Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County, No. FVI701248, Miriam Ivy Morton, Judge.
Robert E. Boyce, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Steve Oetting, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
A jury found defendant Jose Espinoza Sandoval guilty of second degree murder (Pen. Code, § 187, subd. (a)) (count 1), gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) (count 2), driving under the influence (DUI) causing injury (Veh. Code, § 23153, subd. (a)) (count 3), and driving with a.08 percent or higher blood alcohol level causing injury (Veh. Code, § 23153, subd. (b)) (count 4). The jury also found true that, in the commission of counts 2, 3, and 4, defendant had previously committed three counts of violating Vehicle Code section 23152, subdivision (b) (DUI), within the meaning of Penal Code section 191.5, subdivision (d). The jury further found true that, in the commission of counts 3 and 4, defendant had inflicted great bodily injury upon the victim (Pen. Code, § 12022.7, subd. (a)).
Defendant was sentenced to a total indeterminate term of 15 years to life as follows: an indeterminate term of 15 years to life on count 1; an indeterminate term of 15 years to life on count 2; the upper term of three years on count 3; the upper term of three years for the great bodily injury enhancement attached to count 3; the upper term of three years on count 4; and the upper term of three years for the great bodily injury enhancement attached to count 4. Sentences on counts 2 through 4, however, were stayed pursuant to section Penal Code section 654.
Defendant’s sole contention on appeal is that counts 3 and 4 must be reversed because Vehicle Code section 23153 is a lesser included offense of Penal Code section 191.5. We agree. Because DUI causing injury and driving with a.08 percent or higher blood alcohol are lesser included offenses of gross vehicular manslaughter while intoxicated, we will order the convictions for the lesser offenses reversed and the attached enhancements stricken. In all other respects, we will affirm.
I
The details of defendant’s criminal conduct are not relevant to the limited legal question he raises in this appeal. (People v. Ramirez (2009) 45 Cal.4th 980, 983, fn. 3 [whether an offense is a necessarily included offense of another is a “legal question”].) Those details are set out in defendant’s opening brief, and we will not recount them here.
Defendant argues his convictions on count 3 (DUI causing injury) and count 4 (driving with.08 percent or higher blood alcohol causing injury) must be reversed because these crimes are lesser included offenses of gross vehicular manslaughter, of which he was also convicted. The People correctly concede.
A defendant cannot be convicted of both a lesser included offense and the greater offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Where a defendant has been convicted of both, the conviction of the lesser must be reversed and any attached enhancements stricken. (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1150-1151.)
In People v. Miranda (1994) 21 Cal.App.4th 1464, the court held that DUI causing injury in violation of Vehicle Code section 23153, subdivision (a) is a necessarily included offense of gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5, subdivision (a). (Miranda, at p. 1468; see also People v. Binkerd, supra, 155 Cal.App.4th at pp. 1147-1148, 1150.) The Miranda court explained, “One person who injures a 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 Penal Code section 191.5 has occurred.” (Miranda, at p. 1468.) This same reasoning applies to driving with a.08 percent or higher blood alcohol level causing injury within the meaning of Vehicle Code section 23153, subdivision (b). (See Binkerd, at p. 1149.)
Here, defendant was convicted of gross vehicular manslaughter while intoxicated (count 2) and also both DUI causing injury (count 3) and driving with a.08 percent or higher blood alcohol level causing injury (count 4), all pertaining to the same victim. Defendant could not commit a violation of section 191.5, subdivision (a), as charged in count 2 (manslaughter), without injuring that same victim, as charged in counts 3 and 4.
Accordingly, defendant’s convictions in counts 3 and 4 must be reversed and the attached enhancements stricken.
III
DISPOSITION
Defendant’s convictions for DUI causing injury (count 3) and driving with a blood alcohol level of.08 percent or higher causing injury (count 4) are reversed, and the enhancements attached to those counts are stricken. The trial court is ordered to prepare an amended abstract of judgment reflecting this modification and to forward a copy of the amended abstract to the Department of Rehabilitation and Corrections. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST, Acting P.J., MILLER, J.
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