Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FBV4207. John B. Gibson, Judge.
Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant Albert Wesley Sparks guilty of leaving the scene of a vehicle accident in which a person, other than defendant, was injured. (Veh. Code, § 20001, subd. (a).) A jury found true the allegation that defendant inflicted great bodily injury upon the victim during the commission of the felony. (Pen. Code, § 12022.7, subd. (a).) The jury was not able to reach a verdict on the charge of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)); and the trial court granted the prosecutor’s motion to dismiss the charge (Pen. Code, § 1385). The trial court sentenced defendant to state prison for a term of six years.
Defendant makes several contentions. First, defendant asserts that his due process rights were violated when he was convicted and sentenced for an uncharged offense that was greater than the offense charged. Additionally, defendant contends that this court should exercise its discretion to decide the foregoing issue, despite the matter not being raised in the trial court. Second, defendant argues that the trial court erred by denying defendant’s motion to strike the great bodily injury enhancement, because fleeing the accident scene did not cause the victim’s injuries. Third, defendant asserts that substantial evidence does not support the finding that he personally inflicted a great bodily injury upon the victim. (Pen. Code, § 12022.7, subd. (a).) Alternatively, defendant contends the trial court erred by not staying the great bodily injury enhancement pursuant to Penal Code section 654. Further, defendant contends that if he prevails on one of his contentions related to the great bodily injury enhancement, then the trial court’s restitution order must be stricken. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Around midnight on November 17, 2006, defendant entered Murray’s Bar and Saloon (Murray’s), in Big Bear Lake, with his girlfriend, Sheri. Jose, who knew Sheri from Murray’s, kissed Sheri’s cheek immediately after she entered the bar. Defendant pushed Jose, and said, “Don’t be kissing her.” Sheri said to defendant, “Let’s just go. Let’s just get out of here.” Sheri and defendant exited Murray’s, and walked towards their vehicles, which were in a parking lot. Defendant drove a truck, and Sheri drove a car.
As people at Murray’s discussed the incident between defendant and Jose, the people at Murray’s became upset, because they were protective of Jose, who they believed was a non-threatening person. When defendant was approximately five feet from his truck, he heard the front door of Murray’s slam open, and he turned to look at the bar. As defendant turned around, a group of six to eight people approached him. The victim was part of the group that approached defendant. Russell Escover, the head of security for Murray’s, followed the group. The group threatened to kill defendant. The victim told defendant that he was “going to beat the shit out of [defendant]. He was going to kill [defendant and he] was going to slice [defendant] up.”
Sheri and defendant became separated when defendant moved in a different direction than her. Defendant entered his truck, as Escover (or a man named Cornell) held the victim away from defendant. Escover or Cornell said to the victim, “[L]et [defendant] leave.” Escover and the victim were in front of defendant’s truck—defendant had backed into the parking space when he parked his truck. Defendant revved the truck’s engine. Escover yelled, “Get out of the way. Get out of the way.” Escover went in one direction and the victim went in another direction. Defendant hit the victim “head on.”
Defendant did not stop, and he dragged the victim across two rows of marked parking spaces. As defendant exited the parking lot, the rear wheel of defendant’s truck “bounced over [the victim’s] leg.” Defendant did not stop to render assistance to the victim. The victim lay in the parking lot, unconscious, bleeding from the head and suffering from an injured leg. The victim testified that he was in a coma for approximately two and a half weeks, and that he suffered shattered pelvic bones, several fractures to his spine, and brain hemorrhaging. The victim continued to suffer from constant ringing in his ears, scars on the back of his head, severe numbing in his legs, and one leg that was two inches shorter than the other. When Sheri spoke to defendant after the incident in the parking lot, defendant told Sheri that “he hit someone.”
It appears from the record that the victim’s coma was medically induced.
An emergency room physician, who treated the victim on the night he was struck by defendant’s truck, testified that the victim had abrasions on the left side of his body, a skull fracture, bleeding on the left side of his brain, and fractured pelvic bones. The doctor explained that the victim’s legs were no longer the same length due to ligaments and tendons being pulled down near the victim’s pubic bone.
The trial court sentenced defendant to state prison for a term of three years for the substantive offense (Veh. Code, § 20001, subds. (a) & (b)(2)), and a consecutive three-year term for the great bodily injury enhancement (Pen. Code, § 12022.7). Additionally, the trial court imposed a restitution fine of $69,984.55.
Five days after the sentencing hearing, defendant filed a motion to recall the sentence. Defendant contended that the trial court should strike the sentence imposed for the great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)), because defendant’s act of fleeing the accident scene was not responsible for the victim’s injuries. In support of his motion, defendant relied on People v. Wood (2000) 83 Cal.App.4th 862 (Wood) and People v. Braz (1998) 65 Cal.App.4th 425 (Braz). In Wood and Braz, the reviewing courts concluded that a great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)) could be applied to a hit-and-run conviction, “only where the flight was the cause of the permanent, serious bodily injury or death,” because “Vehicle Code section 20001 does not make criminal the actual accident... [; it] merely addresses the duties of a driver,... once the accident and its attendant injuries have occurred.” (Wood, at p. 866; see Braz, at pp. 432-433.)
The prosecution opposed defendant’s motion, asserting that the Legislature amended Vehicle Code section 20001 after Braz, to reflect that the accident, not defendant’s flight, was the gravamen of the offense. Further, the prosecution argued that Wood did not address the statutory amendment to Vehicle Code section 20001. The trial court denied defendant’s motion to recall the sentence.
DISCUSSION
A. Due Process
1. Procedural History
It appears from our review of the record that defendant was never charged with causing the victim to suffer a permanent, serious injury. (Veh. Code, § 20001, subd. (b)(2).) Rather, the information charged defendant as follows: “On or about November 17, 2006, in the above named judicial district, the crime of LEAVING THE SCENE OF AN ACCIDENT, in violation of VEHICLE CODE SECTION 20001[, subdivision ](a), a felony, was committed by [defendant], who did unlawfully, and knowingly, being a driver of a vehicle involved in an accident resulting in injury to a person other than himself..., fail, refuse, and neglect to give to the injured person and to a traffic and police officer at the scene of the accident his... name and address, the registration number of his... vehicle, and the name of the owner of said vehicle; to exhibit his... operator’s license; to render reasonable assistance to the injured person; and perform the duties specified in Vehicle Code Sections 20003 and 20004.” We are unable to locate in the record any indication that the information was amended by interlineation.
Nevertheless, defendant did not object to (1) the prosecutor arguing that defendant inflicted a permanent serious injury upon the victim; (2) the court instructing the jury to make a finding regarding whether defendant inflicted a permanent serious injury upon the victim; or (3) the jury’s finding that defendant inflicted a permanent serious injury upon the victim.
2. Analysis
a) Forfeiture
The People contend that defendant forfeited his contention regarding his due process rights being violated when he was convicted and sentenced for an uncharged offense that was greater than the charged offense, because defendant failed to object at the trial court or in his opening brief. Defendant urges this court to address his due process contention, despite the forfeiture. We agree with the People; however, we will address the merits of defendant’s contention following our examination of the People’s forfeiture argument.
When a new charge is added at trial, either by amending the information or by including the new charge via verdict forms and jury instructions, in order to prevent speculation regarding a more favorable verdict, a fair rule “is that a failure to promptly object will be regarded as a consent to the new charge and a waiver of any objection based on lack of notice.” (People v. Toro (1989) 47 Cal.3d 966, 975-976, disapproved on another ground in People v. Guiuan (1998) 18 Cal.4th 558, 568, fn. 3.)
“Unfairness because of lack of notice may often be cured in the trial court by granting the defendant a continuance of the trial to allow a defendant fair opportunity to meet the new evidence. [Citation.]” (People v. Newlun (1991) 227 Cal.App.3d 1590, 1604.)
At the trial court, defendant did not object to the jury being instructed on the offense of causing a permanent serious injury, or on the jury being given verdict forms for the offense of causing a permanent serious injury. Further, defendant did not claim to be surprised by the inclusion of the jury instruction or the verdict form related to the offense of causing a permanent serious injury. Additionally, defendant did not request a continuance of the trial upon learning of the jury instruction and verdict form related to the offense of causing a permanent serious injury. Accordingly, because defendant did not object, claim surprise, or request a continuance, we agree with the People that defendant has forfeited this issue for appellate review. (People v. Newlun, supra, 227 Cal.App.3d at p. 1604.)
b) Due Process
Despite defendant’s forfeiture, we will address the merits of defendant’s due process contention because the issue is easily resolved. As noted ante, defendant contends that his due process rights were violated when he was convicted and sentenced for an uncharged offense that was greater than the crime charged. Specifically, defendant was charged with leaving the scene of a traffic accident that resulted in an injury (Veh. Code, § 20001, subd. (a)); however, defendant was convicted and sentenced for leaving the scene of a traffic accident that resulted in a permanent serious injury (Veh. Code, § 20001, subd. (b)(2)). We disagree with defendant’s contention.
The facts pertinent to defendant’s due process contention are undisputed. Accordingly, we are only faced with the following legal question: Were the requirements of due process satisfied? In order to answer this question, we review the record independently. (People v. Saldana (2002) 101 Cal.App.4th 170, 173.)
“A conviction for a nonincluded offense implicates a defendant’s due process right to notice.” (People v. Toro, supra, 47 Cal.3d 966 at p. 973.) “‘[I]n modern criminal prosecutions initiated by informations, the transcript of the preliminary hearing, not the accusatory pleading, affords [a] defendant practical notice of the criminal acts against which he must defend.’” (People v. Jones (1990) 51 Cal.3d 294, 317; People v. Holt (1997) 15 Cal.4th 619, 672.)
At defendant’s preliminary hearing, prior to evidence being taken, the prosecutor informed the trial court that a plea offer had not been made to defendant because the victim was in the hospital with serious injuries, and the prosecution needed “to see the outcome of some of the injuries” before extending an offer for a plea agreement. Also at the preliminary hearing, San Bernardino County Sheriff’s Deputy John Everman testified that the victim suffered a ruptured bladder; a skull fracture; a fracture in his lower back; and a severe pelvic fracture, which required his pelvis to be held together with pins. The prosecutor moved the court to have defendant “held to answer for all crimes.” The trial court ruled that defendant would be held for “[a]ll crimes shown by the evidence.”
At the preliminary hearing, it was unclear whether the victim’s injuries would become permanent; however, given the extent of the injuries, especially the need for the victim’s pelvis to be held together with pins, defendant was on notice that he would need to defend against an allegation of causing the victim permanent serious injuries. Therefore, based upon the preliminary hearing testimony, we conclude that defendant was not denied his due process right to fair notice of the charges against him. (See People v. Jones, supra, 51 Cal.3d at p. 318 [reaching a similar conclusion].)
Defendant has filed a petition for habeas corpus alleging (1) he was denied due process when he was sentenced for a crime greater than the crime with which he was charged, and (2) to the extent he forfeited his contention concerning due process, he was denied effective assistance of counsel. We dispose of defendant’s petition for habeas corpus relief by a separate order.
Defendant argues that his due process rights were violated because he did not actively consent or acquiesce to having the trier of fact consider the uncharged offense. The relevant principle of due process upon which defendant relies is: “except for lesser included offenses, an accused cannot be convicted of an offense of which he has not been charged, regardless of whether there was evidence at his trial to show he committed the offense. [Citation.] An exception exists if the accused expressly or impliedly consents or acquiesces in having the trier of fact consider a substituted, uncharged offense. [Citations.]” (People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.)
The foregoing rule of due process is derived from the “‘preeminent’ due process principle... that one accused of a crime must be ‘informed of the nature and cause of the accusation.’ [Citation.] Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. [Citation.]” (People v. Jones, supra, 51 Cal.3d at p. 317.)
Defendant’s due process argument appears to be based upon a theory that a defendant cannot be convicted of an uncharged offense (except a lesser included offense) unless that defendant actively consents or acquiesces to the new charge. Defendant is essentially asserting that his failure to actively acquiesce to the uncharged greater offense equates with a due process violation. Defendant’s argument is missing a critical step—defendant has not explained how he was denied notice of the need to defend against the greater offense. In other words, defendant’s argument would need to show (1) defendant did not have notice that the jury would be considering the greater offense; (2) defendant did not consent or acquiesce to the jury considering the greater offense; and (3) therefore, defendant’s due process right to notice of the charges against him was violated. As we have concluded ante, the preliminary hearing testimony/transcript provided defendant with adequate notice of the charges pending against him. Defendant explains, in detail, that he did not actively consent or acquiesce to the jury considering the uncharged offense; however, defendant does not effectively address how the prosecution failed to notify him of the allegation that he caused a serious permanent injury. Consequently, we find defendant’s argument unpersuasive.
B. Motion to Recall Defendant’s Sentence
Defendant contends the trial court erred by denying his motion to recall the sentence and strike the great bodily injury enhancement (Pen. Code, § 12022.7, subd. (a)), because leaving the accident scene (Veh. Code, § 20001, subds. (a) & (b)(2)) did not cause the victim’s injuries. Defendant asserts that (1) a great bodily injury enhancement “is proper only if defendant’s leaving the scene of the accident causes the great bodily injury,” and (2) in this case, substantial evidence does not support the finding that defendant’s fleeing caused the victim’s injuries. We disagree.
In regard to defendant’s first assertion, we will assume, without deciding, that defendant is correct that a great bodily injury enhancement (Pen. Code, § 12022.7) “is proper only if defendant’s leaving the scene of the accident causes the great bodily injury,” i.e., the victim would not have suffered a great injury, but for defendant’s failure to stop and render aid. For example, a defendant hits a victim on a deserted road, and the victim would not suffer a great injury if he received prompt medical attention; however, the defendant flees, and the victim loses a large quantity of blood and therefore suffers a great injury. (See Bailey v. Superior Court (1970) 4 Cal.App.3d 513, 521 [discussing Vehicle Code section § 20001’s purpose of preventing the aggravation or furtherance of injuries].)
We note that the legislative history of Vehicle Code section 20001 reflects that, in 1999, the Legislature amended Vehicle Code section 20001 in order to recast the statute to make a violation of the provision “either a felony or a misdemeanor if the accident in which the driver was involved, rather than the failure to immediately stop the vehicle at the scene of the accident and fulfill specified duties, results in death or permanent, serious injury.” (Sen. Bill No. 1282 (1999-2000 Reg. Sess.) ch. 854, p. 4872, ¶ (1), italics added.) However, the plain language of the statute appears to contradict this intent, because the language of Vehicle Code section 20001, subdivision (a), places the initial accident in the past tense, while actively addressing a driver’s duty to stop at the accident scene; and thereby gives an impression that the victim’s injury must result from a defendant’s failure to stop, rather than the accident. Nevertheless, we do not resolve this issue, because if we assume defendant’s interpretation of the statute is correct, his contention still fails.
Accordingly, while assuming that defendant’s interpretation of the statute is correct, we must determine whether substantial evidence supports the finding that defendant personally inflicted great bodily injury (Pen. Code, § 12022.7) upon the victim by fleeing the scene of the accident (Veh. Code, § 20001, subds. (a) & (b)(2)).
“A substantial evidence inquiry examines the record in the light most favorable to the judgment and upholds it if the record contains reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion in question. Once such evidence is found, the substantial evidence test is satisfied. [Citation.] Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Escover, the head of security for Murray’s, testified that defendant struck the victim “head on” with his truck. The victim was then dragged, by defendant’s truck, past two rows of parking spaces. Escover further testified that as defendant exited the parking lot, defendant drove over the victim’s leg. Traci Stockham testified that when she saw the victim lying in the parking lot, his pants had been pulled down, and “the whole back of him was scraped like road rash [and] the whole back of his head was... bleeding.” Stockham described road rash as “bloody scrapes.” Deputy Everman testified that, after the accident, the victim was “bleeding, [with] cuts and scrapes all over his body.” Deputy Everman saw a “pool of blood surrounding [the victim’s] head.” The victim testified that, because of the incident, he has scars on the back of his head, problems with his knee, one leg that is two inches longer than the other, severe numbing in his legs, poor memory, trouble with speech, and he experiences pain “[a]ll day long.” Dr. Kossuth testified that defendant’s legs were likely different lengths due to his ligaments and tendons being pulled down. The doctor described all of the victim’s injuries as serious.
The foregoing evidence is reasonable, credible evidence of solid value upon which a reasonable trier of fact could have relied in reaching the conclusion that defendant inflicted great bodily injury upon the victim when fleeing the scene of the accident, because defendant dragged the victim and ran over the victim’s leg while fleeing from the accident scene. (See People v. Scheer (1998) 68 Cal.App.4th 1009, 1021-1022 [dragging the victim included in Vehicle Code section 20001 conviction].) In other words, it can reasonably be inferred from the evidence that defendant’s act of fleeing the accident scene further aggravated the victim’s injuries, and likely created new injuries, because defendant’s failure to stop resulted in the victim being dragged across the parking lot and ran over. Accordingly, we conclude that substantial evidence supports the finding that defendant’s act of leaving the accident scene caused the victim to suffer great bodily injuries.
Defendant argues that his act of leaving the scene of the accident did not cause the victim’s injuries, and therefore it was improper to impose the great bodily injury enhancement. Defendant does not address the fact that he dragged the victim through the parking lot as he fled the scene, or that defendant ran over the victim’s leg as defendant left the parking lot. Accordingly, we find defendant’s argument unpersuasive.
C. Penal Code Section 654
1. Facts
Count 2 of the First Amended Information charged defendant as follows: “On or about November 17, 2006,... the crime of LEAVING THE SCENE OF AN ACCIDENT, in violation of VEHICLE CODE SECTION 20001(a), a felony, was committed by [defendant], who did unlawfully, and knowingly, being a driver of a vehicle involved in an accident resulting in injury to a person other than himself/herself, fail, refuse, and neglect to give to the injured person and to a traffic and police officer at the scene of the accident his/her name and address, the registration number of his/her vehicle, and the name of the owner of said vehicle; to exhibit his/her operator’s license; to render reasonable assistance to the injured person; and perform the duties specified in Vehicle Code Sections 20003 and 20004.”
The jury found defendant guilty of the charged offense in count 2, i.e., driving a vehicle that was involved in an accident that resulted in injury to another person, and not stopping at the scene of the accident. (Veh. Code, § 20001, subd. (a).) Additionally, the jury found true an allegation that defendant caused the victim to suffer a permanent, serious injury. (Veh. Code, § 20001, subd. (b)(2).) The jury also found true the allegation that defendant inflicted great bodily injury upon the victim while fleeing the scene of the accident. (Pen. Code, § 12022.7, subd. (a).)
The trial court imposed the midterm of three years for the substantive offense, combined with the permanent, serious injury allegation. (Veh. Code, § 20001, subd. (b)(2).) The trial court sentenced defendant to a consecutive three-year term for the great bodily injury enhancement. (Pen. Code, § 12022.7, subd. (a).)
2. Discussion
Defendant contends the trial court erred by not staying the great bodily injury enhancement pursuant to Penal Code section 654. We disagree.
a) Operation of Vehicle Code Section 20001, Subdivision (b)(2)
In order to properly analyze defendant’s contention, we directed the parties to submit supplemental briefing on the issue of whether Vehicle Code section 20001, subdivision (b)(2) (subdivision (b)(2)), operates as a separate offense, an enhancement, or an alternative sentencing scheme. Defendant contends that subdivision (b)(2) operates as an enhancement. The People assert that subdivision (b)(2) operates as a separate offense, and essentially, section 20001, subdivision (a) (subdivision (a)), is a lesser offense of subdivision (b)(2). We agree with the People.
In 2006, subdivision (a) provided: “The driver of any vehicle involved in an accident resulting in injury to any person, other than himself or herself, or in the death of any person shall immediately stop the vehicle at the scene of the accident and shall fulfill the requirements of Sections 20003 and 20004.” If a person violated subdivision (a), then the court could sentence the violator to “imprisonment in the state prison, or in a county jail for not more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that imprisonment and fine.” (Veh. Code, § 20001, subd. (b)(1).)
In 2006, subdivision (b)(2) provided: “If the accident described in subdivision (a) results in death or permanent, serious injury, any person who violates subdivision (a) shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not less than 90 days nor more than one year, or by a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or by both that imprisonment and fine. However, the court, in the interests of justice and for reasons stated in the record, may reduce or eliminate the minimum imprisonment required by this paragraph.”
Our Supreme Court has concluded that when a “statute neither uses the language ‘an additional term’ nor ‘enhancement,’ and does prescribe confinement for one of three terms, i.e., [two, three, or four years, then there is] no basis on which to characterize it as an enhancement.” (People v. Rayford (1994) 9 Cal.4th 1, 9-10.)
Subdivision (b)(2) does not use the language “additional term” or “enhancement,” and it does prescribe confinement for one of three terms, i.e., two, three, or four years. Accordingly, we conclude that subdivision (b)(2) operates as a separate offense. (See People v. Rayford, supra, 9 Cal.4th at pp. 9-11.)
b) Jury’s Findings
In the instant case, the jury found defendant guilty of violating subdivision (a), and found true an allegation that defendant caused the victim to suffer a permanent, serious injury. The trial court essentially treated the subdivision (b)(2) finding, i.e., the permanent, serious injury, as though it were a sentencing factor or an enhancement, and sentenced defendant to a three-year prison term pursuant to subdivision (b)(2).
The issue created by the proceedings below, is that the jury made a “true” finding, rather than a “guilty” finding, in regard to the permanent, serious injury, but we concluded ante, that subdivision (b)(2) constitutes a separate offense, not an enhancement or sentencing factor. Nevertheless, the U.S. Supreme Court has concluded that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) In People v. Sengpadychith (2001) 26 Cal.4th 316, the California Supreme Court explained: “The court [in Apprendi] treated a sentence enhancement as the functional equivalent of a crime. [Citation.] To put it more accurately, Apprendi treated the crime together with its sentence enhancement as the ‘functional equivalent’ of a single ‘greater’ crime. [Citation.]” (Id. at p. 326.)
In other words, following Apprendi, enhancements are essentially treated as though they create a single greater crime; therefore, we conclude that any error the trial court made by treating subdivision (b)(2) as an enhancement or sentencing factor, rather than a separate offense, is harmless beyond a reasonable doubt. (See People v. Sengpadychith, supra, 26 Cal.4th at p. 326 [harmless beyond a reasonable doubt standard of review applied to failure to properly instruct on an element of an enhancement or a substantive offense].)
Accordingly, when analyzing defendant’s contention, we must determine whether the trial court erred by not staying the sentence for the great bodily injury enhancement (Pen. Code, § 654), because the actions supporting the enhancement are part of the same course of conduct used to justify defendant’s conviction pursuant to subdivision (b)(2). Defendant asserts that the injuries he inflicted upon the victim were part of an indivisible course of conduct, and therefore, he may only be punished once for inflicting those injuries. We disagree.
Penal Code section 654 prohibits multiple punishments for a single criminal act and for a single indivisible course of conduct. (People v. Moseley (2008) 164 Cal.App.4th 1598, 1603.) Penal Code section 12022.7, subdivision (a) provides, in pertinent part, “Any person who personally inflicts great bodily injury on any person... in the commission of a felony... shall be punished by an additional and consecutive term of imprisonment....”
In People v. Chaffer (2003) 111 Cal.App.4th 1037, 1045 (Chaffer), the reviewing court concluded that Penal Code “[s]ection 654 is a general statute that applies to all species of criminal conduct,” whereas “[Penal Code s]ection 12022.7 is a narrowly crafted statute intended to apply to a specific category of conduct.” The appellate court found that if Penal Code section 654 were applied to Penal Code section 12022.7, then “it would nullify [Penal Code] section 12022.7, because the enhancement and underlying offense always involve the same act,” i.e., an indivisible course of conduct. (Chaffer, at p. 1045.) The Chaffer court held that Penal Code section 12022.7, a specific statute, operates as an exception to the general provisions of Penal Code section 654. (Chaffer, at pp. 1044-1046.) We agree with the reasoning of Chaffer, and therefore conclude that the trial court did not err by not applying Penal Code section 654 to the Penal Code section 12022.7 enhancement.
We note that in People v. Harbert (2009) 170 Cal.App.4th 42, 59 (Harbert), the appellate court concluded that it was proper to apply Penal Code section 654 when the injuries constituting the substantive offense (Veh. Code, § 20001, subd. (b)(2)) were the same injuries as those constituting the great bodily injury enhancement (Pen. Code, § 12022.7). Harbert cites to People v. Sloan (2007) 42 Cal.4th 110, 116; however, Harbert provides scant explanation for this position. (Harbert, at p. 59.) Due to the lack of analysis, we do not find Harbert controlling on this point.
d) Element of the Offense
To the extent defendant is arguing that the trial court should have stayed imposition of the sentence for the great bodily injury enhancement because bodily injury is an element of subdivision (b)(2), we disagree with such a contention.
Penal Code section 12022.7, subdivision (g) limits application of the great bodily injury enhancement when “infliction of great bodily injury is an element of the offense.” A person can violate Vehicle Code section 20001 even when not driving. (See People v. Holford (1965) 63 Cal.2d 74, 81-82 [passengers can be found guilty of hit-and-run].) But Penal Code section 12022.7 operates only as to those who personally inflict great bodily injury. There is no comparable requirement in Vehicle Code section 20001. Therefore, the prohibition in Penal Code section 12022.7, subdivision (g) does not govern because the personal infliction of great bodily injury is not an element of Vehicle Code section 20001. The two statutes may overlap, but they are not coextensive.
Because Vehicle Code section 20001, subdivision (b)(2) does not require that a defendant personally inflict great bodily injury, e.g., a defendant is involved in a hit-and-run accident, but is not the driver that causes the victim’s injuries, we conclude that the exception set forth in Penal Code section 12022.7, subdivision (g) is not applicable.
D. Restitution
Defendant contends that if this court reverses the great bodily injury enhancement (Veh. Code, § 12022.7, subd. (a)), then this court must also reverse the restitution order. We elect not to discuss this contention, because we have not reversed the great bodily injury enhancement.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., HOLLENHORST, J.