Filed 4/7/16 P. v. LeBeau CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

LOREN JOSEPH LEBEAU,

Defendant and Appellant.

F068345

(Super. Ct. No. F12905888)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Gregory T. 

Fain, Judge.

Nuttall & Coleman and Roger T. Nuttall for Defendant and Appellant.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Stephen G. Herndon and Darren K. Indermill, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOooINTRODUCTION

On July 25, 2012, appellant Loren Joseph LeBeau was operating a vehicle at night 

in Fresno, California, when he struck Jesse Guadalupe Maldonado, Donovan Michael 
2.

Maldonado, and Jesse’s minor daughter, Bella, who were riding bicycles in a crosswalk.1 

Donovan, who was seven years old, rode his own bicycle while 19-month-old Bella rode 

on the back of Jesse’s bicycle. Donovan was dragged by appellant’s vehicle 

approximately 800 feet and died later that night. Jesse and Bella sustained serious 

injuries. Appellant initially drove away but then returned to the accident scene after 

emergency personnel had arrived. A police officer spoke with appellant, who displayed 

signs of intoxication. He was arrested and his blood sample was drawn. A subsequent 

toxicology report indicated he had a blood-alcohol level of .11 percent.

On June 12, 2013, appellant entered pleas of no contest to gross vehicular 

manslaughter while intoxicated (Pen. Code, §191.5, subd. (a); count 1); driving under the 

influence causing injury (Veh. Code, § 23153, subd. (a); count 2); driving with a .08 

percent blood-alcohol level causing injury (Veh. Code, § 23153, subd. (b); count 3); and 

leaving the scene of an accident resulting in death (Veh. Code, § 20001, subd. (a); 

count 4). 

Appellant admitted as true the following enhancements: As to count 1, that he 

fled the scene of the crime (Veh. Code, § 20001, subd. (c)) and personally inflicted great 

bodily injury on a person (Pen. Code, § 1192.8, subd. (a)); as to counts 2, 3 and 4, that he 

personally inflicted great bodily injury upon Jesse and Donovan (Pen. Code, § 12022.7, 

subd. (a)); and as to counts 2 and 3, that he personally inflicted great bodily injury upon 

Bella. (Pen. Code, § 12022.7, subd. (d).)

Appellant was sentenced to a stipulated aggregate term of 12 years in state prison. 

As is relevant to the issues raised in the present appeal, appellant received in count 2 a 

one-year enhancement under Penal Code section 12022.7, subdivision (a), for the great 

bodily injury inflicted upon Jesse and a 16-month enhancement under Penal Code 

 

1 These facts are taken from the report of the probation officer, who obtained this 

information from the Fresno Police Department crime report and the preliminary hearing 

transcripts. 
3.

section 12022.7, subdivision (d), for the great bodily injury inflicted upon Bella.

Sentence on the remaining enhancements pursuant to Penal Code section 12022.7, 

subdivisions (a) and (d), were stayed pursuant to Penal Code section 654. 

Appellant raises two general issues on appeal. First, he argues the trial court 

abused its discretion in denying a continuance which his trial counsel orally requested at 

the start of the sentencing hearing. Second, he contends the sentence enhancements 

imposed against him pursuant to Penal Code section 12022.7 were improper. Although 

we disagree that the sentence enhancements were improper, we agree that the trial court 

abused its discretion in denying the requested continuance. Because appellant was 

denied an opportunity to file a motion to withdraw his plea, we remand the matter for that 

limited purpose. In the event appellant files no such motion, or it is denied by the 

superior court, the judgment shall stand affirmed. In that event, a clerical error appears in 

the abstract of judgment, which the trial court shall amend as discussed below.

PROCEDURAL BACKGROUND

On August 29, 2013, appellant’s sentencing hearing occurred. Early in the 

hearing, defense counsel stated the following:

“[DEFENSE COUNSEL]: And, Your Honor, as the Court recalls, 

this matter was set for trial prior to the time that I wanted it set for trial. I 

asked that it not be because there were things going on in the civil case that 

were developing, and I found out about something that I at least wanted to 

look into. I don’t think it will ultimately change anything in the case, but 

that I wanted to look at before going forward with the sentencing.

“I’d be willing or be asking for either a continuance or if the Court is 

not inclined to do so to at least allow me to make a record in camera as to 

the basis for that and what information I obtained and how I obtained it. 

Again, I don’t think that it will effect [sic] the outcome of the case or any 

efforts to withdraw plea, but to do my job properly, I feel like I have to 

cover that base.

“THE COURT: Okay.
4.

“[DEFENSE COUNSEL]: And on that basis, I’m making the 

request to continue sentencing.

“THE COURT: How long are you asking the Court to continue the 

sentencing on this matter?

“[DEFENSE COUNSEL]: I would ask for 30 days.

“THE COURT: Okay. And I just want to confirm, I have checked. 

There’s -- at this point in time there’s no written motion to continue or 

motion to 1058 of the Penal Code. There’s nothing of that nature.

“[DEFENSE COUNSEL]: Correct.

“THE COURT: I haven’t read it.

“[DEFENSE COUNSEL]: Right. The information I received was 

night before last, and it was after work the night before last. So I didn’t 

have time to do a two-day written motion to the Court. I did advise [the 

prosecutor] yesterday it was going to be my intent to request a continuance 

today, and I advised your clerk that --

“THE COURT: Yes, you did.

“[DEFENSE COUNSEL]: -- that I would be requesting a 

continuance, and that I expected [the prosecutor] to object.” 

The court confirmed that it was informed by the clerk about the request the day 

before, and the following occurred:

“[PROSECUTOR]: We would object, Your Honor. Apart from this 

being an 11th hour request, months after the plea was taken, the Maldonado 

family has no interest in the matter continuing and want to see resolution to 

this on their end. And as counsel actually just stated, he doesn’t think that 

whatever he’s talking about would effect [sic] the outcome of the case. So 

I’m objecting.” 

The trial court noted that the victims’ family members and parties from both sides 

were in the packed courtroom. The court asked the prosecutor to comment on defense 

counsel’s request to hold an in camera discussion regarding the specifics of the motion to 

continue. The following occurred:
5.

“[PROSECUTOR]: I would say initially he’s late in his request. 

There are no supporting documentation. And back to my 11th hour 

commentary, it’s untimely and brought at the worst of times actually for 

that matter. 

“THE COURT: Okay. [Prosecutor?]

“[DEFENSE COUNSEL]: May I respond to that?

“THE COURT: Yes, you may.

“[DEFENSE COUNSEL]: The first information I had was the night 

before last. Yesterday, I made additional calls or on -- the [person] I was 

trying to speak with was on vacation. He returns today. I left a message. I 

have not heard back from him. The other person that I needed to speak 

with, I left a message for, and he called me this morning as I was walking 

to court.

“So some of the information I have is as recent as about 8:27 this 

morning. So I could not have -- I really couldn’t have written a motion 

prior to having the necessary information. But that’s what I’d like to make 

an in camera record of. If the Court -- for appellate purposes, if the Court is 

inclined to deny the continuance or wants to hear what that is before 

deciding.

“THE COURT: Okay. All right. Thank you. Is there anything 

else?

“[PROSECUTOR]: No, Your Honor.” 

The trial court noted that Penal Code section 1050, subdivision (a), required a 

motion to continue to be brought “at the earliest possible time” and must be in writing 

with service of the supporting declarations and affidavits at least two days before the 

hearing. The court stated the parties last met on June 12, 2013, and the report and 

recommendation of probation was set over until August 29, 2013, noting the time was 

longer than normal due to the busy schedules of both counsel, to ensure that both parties 

were prepared for sentencing, and to keep the court’s calendar clear for the hearing. The 

court realized that “things do pop up” at the last moment, but the matter had been 

pending for over a year with a number of continuances so the parties could conduct their 
6.

investigations and be prepared. The court denied the request for continuance, stating 

everybody was present and ready to proceed, and the requirements of Penal Code section 

1050 had not been met. 

The following exchange occurred:

“[DEFENSE COUNSEL]: I do want to put on the record the Court 

is saying that I should have given two days’ notice for something I didn’t 

have two days notice of. 

“THE COURT: I think I’ve clearly quoted the law on this, ‘at the 

earliest possible time.’ And two days’ written notice is required before the 

hearing. And I think overall in the interests of justice, this is my call on 

whether or not to grant a continuance. And this is one where I’m not -- I’m 

exercising my discretion in an overall scheme of things not to grant one.

“Okay. Now, in regard to your second -- the second prong of your 

request, as far as an in camera discussion, that’s something I haven’t dealt 

with before in terms of these type of things. Occasionally I have -- file 

under seal, all attorney work product and things of that nature, and I’m, of 

course, respectful of, you know, the professional way you go about things.

“Nobody is criticizing you at all, but I just think that given where we 

are in terms of the sentencing, I can allow you to make an appropriate 

record if you wish. I’m just concerned about the request to do it in camera 

without the People being present. That is concerning to me, and I don’t 

know that that’s an appropriate procedure in any event. I haven’t dealt with 

that before. I haven’t dealt with that specifically in this type of case, this 

type of criminal case.

“And so my view is that this -- it’s really not in the interests of 

justice to continue this case given how long it has been pending, given how 

long the matter was set between plea and sentencing. The fact that we have 

multiple people here ready to be heard. Fact that the People are objecting. 

The victims’ family is objecting. To me, I’m not at all comfortable in 

continuing the case, and as to that second prong, I’ll hear from both parties 

if anybody wants to be heard on the appropriateness before we go any 

further. Obviously I haven’t heard what it is that [defense counsel] has not 

chosen to reveal here in court here today, but if anybody wants to be heard 

further on that in the in camera as to whether that would have a bearing on 

the Court’s initial analysis, I’ll hear from you both on that right now. 

Okay. But under a [Penal Code section] 1050 analysis, there is not good 
7.

cause for the continuance as I see it as the [sic] exists right now. So did 

you want --

“[DEFENSE COUNSEL]: Would the Court now allow me to make 

an in camera record? I’m just going to put on the record that I’m aware, 

and I became aware the night before last that the -- there was an [sic] 

reenactment done, that the costs are approximately $50,000 that I have not 

been able to see but would be able to see in the next 30 days. And the 

reenactment was done in the basically same lighting, all the same 

conditions. And what I was told by [appellant’s] civil defense attorney was 

such that if this case wasn’t on the date of sentencing and he hadn’t pled 

yet, there is no way that I would have recommended that he plead without 

first viewing that video. And now I have an opportunity to view that in the 

next 30 days.

“THE COURT: That’s from the civil attorney?

“[DEFENSE COUNSEL]: Correct.

“THE COURT: Okay. All right.

“[DEFENSE COUNSEL]: And with them doing a reenactment, we 

did not have the resources to do a reenactment to do the same thing twice, 

and whether it would change anything, I don’t know. But if that had been 

available to me, I certainly would have wanted to view it from the 

standpoint of properly advising my client, and it’s become available, and 

that’s the issue.

“THE COURT: Okay, [defense counsel]. Thank you. [Prosecutor].

“[PROSECUTOR]: Well, reenactments are typically done in civil 

cases and usually involve a lot more drama than you see in criminal cases. 

In criminal cases you deal with evidence. The evidence is presented to the 

defense in documentation form: photographs, extended investigation 

reports with multiple photographs of the scene, essentially reenactments in 

words as to what occurred. I don’t see the basis for continuing the matter 

based on what’s been represented today.

“THE COURT: All right. I have enough information. I -- at this 

point in time, I am not granting the motion to continue. I don’t think that 

this is timely. I think that the overall interests of justice of the case call for 

us to go forward with the sentencing at this time. Sentencing hearing’s 

been scheduled for months, and your request to continue is denied.
8.

“I also take note of the fact that, you know, the overall nature of the 

request, whether we would or would not change any decision to file a 

motion to withdraw plea, and whether that would ever even be granted. I 

believe that for criminal case purposes, there has been a lot of time allowed 

for discovery and completion of criminal discovery, over a year in fact, and 

I’m not going to allow a continuance. So motion to continue is denied.” 

Shortly after the trial court ruled, the prosecutor noted “for the record” that the 

reenactment which defense counsel referenced was done “weeks and weeks ago, and I 

had heard about it myself.” The prosecutor noted that appellant’s defense counsel had 

been in contact with civil counsel “over this case over the long haul.” Defense counsel 

responded that “I heard for it the first time the night before last.” The court then 

proceeded with the sentencing hearing.

DISCUSSION

I. The Trial Court Abused Its Discretion In Denying A Continuance.

Appellant contends the trial court abused its discretion in denying his oral request 

to continue the sentencing hearing. He asserts his judgment should be reversed and the 

matter remanded for defense counsel to have time to investigate and evaluate all new 

evidence available, and submit a motion to withdraw his pleas should the new evidence 

warrant that decision. 

A. Standard of review.

A criminal case may be continued only upon a showing of good cause. (Pen. 

Code, § 1050, subd. (e).) It is within the trial court’s discretion to determine whether 

good cause exists. (People v. Beames (2007) 40 Cal.4th 907, 920.) The defendant bears 

the burden of establishing that a denied continuance was an abuse of discretion, and a 

defendant can rarely successfully attack such a denial. (Ibid.) An abuse of discretion 

occurs when the trial court “exceeds the bounds of reason” after all circumstances are 

considered. (Ibid.) A denied continuance may be so arbitrary as to deny due process, but 

not every denied continuance violates due process even if the party is unable to offer 

evidence as a result. (Id. at p. 921.) To determine if a denied continuance violates due 
9.

process, the circumstances of the case must be examined, “‘particularly in the reasons 

presented to the trial judge at the time the request is denied.’ [Citations.]” (Ibid.)

B. Analysis.

In the context of a requested trial continuance, the trial court must consider the 

benefit which the moving party anticipates and the likelihood such a benefit will occur, 

the burden on the witnesses, jurors and the court, and, most importantly, whether 

substantial justice will be accomplished or defeated in granting the motion. (People v. 

Doolin (2009) 45 Cal.4th 390, 450.) A trial court may not exercise its discretion in a 

manner that deprives the defendant of a reasonable opportunity to prepare. (Ibid.) In 

determining if an abuse of discretion occurred in denying a continuance, all 

circumstances must be considered, with particular importance placed on the reasons 

presented to the court at the time the continuance was sought. (People v. Beames, supra,

40 Cal.4th at pp. 920-921.)

Appellant raises several contentions on appeal regarding how the trial court erred 

or abused its discretion in denying the requested continuance. We find compelling his 

argument that the continuance should have been granted in the interest of justice. He 

asserts a continuance would have provided the defense an opportunity to review the 

reenactment video, which may have allowed him to withdraw his plea and/or negotiate 

better terms to settle the matter. He notes the reenactment video could have clarified key 

facts which were central to the issue of proximate cause. Based on testimony from the 

preliminary hearing, the accident scene was poorly lit, the victims’ bicycles did not have 

lights, and a sign near the crosswalk informed pedestrians that vehicles on that particular 

avenue had the right of way. 

Respondent contends the trial court was justified in denying the continuance 

because many people were present at sentencing and ready to speak. The prosecution 

and the victims’ family objected to a continuance. The sentencing hearing had been set 

for more than two and a half months to ensure time for the parties to prepare, and 
10.

criminal discovery had been completed. Respondent argues appellant’s counsel had 

sufficient opportunity to file a timely continuance motion and prepare for sentencing 

because the prosecutor said the reenactment video had been completed weeks prior to 

sentencing.

We are mindful that the victims and their family members were entitled to a 

prompt and final conclusion to the case. Given the grave nature of this crime, we 

understand the impact it had on everyone involved. Requiring everyone to return for a 

continued sentencing hearing would have impacted the court, the victims and the 

respective family members.

We must, however, balance the competing interests. The change of plea occurred 

on June 12, 2013, and the case had been pending for just over one year when the 

sentencing hearing occurred on August 29, 2013. This record does not reflect ongoing or 

considerable delay in the prosecution of this matter. No previous request had been made 

to continue the sentencing hearing. Appellant’s counsel alerted the trial court that the 

video reenactment existed and he had just learned of it. Most importantly, the trial court 

was informed that appellant’s civil defense attorney had said, “ . . . if this case wasn’t on 

the date of sentencing and [appellant] hadn’t pled yet, there is no way that I would have 

recommended that he plead without first viewing that video.”

Through the statement from appellant’s civil defense counsel, it was suggested the 

video could have impacted the plea agreement. On balance, a reasonable continuance 

was important to protect appellant’s rights despite the delay it would cause. Denying the 

requested continuance deprived appellant’s criminal counsel of a reasonable opportunity 

to prepare. (See generally People v. Murphy (1963) 59 Cal.2d 818, 825 [defense counsel 

must be afforded a reasonable opportunity to prepare, which is as fundamental as the 

right to counsel].)

Although defense counsel initially said he did not think the video would change 

anything in the case, he also stated he had not yet seen it. We do not fault defense 
11.

counsel for not making stronger statements regarding the potential impact of the video. 

To the contrary, defense counsel made it clear that viewing the video was important 

before sentencing to ensure all facts were known before the case proceeded.

Under the circumstances of this case, substantial justice would have been 

accomplished if the continuance was granted. We cannot say that substantial justice 

occurred with the denial. (See People v. Doolin, supra, 45 Cal.4th at p. 450 [the most 

important consideration in granting or denying a continuance is whether substantial 

justice will result].) An abuse of discretion occurred. Accordingly, we remand the 

matter for the limited purpose of affording appellant an opportunity to file a motion to 

withdraw his plea. Any such motion must be filed in the superior court on or before 60 

calendar days of the issuance of the remittitur. If appellant files no such motion within 

that time, or if the motion is denied, the judgment is affirmed.2

II. Application of Penal Code Section 12022.7 Was Proper In This Case.

Appellant contends that Penal Code section 12022.7 should not have applied in his 

case, arguing its application was both unconstitutional and beyond its statutory 

constraints. He seeks reversal of the Penal Code section 12022.7 enhancements to his 

sentence.

A. Background.

As is relevant to this issue, the first amended information alleged enhancements 

pursuant to Penal Code section 12022.7 in counts 2 through 4. As to counts 2, 3 and 4, it 

was alleged that appellant “personally inflicted great bodily injury upon” Jesse and 

Donovan (Pen. Code, § 12022.7, subd. (a)). As to counts 2 and 3, it was alleged that 

appellant “personally inflicted great bodily injury upon” Bella (Pen. Code, § 12022.7, 

subd. (d)). Appellant admitted as true each of these enhancement allegations. 

 

2 We express no opinion regarding the accident reconstruction video, which is not 

part of the record before this court.
12.

As part of the stipulated aggregate term of 12 years in state prison, appellant 

received a one-year enhancement to count 2 under Penal Code section 12022.7, 

subdivision (a), for the great bodily injury inflicted upon Jesse. In addition, appellant 

received a 16-month enhancement to count 2 under Penal Code section 12022.7, 

subdivision (d), for the great bodily injury inflicted upon Bella. Sentence on the 

remaining enhancements pursuant to Penal Code section 12022.7, subdivisions (a) and 

(d), were stayed pursuant to Penal Code section 654. 

B. Standard of review.

A statutory enhancement is different from a substantive crime because 

enhancement provisions do not define criminal acts. (People v. Ahmed (2011) 53 Cal.4th 

156, 163.) Instead, an enhancement increases the punishment for the criminal act and 

focuses “on aspects of the criminal act that are not always present and that warrant 

additional punishment. [Citations.]” (Ibid.)

The interpretation of a statute is an issue of law which an appellate court decides 

de novo. (People v. Akhile (2008) 167 Cal.App.4th 558, 562.) 

C. Analysis.

Appellant asserts that the clear and plain language of Penal Code section 12022.7, 

subdivision (g), establishes that he should not have been punished regardless of the 

alleged victim. He relies upon People v. Cook (2015) 60 Cal.4th 922 (Cook), a decision 

filed after his sentencing hearing, as authority that his sentence is improper regarding 

Penal Code section 12022.7. He claims he did not waive this issue on appeal given the 

subsequent change in the law. 

Respondent contends appellant is estopped from complaining about his sentence 

on appeal because he voluntarily negotiated the benefit of a specific prison term. 

Respondent also submits that imposition of the enhancements pursuant to Penal Code 

section 12022.7 was proper because no great bodily injury enhancements were imposed 

in count 1. 
13.

We need not resolve the parties’ dispute regarding whether appellant has either 

waived or is estopped from raising this claim on appeal because, when we analyze the 

merits of appellant’s arguments, they are unpersuasive. 

Penal Code section 12022.7, subdivision (a), provides: “Any person who 

personally inflicts great bodily injury on any person other than an accomplice in the 

commission of a felony or attempted felony shall be punished by an additional and 

consecutive term of imprisonment in the state prison for three years.” Penal Code section 

12022.7, subdivision (g), provides: “This section shall not apply to murder or 

manslaughter or a violation of [Penal Code] Section 451 [(arson)] or [Penal Code 

Section] 452 [(unlawfully causing a fire)]. Subdivisions (a), (b), (c), and (d) shall not 

apply if infliction of great bodily injury is an element of the offense.” Penal Code section 

12022.7 defines “great bodily injury” as “a significant or substantial physical injury.” 

(Pen. Code, § 12022.7, subd. (f).) 

In Cook, supra, 60 Cal.4th 922, the defendant was involved in an automobile 

accident in which three persons were killed and a fourth was seriously injured. The jury 

found that the defendant caused the accident by speeding and driving recklessly. The 

defendant was convicted of three counts of gross vehicular manslaughter, one count for 

each of the deceased victims. Regarding the first count, the jury also found true three 

allegations that the defendant personally inflicted great bodily injury. Two of these 

allegations related to the two victims who died and were the subject of the other two 

manslaughter convictions, while the third related to the victim who survived. (Id. at 

pp. 924-925.) The defendant was sentenced to state prison for an aggregate term of nine 

years eight months, including three years for the great bodily injury enhancement as to 

the victim who survived. The court struck punishment for the great bodily injury 

enhancements for the victims who died. (Id. at p. 925.) The defendant appealed, 

contending Penal Code section 12022.7, subdivision (g), prohibited all of the great bodily 

injury enhancements. (Cook, supra, 60 Cal.4th at p. 925.) The Court of Appeal upheld 
14.

the enhancement as to the surviving victim, but reversed the enhancements as to the 

manslaughter victims. The Attorney General appealed.

The Cook court noted that a murder or manslaughter conviction may not be 

enhanced under Penal Code section 12022.7, subdivision (g), for inflicting great bodily 

injury on the victim who is the subject of that conviction. (Cook, supra, 60 Cal.4th at 

p. 925.) Cook then examined the specific question regarding “when, if ever, a 

manslaughter conviction may be enhanced for the infliction of great bodily injury on 

other victims during the commission of the manslaughter.” (Ibid.) Cook noted that the

statutory language of Penal Code section 12022.7, subdivision (g), was plain and states 

that an enhancement for great bodily injury “‘“shall not apply to murder or 

manslaughter ....” [Citation.]’” (Cook, supra, at p. 933.) Penal Code section 12022.7, 

subdivision (g) further states a great bodily injury enhancement “‘“shall not apply”’” if 

an element of the offense includes infliction of great bodily injury. (Cook, supra, at 

p. 933.) “‘Great bodily injury is by definition inherent in a murder or manslaughter 

victim’s injuries that result in death. Consequently, great bodily injury is necessarily 

proven when the victim’s death is proven as an element of those offenses. By statutory 

command, a [great bodily injury] enhancement therefore “shall not apply.” (Subd. (g).) 

We must give effect to this plain language.’ [Citation.]” (Ibid.) Following its analysis, 

Cook concluded “that no great bodily injury enhancement can attach to a conviction for 

murder or manslaughter.” (Id. at p. 938.) In a final footnote, Cook stated, “We express 

no opinion regarding the question, not presented here, of whether and, if so, how great 

bodily injury enhancements may attach to other crimes for a defendant who is convicted 

of murder or manslaughter as well as those other crimes.” (Id. at p. 938, fn. 3.)

Here, a great bodily injury enhancement was not imposed against appellant for his 

conviction in count 1 of gross vehicular manslaughter while intoxicated. As such, Cook

is distinguishable and does not establish a sentencing error. Indeed, the final footnote in 

Cook states that the Supreme Court did not address the very issue raised in appellant’s 
15.

present appeal. Thus, we must analyze whether the statutory language of Penal Code 

section 12022.7 prohibits imposition of its enhancement as to the remaining counts 

against appellant.

The Legislature made Penal Code section 12022.7 inapplicable to murder, 

manslaughter, arson or unlawfully causing a fire. In addition, Penal Code section 

12022.7, subdivisions (a), (b), (c), and (d), do not apply when “infliction of great bodily 

injury is an element of the offense.” (Pen. Code, § 12022.7, subd. (g).) 

In count 2, appellant was convicted of violating Vehicle Code section 23153, 

subdivision (a). This makes it “unlawful for a person, while under the influence of any 

alcoholic beverage to drive a vehicle and concurrently do any act forbidden by law, or 

neglect any duty imposed by law in driving the vehicle, which act or neglect proximately 

causes bodily injury to any person other than the driver.” (Veh. Code, § 23153, 

subd. (a).) 

In count 3, appellant was convicted of violating Vehicle Code section 23153, 

subdivision (b). This makes it “unlawful for a person, while having 0.08 percent or more, 

by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act 

forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or 

neglect proximately causes bodily injury to any person other than the driver.” (Veh.

Code, § 23153, subd. (b).) 

In count 4, appellant was convicted of violating Vehicle Code section 20001, 

subdivision (a). Under this section, “[t]he driver of a vehicle involved in an accident 

resulting in injury to a person, other than himself or herself, or in the death of a person 

shall immediately stop the vehicle at the scene of the accident and shall fulfill the 

requirements of [Vehicle Code] Sections 20003 and 20004.” (Veh. Code, § 20001, 

subd. (a).)

We begin our analysis with the scope of statutory interpretation. “When 

construing a statute, our job is ‘simply to ascertain and declare what is in terms or in 
16.

substance contained therein, not to insert what has been omitted, or to omit what has been 

inserted ....’” (People v. Bell (2015) 241 Cal.App.4th 315, 321, quoting Code Civ. Proc., 

§ 1858.) We are to follow the Legislature’s intent as expressed by the plain meaning of 

the actual words and to give the words “‘“their usual and ordinary meaning.”’” (People 

v. Loeun (1997) 17 Cal.4th 1, 9.) If there is no ambiguity in the statute’s language, we 

presume the Legislature intended that meaning and that plain meaning controls. (Ibid.) 

We will not find ambiguity where none exists. (Ibid.)

Here, the plain language of Vehicle Code section 23153, subdivisions (a) and (b), 

and Vehicle Code section 20001, subdivision (a), establish that “great” bodily injury is 

not an element for conviction. Further, neither deals with murder, manslaughter, arson or 

unlawfully causing a fire. No ambiguity appears in the text of these statutes. As such, 

the express terms of Penal Code section 12022.7, subdivision (g), did not prevent 

imposition of the sentence enhancements against appellant for the great bodily injury 

inflicted upon Jesse and Bella in counts 2 through 4. 

We are cognizant of, and appellant points out, that Vehicle Code section 20001, 

subdivision (a), applies to any degree of injury, including death. Our Supreme Court has 

stated that the term “great bodily injury” necessarily includes any injuries that result in 

death. (Cook, supra, 60 Cal.4th at p. 933.) However, Vehicle Code section 20001 

“governs a number of situations, one of which is automobile accidents resulting in death. 

Clearly, not rendering aid to a dead person (assuming death has already occurred) is not 

by itself what is criminalized by the statute. [Vehicle Code] [s]ection 20001, with its 

incorporation by reference of [Vehicle Code] section 20003, criminalizes a number of 

obligations a person involved in an accident is required, if feasible or necessary, to do: 

(1) stop, (2) identify themselves, any injured passengers, and vehicle registration, 

(3) render aid, and (4) provide transportation for an injured person. [Citation.] Clearly, 

not rendering aid to a dead person (assuming death has not already occurred) is not the 
17.

sole omission which can result in a violation of [Vehicle Code] section 20001.” (People 

v. Harbert (2009) 170 Cal.App.4th 42, 59.)

Moreover, the enhancement under Penal Code section 12022.7 applies only to 

those who personally inflict great bodily injury, which is not required in Vehicle Code 

section 20001. (People v. Harbert, supra, 170 Cal.App.4th at p. 59.) “The respective 

spheres of the two statutes operation may overlap, yet they are far from coextensive. 

When they do overlap, as occurred here, Penal Code section 654 becomes operative. 

Conviction for both is proper, and imposition of separate sentences for each is proper. 

But actual punishment, i.e., service of those separate sentences, is not. The appropriate 

course ... is to stay execution of the sentences. [Citation.]” (Ibid.)

Here, great bodily injury is not an element for conviction of Vehicle Code 

section 20001, subdivision (a). Accordingly, the enhancements pursuant to Penal Code 

section 12022.7 will not be reversed.3

III. The Abstract Of Judgment Must Be Amended.

At sentencing, the court imposed a total term of five years for count 4, which 

consisted of a two-year term under Vehicle Code section 20001, subdivision (a), and a 

 

3

In his supplemental reply brief, appellant contends this enhancement should not be 

imposed based upon a strict reading of the title of Penal Code section 12022.7. Deering’s 

California Codes Annotated titles this statute: “Bodily harm inflicted during commission 

of felony not having bodily harm as an element.” In contrast, West’s Annotated 

California Codes titles this statute: “Terms of imprisonment for persons inflicting great 

bodily injury while committing or attempting felony.” Appellant cites authority and 

argues that this section’s title controls the subject of the statute. Based on the title, 

appellant contends Penal Code section 12022.7 should not have enhanced any conviction 

and this matter should be remanded pursuant to Cook, supra, 60 Cal.4th 922. However, 

an appellate court generally will decline to address an issue, or will address it in a 

summary manner, when an issue is raised for the first time in a reply brief. (People v. 

Grimes (2015) 60 Cal.4th 729, 757.) To allow issues to be belatedly raised is unfair to 

the respondent and increases the appellate court’s labors. (Ibid.) Accordingly, we 

decline to address these arguments, or the authorities which appellant cites, which were 

raised for the first time in appellant’s supplemental reply brief at pages 13 through 15.
18.

three-year enhancement for the great bodily injury imposed upon Jesse under Penal Code 

section 12022.7, subdivision (a). The court stayed imposition of sentence pursuant to 

Penal Code section 654. The abstract of judgment does not list the imposition of the 

enhancement for count 4. 

An appellate court has jurisdiction to order correction of an abstract on its own 

motion so that the abstract accurately reflects the sentencing court’s oral judgment. 

(People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, if the motion to withdraw 

the plea is not filed or it is denied, the abstract of judgment shall be modified to reflect 

the imposition of the enhancement in count 4 pursuant to section 12022.7, 

subdivision (a).

DISPOSITION

This matter is remanded to the trial court for the limited purpose of affording 

appellant an opportunity to file a motion to withdraw his plea. Any such motion must be 

filed in the superior court on or before 60 calendar days of the issuance of the remittitur. 

If appellant files no such motion within that time, or if the motion is denied, the judgment 

is affirmed. The trial court shall then amend the abstract of judgment to reflect the 

imposition of the enhancement for count 4 pursuant to Penal Code section 12022.7, 

subdivision (a), and forward the amended abstract to the appropriate authorities.

_____________________

LEVY, J.

WE CONCUR:

_____________________

HILL, P.J.

_____________________

PEÑA, J.