Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 156944
RIVERA, J.
Amani V. Bolden appeals from a judgment upon a plea of no contest to two counts of gross vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), evading an officer causing injury (Veh. Code, § 2800.3), and leaving the scene of an accident (Veh. Code, § 20001, subd. (a)). Defendant also admitted the allegations that he: (1) inflicted great bodily injury within the meaning of sections 969f, 667.5, and 1192.7; (2) fled the scene of the accident (Veh. Code, § 20001, subd. (c)); (3) served three prior prison terms (§ 667.5, subd. (b)); and (4) suffered seven prior felony convictions. In accordance with the plea agreement, the court sentenced defendant to a term of 11 years 8 months. Over defendant’s objections, the court ordered that credits be computed pursuant to the 15 percent custody credit limitation of section 2933.1. We conclude the trial court erred in finding that section 2933.1’s credit limitation applied to defendant’s sentence.
Unless otherwise indicated, statutory references are to the Penal Code.
I. FACTUAL BACKGROUND
The offenses occurred following a police attempt to conduct a sideshow enforcement stop. The police approached a van that was projecting loud music and saw defendant making furtive movements in the van after he pulled the van to the curb. The police detected the odor of marijuana; and when one of the officers instructed defendant to turn off the van, he refused to comply and sped away. The police pursued the van but opted to end the pursuit because they feared that defendant would cause an accident. Defendant continued to flee, driving through a red light after which he collided with a sedan. The driver of the sedan was pronounced dead at the scene. The rear passenger died of his injuries the same day while the front passenger suffered hemorrhaging of the brain, several broken ribs, and a damaged spleen. Defendant proceeded to drive and struck a second vehicle. The driver of that car suffered pain to her back, neck, and leg. Following that collision, defendant fled from the van on foot and was apprehended after a brief chase.
II. DISCUSSION
Defendant contends that the trial court erred in restricting his conduct credits to the 15 percent limitation of section 2933.1. He argues that the court was without authority to impose the section 2933.1 credit limitation because his convictions did not meet the definition of “ ‘violent felony’ ” as defined in section 667.5, subdivision (c)(8).
Section 2933.1 imposes a 15 percent limitation on conduct credits for defendants convicted of violent felonies. The statute provides in relevant part: “Notwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of Section 667.5 shall accrue no more than 15 percent of worktime credit....” (§ 2933.1, subd. (a).) Section 667.5, subdivision (c) in turn defines the crimes that are classified as violent felonies. These include murder, voluntary manslaughter, mayhem, rape, and certain other sexual offenses, robbery, kidnapping, and other enumerated crimes, as well as “(8) [a]ny felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9....” (Ibid., italics added.)
Section 12022.7 provides for a consecutive three-year term if a person personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony (id., subd. (a)) unless infliction of great bodily injury is an element of the offense (id., subd. (g)). Subdivision (g) of section 12022.7 makes clear that the enhancement is not applicable to murder or manslaughter or to crimes in which infliction of great bodily injury is an element of the offense. (People v. Verlinde (2002) 100 Cal.App.4th 1146, 1168 (Verlinde).) “[T]he statutory exemption prevents prohibited dual punishment for the same crime. (See § 654.)” (Ibid.)
Here, defendant admitted the allegations that he inflicted great bodily injury within the meaning of section 667.5, and that he served prior prison terms within the meaning of section 667.5, subdivision (b), but he was not charged with violating section 12022.7. Indeed, he could not have been charged with the section 12022.7 enhancement because it is inapplicable, where, as here, defendant committed the offense of vehicular manslaughter. (Verlinde, supra, 100 Cal.App.4th at p. 1168 [statutory exemption for murder and manslaughter intended to bar imposition of enhancement for injuries inflicted on homicide victim who obviously suffered great bodily injury].) Similarly, he could not have been charged with the section 12022.7 enhancement as to the evading a police officer causing injury offense. Infliction of great bodily injury is inherent in the commission of that offense. (Veh. Code, § 2800.3 [“(a) [w]henever willful flight or attempt to elude a pursuing peace officer in violation of Section 2800.1 proximately causes [(b)... death][or] serious bodily injury to any person, the person driving the pursued vehicle, upon conviction, shall be punished by imprisonment in the state prison...,” italics added].)
The serious bodily injury contemplated by Vehicle Code section 2800.3 is defined in subdivision (f)(4) of Penal Code section 243. (Veh. Code, § 2800.3, subd. (d).) Subdivision (f)(4) of Penal Code section 243 defines serious bodily injury as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (Cf. Pen. Code, § 12022.7, subd. (f) [defining great bodily injury as a “significant or substantial physical injury”].)
Here, the issue of whether to charge the section 12022.7 enhancement was addressed at the preliminary hearing. The People’s first amended complaint against defendant alleged the section 12022.7 enhancements as to both the vehicular manslaughter counts and the evading an officer causing injury offense. Defense counsel argued that defendant could not be held to answer on the section 12022.7 enhancements because great bodily injury was inherent in both vehicular manslaughter as well as felony evading and, hence, the enhancements could not be charged under subdivision (g) of section 12022.7. The court impliedly agreed, and did not hold defendant to answer on the section 12022.7 enhancements.
The Attorney General argues that since defendant admitted a section 667.5 allegation, he necessarily admitted the commission of a violent felony for purposes of section 2933.1 and waived any additional pleading and proof requirements for application of section 667.5. Yet the record shows that while defendant admitted violating section 667.5, the admission of the section 969f allegations was intended to prequalify his offenses as serious felonies, which are distinct from the violent felonies defined in section 667.5, subdivision (c). (See People v. Leslie (1996) 47 Cal.App.4th 198, 204.) The information makes this clear by its reference to section 969f in the heading for the great bodily injury allegations and its deletion of the express language of the first amended complaint that charged the section 12022.7, subdivision (a) enhancements and stated that the offenses in counts 1 to 3 were serious and violent felonies within the meaning of sections 1192.7, subdivision (c)(8) and 667.5, subdivision (c)(8). In accordance with the court’s implied findings at the preliminary hearing, the People did not charge defendant with committing a violent felony under subdivision (c)(8) of section 667.5 because the statutory provision was inapplicable. The allegations under section 667.5 could not have been met since the offenses were not one of the enumerated offenses listed in subdivision (c) and did not qualify as violent felonies within the meaning of subdivision (c)(8) of section 667.5.
People v. Hawkins (2003) 108 Cal.App.4th 527 is instructive. There, the court held that a defendant could not be convicted of a violent felony as defined by section 667.5, subdivision (c), because battery with serious bodily injury was not among the crimes expressly enumerated in the statute. (Hawkins, at pp. 531-532.) The court further held that the offense did not qualify as a violent felony under the “ ‘catchall’ ” provision of subdivision (c)(8) of section 667.5 because the infliction of great bodily injury contemplated by the enhancement was substantially the same as the serious bodily injury element of the offense. (Hawkins, at pp. 530-531.)
Here, as well, the People could not charge defendant with violating section 12022.7, because the statute was not applicable to the vehicular manslaughter charges or the evading an officer causing injury charge. Since the offenses did not qualify as enumerated offenses under section 667.5 or meet the requirements of subdivision (c)(8) of the statute, defendant was not subject to the 15 percent conduct credit limitation of section 2933.1 applicable to those crimes defined as violent felonies under section 667.5.
Accordingly, we direct that defendant’s credits be modified to reflect credits awardable under section 4019.
III. DISPOSITION
The judgment is modified to reflect that defendant is entitled to presentence credit for 766 actual days and 382 conduct days for total presentence credits of 1,148 days. The trial court is directed to prepare an amended abstract of judgment and to forward a copy to California’s Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: RUVOLO, P.J., REARDON, J.