People v. Gibson

Opinion

HANING, J. Gene Allen Gibson appeals his convictions by jury trial of causing bodily injury while driving under the influence of alcohol (Veh. Code, §23153, subd. (a))1, and reckless driving causing bodily injury. (§ 23104.) An allegation that he injured more than one person while driving under the influence was found true. (§ 23182.) He contends, inter alia, that [286]the enhancement must be reversed because the verdict does not specify the number of injured victims. We agree and reverse.

Facts

Sherill Smothers, his wife Lynne, and their two-year-old son Antonio were driving home when appellant’s car struck them from the rear, causing their car to spin, flip, and land upside down on the right shoulder of the highway. Antonio was ejected, but his parents remained inside. Mrs. Smothers extricated herself by breaking her passenger side window and crawling out. She found Antonio on the ground in front of the car, He had a “couple of scratches [on] his head, on his face, minor bruises,” but was otherwise uninjured. Mrs. Smothers suffered cuts and bruises on her face, and some soft tissue injury to her back, for which she received chiropractic treatment. She had no back problems before the accident. Mr. Smothers suffered a spinal cord injury and was paralyzed from the chest down.

Discussion

Section 23182 provides that any person who proximately causes bodily injury “to more than one victim in any one instance of driving in violation of Section 23153 . . . shall, upon a felony conviction, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence . . . shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and . . . found to be true by the trier of fact. . . .” (Italics added.) The information alleged that appellant caused injury to Sherill, Lynne, and Antonio Smothers.

In its verdict finding appellant guilty of causing injury while driving under the influence, the jury further found that appellant “did cause bodily injury to more than one victim within the meaning of [section] 23182.” Both parties agree that, given its severity, Mr. Smothers’s injury formed the basis of appellant’s conviction of section 23153, and any additional victims under the enhancement would be either Mrs. Smothers or Antonio, or both.