Filed 11/26/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

RICK ALLEN WALKER , Defendant and Appellant. B2 5 4183
(Los A ngeles County Super. Ct. No. P A 077278 )

APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael J. O’Gara , Judge. Affirmed as m odified

.

J olene Larimore
, under appointment by the Court of Appe al, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Mary Sanchez
, Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *2

Can a criminal defendant sentenced to prison for driving under the influence (DUI) causing injury , when multiple injuries aris e out of a single incident
, be ordered to pay restitution to victims injured in that incident who are not named in the charging document? The answer is yes, and we modify but affirm the judgment, and affirm the
restitution order.
FACT UAL AND PROCEDURAL BACKGROUND Rick Allen Walker ( D efendant ) drove his pick

- up truck the wrong way on the 14 Freeway. He hit eight different vehicles, which were carrying a total of nine passengers.
Defendant had con sumed alcohol and methamphetamine. The People charged Defendant with four counts of DUI causing injury (Veh. Code, § 23153, subd. (a)), and those counts named four of the nine people he hit. The People also speci fi cally alleged that Defendant proximatel y caused injury to those four victims. (Veh. Code, § 23558.) Prior to the preliminary hearing, Defendant pled no
contest to all four counts and admitted the special allegation. The trial court sentenced Defendant to six years in state prison, comprised of three years on count one and three consecutive years for t he multiple injury enhancement. The court stayed the remaining
three counts under Penal Code section 654. 1 The court ordered Defendant to pay restitution to four persons

-- two who had been

name d in the charging document (Fernand o Lopez and David Becker) and two who had
not been named but whom Defendant conceded were involved in the accident he caused (R ichard Pauley and Myisha Hatfield). Defendant appeals the restitution order and the portion o f the judgment staying the last three counts of DUI causing injury.
DISCUSSION
I. Restitution In California, crime victims have a constitutional right to seek restitution for “the losses they suffer” from the defendant who inflicted those losses. (Cal. Const., art. I,

1 All further statutory references are to the Penal Code unless otherwise indicated.3

§ 28, subd. (b)(13).) To effectuate this right, the Legislature requires courts to order that “the defendant make restitu t ion to the victim or victims” “ in every case in which a victim
has suffered economic loss as a result of the defendan t’s conduct. ” (§ 1202 .4 , subd. ( f ), italics added; § 1202.4, subd. (a)(3)(B); accord
, People v. Giordano (2007) 42 Cal.4th 644, 655

- 656 ( Giordano ).) The scope of the court’s duty

-- and power

-- to order restitution turns on whether the court imposes judgmen t or instead places the defendant on probation. When judgment is imposed and the defendant sentenced to a period of incarceration (in prison or jail), the court may only order restitution for losses arising out of the “criminal conduct for which
the defen dant has been convicted.” ( People v. Lai (2006) 138 Cal.App.4th 1227, 1247 ( Lai ); People v. Woods (2008) 161 Cal.App.4th 1045, 1049 ( Woods ) [limiting restitution in this context “to those losses arising out of the criminal activity that formed the basis o f the conviction”]; People v. Percelle (2005) 126 Cal.App.4th 164, 179

- 180 ( Percelle ) [same].) This result is dictated by the language of section 1202.4, which looks to “the
defendant’s conduct ” and by the unfairness that would result if a defendant were held responsible for losses caused by conduct underlying charges that were dismissed or of which he was acquitted. ( People v. Snow (2012) 205 Cal.App.4th 932, 938; accord
, People v. Harvey (1979) 25 Cal.3d 754, 757

- 758 [noting unfairness and impropriety o f enhancing a sentence using facts underlying dismissed counts].) When a defendant is placed on probation, courts have a much freer hand to impose restitution as a condition of probation. ( Giordano, supra , 42 Cal.4th at pp. 651

- 652; § 1203.1 , subd. (a)(3 ) [court may, as a condition of probation, “provide for restitution in proper cases”].) As long as the restitution imposed is “‘reasonably related to the crime of which the defendant was convicted or to future criminality,’” it may be imposed as a
conditi on of probation

-- “even when the loss was not necessarily caused by the criminal conduct underlying the conviction.” ( People v. Carbajal (1995) 10 Cal.4th 111 4 , 1121, quoting People v. Lent (1975) 15 Cal.3d 481, 486; Woods
, supra , 161 Cal.App.4th at

p. 105 0 [same]; Percelle, supra , 126 Cal.App.4th at p. 179.) This greater latitude to impose restitution arises from the purpose of probation to foster rehabilitation ( Carbajal,4

supra , 10 Cal.4th at pp. 1120

- 1121) as well as from the defendant’s consensual deci sion to forgo imprisonment in favor of probation and its potentially more onerous conditions ( Percelle, supra , 126 Cal.App.4th at p. 180). Defendant argues that the trial court’s power to impose restitution was limited because he was sentenced to prison, and that the court exceeded that power by imposing restitution for crimes of which he was not convicted. Assessing this argument requires us

to understand the conduct of which he stands convicted, which turns on what conduct is encompassed by the crime of DUI causing injury. This is a question of law, which we
review de novo . ( People v. Martinez (201 4 ) 226 Cal.App.4th 759, 765.) The elements of DUI causing injury are “(1) driving a vehicle while under the influence of an alcohol beverage [or drug]; (2) when so driving, committing some act which violates the law or fails to perform some duty required by law; and (3) as a proximate result of such violation of law or failure to perform a duty, another person was injured.” ( People v. Verlinde (2002) 100 Cal .App.4th 1146, 1159

- 1160.) The first two
elements define the conduct prohibited by this offense, while the third element sets forth the required consequence of that conduct; the third element is accordingly not part of the
“actus re u s” of that crime. ( Wi lkoff v. Super ior C ourt (1985) 38 Cal.3d 345, 352 ( Wilkoff ) [“ [ t ] he act prohibited by [Vehicle Code] section 23153 is the

. . . driving [ of ] a vehicle while intoxicated and, when so driving, violating any law relating to the driving
of [the] vehicle”]; see also People v. Cant y (2004) 32 Cal.4th 1266, 1279 [“The gravamen of driving while under the influence is driving despite an impairment of capacity.”].)
The inquiry into the conduct encompassed by a DUI with injury conviction becomes more complicated wher e, as here, more than one person is injured. In this situation, our Supreme Court has said that the number of distinct violations of Vehicle
Code s ection 23153 turns on the number of “instance[s] of drunk driving”

-- which is assessed by examining what happ ened in the underlying accident. ( Wilkoff, supra , 38 Cal.3d at p. 349. ) Where the driver “collides with one car and is involuntarily propelled into a second car,” there is only “one volitional act of driving” and consequently one5

violation of section 231 53. ( Id. at p. 349 , fn. 4.) But where the driver “collides with the
first car and then voluntarily drives further and collides with a second car,” there are multiple “instances” of drunk driving and multiple violations . ( Ibid. ) In this case, the detail s of the accident caused by Defendant are a bit murky because there was no preliminary hearing and no trial. However, the prosecutor, the defense attorney, and the trial court all treated the eight

- car accident as a single incident.
We have no basis to c onclude otherwise (and, indeed, no one has asked us to do so).
Because there was only one instance of drunk driving

-- and because Defendant entered a plea to that instance

-- the losses suffered by any of the persons in the vehicles
involved in that instance are losses arising out of “the criminal conduct for which the defendant has been convicted.” ( Lai, supra , 138 Cal.App.4th at p. 124 7 .) Whether these potential victims were specifically named in the charging document is irrelevant. Section 1202.4 impose s no such duty to name, and judicially imposing such a duty would make a victim’s entitlement to restitution turn on the happenstance of whether the prosecutor located or named that victim before the defendant pled or was convicted. Such absurd
results ar e to be avoided. ( People v. Leiva (2013) 56 Cal.4th 498, 506

- 507.) Defendant resists this conclusion, and points out that Vehicle Code section 23558 requires victims to be named. T hat section authorizes the imposition of additional prison
time for each additional victim (up to three) injured by drunk driving. (Veh. Code, § 23558.) But it is a penalty provision ; it does not alter the definition of the underlying crime it enhances. (See People v. Valenzuela (1995) 40 Cal.App.4th 358, 361 [ multiple

victi m enhancement to an offense does not alter definition of what constitutes a completed offense].) More to the point, the enhancement

-- like the third element of the crime of DUI causing injury

-- deals with the result of a defendant’s conduct, not the
conduct itself

. Because, as we note above, the court’s power to impose restitution turns on the relationship between the loss and the defendant’s criminal conduct , the
enhancement is irrelevant to the question before us

.6

We accordingly hold that a court may imp ose restitution for all victims of a single incident of DUI causing injury for which the defendant is convicted and sentenced to prison, whether or not those victims are named in the charging document.
II. Multiple Convictions
Defendant contends that the trial court erred in staying three of the DUI causing injury convictions rather than dismissing them. We agree. Wilkoff requires dismissal of multiple convictions of DUI causing injury when they all arise from a single instance of driving. ( Wilkoff, sup ra , 38 Cal.3d at p. 349 , fn. 4; see also People v. McFarland (1989) 47 Cal.3d 798, 802.) As discussed above, there was only one instance of driving in this case. The three duplicative convictions must accordingly be dismissed, not stayed.
DISPOSITION
Th e judgment is ordered modified by vacating the convictions and stayed sentences on counts two, three, and four
, for violation of Vehicle Code section 23153, subdivision (a). The clerk of the s uperior c ourt is directed to forward a certified copy of
the co rrected abstract of judgment to the Department of Corrections and Rehabilitation.
As modified, the judgment is affirmed.
CERTIFIED FOR PUBLICATION

.

_____________________ __ , J.
HOFFSTADT
We concur:

____________________________, P. J.

BOR EN

____________________________, J.

CHAVEZ