In implied malice murder prosecution, trial court properly refused to instruct on gross vehicular manslaughter while intoxicated because it is not a lesser included offense (LIO) of murder. Alvarez drove after ingesting alcohol and drugs and caused a collision that killed one person and injured another. A jury convicted him of implied malice murder. Alvarez appealed, arguing, inter alia, the trial court wrongfully refused to instruct the jury on gross vehicular manslaughter while intoxicated as a lesser included offense to implied malice murder. Held: Affirmed. Under the statutory elements test, an offense is an LIO if the greater offense necessarily includes all of the elements of the LIO. Applying this test, gross vehicular manslaughter while intoxicated is not an LIO of murder because it requires additional elements (use of a vehicle and intoxication) not required for murder. Under the accusatory pleading test, an offense is an LIO if the facts actually alleged include all of the elements of the uncharged LIO. Applying this test, gross vehicular manslaughter with intoxication is not an LIO of murder because the accusatory pleading in this case merely incorporated the statutory definition of the charged offense without referring to particular facts. The court declined to apply the “expanded” accusatory pleading test articulated in People v. Ortega (2015) 240 Cal.App.4th 956. Thus, gross vehicular manslaughter while intoxicated was not an LIO and the trial court properly refused LIO instructions.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/D074457.PDF