P v. Wilson (3rd Dist) Enhancement Limitation in PC 1170.1(g) Doesn't Proscribe Imposition of PC 667(a)(1) Enhancement In Addition to a PC 12022.7 Enhancement

Mr. Wilson got drunk and drove a car into a house.  Wilson's brother was riding shotgun and suffered a broken leg and collapsed lung.  

Wilson was convicted of a DUI causing injury, along with an enhancement under PC 12022.7 for causing great bodily injury (GBI) to his brother.  The 12022.7 enhancement converted the DUI charge into a serious felony.  Wilson had suffered a prior conviction for attempted robbery, also a serious felony.  

Come sentencing, the trial court imposed a three year sentence for the DUI charge.  This was doubled due to the prior serious felony.  Three years was added for the 12022.7 (GBI) enhancement.  Lastly, a five year enhancement was imposed under PC 667(a)(1), a section that adds five years when a defendant with a prior serious felony commits a new serious felony.  The total sentence was 14 years.  Wilson appealed the sentence.

The Third District affirms.

The issue is whether it was permissible for the trial court to impose both the 12022.7 GBI enhancement and the 667(a)(1) enhancement.  This issue arises due to PC 1170.1(g), which states in pertinent part that,

[w]hen two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. 

Wilson argues the trial court erroneous imposed two enhancements for his infliction of GBI upon his brother: [1] the 12022.7 enhancement for causing GBI, and [2] the 667(a)(1) enhancement for having a prior serious felony conviction (attempted robbery) and committing a new serious felony  (DUI w/GBI).  The argument is premised upon the fact that the present DUI w/injury offense only became a serious felony triggering the 667(a)(1) enhancement due to the GBI enhancement.  

The panel rejects this argument.  The result is probably correct, but the panel takes an intellectual shortcut that leaves a bad taste in my mouth.  The holding is that the 667(a)(1) enhancement does not punish Wilson for the present offense, but only punishes him as a recidivist.  This is half-true.  Section 667(a)(1) does not apply to every defendant with a prior conviction for a serious felony, rather it only applies to defendants with prior serious felony convictions who go on to commit a subsequent serious felony.  Since the infliction of GBI in the present case is a but-for cause of the 667(a)(1) enhancement, it is dishonest to state that the fact Wilson caused GBI to his brother is not part of the legal basis for the 667(a)(1) enhancement.  

It is more accurate to state that Wilson's 667(a)(1) enhancement is partially due to his status as a recidivist and partially due to his infliction of GBI upon his brother.  But admitting this truth would have created additional work for the panel in order for it to arrive at the chosen result.  And apparently it could not be bothered.