Filed 8/24/26 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B347919 (Super. Ct. No. 24F-07246)
Plaintiff and Respondent, (San Luis Obispo County)
v.
DYLAN RIVER LOSSING,
Defendant and Appellant.
At issue here is a judicially-created exception to Penal Code 1 section 954. Section 954 permits multiple convictions for the same act. Under the exception, if a defendant is convicted of both a greater and a lesser included offense, the court must dismiss one of the convictions before sentencing.
In the context of applying the exception, there is a split in authority as to whether a conviction for driving under the influence in violation of Vehicle Code section 23153 is a lesser included offense of gross vehicular manslaughter while intoxicated under section 191.5. We previously held Vehicle Code
1 Statutory references are to the Penal Code unless
otherwise indicated.
section 23153 is a lesser included offense when the crimes involve the same victim. Here, the trial court determined Vehicle Code section 23153 was not required to be dismissed as a lesser included offense. Given the opportunity to revisit the issue, we now hold that Vehicle Code section 23153 is not a lesser included offense of section 191.5. We affirm.
FACTUAL AND PROCEDURAL HISTORY In 2024, when he was 20 years old, appellant was driving while intoxicated and crashed into another vehicle on the highway, killing the driver. Appellant was charged with: gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a), count 1); negligently causing bodily injury while driving under the influence of alcohol (Veh. Code, § 23153, subd. (a), count 2); and negligently causing bodily injury while driving with a blood alcohol content (BAC) of .08 percent or more (Veh. Code, § 23153, subd. (b), count 3). As to counts 2 and 3 (the DUI counts), appellant was charged with enhancements for personally inflicting great bodily injury on the victim (§ 12022.7, subd. (a)).
Appellant pleaded no contest to all counts and admitted the enhancements. The trial court found appellant guilty and imposed a low-term four-year prison sentence for count 1, 16- month sentences on each DUI count, and three-year consecutive terms for each great bodily injury enhancement. The court stayed the sentences on the DUI counts pursuant to section 654, which prohibits multiple punishments for the same criminal act.
The great bodily injury enhancements converted the DUI convictions to violent felonies under section 667.5, subdivision (c)(8). The violent felony classification triggered application of section 2933.1, subdivision (a), which limited accrual of appellant’s custodial work time credits to 15 percent.
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Appellant now asks this court to hold Vehicle Code section 23153 is a lesser included offense and to dismiss his DUI convictions under the judicially-created exception requiring dismissal of such offenses. If the DUI convictions are dismissed, section 2933.1 does not apply. In that event, appellant asks us to recalculate his credits.
The People disagree and argue an offense cannot be considered “lesser included” unless it is impossible to violate the greater offense without also violating the lesser. Because section 191.5 can be violated by establishing a violation of a statute other than Vehicle Code section 23153, the People assert appellant’s DUI conviction is not a lesser included offense and cannot be dismissed.
DISCUSSION Standard of review
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.)
The judicially-created exception Pursuant to section 954, a person may be convicted of more than one crime arising out of the same act or course of conduct. (§ 954; see also People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).) Multiple convictions have the potential to result in duplicative punishment, violative of principles of due process and double jeopardy. Section 654 addresses those concerns and provides, “[a]n act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision.” (§ 654, subd. (a).)
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Reading these statutes together, multiple convictions are statutorily permitted but multiple punishments cannot be imposed for the same act or indivisible course of conduct.
The judiciary created an exception to section 954. Under the judicially-created exception, a defendant cannot be convicted of both a greater and a lesser included offense, and one of the offenses must be dismissed before sentencing. (People v. Pearson (1986) 42 Cal.3d 351, 355 (Pearson), disapproved on other grounds in People v. Vidana (2016) 1 Cal.5th 632, 650-651.)
The reason for the exception is admittedly “unclear.”
(Pearson, supra, 42 Cal.3d at p. 355.) Harms that may arise from multiple convictions are already remediated by statute or postsentencing relief. For example, duplicative punishment is prohibited by the mandates of section 654. Courts adhere to these mandates by staying execution of a sentence for all but one conviction arising out of each act or indivisible course of conduct. Similarly, section 1023 protects against double jeopardy resulting from multiple convictions. (§ 1023 [conviction bars subsequent prosecution based on same act].) Concerns about post-judgment impacts of multiple convictions can be addressed via dismissal after a defendant’s sentence has been served. (Pearson, supra, 42 Cal.3d at p. 363, fn. 4 [recommending dismissal of stayed convictions upon completion of sentence to avoid use of conviction as future priorable offense].)
While we are not aware of a compelling justification for the judicially-created exception, our Supreme Court has limited its application. In other contexts, the determination of whether an offense is lesser included can be made by considering the specific facts of a case and/or the way the crime is charged. For purposes of the judicially-created exception, however, courts must apply
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the statutory elements test and must consider the elements only in the abstract. (People v. Sanders (2012) 55 Cal.4th 731, 739; Reed, supra, 38 Cal.4th at p. 1231.) Under this test, a crime is a lesser included offense only if the greater crime “cannot be committed without also necessarily committing [the] lesser offense,” and without regard to the specific facts of the case. (Reed, supra, 38 Cal.4th at pp. 1227-1229; see also People v. Wise (2021) 69 Cal.App.5th 505, 510; Pearson, supra, 42 Cal.3d at p. 355.) The test purposely restricts the number of offenses that will qualify as lesser included offenses under the exception. (Reed, supra, 38 Cal.4th at pp. 1228-1229.)
The split of authority
Several cases have held that a violation of Vehicle Code section 23153 is a lesser included offense of gross vehicular manslaughter while intoxicated under section 191.5 where the crimes involve the same victim. (See People v. Miranda (1994) 21 Cal.App.4th 1464, 1468 (Miranda); People v. Binkerd (2007) 155 Cal.App.4th 1143, 1145, fn. 1, 1147−1148 (Binkerd); see also People v. Givan (2015) 233 Cal.App.4th 335, 351 (Givan); People v. Meno (2024) 102 Cal.App.5th 943, 952 [review granted Sept. 11, 2024, S286092] (Meno).) In Givan and Meno, the People conceded that Vehicle Code section 23153 was a lesser included offense of section 191.5 where the crimes involved the same victim. The appellate courts agreed without addressing the arguments presented in this appeal. (Givan, supra, 233 Cal.App.4th at p. 351; Meno, supra, 102 Cal.App.5th at pp. 948, 954.) Accordingly, we do not analyze those cases here.
At the time Miranda was decided, section 191.5 required a violation of either Vehicle Code sections 23152 (standard DUI) or 23153 (DUI with negligence or illegal act causing injury). The
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People argued that where a victim’s death was instantaneous, there was no “injury,” such that it was possible to violate section 191.5 based only on Vehicle Code section 23152, which does not include injury as an element. The People then argued Vehicle Code section 23153 was not a lesser included offense because section 191.5 could be violated without violating Vehicle Code section 23153.
The Miranda court rejected this argument and reasoned that no death could occur without an injury. (Miranda, supra, 21 Cal.App.4th at p. 1468.) The court held it was not possible to violate section 191.5 without also violating Vehicle Code section 23153, and therefore Vehicle Code section 23153 was a lesser included offense under the elements test. (Ibid.)
Over a decade later, our division decided Binkerd. At that time, section 191.5 had been amended to include Vehicle Code section 23140 as an alternative predicate crime. In Binkerd, the People argued Vehicle Code section 23153 was not a lesser included offense under the statutory elements test because section 191.5 expressly includes Vehicle Code section 23140 as an alternative path to establish a violation of gross vehicular manslaughter while intoxicated. (Binkerd, supra, 155 Cal.App.4th at p. 1148.) The People pointed out that the elements of Vehicle Code section 23140 are distinct from sections 23152 and 23153. Vehicle Code section 23140 is applicable to a defendant under the age of 21, and a violation can be established if the defendant has a .05 percent BAC and is merely “affected by” alcohol. By contrast, Vehicle Code sections 23152 and 25153 require proof that a defendant is under the influence and/or has a .08 percent BAC. Because it is possible to violate section 191.5 via Vehicle Code section 23140 without also violating Vehicle
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Code section 23153, the People argued section 23153 is not a lesser included offense. We rejected the People’s argument and offered five explanations for our determination that Vehicle Code section 23153 was a lesser included offense.
First, we opined that Vehicle Code section 23140 includes an “under the influence” element such that its elements are not distinct from section 23153. (Binkerd, supra, 155 Cal.App.4th at pp. 1148−1149.)
Second, we explained that section 191.5 was “written in the disjunctive,” in that it specifically includes Vehicle Code sections 23140, 23152, and 23153 as alternative predicates to a conviction. (Binkerd, supra, 155 Cal.App.4th at p. 1149.) We suggested that, in applying the statutory elements test, courts should not consider all pathways to a violation where a statute is written in the disjunctive, but should instead analyze the elements by limiting their review to the predicate crime at issue. (Ibid.)
Third, we observed that if we adopted the People’s analysis, there would be no lesser included offense under section 191.5. (Binkerd, supra, 155 Cal.App.4th at p. 1149.)
Fourth, we pointed out that pursuant to a statute mandating license revocation for certain habitual traffic offenders, a conviction under section 191.5 was considered a conviction under Vehicle Code Section 23153. (Veh. Code, § 13350.5; Binkerd, supra, 155 Cal.App.4th at p. 1149.)
Fifth, we observed that the DUI conviction was subject to a sentencing enhancement that was not available for a conviction under section 191.5. (Binkerd, supra, 155 Cal.App.4th at p. 1149.) The enhancement results in an anomaly in that a DUI offense can carry a harsher punishment than a section 191.5 conviction. We reasoned that, because “the Legislature has
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provided a specific penalty for a conviction of manslaughter occurring as a result of driving while intoxicated,” allowing the DUI conviction to stand and imposing an enhanced sentence on the DUI conviction “circumvents the statutory scheme for vehicular manslaughter.” (Id. at pp. 1149-1150.)
Only recently has an appellate court disagreed with Binkerd in cases involving the same victim. In People v. Yanez 121 Cal.App.5th 850 at pages 857−858 (Yanez), the Fifth District held that Vehicle Code section 23153 is not a lesser included offense of section 191.5. The Yanez court adopted the People’s argument that, because a violation of section 191.5 can be based on a violation of Vehicle Code section 23140, it is possible to violate section 191.5 without violating Vehicle Code section 23153. (Yanez, supra, 121 Cal.App.5th at pp. 857−858.) The Yanez court disagreed with the reasoning in Binkerd and held that Miranda did not apply because it did not include an analysis of Vehicle Code section 23140.
In addition to Yanez, our Supreme Court in In re Pope (2010) 50 Cal.4th 777, 780 (Pope), implicitly acknowledged that a conviction of Penal Code section 191.5 and Vehicle Code section 23153 can coexist. In Pope, as here, the defendant was convicted of violating section 191.5 and Vehicle Code section 23153, subdivisions (a) and (b), with an admission that the DUI counts were committed with the infliction of great bodily injury. The trial court sentenced the defendant on all three counts and stayed the execution of sentence on the DUI convictions pursuant to section 654. The DUI convictions qualified as violent felonies, which triggered application of the limitation on accrual of worktime credit under section 2933.1, subdivision (a). The California Department of Corrections and Rehabilitation (CDCR)
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relied on the DUI convictions in applying section 2933.1 to limit the defendant’s accrual of credits. (Pope, supra, 50 Cal.4th at pp. 780−781.)
The defendant in Pope moved for habeas relief, arguing the CDCR’s restriction of work time credits based on his DUI conviction violated the prohibition on duplicative punishment set forth in section 654. (Pope, supra, 50 Cal.4th at p. 781.) The trial court granted the defendant’s habeas petition and the appellate court reversed. In affirming the appellate court, our Supreme Court held it was not error to use the defendant’s DUI convictions to limit his accrual of credits. (Id. at p. 786.) The opinion did not directly address lesser included offenses, but the court answered the broader question of whether the law will tolerate a reduction in credit accrual resulting from a Vehicle Code section 23153 conviction where a defendant has been convicted of both section 191.5 and Vehicle Code section 23153. The court affirmatively held principles of justice and equity are not offended by the limitation on custodial credit accrual in these circumstances. (Ibid.)
Section 23153 is not a lesser included offense Section 191.5, subdivision (a) defines gross vehicular manslaughter while intoxicated as “the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code. . . .”
To determine whether Vehicle Code section 23153 is a lesser included offense for purposes of applying the judicially- created exception requiring dismissal, we apply the statutory elements test. We may not consider the facts of the case or the accusatory pleading. (Reed, supra, 38 Cal.4th at p. 1229 [“ ‘only a
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statutorily lesser included offense is subject to the bar against multiple convictions in the same proceeding. An offense that may be a lesser included offense because of the specific nature of the accusatory pleading is not subject to the same bar.’ ”].) If it is possible to violate section 191.5 without violating Vehicle Code section 23153, we must determine that Vehicle Code section 23153 is not a lesser included offense. (Pearson, supra, 42 Cal.3d at p. 355.)
In conducting our analysis, we are mindful that the dismissal requirement for a lesser included offense is a judicially- created exception to section 954 – a statute that expressly permits multiple convictions for the same act. Judicially-created rules should be applied with restraint to ensure they serve the purpose for which they were created. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 398.) As our Supreme Court has acknowledged, the purpose of the exception to section 954 is “unclear.” (Pearson, supra, 42 Cal.3d at p. 355.) We presume the exception was intended to ensure due process and prevent duplicative punishment, but we also observe that such concerns can be addressed without requiring dismissal of a conviction before sentencing.
With the foregoing in mind, we hold that Vehicle Code section 23153 is not a lesser included offense of section 191.5 because section 191.5 can be violated via Vehicle Code section 23140, which includes elements distinct from the elements of Vehicle Code section 23153.
In so holding, we disapprove of our prior decision in Binkerd. (Cohen v. Superior Court (2024) 102 Cal.App.5th 706, 716 [“Courts of Appeal, and divisions thereof, are empowered to
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reconsider — and in the appropriate case disapprove of or overrule — prior decisions of those courts”].)
We disagree with our previous suggestion that Vehicle Code section 23140 contains the same required elements as Vehicle Code section 23153. Vehicle Code section 23140 permits a conviction for driving while “affected by” an intoxicant with a BAC as low as .05 percent. Vehicle Code section 23153 requires driving under the influence of an intoxicant and/or a BAC of at least .08 percent. The elements of these crimes are not the same.
Our prior observation that section 191.5 is written in the disjunctive likewise does not support a finding that Vehicle Code section 23153 is a lesser included offense. Under the statutory elements test, we must evaluate the elements in the abstract. Nothing in our jurisprudence suggests that we can isolate one of several predicate crimes and evaluate only the elements of the predicate crime we have selected. Doing so is inconsistent with the statutory elements test because it relies on the accusatory pleading instead of analyzing the elements in the abstract. Our Supreme Court has made clear this is not permitted. (Reed, supra, 38 Cal.4th at p. 1229.)
The remaining bases for our decision in Binkerd are casespecific rationales that disregard the results of the statutory elements test. For example, we expressed concern that if Vehicle Code section 23153 was not a lesser included offense, there would be no lesser included offense of section 191.5. But not all crimes that may be based on the same act will have a lesser included offense under the statutory elements test. (E.g., People v. Robinson (2016) 63 Cal.4th 200, 210.) This fact does not warrant judicial intervention.
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Similarly, our observations that a Vehicle Code section 23153 conviction may result in a harsher punishment than a conviction under section 191.5, or that a license revocation statute treats violations of section 191.5 and Vehicle Code section 23153 the same, are simply not relevant to the statutory elements analysis that governs our determination. The judicially-created exception should be applied with restraint given its limited utility, and there is no reason to expand the statutory elements test to include consideration of legislative policy.
The concerns underlying our holding in Binkerd can be addressed without requiring dismissal. As to the specific issue raised by appellant – that dismissal is warranted and he should not be made to suffer a reduction in his accrual of custodial credits – our Supreme Court has already determined that a reduction in credits is a harm the law will tolerate in these exact circumstances. (Pope, supra, 50 Cal.4th at p. 786.)
DISPOSITION
The judgment is affirmed. CERTIFIED FOR PUBLICATION.
MCKAIG, J. *
We concur:
YEGAN, Acting P. J. BALTODANO, J.
* Judge of the Ventura Superior Court assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
Michael S. Frye, Judge
Superior Court County of San Luis Obispo
______________________________
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Gabriel Bradley, Deputy Attorneys General for Plaintiff and Respondent.