People v. Weaver (149 Cal. App. 4th 1301, 2007)

Opinion

McDONALD, J.

Megan Elizabeth Weaver appeals a judgment entered following her guilty plea to one count of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and her admission of the truth of an allegation she personally inflicted great bodily injury on another person in the commission of that offense (§ 12022.7, subd. (a)). On appeal, Weaver contends the trial court erred by (1) denying her request for probation; (2) imposing the middle six-year term for her section 191.5, subdivision (a) offense; and (3) imposing a consecutive three-year enhancement under section 12022.7, subdivision (a). She also contends: (1) her conviction of only one offense precludes a court from considering it as two prior serious felony convictions within the meaning of section 1192.7, subdivision (c)(8) and the three strikes law (§ 667, subds. (b)-(i)); and (2) the victim restitution fine imposed by the trial court must be offset by the amount paid by her insurance company.

FACTUAL AND PROCEDURAL BACKGROUND

On August 19, 2004, Weaver graduated from San Diego State University. Celebrating her graduation with friends (including Jaylin Ruiz), Weaver consumed several shots of alcohol (Jagermeister).

About 1:00 a.m. on August 20, Ed Thurston, driving his car eastbound on Highway 56 about two to four miles from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car did not have its headlights on and was traveling in the fast lane at a speed of over 70 miles per hour. After it passed him, Thurston saw that the car also did not have its rear taillights on.

Also about 1:00 a.m., Jose Garcia, driving his car eastbound on Highway 56 about one-half mile from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car had its headlights on and was traveling in the fast lane at a speed of 80 to 90 miles per hour. Garcia swerved to the right to avoid colliding with the car and then swerved left, lost control of his car, and drove into bushes and rocks in the highway’s median. The other car did not stop or slow down and merged onto the northbound lanes of Interstate 5 heading south (i.e., the opposite direction of oncoming traffic).

Also about 1:00 a.m., Scott Tempus, driving his car eastbound on Highway 56 about one-quarter mile from its intersection with Interstate 5, saw a car approaching him from the opposite direction on the wrong side of the divided highway. The car had its headlights on and was traveling in the slow lane. After Tempus swerved to avoid the car, the other car merged onto the northbound lanes of Interstate 5 heading south (i.e., the opposite direction of oncoming traffic).

Also about 1:00 a.m., Anatoly Sigalov (Sigalov) was driving his car northbound on Interstate 5 just south of the on-ramp or transition to eastbound Highway 56. His wife Mara was sitting in the front passenger seat. Sigalov was traveling about 65 miles per hour, with his car’s headlights on, when he saw the reflection of his headlights on the front windshield of an oncoming car, which was only about a “yard away.” The other car did not have its headlights on. Weaver was the other car’s driver. Without time for Sigalov to react, the two cars collided head-on.

Both cars sustained substantial damage. Mara died from blunt force trauma suffered in the collision. Sigalov suffered cracked ribs and a dislocated right hip, requiring surgery to repair his pelvis.

While being transported in an ambulance, Weaver told an emergency medical technician that she had been drinking. He smelled alcohol on her breath. At 3:45 a.m,, blood was drawn from Weaver. Testing of that blood sample showed Weaver’s blood-alcohol content (BAC) was 0.151 percent. Her blood sample also tested positive for the presence of cocaine, suggesting she had. consumed cocaine about two to three hours before the blood was drawn.

On December 10, an information was filed, charging Weaver with five counts: (1) gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); (2) driving under the influence, causing injury (Veh. Code, § 23153, subd. (a)); (3) driving with a BAG of 0.08 percent or greater and causing injury (Veh. Code, § 23153, subd. (b)); (4) driving the wrong way on a divided highway and causing injury (Veh. Code, § 21651, subds. (b) & (c)); and (5) hit-and-run driving (Veh. Code, § 20002, subd. (a)). The information also alleged that: (1) in committing counts 1 through 3, Weaver caused bodily injury or death (Veh. Code, § 23558); (2) in committing count 1, she personally inflicted great bodily injury on Sigalov (§ 12022.7, subd. (a)); (3) in committing counts 2 through 4, she personally inflicted great bodily injury on Mara and Sigalov (§ 12022.7, subd. (a)); and (4) regarding counts 1 through 4, her offenses constituted serious felonies within the meaning of section 1192.7, subd. (c)(8) because she inflicted great bodily injury on Mara and Sigalov.

On September 28, 2005, the date scheduled for trial, Weaver pleaded guilty to count 1 (§ 191.5, subd. (a)) and admitted the truth of the allegations related to count 1, including that in committing the section 191.5, subdivision (a) offense she personally inflicted great bodily injury on Sigalov within the meaning of section 12022.7, subdivision (a) and on Sigalov and Mara within the meaning of section 1192.7, subdivision (c)(8). Pursuant to her plea agreement with the prosecution, the trial court dismissed the remaining charges and allegations.

On December 14, the trial court denied probation and sentenced Weaver to the middle term of six years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement, for a total term of nine years. Pursuant to section 654, the trial court stayed imposition of the one-year enhancement under Vehicle Code section 23558. The court also imposed a restitution fine of $229,479, “subject to modification upward or downward on the application by counsel and a hearing can be held.” It expressly retained jurisdiction to address the issue of restitution and to amend the judgment.

On February 6, 2006, Weaver filed a notice of appeal.

On March 20, Weaver filed a motion to recall her sentence pursuant to section 1170, subdivision (d), requesting that the trial court recall its sentence, impose the lower four-year term for count 1, and strike the enhancement for her infliction of great bodily injury. Attached to her motion were declarations of her former boyfriend (Jacob Ramsey) and Danielle Steinke, who was at the party, explaining some of the events preceding the incident and why Weaver drove her car that night while intoxicated. Based on those declarations, her motion argued in part that she intended to stay overnight at her friend Ruiz’s house and had not planned to drive her car that night, but did so only after her then boyfriend (Ramsey) called and asked her to come home to Spring Valley.

On March 21, the trial court denied Weaver’s motion.

DISCUSSION

I

Denial of Probation

Weaver contends the trial court abused its discretion by denying her request that she be granted probation. She argues the trial court considered improper factors and did not consider relevant factors.

A

At Weaver’s sentencing, the trial court received and considered the probation report, the prosecution’s statement in aggravation, Weaver’s statement in mitigation, and letters from, and testimonies of, family and friends of both Mara and Weaver. The probation report recommended probation be denied and the court impose the middle term of six years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement. The prosecution’s statement in aggravation requested probation be denied and the court impose the upper term of 10 years for count 1 and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement. Weaver’s statement in mitigation requested probation be granted.

After hearing arguments of counsel, the trial court found Weaver was genuinely remorseful and was not a chronic partygoer in college. It also noted the “dreadful” injuries suffered by Sigalov. The court stated that in sentencing Weaver, its job was to apply the law to this case while considering “the framework of protecting society, meting out an appropriate punishment deterring others, hopefully preventing other crimes and achieving some degree of uniformity in sentencing.” The court noted that California Rules of Court, rule 4.414 guided its consideration of whether to grant or deny probation. The court stated:

“There are factors that weigh on both sides [i.e., granting or denying probation]. Certainly in favor of grant of probation is this young woman’s youth, her lack of significant record, just one speeding ticket and her absence of actual malice in this case[, h]er genuine remorse and her ability to comply with the conditions of probation if probation were granted.

“On the other side of the [equation] lies the horrific nature of this offense. The dreadful loss to this family, the fact that Ms. Weaver . .. did not stop her driving after the first near miss, the high blood alcohol, the presence of drugs. I find the drug was cocaine. . . .

“Mr. Sigalov, I think, unknowingly touched on another factor that I think was important and that is the vulnerability of him and his wife. They’re driving on a highway in a lane that they’re lawfully allowed to drive on at a speed they’re lawfully allowed to drive. And one does not expect this to happen under those circumstances.”

Considering those factors, the trial court denied probation as “not appropriate.”

B

“All defendants are eligible for probation, in the discretion of the sentencing court [citation], unless a statute provides otherwise.” (People v. Aubrey (1998) 65 Cal.App.4th 279, 282 [76 Cal.Rptr.2d 378].) “The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]” (Ibid.) “In reviewing [a trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.” (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 825 [7 Cal.Rptr.2d 177].)

“The decision to grant or deny probation requires consideration of all the facts and circumstances of the case. [Citation.]” (People v. Birmingham (1990) 217 Cal.App.3d 180, 185 [265 Cal.Rptr. 780].)

Rule 4.410 provides:

“(a) General objectives of sentencing include:

“(1) Protecting society;

“(2) Punishing the defendant;

“(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him or her from future offenses;

“(4) Deterring others from criminal conduct by demonstrating its consequences;

“(5) Preventing the defendant from committing new crimes by isolating him or her for the period of incarceration;

“(6) Securing restitution for the victims of crime; and

“(7) Achieving uniformity in sentencing.

“(b) Because in some instances these objectives may suggest inconsistent dispositions, the sentencing judge must consider which objectives are of primary importance in the particular case. The sentencing judge should be guided by statutory statements of policy, the criteria in these rules, and the facts and circumstances of the case.”

Regarding a trial court’s decision whether to grant or deny probation, rule 4.414 provides:

“Criteria affecting the decision to grant or deny probation include facts relating to the crime and facts relating to the.defendant.

“(a) Facts relating to the crime

“Facts relating to the crime include:

“(1) The nature, seriousness, and circumstances of the crime as compared to other instances of the same crime; [][]... [][]

“(3) The vulnerability of the victim;

“(4) Whether the defendant inflicted physical or emotional injury;

“(5) The degree of monetary loss to the victim;

“(6) Whether the defendant was an active or a passive participant;

“(7) Whether the crime was committed because of an unusual circumstance, such as great provocation, which is unlikely to recur; HQ . . . HI]

“(b) Facts relating to the defendant

“Facts relating to the defendant include:

“(1) Prior record of criminal conduct. . . ; HQ . . . HD

“(3) Willingness to comply with the terms of probation;

“(4) Ability to comply with reasonable terms of probation as indicated by the defendant’s age, education, health, mental faculties, history of alcohol or other substance abuse, family background and ties, employment and military service history, and other relevant factors;

“(5) The likely effect of imprisonment on the defendant and his or her dependents;

“(6) The adverse collateral consequences on the defendant’s life resulting from the felony conviction;

“(7) Whether the defendant is remorseful; and

“(8) The likelihood that if not imprisoned the defendant will be a danger to others.”

In deciding whether to grant or deny probation, a trial court may also consider additional criteria not listed in the rules provided those criteria are reasonably related to that decision. (Rule 4.408(a).) A trial court is generally required to state its reasons for denying probation and imposing a prison sentence, including any additional reasons considered pursuant to rule 4.408. (Rules 4.406(b)(2) & 4.408(a).) Unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.)

“The circumstances utilized by the trial court to support its sentencing choice need only be established by a preponderance of the evidence. [Citations.]” (People v. Leung (1992) 5 Cal.App.4th 482, 506 [7 Cal.Rptr.2d 290].) Accordingly, in determining whether a trial court abused its discretion by denying probation, we consider, in part, whether there is sufficient, or substantial, evidence to support the court’s finding that a particular factor was applicable. (Id. at pp. 506-507.)

C

Weaver argues the trial court considered improper factors in deciding whether to grant or deny probation. She asserts the trial court improperly considered “victim vulnerability.” However, rule 4.414(a)(3) expressly lists “[t]he vulnerability of the victim” as a relevant fact relating to the crime that should be considered by a trial court in deciding whether to grant or deny probation. In this case, although the probation report did not list that factor, the prosecution’s statement in aggravation did list the “vulnerability of the victim” as a reason supporting denial of probation, stating: “Both Anatoly and Mara Sigalov were vulnerable victims, in the sense that they never had a chance to defend themselves against the defendant. The [Sigalovs] were driving on á highway in the darkness of the night. They were driving legally, and safely. They were driving the speed limit, with the headlights of their car on. The defendant was driving towards them at approximately 70 miles per hour, heading in the wrong direction, with her headlights off. The [Sigalovs] were completely vulnerable to the defendant’s actions.” The trial court expressly relied on the vulnerability of the victims as a factor in deciding to deny probation, stating: “[A]nother factor that I think was important ... is the vulnerability of [Sigalov] and his wife. They’re driving on a highway in a lane that they’re lawfully allowed to drive on at a speed they’re lawfully allowed to drive. And one does not expect this to happen under those circumstances.” Victim “[vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436 [156 Cal.Rptr. 502] [describing that term in the context of rule 4.421(a)(3)].) Based on our review of the record, we conclude there is sufficient evidence to support the trial court’s finding that Sigalov and Mara were vulnerable victims of Weaver’s crime within the meaning of rule 4.414(a)(3). Weaver’s car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed. Despite the late-night darkness, its headlights were off. In contrast, the Sigalovs’ car was traveling in the proper direction at a normal rate , of speed and had its headlights on. Based on those circumstances, the trial court could reasonably conclude Sigalov and Mara were vulnerable within the meaning of rule 4.414(a)(3) because they had absolutely no advance warning or ability to avoid Weaver’s oncoming car.

Although Weaver argues Sigalov and Mara were not “particularly” vulnerable victims, that finding is not required under rule 4.414(a)(3) and, in any event, the record supports a finding they were, in fact, particularly vulnerable victims. Citing People v. Bloom (1983) 142 Cal.App.3d 310 [190 Cal.Rptr. 857] and People v. Piceno (1987) 195 Cal.App.3d 1353 [241 Cal.Rptr. 391], Weaver asserts that because all victims of gross vehicular manslaughter are vulnerable, no victim of gross vehicular manslaughter can be “particularly” vulnerable. However, in so arguing, Weaver relies solely on cases involving only rule 4.421(a)(3), which provides that one circumstance in aggravation for purposes of deciding whether to impose an upper, middle, or lower term is whether “[t]he victim was particularly vulnerable.” (Italics added.) That circumstance (and its “particularly” requirement) is inapplicable here because rule 4.421 does not address circumstances to be considered in granting or denying probation. Furthermore, rule 4.414(a)(3) does not include the qualifying term “particularly” in listing the “vulnerability” of a victim as a circumstance to be considered in granting or denying probation. Therefore, we conclude that neither rule 4.421(a)(3)’s requirement that a victim be “particularly” vulnerable nor the interpretations of that term in Bloom and Piceno apply to the trial court’s denial of probation in this case. To the extent the court in People v. McNiece (1986) 181 Cal.App.3d 1048 [226 Cal.Rptr. 733], disapproved on another ground in People v. McFarland (1989) 47 Cal.3d 798, 804-805 [254 Cal.Rptr. 331, 765 P.2d 493], concluded otherwise, we disagree with its reasoning and therefore decline to apply its

holding in the circumstances of this case. In any event, assuming arguendo that requirement applied, we nevertheless would conclude there is substantial evidence to support a finding that Sigalov and Mara, in the circumstances of this case, were, in fact, particularly vulnerable victims of Weaver’s offense. There is no empirical evidence in the appellate record showing that the “usual” victim of gross vehicular manslaughter has absolutely no advance warning or ability to attempt to avoid the defendant’s car. On the contrary, one can envision, many situations involving gross vehicular manslaughter (whether a § 191.5, subd. (a) offense or otherwise) in which the victim has at least some advance notice or warning of the imminent risk posed by the defendant’s car, thereby allowing him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable than Sigalov and Mara in this case. Weaver’s car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed. Despite the late-night darkness, its headlights were off. In contrast, the Sígalo vs’ car was traveling in the proper direction at a normal rate of speed and had its headlights on. Based on those circumstances, the trial court could have reasonably concluded Sigalov and Mara were particularly vulnerable because they, apparently unlike “usual” victims of gross vehicular manslaughter, had absolutely no advance warning or ability to attempt to avoid the oncoming car.

Weaver also argues the trial court erred by improperly considering the “horrific nature of this offense,” which included the “dreadful loss” to the victim’s family, Weaver’s continuation of driving after the “near miss” prior to the collision, her high BAC, and the presence of cocaine in her system. However, rule 4.414(a)(1) expressly provides that a trial court should consider “[t]he nature, seriousness, and circumstances of the crime as compared to other instances of the same crime.” Also, rule 4.414 provides that the trial court should consider “[w]hether the defendant inflicted physical or emotional injury” (rule 4.414(a)(4)) and “[t]he degree of monetary loss to the victim” (rule 4.414(a)(5)). Therefore, the trial court properly considered the “horrific nature,” or the nature, seriousness, and circumstances, of Weaver’s offense when compared to other section 191.5, subdivision (a) offenses, as well as the physical and emotional injuries and monetary loss Weaver inflicted on the victims of her offense. The trial court implicitly concluded, and we cannot presume otherwise, that “other instances” of section 191.5, subdivision (a) offenses do not involve the same egregious circumstances as in this case. (Rule 4.414(a)(1).) Furthermore, the trial court properly considered the “dreadful loss” to the victim’s family because rule 4.414 does not require the physical and emotional injuries or economic losses of the victim and/or the victim’s family be particularly great or unusual in comparison to other instances of section 191.5, subdivision (a) offenses. (Rule 4.414(a)(4), (5).) Rather, the physical and/or emotional injuries and the monetary losses inflicted on the victim and/or the victim’s family should be considered by a trial court in all cases in deciding whether to grant or deny probation. (Ibid.)

D

Weaver also contends the trial court erred by not considering certain circumstances that would have supported a decision to grant probation. She argues the trial court should have considered the following circumstances: (1) her crime was unlikely to recur (rule 4.414(a)(7)); (2) it was unlikely that she would be a danger to others were she not imprisoned (rule 4.414(b)(8)); (3) the likely effect of imprisonment on her (rule 4.414(b)(5)); (4) the adverse collateral consequence on her life because of her conviction (rule 4.414(b)(6)); and (5) the physical and emotional injuries that she inflicted on herself (rule 4.408(a)). Although the trial court did not expressly state it considered some or all of those circumstances, we note the probation report listed three of them (namely, circumstances 2, 3, and 4, listed above). Also, in Weaver’s statement in mitigation, she listed and discussed circumstances 1 through 4, above, in support of her request for probation. Because the trial court expressly stated on the record that it received and considered both of those documents, we presume the court did, in fact, consider those circumstances even though it did not expressly restate, recite, or otherwise refer to each one. As we noted above, unless the record affirmatively shows otherwise, a trial court is. deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice. (Rule 4.409.) Regarding circumstance 5 suggested by Weaver, we also presume the trial court was aware of, and considered, the circumstances of Weaver’s physical and emotional injuries in denying probation, despite the fact neither the court, nor any of the sentencing documents (including Weaver’s own statement in mitigation), expressly referred to those injuries as a circumstance supporting a grant of probation.

Finally, Weaver argues the trial court improperly considered her youth as a factor that would support a grant of probation. She argues a defendant’s youth is not listed as a factor in rule 4.414, but is listed as a factor in rule 4.413(c)(2)(C), which only applies in unusual cases when probation is presumptively disfavored by statute. However, as noted above, rule 4.408(a) allows a court to consider additional factors not listed in the sentencing rules, provided those additional factors are stated on the record and are reasonably related to the decision being made. Because Weaver’s youth is reasonably related to the court’s decision whether to grant or deny probation, we conclude the court properly considered her youth as factor that would support a grant of probation.

E

Although we conclude the trial court did not abuse its discretion or otherwise err in considering circumstances regarding the grant or denial of probation, we further note that Weaver has not made any attempt to carry her appellate burden to show the errors purportedly made by the court were prejudicial. Alternatively stated, assuming arguendo the trial court erred as Weaver asserts, she has not shown it is reasonably probable the court would have granted her probation had it not so erred. (People v. Price (1991) 1 Cal.4th 324, 492 [3 Cal.Rptr.2d 106, 821 P.2d 610] [“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. [Citation.]”].) We conclude any error the trial court may have made in denying probation was harmless.

II

Imposition of Middle Six-year Term

Weaver contends the trial court abused its discretion by imposing the middle six-year term for her section 191.5, subdivision (a) offense. She argues the trial court considered certain improper factors as aggravating circumstances.

A

After hearing arguments of counsel and denying probation, the trial court addressed the issue of what term of imprisonment to impose for Weaver’s section 191.5, subdivision (a) offense, stating:

“With respect to the charge of manslaughter that brings us here today, there are three sentencing ranges. There is a sentencing range of three terms. These are four years, six years and ten years: the lower, the middle, and the upper term respectively. The Rules of Court direct that I look at the circumstances in aggravation and those in mitigation and that I weigh those and balance those. Those circumstances again look at the offense and the offender. There can be aggravated as well as mitigated circumstances about the offense and aggravated and mitigated circumstances about the offender.

“At the risk of oversimplifying it, if there is an aggravated offense with an aggravated offender, then the upper term is called for. That’s the ten-year term. If there is a mitigated offense with a mitigated offender, then the lower term is called for. That’s the term of four years. If one part of the coin is aggravated and the other part is mitigated, the court is asked to weigh qualitatively and quantitatively these factors and decide the appropriate term.

“Here the offense is aggravated. I have described that. I don’t need to describe it again. I don’t need to make people listen to that anymore. It is a dreadful loss and a horrifying event. The circumstances regarding Ms. Weaver are in this court’s mind entirely mitigating, but for her decision to drive that night, which perhaps none of us will fully understand.

“I, therefore, conclude that the midterm of . six years is appropriate with respect to the substantive charge . . . .”

Accordingly, the trial court imposed the middle six-year term for Weaver’s section 191.5, subdivision (a) offense.

B

A section 191.5, subdivision (a) offense (gross vehicular manslaughter while intoxicated) is punishable by imprisonment for four, six, or 10 years. (§ 191.5, subd. (c).) Section 1170, subdivision (b) provides: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. . . . The court shall set forth on the record the facts and reasons for imposing the upper or lower term . . . .” (Italics added.) Rule 4.420(a) provides: “When a sentence of imprisonment is imposed . . . , the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170[, subdivision] (b) and these rules. The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” (Italics added.) Pursuant to section 1170, subdivision (b) and rule 4.420(a), “[t]he middle term is the presumptive term.” (Levenson, Cal. Criminal Procedure (2006-2007) Sentencing, § 25:50, p. 1134.) The California Supreme Court stated: “[S]ection 1170, subdivision (b) can be characterized as establishing the middle term sentence as a presumptive sentence.” (People v. Black (2005) 35 Cal.4th 1238, 1257 [29 Cal.Rptr.3d 740, 113 P.3d 534], overruled on another ground in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856, 127 S.Ct. 856, 859] (hereafter Cunningham) [holding California’s determinate sentencing law violates the 6th Amend, of the U.S. Const, to the extent it permits imposition of an upper term based on facts found by a trial court or by a preponderance of the evidence].) “The trial court must impose the middle term unless it finds circumstances mitigating or aggravating the offense. [Citation.]” (People v. Leung, supra, 5 Cal.App.4th at p. 508.) “Because the middle term is the presumptive term, the sentencing court need not state reasons for selecting it, as it must for selection of either the lower or upper term. [Citations.]” (Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2006 ed.) Felony Sentencing, § 37.8, p. 1080.)

C

Weaver argues the trial court abused its discretion by imposing the middle six-year term for her section 191.5, subdivision (a) offense because it erroneously relied on certain improper aggravating circumstances. She also argues there is insufficient evidence to support the trial court’s finding that the circumstances relating to the offense were aggravating.

Weaver asserts the trial court erred by relying on victim vulnerability as an aggravating circumstance. Citing Bloom and Piceno, discussed above, she argues victim vulnerability cannot be an aggravating circumstance because all victims of gross vehicular manslaughter are vulnerable. She argues all such offenses are “horrific” and all losses suffered by victims’ families are “dreadful.” However, rule 4.421(a)(3) provides that circumstances in aggravation include whether “[t]he victim was particularly vulnerable.” “ ‘[P]articular vulnerability’ is determined in light of the ‘total milieu in which the commission of the crime occurred . . . .’ [Citation.]” (People v. Dancer (1996) 45 Cal.App.4th 1677, 1694 [53 Cal.Rptr.2d 282], disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [65 Cal.Rptr.2d 1, 938 P.2d 986].) As we concluded in part I, ante, there is substantial evidence to support a finding that Sigalov and Mara, in the circumstances of this case, were in fact particularly vulnerable victims of Weaver’s crime. There is no empirical evidence in the appellate record showing that the “usual” victim of gross vehicular manslaughter has absolutely no advance warning or ability to attempt to avoid the defendant’s car. On the contrary, one can envision many situations involving gross vehicular manslaughter (whether a § 191.5, subd. (a) offense or otherwise) in which the victim has at least some advance notice or warning of the imminent risk posed by the defendant’s car that allows him or her at least some opportunity to attempt to avoid the collision. Those victims presumably should be considered less vulnerable than Sigalov and Mara in this case. Weaver’s car was traveling in the opposite direction of oncoming traffic on northbound Interstate 5 at a high rate of speed. Despite the late-night darkness, its headlights were off. In contrast, the Sigalovs’ car was traveling in the proper direction at a normal rate of speed and had its headlights on. Based on those circumstances, the trial court could have reasonably concluded Sigalov and Mara were particularly vulnerable because they, apparently unlike “usual” victims of gross vehicular manslaughter, had absolutely no advance warning or ability to attempt to avoid the oncoming car.

To the extent Weaver argues the trial court could not consider whether the offense was “horrific” or argues there is insufficient evidence to support that finding, we note rule 4.421(a)(1) permits a trial court to consider as an aggravating circumstance whether the offense “involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.” The trial court’s description of the offense as “horrific” may fall within that rule. In any event, rule 4.408(a) authorizes a trial court to consider “additional criteria reasonably related to the decision being made.” The trial court could reasonably conclude the “horrific” nature of Weaver’s offense was reasonably related to its sentencing choice. Therefore, it properly considered that factor as an aggravating circumstance. Furthermore, contrary to Weaver’s assertion, there is substantial evidence to support the trial court’s finding that her offense was horrific. Weaver argues the evidence submitted in support of her motion to recall shows her conduct was not horrific and may have not constituted gross negligence. However, in sentencing Weaver, the trial court did not have that evidence before it and therefore we need not address that subsequently filed evidence. In any event, assuming arguendo the trial court had received evidence at the time of sentencing showing Weaver had not planned to drive that night while intoxicated and decided to do so only after she became intoxicated when her then boyfriend pleaded with her to come home, the trial court could nevertheless reasonably conclude Weaver’s conduct in deciding to drive and her actions in driving while intoxicated were horrific.

Furthermore, contrary to Weaver’s assertion, we conclude the trial court reasonably considered as aggravating circumstances her continuation of driving after the “near-miss” prior to the collision, her high BAC, and the presence of cocaine in her system. There is substantial evidence to support those findings and rule 4.408(a) authorized the trial court to consider them in making its sentencing choice. Although Weaver argues those circumstances were not unlike circumstances. in other section 191.5, subdivision (a) offenses, there is no requirement under rule 4.408 or 4.421 (or otherwise) that those circumstances be particularly egregious in comparison with other like offenses.

We conclude the trial court properly considered the aggravating circumstances of Weaver’s offense in imposing the middle six-year term. (Cf. People v. Leung, supra, 5 Cal.App.4th at p. 508 [“The middle term need not be additionally justified.”].)

D

On January 22, 2007, after the parties’ briefs were filed in this appeal, the United States Supreme Court issued its opinion in Cunningham, supra, 549 U.S. at p._ [127 S.Ct. 856]. We requested the parties submit, and have received and considered, supplemental briefs on the effect, if any, of Cunningham on this case. We asked the parties to address the question whether Cunningham requires a resentencing hearing in this case because the trial court, in imposing the middle six-year term, considered aggravating and mitigating circumstances not found true by a jury beyond a reasonable doubt.

In Cunningham, the court noted California’s determinate sentencing law (DSL) and relevant sentencing rules “direct the sentencing court to start with the middle term, and to move from that term only when the court itself finds and places on the record facts—whether related to the offense or the offender—beyond the elements of the charged offense.” (Cunningham, supra, 549 U.S. at p. _ [127 S.Ct. at p. 862].) Furthermore, “an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance.” (Id. at p._ [127 S.Ct. at p. 868].) Cunningham concluded: “In accord with [Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531]] therefore, the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum.” (Id. at p._ [127 S.Ct. at p. 868], italics added.) Accordingly, Cunningham held: “Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendi’s [Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435, 120 S.Ct. 2348]] bright-line rule: Except for a prior conviction, ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ [Citation.]” (Id. at p.__ [127 S.Ct. at p. 868].) In rejecting the California Supreme Court’s contrary conclusion in People v. Black, supra, 35 Cal.4th 1238, Cunningham stated: “Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment.” (Cunningham, supra, at p.___ [127 S.Ct. at p. 859].)

Weaver argues: (1) the “Blakely waiver” in her change of plea form did not waive her right to proof of aggravating factors beyond a reasonable doubt; and (2) the trial court’s imposition of the middle term in the circumstances of this case violated her Sixth Amendment rights. Assuming arguendo Weaver’s change of plea form did not waive her right to proof of aggravating factors beyond a reasonable doubt, we nevertheless conclude the trial court properly imposed the middle six-year term. As she concedes, under California’s sentencing laws, the middle term is the statutory presumptive term and a trial court can impose that term without stating its reasons. (§ 1170, subd. (b).) Furthermore, rule 4.420(a) provides in part: “The middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.” Because under section 1170, subdivision (b) and Cunningham the relevant statutory maximum sentence under California’s DSL is the middle term, the Sixth Amendment is not implicated when a trial court imposes the middle term. As Cunningham noted, only a fact that increases a sentence beyond its prescribed statutory maximum (e.g., the middle term under California’s DSL) requires its submission to a jury and proof beyond a reasonable doubt. (Cunningham, supra, at p. ___ [127 S.Ct. at p. 868]; Apprendi v. New Jersey, supra, 530 U.S. at p. 490.)

The fact the trial court considered the circumstances involving the offender (i.e., her personal circumstances) “entirely mitigating,” did not make the lower four-year term (rather than the middle six-year term) the presumptive or relevant statutory maximum for purposes of the Sixth Amendment as discussed in Apprendi and Cunningham. Although the trial court weighed those mitigating circumstances against the aggravating circumstances of the offense in choosing to impose the middle six-year term, the presumptive or relevant statutory maximum remained the middle term at all times. Under California’s DSL and the Sixth Amendment, as interpreted by Apprendi and Cunningham, there is no “shifting” relevant statutory maximum, as Weaver apparently asserts, where a trial court initially considers some mitigating circumstances (e.g., which, by themselves, might support imposition of a lower term), then considers other aggravating circumstances, and ultimately imposes the middle term after weighing all of the circumstances. Accordingly, the trial court’s imposition of the middle six-year term in the circumstances of this case did not violate or implicate the Sixth and Fourteenth Amendments.

E

Although we conclude the trial court did not abuse its discretion or otherwise err in considering aggravating and mitigating circumstances in imposing the middle six-year term for Weaver’s section 191.5, subdivision (a) offense, we further note she has not made any attempt to carry her appellate burden to show the errors purportedly made by the court were prejudicial. Alternatively stated, assuming arguendo the trial court erred as Weaver asserts, she has not shown it is reasonably probable the court would have imposed the lower four-year term had it not so erred. (People v. Price, supra, 1 Cal.4th at p. 492 [“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. [Citation.]”].) Accordingly, we conclude that any error the trial court may have made in imposing the middle term was harmless.

Ill

Section 12202.7, Subdivision (a) Enhancement

Weaver contends the trial court erred by imposing a three-year enhancement under section 12202.7, subdivision (a) for great bodily injury she personally inflicted on Sigalov in committing the section 191.5, subdivision (a) offense.

A

Weaver pleaded guilty to gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and admitted the truth of the allegations that in committing that offense she personally inflicted great bodily injury on Sigalov (§ 12022.7, subd. (a)) and caused bodily injury or death (Veh. Code, § 23558). The trial court sentenced Weaver to the middle term of six years for her section 191.5, subdivision (a) offense and a consecutive three-year term for the section 12022.7, subdivision (a) enhancement, for a total term of nine years. Pursuant to section 654, the trial court stayed imposition of the one-year enhancement under Vehicle Code section 23558.

B

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 . . . shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.” Section 12022.7, subdivision (g) provides: “This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivision[] (a) . . . shall not apply if infliction of great bodily injury is an element of the offense.” People v. Guzman (2000) 77 Cal.App.4th 761 [91 Cal.Rptr.2d 885] stated: “Section 12022.7 is a legislative attempt to punish more severely those crimes that actually result in great bodily injury. [Citation.] It applies except where serious bodily injury is already an element of the substantive offense charged. [Citation.]” (Id. at p; 765.)

In comparison, Vehicle Code section 23558 provides: “Any person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of [Vehicle Code] Section 23153 of this code or in violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements which may be imposed pursuant to this section is three.”

C

Weaver asserts the trial court erred by imposing the three-year section 12022.7, subdivision (a) enhancement rather than the. one-year Vehicle Code section 23558 enhancement because the latter statute (i.e., Veh. Code, § 23558) is the more specific statute and therefore preempts application of the more general statute (i.e., § 12022.7, subd. (a)).

“The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct. [Citations.]” (People v. Jones (2003) 108 Cal.App.4th 455, 463 [133 Cal.Rptr.2d 358], italics added.) “The ‘special over the general’ rule, which generally applies where two substantive offenses compete, has also been applied in the context of enhancement statutes. [Citation.] The rule does not apply, however, unless ‘each element of the “general” statute corresponds to an element on the face of the “specific” [szc] statute’ or ‘it appears from the entire context that a violation of the “special” statute will necessarily or commonly result in a violation of the “general” statute.’ [Citations.]” (People v. Coronado (1995) 12 Cal.4th 145, 153-154 [48 Cal.Rptr.2d 77, 906 P.2d 1232], quoting People v. Jenkins (1980) 28 Cal.3d 494, 502 [170 Cal.Rptr. 1, 620 P.2d 587].) In Jenkins, the California Supreme Court stated: “[T]he courts must consider the context in which the statutes are placed. If it appears from the entire context that a violation of the ‘special’ statute will necessarily or commonly result in a violation of the ‘general’ statute, the [preemption] rule may apply even though the elements of the general statute are not mirrored on the face of the special statute.” (Jenkins, at p. 502, second italics added.) However, even if either of the two alternative tests are satisfied, the special statute will not be applied under the preemption doctrine if the Legislature intended the general statute to apply. (People v. Sainz (1999) 74 Cal.App.4th 565, 572 [88 Cal.Rptr.2d 203]; Jones, at p. 464.)

Weaver does not assert that the first alternative test of the preemption doctrine applies (i.e., that each element of § 12022.7, subd. (a) corresponds to an element on the face of Veh. Code, § 23558). Rather, she asserts the second alternative test applies and thereby requires imposition of only the one-year enhancement under Vehicle Code section 23558 (and not the three-year enhancement under § 12022.7, subd. (a)). She argues that because a violation of Vehicle Code section 23558 (the special statute) will commonly result in a violation of section 12022.7, subdivision (a) (the general statute), the preemption doctrine applies and requires imposition of only the Vehicle Code section 23558 enhancement However, our review of those statutes does not support, that assertion. Vehicle Code section 23558 applies to a defendant who “proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of [Vehicle Code] Section 23153 of this code or in violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code.” Accordingly, its provisions may apply to three separate offenses: (1) driving while intoxicated and proximately causing bodily injury (Veh. Code, § 23153); (2) gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)); and (3) vehicular manslaughter while intoxicated but without gross negligence (§ 192, subd. (c)(3)). Because Vehicle Code section 23558 can apply, when the defendant drives while intoxicated and only proximately causes bodily injury, we cannot conclude Vehicle Code section 23558 will commonly result in a violation of section 12022.7, subdivision (a), which statute requires personal infliction of great bodily injury. Furthermore, our independent review of the appellate record shows it does not contain any empirical evidence proving that driving while intoxicated and proximately causing bodily injury also commonly results in personal infliction of great bodily injury. Although Weaver argues a section 191.5, subdivision (a) offense commonly results in personal infliction of great bodily injury, that offense is only one of the three offenses listed in Vehicle Code section 23558. (Cf. People v. Arndt, supra, 76 Cal.App.4th at p. 393 [“The conduct triggering the application of Vehicle Code section 23182 [predecessor to Vehicle Code section 23558] will not necessarily result in the application of section . . . 12022.7.”].)

In any event, we conclude the legislative intent of section 12022.7, subdivision (a) shows its greater three-year enhancement was intended to apply despite the potential availability of lesser enhancements. “A plain reading of . . . section 12022.7 indicates the Legislature intended it to be applied broadly.” (People v. Sainz, supra, 74 Cal.App.4th at p. 574 [concluding former Veh. Code, § 23190, subds. (b) & (c), as the purported special statute, did not preclude imposition of a § 12022.7 enhancement].) “[T]he Legislature may provide for increased punishment for an offense that has more serious consequences by, for instance, . . . adding enhancements . . . .” (Wilkoff v. Superior Court (1985) 38 Cal.3d 345; 352 [211 Cal.Rptr. 742, 696 P.2d 134], superseded by statute on another ground as noted in People v. Arndt, supra, 76 Cal.App.4th at pp. 393-394.) The purpose of Vehicle Code section 23558 “is to increase the potential punishment available in certain cases where an alcohol- or drug-impaired individual operating a vehicle or watercraft causes an accident which results in multiple injuries, not to limit the use of another otherwise applicable enhancement [e.g., section 12022.7].” (People v. Arndt, supra, 76 Cal.App.4th at p. 394, italics added.) We cannot conclude the Legislature intended only a one-year enhancement be imposed under Vehicle Code section 23558 when a defendant commits a section 191.5, subdivision (a) offense and personally inflicts great bodily injury (which conduct would otherwise result in imposition of a three-year enhancement under § 12022.7, subd. (a)). (Cf. People v. Corban (2006) 138 Cal.App.4th 1111, 1118-1119 [42 Cal.Rptr.3d 184] [defendant did not show the Legislature intended § 12022.95, as the purported special statute, to apply instead of § 12022.7, subd. (d)].)

D

Weaver also asserts the trial court erred by imposing the three-year section 12022.7, subdivision (a) enhancement because she pleaded guilty only to a charged section 191.5, subdivision (a) offense, which is “victim-specific” (i.e., Mara was the victim of that offense), thereby precluding a section 12022.7, subdivision (a) enhancement for her personal infliction of great bodily injury on the other person injured in the collision (e.g., Sigalov). Although she notes that in People v. Verlinde (2002) 100 Cal.App.4th 1146 [123 Cal.Rptr.2d 322] we concluded a section 12022.7, subdivision (a) enhancement could be imposed for injuries to persons other than the deceased victim in a vehicular manslaughter, she attempts to distinguish that case by noting in Verlinde the defendant was convicted of both vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and driving under the influence and causing bodily injury (Veh. Code, § 23153, subds. (a), (b)). (Verlinde, at p. 1154.) Because in Verlinde the section 12022.7, subdivision (a) enhancement could have been independently imposed based on the lesser Vehicle Code section 23153, subdivision (a) or (b) offense, Weaver argues Verlinde is inapposite because it involved also a “non-victim-specific” offense and therefore its reasoning cannot be applied to her case.

In Verlinde, we rejected the defendant’s argument that a section 12022.7, subdivision (a) enhancement could not apply because section 12022.7, subdivision (g) precludes application of section 12022.7’s enhancement provisions to murder and manslaughter offenses. We stated: “The language of section 12022.7, subdivision (g) does not limit application of the statute to this vehicular manslaughter case where, in addition to the homicide victim, two other victims suffered great bodily injury. The statutory exemption for murder and manslaughter is intended to bar imposition of an enhancement for the injuries inflicted on the homicide victim, who obviously has suffered great bodily injury. Thus, the statutory exemption prevents prohibited dual punishment for the same crime. (See § 654.) ‘When a defendant engages in violent conduct that injures several persons, he may be separately punished for injuring each of those persons, notwithstanding section 654. [Citation.]’ [Citation.] Verlinde’s argument is inconsistent with a fundamental objective of our penal justice system, namely ‘that one’s culpability and punishment should be commensurate with the gravity of both the criminal act undertaken and the resulting injuries’ [Citation.] Furthermore, a fundamental principle of statutory construction is that the language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend. [Citation.]” (People v. Verlinde, supra, 100 Cal.App.4th at pp. 1168-1169, italics added.) Accordingly, we upheld the trial court’s imposition of a three-year section 12022.7, subdivision (a) enhancement for the person(s) injured other than the deceased victim of the vehicular manslaughter. (People v. Verlinde, supra, at p. 1169.)

We are not persuaded by Weaver’s attempt to avoid the application of Verlinde to her case based on the difference that the defendant in Verlinde was convicted of both a “victim-specific” offense and a “non-victim-specific” offense. There is no logical reason to preclude application of section 12022.7, subdivision (a) when a defendant personally inflicts great bodily injury on persons other than the victim of a “victim-specific” offense, but to allow its application when those other persons were injured in the commission of a “non-victim-specific” offense. For example, in Arndt the trial court imposed a separate section 12022.7 enhancement for each of the three persons on whom the defendant personally inflicted great bodily injury in the commission of one “non-victim-specific” offense (i.e., Veh. Code, § 23153, subd. (a)). (People v. Arndt, supra, 76 Cal.App.4th at pp. 391-392.) Arndt upheld imposition of the three separate section 12022.7 enhancements because the defendant “inflicted great bodily injury on three separate persons.” (76 Cal.App.4th at p. 399.) There is no discemable reason a defendant’s punishment should be less when the persons on whom he or she personally inflicted injuries were injured in the commission of a “victim-specific” offense, rather than a “non-victim-specific” offense.

Weaver does not persuade us that section 12022.7, subdivision (a) is inapplicable in a case involving only a “victim-specific” murder or manslaughter offense where a person other than the deceased victim sustains great bodily injury. First, and most importantly, we note the express language of section 12022.7, subdivision (a) does not limit its application to a specific victim of a felony offense. Rather, it applies to great bodily injuries sustained by “any person other than an accomplice.” (§ 12022.7, subd. (a), italics added.) Second, its express language also applies when the defendant personally inflicts great bodily injury on any person “in the commission of a felony.” (§ 12022.7, subd. (a), italics added.) That language is sufficiently broad to include persons other than the victim of a victim-specific felony offense who sustain great bodily injury during the defendant’s commission of that offense. Had the Legislature intended to limit section 12022.7, subdivision (a)’s application to only the ostensible victim injured in the commission of a felony offense, it could have expressly so provided. (Cf. § 12022.8 [imposing enhanced punishment for infliction of great bodily injury “on any victim”]; People v. Miller (1977) 18 Cal.3d 873, 881, fn. 5 [135 Cal.Rptr. 654, 558 P.2d 552] [enhancement statute that expressly applies to great bodily injury to a victim, rather than a person, does not apply “to persons who, unfortunately, are incidentally caught up in the events constituting the crime . . . .”], overruled on another ground as noted in People v. Oates (2004) 32 Cal.4th 1048, 1068, fn. 8 [12 Cal.Rptr.3d 325, 88 P.3d 56].) Furthermore, we note it is generally appropriate that a defendant be subject to greater punishment for committing an offense if his or her commission of that offense causes injuries to multiple persons. (People v. Alvarez (1992) 9 Cal.App.4th 121, 128 [11 Cal.Rptr.2d 463]; People v. Pantoja (2004) 122 Cal.App.4th 1, 16 [18 Cal.Rptr.3d 492].) It is consistent with our criminal justice system to impose greater punishment on Weaver for the great bodily injuries she personally inflicted on Sigalov during her commission of the section 191.5, subdivision (a) offense that caused Mara’s death.

In an analogous case, the California Supreme Court in People v. Oates, supra, 32 Cal.4th 1048 rejected a similar contention made regarding the imposition of an enhancement under section 12022.53, subdivision (d), which contains language that parallels that of section 12022.7, subdivision (a). In Oates, the defendant discharged a gun into a group of five people, injuring one of the persons in that group. (Oates, at p. 1053.) The jury convicted the defendant of five offenses of attempted murder and found true, as to each offense, a section 12022.53 allegation relating to the injury sustained by the one person. (Oates, at p. 1053.) Therefore, as to four of the five “victim-specific” offenses of attempted murder, a section 12022.53 enhancement was imposed for the injury sustained by a person other than the ostensible victim of that attempted murder. (People v. Oates, supra, 32 Cal.4th at pp. 1053-1054.) On appeal, the defendant argued the trial court should have imposed only one section 12022.53 enhancement (relating to the attempted murder offense involving the person actually injured). (Oates, at p. 1054.) Oates rejected that contention, stating: that the enhancement be imposed as to each conviction.” (People v. Oates, supra, 32 Cal.4th at p. 1056, first italics added.) Oates noted: “Had the Legislature wanted to limit the number of subdivision (d) enhancements imposed to the number of injuries inflicted, or had it not wanted subdivision (d) to serve as the enhancement applicable to each qualifying conviction where there is only one qualifying injury, it could have said so.” (Ibid.)

“In several respects, the language of section 12022.53 supports imposing multiple subdivision (d) enhancements under the circumstances here. First, by its terms, the subdivision (d) enhancement applies to ‘any person’ who, ‘in the commission of’ a specified felony, ‘personally and intentionally discharges a firearm and proximately causes great bodily injury ... or death, to any person other than an accomplice.’ (Italics added.) Based on the single injury to Barrera, the requirements of a subdivision (d) enhancement are met as to each of defendant’s five attempted murder convictions, including those not involving the attempted murder of Barrera; ... in the commission of each [attempted murder] offense, defendant ‘personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury’ to a person ‘other than an accomplice.’ (§ 12022.53, subd. (d).)

“Notably, the parties here agree that the phrase, ‘any person other than an accomplice,’ does not mean ‘the victim’ of the underlying crime. For example, defendant asserts in his brief that the elements of a subdivision (d) enhancement ‘require the imposition of the enhancement even if the injured person is not a victim of crime, such as if he or she was inju