San Francisco Criminal Lawyer BlogDUI Causing Injury is not a lesser included offense of gross vehicular manslaughter while intoxicated
THE PEOPLE, Plaintiff and Respondent, v. SANTANA DOMINIQUE YANEZ, Defendant and Appellant. (Cal. Ct. App., July 10, 2026, No. F090098) 2026 WL 1998663, at *1–3
- Summary: Yanez argued that his convictions for driving under the influence causing injury should be reversed because that crime is a lesser included offense of gross vehicular manslaughter while intoxicated. The Court of Appeal concluded otherwise.
Yanez was charged with two counts of gross vehicular manslaughter while intoxicated (counts 1 & 2, Pen. Code, § 191.5, subd. (a)), driving under the influence of an alcoholic beverage causing injury (count 3, Veh. Code,1 § 23153, subd. (a)), driving with a 0.08 blood alcohol content causing injury (count 4, § 23153, subd. (b)), driving under the influence of alcohol in combination with any drug causing injury (count 5, § 23153, subd. (g)), driving without a license (count 6, § 12500, subd. (a)), driving without evidence of financial responsibility (count 7, § 16028, subd. (a)), speeding (count 8, § 22350), speeding over 100 miles per hour (count 9, § 22348, subd. (b)), and failing to yield the right of way (count 10, § 21800, subd. (a)). The information also alleged great bodily injury enhancements (Pen. Code, § 12022.7, subd. (a)) as to each victim on counts 3 through 5, and alleged as to counts 1 through 5 that defendant had caused bodily injury or death to more than one victim (Veh. Code, § 23558).
Yanez pleaded no contest to the charges and enhancements and was sentenced to a total term of nine years.
Driving Under the Influence (DUI) Causing Injury is not a Lesser Included Offense of Gross Vehicular Manslaughter While Intoxicated
“[M]ultiple convictions may not be based on necessarily included offenses.” (People v. Murphy (2007) 154 Cal.App.4th 979, 983.) “[I]f a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense.” (People v. Ramirez (2009) 45 Cal.4th 980, 985.)
“Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of [s]ection 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.” (Pen. Code, § 191.5, subd. (a).)
Section 23140 provides:
“(a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
“(b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person’s blood-alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood.” (§ 23140, subds. (a), (b).)
Section 23153
Driving under the influence causing injury occurs when a person (1) drives a vehicle, (2) while either under the influence of any alcoholic beverage (§ 23153, subd. (a)), drug (§ 23153, subd. (f)) or combination of alcohol and drug (§ 23153, subd. (g)) or while having 0.08 percent or more of alcohol in their blood (§ 23153, subd. (b)), (3) concurrently does any act forbidden by law or neglects any duty imposed by law in driving the vehicle, (4) which act or neglect proximately causes bodily injury to someone other than the driver. (§ 23153.)
Culpable Driving Standards
(1) being “under the influence of” alcohol, (2) being “affected by” alcohol, and/or (3) having a particular blood alcohol content. (§§ 23140, 23152, 23153.)
Jury instructions have defined “under the influence of” an alcoholic beverage as follows:
“ ‘A person is [under the influence of an alcoholic beverage] … when as a result of [drinking such alcoholic beverage] … [his] [her] physical or mental abilities are impaired to such a degree that [he][she] no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.’ ” (McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 686; People v. Schoonover (1970) 5 Cal.App.3d 101, 105, 107 [upholding predecessor instruction].)
There is no jury instruction for being merely “affected by” alcohol. (See People v. Goslar (1999) 70 Cal.App.4th 270, 279.) Bring “affected by” includes some states of lesser impairment below being “under the influence.” A broader scope of culpable driving for individuals under 21 makes sense considering that such individuals should not be drinking at all, much less while driving.
Analysis
“If a crime cannot be committed without also committing a lesser offense, the latter is a necessarily included offense.” (People v. Ramirez, supra, 45 Cal.4th at p. 985.) As Penal Code section 191.5, subdivision (a) makes clear, committing one of the actus rei described in Vehicle Code section 23153 (i.e., DUI causing injury), is only one of three broad ways to violate the statute. A defendant can also commit gross vehicular manslaughter by instead violating Vehicle Code section 23140 or 23152. (Pen. Code, § 191.5, subd. (a).)
Section 23140 can be violated when a person under 21 drives with a 0.05 BAC and while “under the influence of” or “affected by” alcohol. In contrast, DUI causing injury requires either that the driver be “under the influence of” alcohol, drugs, or both, or have a BAC of 0.08. (§ 23153, subds. (a), (b).) While there is significant overlap in scope between these two crimes, the former is not fully subsumed within the latter. Because gross vehicular manslaughter while intoxicated can be committed without also committing DUI with injury, the latter is not a necessarily included offense.
The information provided on this website does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available on this site are for general informational purposes only. Information on this website may not constitute the most up-to-date legal or other information.