P. v. Baker















Filed 9/28/10 P. v.
Baker CA3











NOT
TO BE PUBLISHED





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Trinity)

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>

THE PEOPLE, Plaintiff and Respondent, v. CODY ANGUS BAKER, Defendant and Appellant.

C061880 (Super. Ct. No. 07F115)

Defendant Cody
Angus Baker[1]
appeals the sentence imposed following his convictions for four counts of vehicular manslaughter while intoxicated
(Pen. Code, § 191.5, subd. (b)), one count of
driving under the influence of alcohol and causing injury (Veh. Code,
§ 23153, subd. (a)), and one count of driving with a blood-alcohol content
over .08 percent and causing injury (Veh. Code, § 23153, subd. (b)). As to each of the felony driving under the
influence charges, the jury found true a multiple-victim
enhancement. Defendant contends the
trial court erred in imposing a three-year sentence on the multiple-victim
enhancement, given that he was also sentenced on each manslaughter
conviction. The People properly concede
the error.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On August 31, 2007, defendant and a
number of his friends, including Nathan Titus, Jessica Toste, Stephanie
Hubbard, Stevie Shroyer, and Zachary Diamond, went camping at Ruth
Lake for the weekend. The group drank heavily throughout the day
and into the night. Ultimately, they
ended up at the Journey's End bar, where defendant played pool. After some of the girls failed to produce
identification cards and vandalized the women's bathroom, they were asked to
leave the bar. They headed back to the
campsite, with defendant driving.

Defendant drove
through a sharp curve in the road and lost control of the car. The car slid off the road, hit a tree,
flipped upside down, and landed submerged in the lake. Defendant and Diamond extricated themselves
from the car. The four other passengers
-- Titus, Toste, Hubbard, and Shroyer -- died at the scene.

Three hours after
the accident, defendant's blood-alcohol level was .17 percent. His estimated blood-alcohol level at the time
of the accident was as high as .23 percent.
Diamond spent about a week in the hospital with injuries to his head and
legs. Titus had extensive abrasions
throughout his body, including his face, back, chest, arms, and legs. He died by drowning. Toste sustained extensive injuries and
massive traumatic internal chest injuries.
Her aorta was badly torn and she suffered significant internal bleeding. She died as a result of her massive chest
injuries and drowning. Hubbard suffered
blunt force trauma to her body, including a ruptured spleen and a hard blow to
the left side of her head that caused brain injury. She also died from drowning. Shroyer sustained blunt force trauma to her
head and died from drowning.

Defendant was
charged with four counts of murder
(Pen. Code, § 187, subd. (a) -- counts one through four), four counts of
gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd.
(a) -- counts five through eight), four counts of vehicular manslaughter (Pen.
Code, § 192, subd. (c)(1) -- counts nine through twelve), five counts of
driving under the influence of alcohol and causing personal injury (Veh. Code,
§ 23153, subd. (a) -- counts thirteen through seventeen), five counts of
driving with a blood-alcohol level of .08 percent or more and causing personal
injury (Veh. Code, § 23153, subd. (b) -- counts eighteen through twenty-two),
and driving with a suspended license (Veh. Code, § 14601.1, subd. (a) --
count twenty-three). Counts thirteen
through sixteen and eighteen through twenty-one further alleged that defendant
caused injury or death to multiple people (Veh. Code, § 23558), caused
great bodily injury (Pen. Code, § 12022.7, subd. (a)), and had suffered a
prior driving under the influence conviction.
Counts seventeen and twenty-two alleged that defendant caused injury or
death to multiple people (Veh. Code, § 23558) and had suffered a prior
driving under the influence conviction.

Following a jury
trial, defendant was acquitted on counts one through eight. He was found guilty of four counts of
vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (b))
as a lesser included offense of counts five through eight. The jury also found defendant guilty of count
seventeen, finding the multiple-victim enhancement true, and count twenty-two,
again finding the multiple-victim enhancement true. The jury also found defendant guilty of count
twenty-three. They did not reach
verdicts on counts nine through sixteen and eighteen through twenty-two, as
those were alternate offenses to the guilty verdicts.

Defendant was
sentenced to an aggregate term of nine years eight months in state prison. The sentence consisted of the upper term of
four years on count five, and added consecutive eight-month terms (one-third
the midterm) for counts six, seven, eight, and seventeen. The court also ordered defendant
consecutively serve an additional three years on the multiple-victim allegation
attached to count seventeen. Defendant
was also sentenced to a concurrent six-month term for driving with a suspended
license. The sentence for count
twenty-two was stayed under Penal Code section 654. Defendant was awarded 613 actual days'
credit and 306 good time credits pursuant to Penal Code section 4019 for a
total of 919 days of credit.

DISCUSSION

Defendant contends
the trial court erred in sentencing him consecutively on each of the four
vehicular manslaughter counts, as well as three years for the multiple-victim
enhancement, as he had already been separately punished for each fatality. Accordingly, he argues the sentences for the
enhancements should be stayed under Penal Code section 654. The People properly concede this argument.

Vehicle
Code section 23558 provides that a person who, while driving under the
influence of alcohol, kills or injures more than one person shall receive a
one-year sentence enhancement for each additional person injured. The maximum number of enhancements under the
statute is three. Generally, Penal Code
section 654 does not bar punishment for both convictions
when an accident kills one person and injures another. (People
v. McFarland (1989) 47 Cal.3d 798, 804-805.) However, as the Supreme Court noted in its
discussion in McFarland, Vehicle Code section 23182 (now Veh.
Code, § 23558) permitted â€