentenced to a term of 15 years to life for the murder count, plus an
aggregate determinate term of seven years on the remaining counts.
       Defendant makes the following arguments: (1) juror misconduct warrants the
granting of a new trial; (2) review of his two motions brought pursuant to Pitchess v.
Superior Court (1974) 11 Cal.3d 531 (Pitchess) is necessary to determine if any
discovery materials were withheld; (3) the one-year sentence enhancements pursuant to
Vehicle Code section 23558 on counts 3 and 4 must be vacated, or alternatively stayed;
(4) the conviction on count 7 must be vacated because leaving the scene of an accident
supports only one conviction irrespective of the number of victims; and (5) his
presentence custody credits should be modified to reflect 703 actual days.
       We agree defendant’s sentence must be modified in the following respects: the
conviction on count 7 must be vacated and the count dismissed, and the presentence
custody credits should reflect 703 actual days. Several transcription errors must also be
corrected in the abstract of judgment as discussed below. We otherwise affirm
defendant’s conviction as modified.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Ed Berlin, Jeremy Meier and defendant were all residents of the same mobile
home park in Lancaster, California. In the early evening of October 14, 2011, defendant
and Mr. Meier went over to Mr. Berlin’s home to help him prepare to move. Mr. Berlin
had a new car, a Firebird, and defendant asked to take it for a drive.



                                             2
       Mr. Berlin got into the front passenger seat and Mr. Meier got into the seat behind
him. Both of them put on their seatbelts. Defendant got into the driver’s seat. Almost
immediately, defendant “gunned it” and within a short period of time reached 110 miles
per hour. Mr. Berlin and Mr. Meier yelled at defendant to slow down. Near an
intersection controlled by a stop sign, at which defendant did not slow down or stop, the
car hit a bump in the road, went into a roll, and flipped over multiple times. The car
came to rest upside down, some distance from the road.
       Mr. Berlin was pinned in the front passenger seat and sustained fatal traumatic
injuries. Mr. Meier was knocked unconscious. When he came to, he was able to
unbuckle his seatbelt and drag himself out of the overturned vehicle. He was unable to
stand. It was later determined Mr. Meier had a broken pelvis, and a fractured skull,
among other serious injuries.
       Defendant was injured but was able to walk away from the vehicle. He told
Mr. Meier that Mr. Berlin was dead. Defendant told Mr. Meier he did not want to go to
jail for murder, so they were going to say that Mr. Berlin was driving. Mr. Meier pleaded
with defendant to drag him to the road to try to get help. Defendant dragged Mr. Meier a
short distance and then abandoned him. Mr. Meier dragged himself the remaining
distance and was eventually able to flag down a passing motorist. The motorist called
911 and paramedics arrived on the scene.
       Officer Timothy Shields of the California Highway Patrol also responded. It was
determined there had been a third occupant in the car. The perimeter of the accident site
was searched, including by helicopter. Based on information learned from Mr. Meier,
Officer Shields directed Officer Carl Savage to check defendant’s residence at the mobile
home park. Officer Savage found defendant at his home, along with several family
members and fire department personnel attempting to render medical aid to defendant.
Defendant was combative and belligerent and Officer Savage smelled alcohol on
defendant’s breath.




                                             3
       Defendant was transported to the hospital. He tested positive for alcohol and
amphetamines. In two different screening tests, defendant’s blood alcohol level was
measured at 0.125 percent and 0.128 percent, respectively.
       Defendant was arrested and charged with seven counts.1 Count 1, second degree
murder (Pen. Code, § 187); count 3, DUI causing injury (Veh. Code, § 23153, subd. (a));
count 4, driving with a blood alcohol level over 0.08 percent causing injury (Veh. Code,
§ 23153, subd. (b)); count 5, driving with a suspended license with a prior DUI
conviction (Veh. Code, § 14601.2, subd. (a)); and counts 6 and 7, leaving the scene of an
accident (Veh. Code, § 20001, subd. (a)). It was also specially alleged as to counts 3 and
4 that defendant personally inflicted great bodily injury in the commission of the offenses
within the meaning of Penal Code section 12022.7, subdivision (a) and within the
meaning of Vehicle Code section 23558. It was further alleged as to counts 1, 3 and 4
that defendant had suffered a prior DUI conviction (Veh. Code, § 23152).
       Defendant pled not guilty and denied the special allegations. Defendant brought a
Pitchess motion for disclosure of personnel records pertaining to Officers Shields,
Savage, and Joshua Wupperfield. As to Officers Shields and Savage, the court granted
the motion in part, ordering an in camera hearing of all relevant personnel records
relating to any complaints for dishonesty against the two officers. As to Officer
Wupperfield, the court denied the motion without prejudice to defendant renewing the
motion in the event it was determined he would be called as a witness.
       The in camera hearing on March 12, 2012, was transcribed by a court reporter and
the record sealed. At the hearing, the custodian of records was placed under oath and
attested that, as to Officer Savage, there were no complaints of any kind. As to Officer
Shields, the custodian attested to only one complaint for verbal discourtesy that was not
sustained. The court concluded there were no discoverable materials.



1      Count 2 (gross vehicular manslaughter for the death of Mr. Berlin) was dismissed
on the prosecution’s motion before the start of trial.


                                             4
       Defendant renewed his motion as to Officer Wupperfield after the prosecution
gave notice he would be called as a witness. The court granted the motion in part,
ordering, as with the previous motion, that only records pertaining to any complaints for
dishonesty would be reviewed in camera. The in camera hearing held May 13, 2013,
reflects the custodian of records was duly sworn and the proceeding was transcribed by a
court reporter and the record sealed. The custodian attested to the existence of three
complaints against Officer Wupperfield. The court reviewed the complaints, identifying
them on the record by control number, as well as a factual summary. The court found
two to be irrelevant complaints concerning the officer’s alleged discourtesy in the course
of two separate traffic stops. The third complaint the court found to be discoverable and
ordered discovery to be provided to the defense.
       The case proceeded to trial by jury. It was stipulated defendant had a blood
alcohol level of 0.12 percent at the time of the accident. Also pursuant to stipulation, the
transcript of defendant’s entry of a plea of no contest to a prior DUI on September 2,
2011, just a month before the roll-over accident, was read into the record. The transcript
included the court’s admonishment to defendant that driving under the influence of
alcohol is extremely dangerous to human life, and that if defendant continued to drive
while drunk and someone was killed, defendant could be charged with murder.
       On the first day of deliberations, Juror No. 7 asked if he could stay late for a few
minutes to read some of the jury instructions. The court responded: “I can’t let you stay
any later than 4:30, and if it’s only you, I cannot permit you to stay by yourself and have
access to the jury instructions. So tomorrow, when you come in, you can do that, but
only when all of the other jurors are present as one. [¶] Does that make sense, sir?”
Juror No. 7 said yes.
       The next morning, the court advised counsel the jury had sent out two questions,
one of which asked for “a more thorough definition of the term malice of forethought
[sic], to clarify that the legal term is different from the ‘everyday, ordinary meaning.’ ”
(The second question is not pertinent to our discussion.) The court also told counsel that
five additional typewritten questions had been submitted by Juror No. 7 on a sheet of


                                              5
standard white paper (not the court form), which was not signed by the jury foreperson.
Rather, “Juror #7 (seven)” was handwritten in the upper right-hand corner.
       The five additional questions from Juror No. 7 were: “Question 1 [¶] Testimony
was given that indicated the defendant’s blood alcohol content was greater than 0.08.
Was testimony also given that clearly stated that the accident was caused by alcohol
consumption by the defendant? If so, please specify the exact testimony that clearly
states the accident was so caused. [¶] Question 2 [¶] Malice is defined by Random
House Webster’s College Dictionary as: (1) ‘a desire to inflict harm or suffering on
another, or (2) Harmful intent on the part of a person who commits an unlawful act
injurious to another. [¶] Is there any reason why this definition is not appropriate or is
inaccurate [sic] for Charge 1? If the court believe [sic] it is not appropriate, what is the
precise definition that the jury should be using. [¶] Question 3 [¶] Also, is the
definition of malice changed in any manner, by specifying that it is either express malice
or implied malice? If so, please explain the new definition. [¶] Question 4 [¶] Please
specify the exact testimony that clearly indicates that the defendant exhibited express or
implied malice in accordance with Webster’s quoted definition, or the courts [sic]
definition, as applicable. (Re Q2 and Q3) [¶] Question 5 [¶] It seems, from Webster’s
definition, that malice only occurred if the defendant meant to create the accident that
resulted in the death of Mr. Berlin and the injury to himself and Mr. Myers [sic]. Was
there any evidence presented that clearly indicated the defendant intentionally meant to
cause the accident which resulted in death and injury? If yes, please specify the exact
testimony/evi [sic].” (Italics and boldface omitted.)
       The court discussed all of the questions with counsel, and the prosecution
expressed concerns about Juror No. 7’s misconduct in bringing in outside material from a
dictionary, after having been admonished by the court on the conclusion of the previous
court day that he could not review the jury instructions on his own. The court noted the
jurors were being asked to consider a count for murder based on implied malice which
can be a difficult concept for jurors to grasp, and also explained that Juror No. 7 appeared



                                              6
to be “extraordinarily conscientious” and not necessarily unwilling to listen to the court’s
directions. The court and counsel agreed upon a response to give the jury.
       The court first explained that all questions must be submitted on the proper court
form and signed by the foreperson. The court re-instructed with CALCRIM No. 520
setting forth the legal definition for express and implied malice as it applied to count 1.
       The court then admonished the jury that it was “extraordinarily important” that it
“adhere to the following: [¶] Do not use the internet or a dictionary or any other relevant
source of information or means of communication in any way in connection with this
case, either on your own or as a group. Do not investigate the facts or the law or do any
research regarding this case, either on your own or as a group. [¶] Do not conduct any
tests or experiments or visit the scene of any event involved in the case. If you haven’t
passed by the scene, do not stop or investigate. The critical part here is do not use the
internet or dictionary or any other means of research. Don’t investigate the facts or the
law or do anything, even looking up a term in the dictionary. [¶] So as it relates to the
questions on malice and their definition and its definition in Random House Webster’s
College dictionary, disregard that. Do not consider that. That’s not the definition that
you’re dealing with on this case. [¶] The definition that you’re dealing with on this case
is explicitly spelled out in [CALCRIM No.] 520. Do not consider that definition that’s
been supplied by Juror No. 7. [¶] Juror No. 7, please refrain from doing any research
whatsoever outside the jury room. Do not use the internet in any way, either in the jury
room or outside of it. Everyone should arrive at an understanding of these terms together
in the jury room and only when all the other jurors are present, without the assistance of
any research, internet or dictionary. If that’s not being adhered to, please notify the Court
in writing.”
       The court also re-instructed the jurors that it was their job to determine what the
facts established, and it was not the court’s role to highlight certain testimony or evidence
as either proving or disproving any issue on which they were deliberating.
       After the jury returned to the jury room, the defense moved for a mistrial which
was denied. The defense then requested that each juror be polled about his or her


                                              7
exposure to the dictionary definition of malice brought in by Juror No. 7. The court
agreed to do so. Each juror was brought in individually and asked if they had seen the
dictionary definition and if so, whether they could disregard it and consider only the
court’s instructions in deliberating and reaching a verdict. Each juror confirmed having
seen the definition. Each juror, including Juror No. 7, also confirmed the dictionary
definition would be disregarded in favor of the court’s instructions.
       Outside the presence of the jury, the defense renewed its motion for mistrial,
arguing that each of the jurors said they had seen the dictionary definition and were
therefore prejudiced. The court denied the renewed motion, finding no prejudice. The
court emphasized that all jurors agreed they could disregard the dictionary definition.
“No one even equivocated. They can follow the definition of malice that’s given in
[CALCRIM No.] 520.”
       The prosecution then argued that separate from the issue of prejudice from the
outside material was the issue of Juror No. 7 doing work and research on his own,
without adhering to the court’s multiple admonishments to deliberate only with his fellow
jurors. The prosecution requested that Juror No. 7 be discharged as a juror and replaced
by an alternate.
       Defense counsel replied, “the defense would object to dismissing simply Juror
No. 7. He hasn’t given indication that he’s not going to follow the Court’s orders. He, in
fact, answered in the affirmative as to whether he can disregard the dictionary definition
that he read so we’d oppose any substitution.”
       The court denied the prosecution’s request, finding it had not been shown Juror
No. 7 was unwilling or unable to discharge his duties as a juror.
       After further deliberations, the jury returned its verdicts, finding defendant guilty
on all six counts: second degree murder of Mr. Berlin (count 1), DUI with a DUI prior
causing injury to Mr. Meier (count 3), driving with a blood alcohol level above 0.08 with
a DUI prior causing injury to Mr. Meier (count 4), driving with a suspended license
(count 5), and leaving the scene of an accident (counts 6 & 7). The jury was polled and
all 12 jurors affirmed the verdicts as reflected on the verdict forms.


                                              8
       Defendant moved for a new trial, on the basis of the claimed jury misconduct.
The motion was denied.
       The court sentenced defendant as follows: 15 years to life on count 1 (second
degree murder); a consecutive midterm of two years on count 3 (DUI causing injury),
plus three years for the great bodily injury enhancement (Pen. Code, § 12022.7,
subd. (a)), and one year for the multiple victim bodily injury enhancement (Veh. Code,
§ 23558); an identical six-year term on count 4 (driving with a blood alcohol level above
0.08 causing injury), stayed pursuant to Penal Code section 654; a concurrent one-year
term on count 5 (misdemeanor driving on a suspended license); a consecutive one-year
term, one-third the midterm, on count 6 (leaving the scene of an accident); and, an
identical one-year term on count 7 (leaving the scene of an accident), stayed pursuant to
Penal Code section 654. The court imposed various fines and fees, and awarded
defendant 702 days of presentence custody credits, inclusive of 105 days conduct credits.
       The abstract of judgment correctly recites the 15-to-life term on count 1, but is
inconsistent with the court’s oral pronouncement of sentence on the record as to the
determinate terms on the remaining counts. It recites only an aggregate six-year
determinate term (instead of seven), omitting the one-year enhancement on count 3
pursuant to Vehicle Code section 23558. The abstract also incorrectly identifies counts 6
and 7 as convictions for driving on a suspended license instead of for leaving the scene of
an accident.
       This appeal followed.
                                      DISCUSSION
1.     Jury Misconduct
       Defendant moved for a mistrial based on jury misconduct, arguing the entire panel
acknowledged receiving the dictionary definition brought in by Juror No. 7 and were
therefore prejudiced by extraneous material. A trial court’s ruling on a motion for




                                             9
mistrial is reviewed under the “deferential abuse of discretion standard.” (People v.
Wallace (2008) 44 Cal.4th 1032, 1068.)2
       The jurors were exposed to Juror No. 7’s research into the dictionary definition of
malice. “Jurors are not allowed to obtain information from outside sources either as to
factual matters or for guidance on the law.” (People v. Karis (1988) 46 Cal.3d 612, 642
(Karis).) Juror No. 7’s outside research and discussion with the jury of a dictionary
definition of malice was misconduct. (Ibid.; accord, People v. Barton (1995) 37
Cal.App.4th 709, 715 (Barton) [jury “committed misconduct” by consulting a dictionary
as to various legal terms].)
       Misconduct by a juror raises a presumption of prejudice. (Karis, supra, 46 Cal.3d
at p. 642.) However, “ ‘[t]he presumption of prejudice “may be rebutted by an
affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s
examination of the entire record to determine whether there is a reasonable probability of
actual harm to the complaining party. . . .” [Citation.] Whether a defendant has been
prejudiced by a juror’s outside communications depends upon “whether the jury’s
impartiality has been adversely affected, and whether the prosecution’s burden of proof
has been lightened and whether any asserted defense has been contradicted.”
[Citations.]’ [Citation.]” (Ibid., italics added; accord, In re Carpenter (1995) 9 Cal.4th
634, 653.)
       Juror No. 7’s conduct was immediately brought to the attention of the court at the
start of the jury’s deliberations. The court thoroughly re-instructed the jury with the
correct legal definition of malice (CALCRIM No. 520), and also admonished the jury
about its duty to deliberate together, to not perform any kind of outside research
whatsoever, and to disregard altogether the dictionary definition of malice. The court



2      Defendant also argues the court erred in refusing to discharge Juror No. 7.
However, defendant opposed the prosecution’s request to discharge only Juror No. 7, and
therefore cannot be heard to complain about that aspect of the court’s ruling. In any
event, the record reveals no abuse of discretion by the court.


                                             10
questioned each juror individually and each juror, including Juror No. 7, agreed, without
equivocation, to disregard the dictionary definition and adhere to the court’s instructions
only.
        The prosecution’s burden was not lightened by the extraneous information.
Indeed, the dictionary definition was limited to the concept of express malice, and did not
embrace the legal concept of implied malice on which the prosecution was resting its case
against defendant for second degree murder. Had any juror taken the dictionary
definition into consideration, it would have increased the prosecution’s burden, not
reduced it.
        Moreover, defendant’s defense to all charges, including count 1, was that he was
not driving at the time of the accident. He did not present any defense based on the
theory he did not form the requisite degree of malice. The extraneous information
therefore did not have a substantial likelihood of prejudicing the defense. And, the
evidence against defendant was strong. The fact he was intoxicated at the time of the
accident was undisputed, evidence was presented defendant had previously sustained a
DUI conviction and had been admonished in open court that if he drove drunk again and
killed anyone, he could be charged with murder. Mr. Berlin was found deceased, still
pinned under his seatbelt in the front passenger seat and therefore plainly could not have
been the driver. The other victim, Mr. Meier, testified he was in the backseat and
defendant was driving. Medical evidence regarding the nature of his injuries was
presented that corroborated his testimony. The record contained substantial, if not
overwhelming, evidence of defendant’s guilt of second degree murder.
        A verdict will not be set aside unless the likelihood of bias was substantial. (In re
Carpenter, supra, 9 Cal.4th at pp. 654-655.) Given the thorough and timely admonitions
and additional instructions by the trial court, as well as the jurors’ unequivocal and
unanimous agreement they could disregard the dictionary definition and the substantial
evidence against defendant, we conclude there is no showing of any likelihood of bias
against defendant, let alone a substantial likelihood. The presumption of prejudice raised
by Juror No. 7’s conduct was rebutted, and the trial court did not abuse its discretion in


                                              11
denying defendant’s motion for mistrial. (Karis, supra, 46 Cal.3d at p. 642; Barton,
supra, 37 Cal.App.4th at pp. 714-715 [presumption of prejudice rebutted where use of
dictionary definitions for several relevant terms was promptly brought to the attention of
the court, the court immediately admonished jury to disregard any outside definitions,
and each juror confirmed the dictionary definitions would be disregarded in reaching a
verdict].)
2.     The Pitchess Motions
       Defendant asks this court to review the Pitchess proceedings to determine whether
or not discoverable material was withheld. Respondent does not object.
       The trial court concluded defendant showed good cause to discover any
complaints against Officers Shields, Savage and Wupperfield for acts of dishonesty. At
both of the in camera hearings, the custodian of records was duly placed under oath and
the proceedings were transcribed by a court reporter. The court adequately identified on
the record the materials produced by the custodian, and ordered the production of records
relating to one complaint made against Officer Wupperfield. We have reviewed the
sealed transcripts of both proceedings and are satisfied the court did not abuse its
discretion in ruling on defendant’s motions. (People v. Mooc (2001) 26 Cal.4th 1216,
1228-1230.)
3.     The Sentence Enhancements on Counts 3 and 4
       Defendant raises two alternative arguments regarding the sentence enhancements
on counts 3 and 4. Defendant first argues the one-year multiple victim enhancement set
forth in Vehicle Code section 23558 (hereafter “one-year enhancement”) must be vacated
on the grounds the jury was never instructed on the enhancement, he did not admit the
factual basis for the enhancement, and the jury did not make factual findings in the
verdict forms for counts 3 and 4 regarding the enhancement. Defendant contends the
one-year enhancements are therefore unlawful and cannot stand as a matter of law. In the
alternative, defendant contends the one-year enhancements must be stayed in light of
Penal Code section 654 because the court imposed the three-year great bodily injury
enhancement pursuant to Penal Code section 12022.7, subdivision (a) (hereafter “three-


                                             12
year enhancement”) for the same injury to Mr. Meier on both counts. Respondent argues
both enhancements were properly imposed, but that the one-year enhancements should be
stayed. Both parties rely primarily on People v. Arndt (1999) 76 Cal.App.4th 387 (Arndt)
for the argument the one-year enhancements must be stayed.
       We conclude both the three-year enhancement and the one-year enhancement were
properly imposed on count 3, and that the one-year enhancement need not be stayed. We
further conclude the trial court properly stayed sentence as to count 4 on the substantive
offense and both enhancements pursuant to Penal Code section 654.
       a.     The record supports imposition of the one-year enhancements.
       The one-year enhancement may be imposed where a defendant is guilty of felony
drunk driving that causes bodily injury or death to more than one victim. The one-year
enhancement “shall not be imposed unless the fact of the bodily injury to each additional
victim is charged in the accusatory pleading and admitted or found to be true by the trier
of fact.” (Veh. Code, § 23558.) Defendant does not dispute there were two victims who
suffered injury as a result of his act of drunk driving in violation of section 23153.
Rather, defendant argues the one-year enhancements must be reversed and vacated
because they were not submitted to the jury, and he did not admit, nor did the jury make,
the necessary factual findings to support imposition of the enhancement.
       The one-year enhancement for multiple victims was properly pled in counts 3 and
4 of the information. The three-year enhancement for great bodily injury was also pled in
counts 3 and 4 of the information. Therefore, defendant had notice of the prosecution’s
intent to seek imposition of both the one-year enhancement and the three-year
enhancement as to those two counts.
       The jury instructions for counts 3 and 4 included CALCRIM No. 3160 as to the
meaning of “great bodily injury.” The instruction reflects the definition set forth in Penal
Code section 12022.7, subdivision (f) that “great bodily injury” means “significant or
substantial physical injury.” The instruction further provides that great bodily injury
means an injury “greater than minor or moderate harm.” The jury was not separately



                                             13
instructed with an instruction regarding the one-year enhancement for more than one
victim of defendant’s drunk driving.
       In the verdict forms, the jury found defendant guilty on both counts 3 and 4,
namely driving while intoxicated and causing injury to both Mr. Berlin and Mr. Meier.
The verdict forms then set forth the enhancement allegation, found to be true on both
counts: “We further find the allegation that in the commission of the above offense, Jon
Eric Tubo, caused great bodily injury upon Jeremy Meier to be true.” The jury was not
asked to make a separate finding that defendant caused bodily injury to both Mr. Meier
and Mr. Berlin within the meaning of Vehicle Code section 23558.
       The verdict forms for counts 1, 3 and 4 establish the jury found that defendant
drove under the influence of alcohol and proximately caused death to Mr. Berlin, and
great bodily injury to Mr. Meier. It logically follows the verdict forms embrace the
factual findings necessary to support imposition of the one-year enhancement,
specifically that defendant engaged in an unlawful act of drunk driving causing bodily
injury or death to more than one victim.
       The fact the verdict forms did not contain a separate reference to the one-year
enhancement was a hyper-technical defect only. “ ‘ “A verdict is to be given a
reasonable intendment and be construed in light of the issues submitted to the jury and
the instructions of the court.” [Citations.]’ [Citations.] . . . ‘[T]echnical defects in a
verdict may be disregarded if the jury’s intent to convict of a specified offense within the
charges is unmistakably clear, and the accused’s substantial rights suffered no prejudice.
[Citations.]’ [Citation.]” (People v. Jones (1997) 58 Cal.App.4th 693, 710-711.) “The
same rules apply to a finding on a sentence enhancement allegation.” (People v.
Chevalier (1997) 60 Cal.App.4th 507, 514.) The court’s imposition of the one-year
enhancement is fully supported by the jury’s factual findings that there were two victims
who suffered bodily injury or death (a fact that was never disputed at trial).
       b.     The one-year enhancement need not be stayed on count 3.
       In his opening brief, defendant argues that if we find the one-year enhancements
were properly imposed, then they must be stayed—an argument which respondent


                                              14
conceded in its brief. The parties rely primarily on Arndt, supra, 76 Cal.App.4th 387 for
the proposition the one-year enhancement for an act of drunk driving that results in injury
to multiple victims, must be stayed in favor of the three-year enhancement for causing
great bodily injury. Reliance on Arndt is misplaced, because it concerned a former
version of the Vehicle Code statute that has been amended to permit imposition of both
the three-year and the one-year enhancements. And, the argument also fails to address
the Supreme Court’s decision in People v. Ahmed (2011) 53 Cal.4th 156 (Ahmed).
       At the time Arndt was decided in 1999, former Vehicle Code section 23182 read,
in relevant part: “Any person who proximately causes bodily injury or death to more
than one victim in any one instance of driving in violation of Section 23153 of this code
or in violation of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the
Penal Code, shall, upon a felony conviction, receive an enhancement of one year in the
state prison for each additional injured victim.” (Stats. 1988, ch. 1264, § 1, pp. 4199-
4200.) Former section 23182 was repealed in 1998 and reenacted, with substantially
similar language, as Vehicle Code section 23558. (Stats. 1998, ch. 118, § 45, p. 770.)
       Arndt concerned an incident of drunk driving that injured three individuals. At
sentencing, the trial court imposed sentence on one substantive count of drunk driving
and imposed both three-year and one-year enhancements. Arndt concluded that was
error, and that the one-year enhancements had to be stayed, because of Penal Code
section 654, subdivision (a) which provides in relevant part that “[a]n act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” (Arndt, supra,
76 Cal.App.4th at p. 397.) Arndt reasoned the one-year enhancement had to be stayed in
favor of the three-year enhancement imposed for the same injuries arising from a singular
act of drunk driving.
       But, defendant’s argument fails to take into account that the same year Arndt was
decided, Vehicle Code section 23558 was amended to include an express reference to
Penal Code section 1170.1, subdivision (g) which provides: “When two or more


                                            15
enhancements may be imposed for the infliction of great bodily injury on the same victim
in the commission of a single offense, only the greatest of those enhancements shall be
imposed for that offense. This subdivision shall not limit the imposition of any other
enhancements applicable to that offense, including an enhancement for being armed with
or using a dangerous or deadly weapon or a firearm.”
       The amended statute, applicable here, now provides in relevant part: “A person
who proximately causes bodily injury or death to more than one victim in any one
instance of driving in violation of Section 23153 of this code or in violation of Section
191.5 of, or subdivision (a) of Section 192.5 of, the Penal Code, shall, upon a felony
conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code,
receive an enhancement of one year in the state prison for each additional injured victim.
The enhanced sentence provided for in this section shall not be imposed unless the fact of
the bodily injury to each additional victim is charged in the accusatory pleading and
admitted or found to be true by the trier of fact. The maximum number of one year
enhancements that may be imposed pursuant to this section is three.” (Veh. Code,
§ 23558, amended language italicized.)
       Our research has disclosed no cases discussing the new statutory language or its
impact on sentencing where multiple enhancements are at issue. However, in Ahmed,
supra, 53 Cal.4th 156, the Supreme Court resolved the question of how Penal Code
section 654 applies to sentence enhancements. Ahmed instructs that “a court deciding
how multiple enhancements interact should first examine the specific sentencing statutes.
If, as if often the case, these statutes provide the answer, the court should apply that
answer and stop there. Because specific statutes prevail over general statutes,
consideration of the more general section 654 will be unnecessary. Only if the specific
statutes do not provide the answer should the court turn to section 654. We conclude
section 654 does apply in that situation, but the analysis must be adjusted to account for
the differing natures of substantive crimes and enhancements.” (Ahmed, supra, at pp.
159-160, italics added; accord, People v. Sanders (2012) 55 Cal.4th 731, 744-745 [courts



                                              16
are to look first to specific sentencing statutes to determine if multiple punishments may
be imposed].)
       The specific statutes resolve the question here. Vehicle Code section 23558 was
amended to include language that the one-year enhancement applies “notwithstanding
subdivision (g) of Section 1170.1 of the Penal Code.” In other words, even in
circumstances where the three-year enhancement, or another bodily injury enhancement,
is found true and may be properly imposed, Penal Code section 1170.1, subdivision (g)
does not apply to prohibit the imposition of the one-year enhancement for the same
injury.3
       We are not persuaded Arndt applies here and the parties have not provided any
other argument that would support a stay of the one-year enhancements, except for the
argument to which we now turn briefly concerning count 4.
       c.       Count 4 was properly stayed pursuant to Penal Code section 654.
       Defendant was convicted in count 3 of drunk driving causing injury to Mr. Meier
(Veh. Code, § 23153, subd. (a)) and in count 4 of driving with a blood alcohol level over
0.08 causing injury to Mr. Meier (Id., subd. (b)). The court imposed and stayed a six-
year determinate term on count 4 (including both enhancements), identical to that
imposed on count 3. The court stayed sentence on count 4 pursuant to Penal Code
section 654. Notwithstanding our discussion in part 3.b. above, the trial court correctly
stayed sentence on count 4 as to the substantive offense and both enhancements pursuant
to Penal Code section 654 in light of the sentence imposed on count 3. (People v.
Guilford (1984) 151 Cal.App.3d 406, 411-412; see also People v. Calles (2012) 209
Cal.App.4th 1200, 1221 (Calles) [“When the base term of a sentence is stayed . . . , the
attendant enhancements must also be stayed”].)


3      We invited the parties to submit supplemental briefs addressing the current,
amended version of Vehicle Code section 23558, as well as the analysis of Ahmed. Both
parties submitted timely letter briefs acknowledging that, assuming the one-year
enhancement was properly imposed as discussed in part 3.a. above, the one-year
enhancement need not be stayed in light of the amended statutory language and Ahmed.


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       d.     The abstract of judgment contains multiple errors that must be
              corrected.
       At the sentencing hearing, the court imposed the one-year enhancement on both
counts 3 and 4. The abstract of judgment fails to accurately reflect the court’s sentence.
There is no reference to the one-year enhancement on count 3 and the resulting
determinate term is mistakenly calculated as a total of six years, instead of seven. “[T]he
abstract of judgment is not itself the judgment of conviction, and cannot prevail over the
court’s oral pronouncement of judgment to the extent the two conflict.” (People v.
Delgado (2008) 43 Cal.4th 1059, 1070; accord, People v. Mitchell (2001) 26 Cal.4th 181,
185 [abstract of judgment “does not control if different from the trial court’s oral
judgment and may not add to or modify the judgment it purports to digest or
summarize”].)
       The abstract of judgment must be modified to correctly reflect the court’s
imposition of the one-year enhancement pursuant to Vehicle Code section 23558 on
count 3 and the total determinate term of seven years (not six). The abstract contains
additional errors that require modification as discussed in parts 4 and 5 below.
4.     Counts 6 and 7
       Defendant contends he can only be lawfully convicted of one count of leaving the
scene of the accident because there was only one accident, and the existence of two
victims does not provide a legal basis for multiple counts. He argues his conviction on
count 7 must be vacated. Respondent concedes the point of law but argues we should
remand to allow the trial court to exercise its discretion as to which count should be
dismissed.
       When a driver flees the scene of an accident, only one violation of Vehicle Code
section 20001, subdivision (a) results, irrespective of the number of persons injured in the
accident. (People v. Newton (2007) 155 Cal.App.4th 1000, 1002; accord, Calles, supra,
209 Cal.App.4th at p. 1217 [“there can be only one conviction for leaving the scene of an
accident”].) As respondent concedes, it was improper for defendant to be charged with
and convicted on two counts for the same conduct.


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       At sentencing, the trial court described the two counts as “merged” and proceeded
to impose sentence on count 6, along with an identical sentence on count 7 that was
stayed pursuant to Penal Code section 654. We vacate defendant’s conviction on count 7
and dismiss that count. (§ 1385; Calles, supra, 209 Cal.App.4th at p. 1217.) Defendant’s
conviction and sentence on count 6 stands.
5.     Custody Credits
       The parties agree that defendant is entitled to 703 actual days of presentence
credits and no conduct credits, but neither party accurately explains the basis for that
calculation.
       The record establishes defendant was arrested on October 15, 2011, and was
sentenced on September 16, 2013. Because 2012 was a leap year, defendant served
703 days of actual presentence confinement. Defendant was convicted of second degree
murder and is therefore not entitled to any conduct credits. (Calles, supra, 209
Cal.App.4th at p. 1226; see also Pen. Code, § 2933.2.)
       The abstract of judgment erroneously provides that defendant was awarded total
presentence credits of 702 days, inclusive of 105 days of conduct credits. The abstract of
judgment must be modified to accurately reflect an award of total presentence credits
consisting only of 703 actual days.
                                      DISPOSITION
       The sentence is modified in the following respects: The conviction on count 3
shall include the one-year multiple victim enhancement of Vehicle Code section 23558
imposed by the court. The conviction on count 6 shall be modified to reflect its correct
designation as a conviction for leaving the scene of an accident (Veh. Code, § 20001,
subd. (a)), and not for driving on a suspended license. The conviction on count 7 is
reversed and vacated, and the count dismissed. The total determinate term shall be
modified to reflect seven years to be consistent with the court’s sentencing order. The
702 days of presentence custody credits shall be deleted and replaced by an award of
703 actual custody credits and no conduct credits. The superior court shall prepare a



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modified abstract of judgment consistent with this opinion and transmit same forthwith to
the Department of Corrections and Rehabilitation.
      The judgment of conviction is affirmed in all other respects as so modified.


                                                      GRIMES, J.
      WE CONCUR:


                    RUBIN, Acting P. J.




                    FLIER, J.




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