DUI Injury Convictions Need Not Be Dismissed After Gross Vehicular Manslaughter Plea

People v. Lossing (Cal. Ct. App., Aug. 24, 2026, No. 2D CRIM. B347919) 2026 WL 2474216, at *1–6

Summary: In People v. Lossing, the Court of Appeal held that DUI causing injury under Vehicle Code section 23153 is not a lesser included offense of gross vehicular manslaughter while intoxicated under Penal Code section 191.5, affirming the defendant’s convictions and related credit consequences.

The issue is whether convictions for driving under the influence causing injury under Vehicle Code section 23153 must be dismissed as lesser included offenses of gross vehicular manslaughter while intoxicated under Penal Code section 191.5. Section 954 permits multiple convictions arising from the same act, but a judicially created exception requires dismissal when a defendant is convicted of both a greater offense and a lesser included offense.

Although this court previously held that Vehicle Code section 23153 is a lesser included offense when both crimes involve the same victim, we now conclude otherwise. Because section 191.5 can be committed by violating Vehicle Code section 23140, whose elements differ from section 23153, section 23153 is not necessarily included in section 191.5. We therefore affirm.

In 2024, appellant, then 20 years old, drove while intoxicated and crashed into another vehicle, killing its driver. He pleaded no contest to gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)) and two DUI counts under Vehicle Code section 23153, subdivisions (a) and (b), and admitted great bodily injury enhancements on the DUI counts.

The trial court imposed a four-year low term on the manslaughter count, imposed but stayed the DUI sentences under section 654, and imposed stayed great bodily injury enhancements. Because those enhancements made the DUI convictions violent felonies (§ 667.5, subd. (c)(8)), appellant’s worktime credits were limited to 15 percent under section 2933.1.

Appellant seeks dismissal of the DUI convictions and recalculation of his credits. The People respond that section 23153 is not a lesser included offense because section 191.5 may be violated through statutory predicates other than section 23153.

Standard of Review

Review is de novo. In determining whether a crime is a lesser included offense under the judicially created exception, we apply a de novo standard of review. (People v. Ortega (2015) 240 Cal.App.4th 956, 965, 193 Cal.Rptr.3d 142.)

Governing Rule: Multiple Convictions and Lesser Included Offenses

Section 954 permits multiple convictions; section 654 limits multiple punishment. Section 954 allows multiple convictions arising from the same act or course of conduct. Section 654 separately prevents multiple punishment for the same act by requiring punishment under only one applicable provision. Thus, multiple convictions generally may stand even when punishment on some counts must be stayed.

The exception for lesser included offenses is judicially created. Under it, a defendant may not be convicted of both a greater and a lesser included offense, and one conviction must be dismissed before sentencing. (People v. Pearson (1986) 42 Cal.3d 351, 355, disapproved on another ground in People v. Vidana (2016) 1 Cal.5th 632, 650–651.)

The purpose of the exception is “unclear.” (Pearson, supra, 42 Cal.3d at p. 355.) Concerns about duplicative punishment are addressed by section 654, double jeopardy concerns by section 1023, and future collateral consequences may be addressed through post-sentence dismissal of stayed convictions. (Id. at p. 363, fn. 4.)

The statutory elements test controls. Courts apply the test in the abstract, not by examining the facts or accusatory pleading. A lesser offense qualifies only if the greater offense cannot be committed without also committing the lesser. (People v. Reed (2006) 38 Cal.4th 1224, 1227–1229, 1231; People v. Sanders (2012) 55 Cal.4th 731, 739.)

Split of Authority

Earlier cases reached differing results. Miranda held that, under the then-existing version of section 191.5, Vehicle Code section 23153 was necessarily included because a death necessarily involved injury. (People v. Miranda (1994) 21 Cal.App.4th 1464, 1468.) Binkerd later reached the same result after section 191.5 was amended to include Vehicle Code section 23140 as an alternative predicate. (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1148–1150.) Givan and Meno accepted similar conclusions based on concessions or without engaging the arguments presented here. By contrast, Yanez held that section 23153 is not a lesser included offense because section 191.5 can be committed through section 23140. (People v. Yanez (2026) 121 Cal.App.5th 850, 857–858.)

Pope also confirms that DUI convictions may carry credit consequences even when punishment is stayed. There, the Supreme Court held that using stayed DUI convictions with great bodily injury admissions to limit worktime credits under section 2933.1 did not violate section 654 or offend equity. (In re Pope (2010) 50 Cal.4th 777, 780–786.)

Section 23153 Is Not a Lesser Included Offense

Section 191.5 has alternative predicates. Section 191.5, subdivision (a), defines gross vehicular manslaughter while intoxicated as an unlawful killing without malice while driving in violation of Vehicle Code section 23140, 23152, or 23153. Because the statute is disjunctive, the question is whether every violation of section 191.5 necessarily includes a violation of section 23153.

The elements differ materially. Vehicle Code section 23140 applies to drivers under 21 and may be violated by driving with a blood alcohol concentration of .05 percent while affected by alcohol. Section 23153 requires driving under the influence, driving with a .08 percent or higher blood alcohol concentration, or another specified violation, together with negligent conduct or an unlawful act causing bodily injury.

That difference is dispositive. A defendant can violate section 191.5 by committing Vehicle Code section 23140 without also violating section 23153. Under the statutory elements test, that possibility is decisive. The court may not narrow the analysis to the predicate alleged in a particular case or to facts showing the victim suffered injury.

Holding: Vehicle Code section 23153 is not a lesser included offense of section 191.5 for purposes of the judicially created exception to section 954.

We disapprove Binkerd to the extent it held otherwise. Its conclusion rested on premises we no longer accept: that section 23140 contains the same relevant intoxication elements as section 23153; that a disjunctive statute may be analyzed by isolating only the charged predicate; and that sentencing policy concerns can alter the statutory-elements inquiry.

Nor do appellant’s credit consequences justify dismissal. Pope holds that limiting credits based on the DUI convictions in these circumstances is permissible. Because section 23153 is not a lesser included offense, the DUI convictions need not be dismissed and appellant is not entitled to recalculation of credits.

DISPOSITION

The judgment is affirmed.

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