Lobaugh

Billy Ray Lobaugh was convicted by jury verdicts of seven felony charges which may be described as follows:

Count 1: Felony drunk driving, causing bodily injuries to one Russell Hanson (Veh. Code, § 23101);

Count 2: Felony drunk driving, causing bodily injuries to one Ellen Mae Waldecker (Veh. Code, § 23101);

Count 3: Felony drunk driving, causing bodily injuries to one Charles Leonard Goggins (Veh. Code, § 23101);

Count 4: Felony hit and run (Veh. Code, § 20001);

Count 5: Kidnaping (Pen. Code, § 207); a lesser offense included within a charge of kidnaping one Donald Adcock for the purpose of robbery (Pen. Code, § 209);

Count 6: Kidnaping of one Carol Ann Geer for the purpose of robbery (Pen. Code, § 209);

Count 7: Robbery (2d degree) of one Donald Adcock (Pen. Code, § 211).

Lobaugh was thereafter sentenced to state prison on each of the seven counts, with the provision that the execution of sentence on counts 1 and 2 be stayed until the sentence and conviction of count 3 shall become final. With the exception of counts 1 and 2, all sentences were ordered to run concurrently with each other. The appeal is from the judgment.

We first direct our…

Billy Ray Lobaugh was convicted by jury verdicts of seven felony charges which may be described as follows:

Lobaugh was thereafter sentenced to state prison on each of the seven counts, with the provision that the execution of sentence on counts 1 and 2 be stayed until the sentence and conviction of count 3 shall become final. With the exception of counts 1 and 2, all sentences were ordered to run concurrently with each other. The appeal is from the judgment.

We first direct our inquiry to the contention that the evidence was insufficient to sustain the Vehicle Code violations, counts 1, 2, 3 and 4:

Under the “substantial evidence” rule (see People v. Reilly, 3 Cal.3d 421, 425 [ 90 Cal.Rptr. 417 , 475 P.2d 649 ]) the jury could, and we must presume they did, find the following facts to be. true.

Lobaugh and three other persons, Russell Hanson, Ellen Mae Waldecker and Charles Leonard Goggins (named respectively in counts 1, 2 and 3) met around 5 or 5:30 p.m. on July 7, 1964. They started driving around in Lobaugh’s automobile. The party purchased two quarts of wine and later bought another gallon. Throughout the evening they took turns drinking the wine. As the night…

I concur in the decision reversing the convictions on counts 1 and 2. It is clear that Vehicle Code section 23102 proscribes “any act.” The question of “bodily injury’ is only of materiality in that it aggravates the offense. The fact that there are several victims cannot transform the single act into multiple offenses.

I dissent from the decision insofar as it reverses the convictions and sentences on counts 5 and 6.

Although the instructions in this case did not contain the refinements engrafted on the statutory law by People v. Daniels (1969) 71 Cal.2d 1119 [ 80 Cal.Rptr. 897 , 459 P.2d 225 ], and applied in People v. Mutch (1971) 4 Cal.3d 389 [ 93 Cal.Rptr. 721 , 482 P.2d 633 ], I do not find any prejudice in that omission.

Adcock was forced at what he thought was gunpoint to transport the defendant and himself for an appreciable distance. The jury rejected the prosecution’s theory that such transportation was for the purpose’ of robbery. It apparently then was for the purpose of securing transportation for either the stated purpose of going to a hospital other than that to which the victim was willing to take the defendant, or for the purpose of enabling the defendant to…