Stanford Law School - Robert Crown Law Library

Filed 1/29/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S129896
v.
Ct.App.
4/1
D042645
LAWRENCE LAMONT CALHOUN et al., )
)
San
Diego
County
Defendants and Appellants.
Super. Ct. No. SCD170791,
SCD170276

Here we consider two issues: first, whether someone convicted of gross
vehicular manslaughter as an aider and abettor may be subject to an enhancement
under Vehicle Code1 section 20001, subdivision (c) (20001(c)) for fleeing the
scene; second, whether an upper term sentence may be imposed based upon a
“multiple victims” aggravating factor if only one victim was named in each count.
We answer each question in the affirmative, and therefore reverse the contrary
judgment of the Court of Appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The relevant facts are undisputed. At approximately 7:00 p.m., on October
6, 2002, defendants Lawrence Lamont Calhoun and George Kenneth Waller, Jr.,
were drag racing at over 70 miles per hour. Waller passed Calhoun, and struck

1 All further undesignated statutory references are to this code.
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Shanna Jump’s car. Jump and passenger Brian Hanson were killed. Jump’s other
passenger, Michael Hanson, was profoundly disabled. Waller’s passenger, Jasen
Moore, suffered great bodily injury. Calhoun saw “how bad” the accident was and
thought, “Well, I better get out of here.” He drove home, and turned himself in
over two months later.
Calhoun and Waller were each charged with two counts of second degree
murder, two counts of vehicular manslaughter with gross negligence, and two
counts of reckless driving causing bodily injury. The information also alleged that
Calhoun fled the scene of the crime (§ 20001(c)).
A jury acquitted Calhoun and Waller of second degree murder, convicting
them of vehicular manslaughter with gross negligence, and reckless driving
causing bodily injury. The jury also found that Calhoun fled the scene.
The court sentenced Calhoun to nine years in prison, imposing the middle
term of four years for one manslaughter count (Pen. Code, § 192, subd. (c)(1)), a
consecutive five-year enhancement for fleeing the scene of the crime (§ 20001(c)),
a concurrent four-year term for the second manslaughter count, and concurrent
terms of 180 days for each of the reckless driving counts (§ 23104, subd. (a)). It
stayed one of the two flight enhancements. Waller was sentenced to six years in
prison, the upper term, for one manslaughter count. Terms of six years for the
second count, and 180 days for each of the two reckless driving counts, were
ordered to run concurrently. In a bifurcated trial, the court found Waller
personally inflicted great bodily injury in committing manslaughter. (Pen. Code, §
1192.7(c)(8).)
The Court of Appeal concluded that the section 20001(c) flight enhancement
applies only to those who directly commit an underlying offense, not to aiders and
abettors. Accordingly, it vacated Calhoun’s two 5-year enhancements. The court
also concluded that an upper term could not be imposed by relying on multiple
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victims as an aggravating factor. Thus, it vacated Waller’s two 6-year terms and
remanded for resentencing of both defendants.
II. DISCUSSION
A. Application of section 20001(c) to an aider and abettor
Calhoun concedes he is guilty of gross vehicular manslaughter as an aider
and abettor. We conclude he is also subject to the flight enhancement.
Section 20001, subdivision (a) provides, “The driver of any vehicle involved
in an accident resulting in injury to any person, other than himself or herself, or in
the death of any person shall immediately stop the vehicle at the scene of the
accident and shall fulfill the requirements of Sections 20003 and 20004.” Section
20001(c), at issue in this case, provides in relevant part: “A person who flees the
scene of the crime after committing a violation of . . . subdivision (c) of Section
192 . . . of, the Penal Code, upon conviction of . . . th[is] section[], in addition and
consecutive to the punishment prescribed, shall be punished by an additional term
of imprisonment of five years in the state prison.”2 (Italics added.)
The question here is whether an aider or abettor, like a direct perpetrator, can
“commit[]” manslaughter within the meaning of the enhancement. Calhoun
argues that by using the term “commit[],” the Legislature limited the enhancement

2 Section 20001(c) provides in full: “A person who flees the scene of the
crime after committing a violation of Section 191.5 [gross vehicular manslaughter
while intoxicated] of, paragraph (1) or (3) of subdivision (c) of Section 192
[vehicular manslaughter] of, or subdivision (a) or (c) of Section 192.5 [vehicular
manslaughter while operating a vessel] of, the Penal Code, upon conviction of any
of those sections, in addition and consecutive to the punishment prescribed, shall
be punished by an additional term of imprisonment of five years in the state
prison. This additional term shall not be imposed unless the allegation is charged
in the accusatory pleading and admitted by the defendant or found to be true by
the trier of fact. The court shall not strike a finding that brings a person within the
provisions of this subdivision or an allegation made pursuant to this subdivision.”
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to direct perpetrators and barred its application to aiders and abettors. The
argument fails.
Both aiders and abettors and direct perpetrators are principals in the
commission of a crime. Penal Code section 31 defines “principals” as “[a]ll
persons concerned in the commission of a crime, . . . whether they directly commit
the act constituting the offense, or aid and abet in its commission . . . .” (See Pen.
Code, § 971 [“[A]ll persons concerned in the commission of a crime, who by the
operation of other provisions of this code are principals therein, shall hereafter be
prosecuted, tried and punished as principals . . . .”].) We have observed, “the
dividing line between the actual perpetrator and the aider and abettor is often
blurred. It is often an oversimplification to describe one person as the actual
perpetrator and the other as the aider and abettor. When two or more persons
commit a crime together, both may act in part as the actual perpetrator and in part
as the aider and abettor of the other, who also acts in part as an actual perpetrator.”
(People v. McCoy (2001) 25 Cal.4th 1111, 1120.) Here it is unnecessary to parse
Calhoun’s involvement. We conclude that by creating an enhancement for those
who flee the scene after “committing” manslaughter, the Legislature intended the
enhancement to apply to all principals, both aiders and abettors as well as direct
perpetrators.
We first consider the statutory language. Nothing in section 20001(c) limits
application of the enhancement to direct perpetrators of the underlying crime.
Rather, the Legislature enacted an enhancement that applies to any “person who
flees the scene of the crime after committing” certain forms of manslaughter.
Likewise, in People v. Lee (2003) 31 Cal.4th 613, 622 (Lee), we observed
that Penal Code section 664, subdivision (a) referred “three times broadly and
generally to ‘the person guilty’ of attempted murder, . . . not once distinguish[ing]
between an attempted murderer who is guilty as a direct perpetrator and an
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attempted murderer who is guilty as an aider and abettor . . . . Had the Legislature
intended to draw a distinction between direct perpetrators and aiders and abettors,
it certainly could have done so expressly.” (Lee, at p. 622.) Attempted murder is
of course a substantive crime, not an enhancement. For such crimes, it appears the
general law of criminal liability, including aider and abettor liability, remains
applicable. (See Lee, at p. 626.)
Similarly here, when Vehicle Code section 20001(c) refers to “committing
a violation of . . . paragraph (1) . . . of subdivision (c) of Section 192 . . . of, the
Penal Code,” or gross vehicular manslaughter, it is referring to a substantive
crime. As in Lee, supra, 31 Cal.4th 613, when referring to commission of that
crime, the Legislature did not expressly draw a distinction between direct
perpetrators and aiders and abettors. General principles of criminal liability,
including Penal Code section 31, indicate that both aiders and abettors and direct
perpetrators can “commit[]” the substantive crime of gross vehicular
manslaughter. Hence both are subject to the Vehicle Code enhancement when
they also personally commit the proscribed conduct of fleeing the scene of the
crime.
Calhoun generally relies on cases such as People v. Piper (1986) 42 Cal.3d
471, 476-477, and People v. Walker (1976) 18 Cal.3d 232, 241-242, which
required a defendant to personally engage in proscribed conduct for an
enhancement to attach. In these cases, “we declined to employ the law of criminal
liability to remove” the discerned personal conduct requirement for certain
enhancements. (Lee, supra, 31 Cal.4th at p. 626.)
Certainly the law of criminal liability remains applicable in determining
whether a defendant has “committ[ed]” an underlying crime within the meaning of
an enhancement. Thus, in In re Antonio R. (1990) 226 Cal.App.3d 476, 479, the
court concluded the minor defendant was properly punished for his personal use of
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a firearm even though he was vicariously liable for the murder. Here, aiding and
abetting principles establish that Calhoun “committ[ed]” gross vehicular
manslaughter. He then personally “fle[d] the scene of the crime after committing”
manslaughter, thus satisfying both elements of the enhancement. None of the
cases Calhoun cites require that in addition to personally engaging in the conduct
warranting an enhanced punishment, the person also be a direct perpetrator of the
underlying crime.
An example from a different context illustrates the point. Two robbers enter
a bank. The gunman holds everyone at bay while the other empties the cash
drawers. Both are guilty of robbery. Under Calhoun’s analysis, however, the
gunman would not be subject to a firearm use enhancement because he did not
personally take the money, but only aided and abetted the taking. Logic and the
law are otherwise. (See People v. Donnell (1975) 52 Cal.App.3d 762, 767, 778-
779.)
Similarly, the Court of Appeal relied in part on the language of Penal Code
section 12022, subdivision (a)(1), an enhancement that provides in part, “This
additional term shall apply to any person who is a principal in the commission of a
felony or attempted felony if one or more of the principals is armed with a firearm,
whether or not the person is personally armed with a firearm.” This provision
does nothing more than allow imposition of the enhancement regardless of which
principal is personally armed. In this context, the use of the word “principal”
simply describes who can be held liable for the arming. It does not mean that in
every other instance when the Legislature uses the words “committing” or
“commission” of a crime, it must also use the word “principal” in order to invoke
basic principles of criminal liability.
The legislative history of section 20001(c) reveals no intent to limit its
application to direct perpetrators of a crime. Calhoun relies on the fact that the bill
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was enacted in memory of 15-year-old Courtney Cheney, killed by a recidivist
drunk driver who fled the scene. (Stats. 1996, ch. 654, § 1; Sen. Com. on Crim.
Proc., analysis of Assem. Bill No. 1985 (1995-1996 Reg. Sess.) as amended July
1, 1996, pp. 3-4.) The Senate committee report pointed out that the enhancement
was necessary “because when a person who is DUI flees the scene of an accident
where a death has occurred and they are not caught immediately, it is hard if not
impossible to later prove that they were DUI. This [enhancement] will create an
added deterrence to keep people from fleeing accidents where a death may have
occurred.” (Id., at p. 5.) However, one can commit gross vehicular manslaughter,
the crime for which Calhoun was convicted, without being intoxicated. As the
Attorney General notes, “[w]hat Calhoun does is take a precipitating event for
legislation and use that event to limit the scope of the law.” Furthermore, the state
has a valid interest in requiring that principals in the commission of serious
vehicular crimes remain at the scene.
B. Whether the upper terms were supported by the multiple victim
factor
In sentencing Waller, the trial court stated, “[A]s to Counts Three and Four,
[the] vehicular manslaughter charges, the Court will impose an upper term of six
years. In selecting the upper term, the Court has to weigh circumstances in
mitigation as provided by the sentencing rules, as against those in aggravation.
And I think the mitiga[ting], in Mr. Waller’s case, have already [been] talked
about, in some respect, his lack of significant criminal record. And his
background[.] [I]n aggravation, the Court would cite that this defendant was
convicted of other crimes for which consecutive sentences could have been
imposed, and there are separate victims of the crime involving violence. I am
using that aggravating factor as a basis for imposing the aggravated term. I think
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it outweighs all of the mitigation referred to by counsel and by the probation
department. I am ordering terms to run concurrently.”
The trial court’s statement is ambiguous as to whether it is relying on both
the fact that there were multiple victims and the fact that consecutive sentences
could have been but were not imposed. Waller assumes, as did the Court of
Appeal, that the trial court was relying on both, and that imposition of the upper
term as to both counts would have been proper had the trial court instead relied
solely on the fact that consecutive sentences could have been but were not
imposed. He contends that the trial court’s reliance on the multiple victim factor
was improper because that factor does not apply when the victims are each named
in a separate count. We reject that argument. To the extent the trial court relied
on the multiple victim factor, that reliance was proper.
California Rules of Court,3 rule 4.421 provides, “Circumstances in
aggravation include facts relating to the crime,” whether or not charged or
chargeable as enhancements. Before 1991, rule 421(a)(4) provided that one of
these facts was that “[t]he crime involved multiple victims.” Effective January
1991, this factor was deleted from the rule. The Advisory Committee Comment
noted, “Former subdivision (a)(4), concerning multiple victims, was deleted to
avoid confusion; cases in which that possible circumstance in aggravation was
relied on were frequently reversed on appeal because there was only a single
victim in a particular count.” Defendant does not argue that deletion of the factor
precludes the trial court’s reliance on it.4 Rule 4.408(a) provides, “The

3 All further references to rules are to the California Rules of Court.
4 Former rule 425(a)(4) provided that a court could consider in determining
whether to impose consecutive sentences whether “[a]ny of the crimes involved
multiple victims.” Rule 425(a)(4) was also deleted as of January 1, 1991.
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enumeration in these rules of some criteria for the making of discretionary
sentencing decisions does not prohibit the application of additional criteria
reasonably related to the decision being made. Any such additional criteria must
be stated on the record by the sentencing judge.”
In Cunningham v. California (Jan. 22, 2007, No 05-6551) 549 U.S. __ [2007
WL 135687] (Cunningham), the high court held that California’s Determinate
Sentencing Law violates a defendant’s Sixth and Fourteenth Amendment right to a
jury trial to the extent it permits a trial court to impose an upper term based on
facts found by the court rather than by a jury beyond a reasonable doubt. This
case does not implicate Cunningham because in convicting Waller of two counts
of gross vehicular manslaughter, and two counts of reckless driving causing bodily
injury, the jury necessarily found there were multiple victims.
Waller contends that the fact of multiple victims is properly relied on by the
trial court when the charges identifying other victims have been dismissed or the
crimes are uncharged. He asserts, however, that the factor is improperly relied on
when each count of which the defendant was convicted names only one victim.
There is no persuasive argument to support this distinction.
We first consider the cases involving dismissed charges. In People v. Harvey
(1979) 25 Cal.3d 754, 757 (Harvey), the defendant pled guilty to two robbery
counts. We held that the trial court improperly considered and relied on the facts
underlying an unrelated and dismissed third robbery count to impose the upper
term. (Id. at pp. 757-759.) We observed that although People v. Guevara (1979)
88 Cal.App.3d 86, 92-94 (Guevara), “upheld the authority of the sentencing court
to take into account certain facts underlying charges dismissed pursuant to a plea
bargain, those facts were also transactionally related to the offense to which
defendant pleaded guilty. As the Guevara court carefully explained, ‘The plea
bargain does not, expressly or by implication, preclude the sentencing court from
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reviewing all the circumstances relating to Guevara’s admitted offenses to the
legislatively mandated end that a term, lower, middle or upper, be imposed on
Guevara commensurate with the gravity of his crime.’ ” (Harvey, at p. 758.) By
contrast, in sentencing Harvey, the court relied on a dismissed robbery count
unrelated to, and wholly separate from, the crimes Harvey admitted as part of the
plea bargain.5 (Harvey, at pp. 758-759.)
In Guevara, supra, 88 Cal.App.3d at page 89, the defendant ordered a mother
and her son into a car at gunpoint, then forced her to drive to a different location.
After Guevara pleaded guilty to kidnapping the son, the allegation of the mother’s
kidnapping was dismissed. (Id. at pp. 88, 93.) The trial court relied on the
existence of multiple victims to impose the upper term. The Court of Appeal
affirmed, noting both the mother and the son were abducted. “No amount of
sophistry will make this fact anything but a ‘circumstance’—an aggravating
‘circumstance’ of the kidnaping of [the son]. It has long been the law that the
sentencing court must consider all of the attendant circumstances of the crime of
which the defendant has been convicted.” (Id. at p. 93.) Similarly, in People
v. Klaess (1982) 129 Cal.App.3d 820, 821-823, the court held that the trial court
properly considered two dismissed murder counts in imposing the upper term for
conviction of accessory after the fact, stating the murders “were inseparably and
integrally a part of defendant’s admitted offense.” (See People v. Blade (1991)
229 Cal.App.3d 1541, 1543-1545, 1547; People v. Cortez (1980) 103 Cal.App.3d
491, 494-496.)

5 Of course, a defendant may agree as part of a plea bargain that the trial
court may consider at sentencing the facts of unrelated dismissed or uncharged
crimes. (People v. Goulart (1990) 224 Cal.App.3d 71, 80.)
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Two cases, both from the Fifth District Court of Appeal, have addressed the
situation presented here, reliance on a multiple victim factor when each victim is
named in a separate count. Neither case provides extended analysis. In People
v. Burney (1981) 115 Cal.App.3d 497, 502, the defendant fired shots in a bar,
killing one person, and wounding another. She was convicted of voluntary
manslaughter and assault with a deadly weapon. (Ibid.) The Court of Appeal held
the trial court had properly relied on the multiple victim factor in imposing the
upper term “because the crimes were transactionally related.” (Id. at p. 505.) In
People v. McNiece (1986) 181 Cal.App.3d 1048, 1053-1054, defendant caused a
motoring accident, killing one person and severely injuring another. The court
held that because the gross vehicular manslaughter count involved only one
victim, it was improper to rely on the multiple victim circumstance “as a possible
aggravating factor.”6 (McNiece, at p. 1061.)
Here, of course, the jury convicted Waller of multiple counts involving
different victims, making this case even stronger than Harvey, supra, 25 Cal.3d
754. Regardless of whether Harvey and its progeny survive Cunningham, because
the jury here found beyond a reasonable doubt that Waller committed crimes

6 Several cases have upheld the use of the multiple victim factor to impose
consecutive sentences when each of the victims was named in a separate count if
the crimes were transactionally related. (See, e.g., People v. Valenzuela (1995) 40
Cal.App.4th 358, 360, 365; People v. Birmingham (1990) 217 Cal.App.3d 180,
185; see also People v. Murray (1990) 225 Cal.App.3d 734, 749-750; People
v. Bejarano (1981) 114 Cal.App.3d 693, 705, fn. 1.) Other cases, relying on the
language of former rule 425(a)(4), or cases that had interpreted that language, held
that consecutive sentences were not properly imposed when only one victim was
named in each count. (See, e.g., People v. Levitt (1984) 156 Cal.App.3d 500, 514,
517; People v. Humphrey (1982) 138 Cal.App.3d 881, 882, overruling People
v. Fowler (1980) 109 Cal.App.3d 557, 566-567; see also People v. Arviso (1988)
201 Cal.App.3d 1055, 1059-1060; People v. Floyd P. (1988) 198 Cal.App.3d 608,
613.)
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against four separate victims, and hence that the crimes involved multiple victims,
Waller was not deprived of his jury trial right.
Waller contends that unlike a case in which charges are dismissed, each of
the victims here is listed in a separate count, and hence was necessarily considered
at the time of sentencing. Thus, he asserts, the sentence for each offense will
already be proportionate to the seriousness of that offense. (Pen. Code § 1170,
subd. (a)(1).) However, Waller’s single act of violence caused either the death or
serious injury of four people. The gravity of and his culpability for this offense is
increased by the number of those he harmed. “ ‘A defendant who commits an act
of violence . . . by a means likely to cause harm to several persons is more
culpable than a defendant who harms only one person.’ ” (People v. Oates (2004)
32 Cal.4th 1048, 1063.) He is therefore properly subject to increased punishment
for each gross vehicular manslaughter count.
Nor should the trial court’s sentencing discretion be limited, as Waller
suggests, to imposing consecutive sentences. There is no persuasive reason why
the trial court should not be allowed to consider the fact of multiple victims as a
basis for imposing either the upper term or a consecutive sentence, although it
cannot do both. (Rule 4.425(b)(i).)
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III. DISPOSITION
The Court of Appeal’s judgment is reversed and the case remanded to that
court with instructions to reinstate the true findings on the section 20001(c)
allegations against Calhoun, and the two 6-year terms imposed on Waller.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.

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CONCURRING OPINION BY KENNARD, J.

I agree with the majority that the five-year enhancement under Vehicle
Code section 20001, subdivision (c), for “[a] person who flees the scene of the
crime after committing” gross vehicular manslaughter may apply to an aider and
abettor. I also agree with the majority that in sentencing defendant George
Kenneth Waller, Jr., the trial court’s explanation for imposing the upper term for
each of the two manslaughter counts, which included the statement that there were
“separate victims of the crime involving violence,” did not constitute reversible
error. I write separately to explain my understanding of the legal basis for the
latter holding.
The jury convicted defendant Waller of two counts of vehicular
manslaughter with gross negligence (Pen. Code, § 192, subd. (c)(1)) and two
counts of misdemeanor reckless driving with bodily injury (Veh. Code, § 23104,
subd. (a)). The trial court sentenced Waller to the upper term of six years on each
of the manslaughter counts and to 180 days on each of the misdemeanor counts,
all terms to run concurrently, resulting in a total term of six years. When it
imposed the upper terms on the manslaughter counts, the court said that it found
mitigating factors in Waller’s lack of significant criminal record and his
background. The court then gave this explanation for the upper terms: “[T]his
defendant was convicted of other crimes for which consecutive sentences could
have been imposed, and there are separate victims of the crime involving violence.
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I am using that aggravating factor as a basis for imposing the aggravated term. I
think it outweighs all of the mitigation referred to by counsel and by the probation
department.” (Italics added.)
As the majority points out (maj. opn., ante, at p. 8), the trial court’s
statement is ambiguous, but the majority does not fully explain the ambiguity.
The Court of Appeal construed the trial court’s statement as providing two distinct
reasons for imposing the upper term—because defendant had been “convicted of
other crimes for which consecutive sentences could have been imposed,” and,
secondly, because “there are separate victims of the crime involving violence.”
But the court’s next sentence, referring to “that aggravating factor” and asserting
that “it” outweighed the factors in mitigation, belied the suggestion in the first
sentence that the court was relying on two different aggravating factors.
In my view, the ambiguity in the trial court’s statement of reasons is best
resolved by construing the quoted language as stating a single aggravating factor
with two components. What the trial court most likely was saying was that it was
an aggravating factor that defendant Waller had been convicted of other crimes for
which concurrent sentences were being imposed even though those other crimes
could have been sentenced consecutively because they were crimes of violence
against other victims. The reference to “separate victims” was merely to explain
why consecutive sentences could have been imposed on the various counts even
though all counts resulted from a single incident. (See People v. Champion (1995)
9 Cal.4th 879, 934 [“When a defendant engages in violent conduct that injures
several persons, he may be separately punished for injuring each of those persons
. . .”].)
Significantly, the trial court said there were “separate” victims, not
“multiple” victims. What separated the victims from each other was that each was
the subject of a different count, and no count involved more than one victim, as
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the trial court was well aware. The trial court introduced an element of
uncertainty, however, by saying there were “separate victims of the crime
involving violence.” (Italics added.) The trial court may have simply misspoken,
intending to says “crimes” rather than “crime,” or the court may have intended
here to refer to the entire incident as “the crime.”
In any event, even if one were to assume for the sake of argument that the
trial court intended the reference to “separate victims of the crime” as a second,
distinct aggravating factor, and that the trial court erred in so doing, the error was
not prejudicial. “When a trial court has given both proper and improper reasons
for a sentence choice, a reviewing court will set aside the sentence only if it is
reasonably probable that the trial court would have chosen a lesser sentence had it
known that some of its reasons were improper.” (People v. Price (1991) 1 Cal.4th
324, 492.) “Only a single aggravating factor is required to impose the upper
term.” (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, defendant Waller’s
criminal recklessness resulted in the death of two people and serious injuries to
two others. The trial court exercised great leniency in imposing concurrent
sentences on the four counts of which defendant was convicted, and it reasonably
counterbalanced that leniency by imposing upper term sentences on the two
manslaughter counts. Nothing in the record suggests that the trial court was
confused or mistaken about the relevant facts or that the court’s discretionary
sentencing choices were based on a mechanical counting of aggravating and
mitigating factors rather than on the trial court’s appraisal of the seriousness of
defendant Waller’s conduct. On this record, it is not reasonably probable that the
trial court would have chosen a lesser sentence had it understood that “separate
victims” could not constitute a distinct and additional aggravating factor.
I do not understand the court’s decision in this case as providing authority
for treating separate or multiple victims as an aggravating factor in situations
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materially different from this one, such as when the trial court imposes
consecutive sentences on multiple counts, each involving a single victim. On this
basis, I concur in the majority opinion.
KENNARD,
J.
I CONCUR:
WERDEGAR, J.
4

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Calhoun
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 123 Cal.App.4th 1031
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S129896
Date Filed: January 29, 2007
__________________________________________________________________________________

Court:

Superior
County: San Diego
Judge: David J. Danielsen

__________________________________________________________________________________

Attorneys for Appellant:

Greg M. Kane, under appointment by the Supreme Court, for Defendant and Appellant Lawrence Lamont
Calhoun.

Anthony J. Dain and Eric R. Larson, under appointments by the Supreme Court, for Defendant and
Appellant George Kenneth Waller, Jr.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Lilia E. Garcia, Steven T. Oetting, Douglas C. S. Lee, Peter Quon, Jr., and
Lynne G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Greg M. Kane
PMB 86, 993-C South Santa Fe Avenue
Vista, CA 92083
(760) 630-9629

Eric R. Larson
330 J Street, #609
San Diego, CA 92101
(619) 238-5575

Lynne G. McGinnis
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2580

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Opinion Information

Date:	Docket Number:
Mon, 01/29/2007	S129896

Disposition
Jan 29 2007	Opinion: Reversed

Dockets
Dec 9 2004	Petition for review filed   In San Diego by counsel for Respondent {The People}.
Dec 9 2004	Request for depublication (petition for review pending)   By Respondent {The People}.
Dec 13 2004	Received Court of Appeal record   One doghouse.
Dec 15 2004	Opposition filed   counsel for appellant CALHOUN, to depublication request.
Dec 16 2004	Answer to petition for review filed   counsel for appellant LAWRENCE LAMONT CALHOUN
Jan 25 2005	Record requested   balance of record to ship overnight.
Jan 27 2005	Time extended to grant or deny review   to and including March 9, 2005
Jan 31 2005	Received additional record   one box
Jan 31 2005	Order filed   The order filed on January 27, 2005, extending time for granting or denying review to and including March 9, 2005, or the date upon which review is either granted or denied, is amended as to the court of appeal and division number.
Feb 16 2005	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Mar 1 2005	Request for extension of time filed   Respondent requesting to April 18, 2005 to file opening brief on the merits. (request recv'd in San Diego)
Mar 4 2005	Extension of time granted   to and including April 18, 2005 for respondent to file the opening brief on the merits. No further extensions of time will be granted.
Mar 10 2005	Counsel appointment order filed   Anthony J. Dain is hereby appointed to represent appellant GEORGE KENNETH WALLER on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before 30 days from the date respondent's opening brief on the merits is filed.
Mar 10 2005	Counsel appointment order filed   Greg M. Kane is hereby appointed to represent appellant LAWRENCE LAMONT CALHOUN on his appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before 30 days from the date respondent's opening brief on the merits is filed.
Apr 13 2005	Issues ordered limited   The issues to be briefed and argued by the parties are limited to those raised in the Attorney General's Petition for Review, and the first issue raised in defendant Lawrence Lamont Calhoun's Answer to Respondent's Petition for Review. (Cal. Rules of Court, rule 29(a)(1).)
Apr 15 2005	Opening brief on the merits filed   in San Diego by counsel for respondent (The People).
Apr 15 2005	Request for judicial notice filed (granted case)   by counsel for respondent (The People). (recv'd in San Diego)
May 5 2005	Request for extension of time filed   answer brief/merits to 6-15-05>>appellant Calhoun
May 9 2005	Request for extension of time filed   requesting to 6/14/05 to file answer brief - appellant Waller
May 16 2005	Extension of time granted   to and including June 15, 2005 for appellant {Lawrence Lamont Calhoun} to file answer brief on the merits.
May 16 2005	Extension of time granted   to and including June 15, 2005 for appellant {George Waller} to file answer brief on the merits.
Jun 6 2005	Answer brief on the merits filed   appellant, Lawrence Lamont Calhoun.
Jun 10 2005	Request for extension of time filed   By counsel for appellant, George Waller. Requesting to July 15, 2005 to file answer brief on the merits (to court)
Jun 14 2005	Extension of time granted   for appellant, George K. Waller, Jr. to and including June 22, 2005, to file answer brief on the merits
Jun 22 2005	Request for extension of time filed   by counsel for appellant, George Waller. Requesting 1 week extension (to June 29, 2005) to file answer brief on the merits.
Jun 28 2005	Extension of time granted   to and including June 29, 2005 for appellant George Waller to file answer brief on the merits.
Jun 30 2005	Answer brief on the merits filed   by counsel for appellant {George K. Waller}. (40.1b)
Jul 19 2005	Reply brief filed (case fully briefed)   in San Diego by counsel for respondent {The People}.
Aug 10 2005	Compensation awarded counsel   Atty Dain
Aug 16 2005	Filed:   Application for Bail or Release on Own Recognizance Pending Appeal, and/or Motion for Calendar Preference. counsel for defendant {CALHOUN] .
Aug 19 2005	Note:   Response requested from AG to defendant Calhoun's "Application for Bail or Release on Own Recognizance Pending Appeal, and/or Motion for Calendar Preference". Response (informal) is to be served upon petitioner and filed in this court on or before September 2, 2005.
Aug 19 2005	Note:   Letter sent to AG regarding courts request for response.
Aug 31 2005	Compensation awarded counsel   Atty Kane
Sep 1 2005	Filed:   to defendant Calhoun's "Application for Bail or Release on Own Recognizance Pending Appeal et al.". (filed in San Diego)
Sep 1 2005	Filed:   Informal response filed by AG per courts request. (filed in San Diego)
Sep 8 2005	Received:   Reporters Transcript of Proceedings dated August 5, 2005 and Declaration of Service by U.S. Mail. from Respondent (Attorney General)
Oct 26 2005	Request Denied   Defendant Lawrence Lamont Calhoun's August 16, 2005 "Application for Bail or Release on Own Recognizance Pending Appeal, and/or Motion for Calendar Preference" is denied.
Aug 30 2006	Issues ordered limited   The issues to be argued by the parties are limited to the first and third issues raised in the Attorney General's Petition for Review. (Cal. Rules of Court, rule 29(a)(2).) These are: 1) was defendant Lawrence Lamont Calhoun, who admits he is guilty of vehicular manslaughter with gross negligence as an aider and abettor because he engaged in an illegal street race during which his opponent crashed into the victims' car, subject to an enhancement under Vehicle Code section 20001, subdivision (c), for fleeing the scene after "committing" vehicular manslaughter with gross negligence, and 2) may an upper term sentence be imposed for vehicular manslaughter with gross negligence based upon multiple victims as an aggravating factor, even though only one victim was named in each count.
Oct 3 2006	Case ordered on calendar   November 7, 2006 at 1:30 pm in Sacramento
Oct 12 2006	Filed:   The Attorney General's April 15, 200 5 "Motion for Judicial Notice" of the legislative history of Vehicle Code section 20001, subdivision (c) is granted.
Oct 12 2006	Application filed to:   Application filed to divide oral argument between counsel for separate defendants. Asking to divide appellant's time between attorney Kane (10 minutes) and Larson (15 minutes).
Oct 13 2006	Received:   Supplemental Citation Letter Lynee G. McGinnis, Deputy Attorney General
Oct 16 2006	Received:   Document entitled: Memorandum of additional authorities not contained in the papers and briefs on file. Lawrnece L. Calhoun, appellant Greg M. Kane, counsel
Oct 17 2006	Order filed   The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request to allocate to appellant George Kenneth Waller, Jr., 15 minutes, and appellant Lawrence Lamont Calhoun, 10 minutes of appellants' 30-minute allotted time for argument is granted.
Nov 7 2006	Cause argued and submitted
Jan 26 2007	Notice of forthcoming opinion posted
Jan 29 2007	Opinion filed: Judgment reversed   and the case remanded to that court with instructions to reinstate the true findings on the section 20001(c) allegations against Calhoun, and the two 6-year terms imposed on Waller. Majority Opinion by Corrigan, J. -- joined by George, C. J., Baxter, J., Chin, J., & Moreno, J. Concurring Opinion by Kennard, J., -- joined by Werdegar, J.
Feb 14 2007	Compensation awarded counsel   Atty Kane
Feb 21 2007	Compensation awarded counsel   atty Anthony Dain.
Apr 19 2007	Remittitur issued (criminal case)
May 7 2007	Received:   for remittitru from 4 DCA Div. One

Briefs
Apr 15 2005	Opening brief on the merits filed
Jun 6 2005	Answer brief on the merits filed
Jun 30 2005	Answer brief on the merits filed
Jul 19 2005	Reply brief filed (case fully briefed)

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