Reported / Citable
Background
Santana Yanez was driving over 100 miles per hour through the Tachi Palace parking lot in Kings County when he collided with two victims, killing both. His blood alcohol content measured 0.17, and he also tested positive for cannabis. He pleaded no contest to two counts of gross vehicular manslaughter while intoxicated (Penal Code § 191.5, subd. (a)) along with several counts of driving under the influence causing injury (Vehicle Code § 23153, subds. (a), (b), (g)), and received a nine-year prison sentence.
On appeal, Yanez argued that his DUI-causing-injury convictions had to be reversed because that crime is a lesser included offense of gross vehicular manslaughter while intoxicated. Under California law, a defendant cannot be convicted of both a greater offense and a lesser offense that is necessarily included within it. Because he was already convicted of the manslaughter counts, he contended the DUI-with-injury convictions were redundant and must be stricken.
The Court’s Holding
The Fifth District affirmed all convictions, holding that driving under the influence causing injury (Vehicle Code § 23153) is not a lesser included offense of gross vehicular manslaughter while intoxicated (Penal Code § 191.5, subd. (a)).
The test for lesser included offenses is abstract and element-based: if a crime cannot be committed without also committing another offense, the latter is necessarily included. The key is whether the elements of the greater offense always encompass the elements of the lesser—not whether they overlapped on the facts of this particular defendant’s case.
Gross vehicular manslaughter while intoxicated under Penal Code § 191.5 can be committed by driving in violation of any of three Vehicle Code provisions: § 23140 (underage drivers with a 0.05 BAC who are “affected by” alcohol), § 23152 (basic DUI), or § 23153 (DUI causing injury). Because the manslaughter statute reaches conduct under § 23140—which applies to under-21 drivers with a lower BAC threshold and a lesser impairment standard—a defendant can commit gross vehicular manslaughter without necessarily violating § 23153. Consider a 16-year-old driver with a 0.06 BAC who is merely “affected by” (rather than “under the influence of”) alcohol and kills someone: that driver has committed gross vehicular manslaughter under § 191.5, but has not committed DUI causing injury under § 23153, which requires either full “under the influence” impairment or a BAC of 0.08 or above.
Because the abstract elements of § 191.5 do not necessarily require a § 23153 violation, the DUI-with-injury statute is not a lesser included offense. The court expressly disagreed with People v. Binkerd (2007) to the extent that decision held otherwise, and distinguished People v. Miranda (1994) because Miranda predated the 2004 amendment adding § 23140 to the manslaughter statute’s actus reus options.
Key Takeaways
- Multiple convictions for gross vehicular manslaughter while intoxicated and DUI causing injury arising from the same incident are lawful—they do not run afoul of the bar on convicting a defendant of both a greater and lesser included offense.
- The lesser-included-offense test focuses on the abstract elements of the offenses, not on how the greater offense was actually charged or proved in the defendant’s case. The fact that Yanez was charged only under § 23153—not § 23140—did not change the analysis.
- The 2004 amendment adding Vehicle Code § 23140 (underage-driver DUI) to the actus reus options in Penal Code § 191.5 is what broke the previously observed relationship between vehicular manslaughter and DUI-with-injury. Practitioners relying on pre-2004 case law or cases decided without analysis of that amendment should update their research.
- People v. Binkerd (2007) and its progeny, which held DUI causing injury to be a lesser included offense, are no longer reliable authority after this decision.
- Defendants facing combined manslaughter and DUI-with-injury charges cannot use a plea to the manslaughter count as a ground to strike the DUI counts at sentencing.
Why It Matters
This decision resolves a split in intermediate appellate authority that has existed since at least 2007, when People v. Binkerd reached the opposite conclusion. The Fifth District’s holding—that the 2004 amendment adding Vehicle Code § 23140 to the manslaughter statute eliminated any necessary-inclusion relationship between the two offenses—provides prosecutors with clearer authority to charge and pursue convictions on both the manslaughter and DUI-with-injury counts simultaneously, without risking dismissal of the latter at sentencing.
For defense counsel, the practical takeaway is that a plea to or conviction on gross vehicular manslaughter while intoxicated will not automatically foreclose punishment on accompanying DUI-with-injury counts. Sentencing exposure on those counts—which can include separate enhancement terms for great bodily injury and multiple victims—must be fully accounted for in any plea negotiation. Defendants and their attorneys should assume that both sets of charges are independently viable unless and until a higher court addresses this circuit split.