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
4
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.
11
AI Brief
AI-generated · verify before citing
Holding. The holding in People v. Vargas, which limits the use of multiple convictions from a single act as separate strikes, does not apply to defendants whose single act of violence resulted in injury to multiple victims. Consequently, a defendant convicted of multiple counts of manslaughter for killing two victims in a single incident may have those convictions counted as separate strikes.
Issues
Does the holding in People v. Vargas apply to prior convictions arising from a single act that injured multiple victims?
Is a defendant who killed two victims in a single act of vehicular manslaughter eligible for relief from a three strikes sentence under the rule in Vargas?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“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.”
“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.”