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Name: People v. Binkerd
Case #: B198470
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 10/02/2007

The crime of driving under the influence causing injury is necessarily included in the offense of vehicular manslaughter without gross negligence [while driving under the influence. Appellant pleaded no contest to vehicular manslaughter without gross negligence [while intoxicated] (Pen. Code, sec. 192, subd. (c)(3)) in count one, and driving under the influence of alcohol causing injury (Veh. Code, sec. 23153, subd. (a)) in count two. On appeal, she contended that the trial court improperly entered judgment on count 2 because it is a necessarily lesser included offense of count 1. The appellate court agreed and reversed the conviction on count 2. Both counts 1 and 2 had the same victim; appellant could not commit a violation of count 1 without injuring the same victim, as charged in count 2. Under the statutory elements test, the violation of section 23153 is necessarily a lesser included offense of section 192, subdivision (c)(3). [Note: Pen. Code, sec. 192, subd. (c)(3) is now replaced by sec. 191.5, subd. (b). This case refers to the old section because it was a 2006 offense.]