San Francisco Criminal Lawyer BlogDUI Causing Injury Is a Necessarily Included Offense of Vehicular Manslaughter While Intoxicated but Court but Court can Impose the Greater Sentence under DUI
People v. Meno (Cal. Ct. App., June 20, 2024, No. D081878) 2024 WL 3063112, at *1
Summary: Meno was convicted of two counts each of vehicular manslaughter while intoxicated with ordinary negligence (counts 1 and 2; Pen. Code § 191.5, subd. (b)), one count of driving under the influence of alcohol (DUI) causing bodily injury (counts 3; Veh. Code § 23153, subd. (a)), and one count of driving with a blood alcohol content (BAC) of 0.08 percent or more causing injury (counts 4; Veh. Code § 23153, subd. (b)). The jury also found true that Meno inflicted great bodily injury upon two separate victims as to each of counts 3 and 4. At sentencing, the trial court found that the convictions on counts 3 and 4 were necessarily included offenses of counts 1 and 2. However, due to the associated enhancements, the potential sentence for counts 3 and 4 was greater than that for counts 1 and 2.
The People acknowledged that DUI causing injury was a “lesser” included offense to vehicular manslaughter while intoxicated, with either gross or ordinary negligence, and that the convictions for both could not stand simultaneously. The People asked the trial court to vacate counts 1 and 2 and sentence Meno under counts 3 and 4, despite counts 3 and 4 being the necessarily included offenses, because counts 3 and 4 carried a longer potential sentence. Meno asserted that the trial court did not have such discretion and had to vacate the convictions in counts 3 and 4, as well as the attached great bodily injury enhancements.
The trial court concluded that it had discretion to dismiss either counts 1 and 2 or counts 3 and 4 and that it was in the interest of justice to dismiss counts 1 and 2. The court imposed the two-year middle term on count 3, with an additional three years for each of the two great bodily injury enhancements, and stayed the punishment for count 4, for a combined term of eight years in prison. Meno asserts that the trial court was required to sentence him under the more serious, or greater, convictions in counts 1 and 2. He also argues that the trial court was required to stay the second great bodily injury enhancement along with the stay of punishment for count 4. The Court of Appeal disagreed and affirmed the judgment.
The Trial Court Did Not Err by Dismissing Counts 1 and 2
A defendant may be charged with—and in some cases convicted of—multiple crimes arising out of the same conduct. (§§ 654, 954; People v. Reed (2006) 38 Cal.4th 1224, 1226−1227 (Reed).) “Section 954 generally permits multiple conviction[s]. Section 654 is its counterpart concerning punishment. It prohibits multiple punishment for the same ‘act or omission.’ When section 954 permits multiple conviction[s], but section 654 prohibits multiple punishment[s], the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited.” (Reed, at p. 1227.)
Under a judicially created exception to the general rule, a defendant may not be convicted of multiple offenses for the same act where one of the offenses is a necessarily included offense of the other; rather, the trial court must vacate one of two convictions before sentencing. “If a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” (Reed, at p. 1227, 45.)
Here, a jury convicted the defendant under two separate statutes but the arguably less serious of the convictions—DUI causing injury—carried a longer potential sentence. Violations of section 191.5, subdivision (b) and Vehicle Code section 23153 are punishable under similar triads of 16 months for the low term and two years for the middle term, but section 191.5, subdivision (b) carries a slightly higher maximum term of four years, while section 23153 falls under the standard triad with a maximum term of three years. (See § 191.5, subd. (c)(2) [16 months, 2 years, 4 years]; Veh. Code § 23554 [first offense under 23153 punishable under standard triad]; § 1170, subd. (h)(1) [standard triad is 16 months, 2 years, 3 years].)
DUI Causing Injury Is a Necessarily Included Offense of Vehicular Manslaughter While Intoxicated
When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed.
A conviction under Vehicle Code section 23153, subdivision (a) was a necessarily included offense of section 191.5, subdivision (a). A “person who injures [another] person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of … section 191.5 has occurred.” ( offense.” ’ ” (People v. Miranda (1994) 21 Cal.App.4th 1464, 1468. (Miranda).) Practically speaking, one cannot be killed without incurring some injury.
The Trial Court Was Not Required to Vacate the Convictions in Counts 3 and 4 for DUI Causing Injury
Here, the necessarily included offense carries the longer potential sentence. There is no requirement that the trial court vacate the necessarily included offense, so long as the court does not maintain convictions for both offenses.
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