Driving under the influence of alcohol causing injury is a not a lesser included offense (LIO) of driving under the combined influence of alcohol and a drug causing injury. While intoxicated, Cady drove his vehicle at an excessive and unsafe speed, causing an accident which killed three of his passengers and injured two others. He was convicted of numerous offenses including driving under the combined effects of alcohol and a drug causing injury (Veh. Code, § 23153, subd. (f)) and driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)). On appeal Cady argued his conviction for the latter offense should be stricken as an LIO of the former. In its initial opinion the Court of Appeal agreed and struck the LIO. The Court of Appeal then granted rehearing. Held: Affirmed. A defendant may not be convicted of multiple convictions based on necessarily included offenses. In deciding whether one offense is an LIO of the other, the “elements” test is applied. If the statutory elements of the greater offense include all of the elements of the lesser offense, the latter is necessarily included in the former. Here, the elements of the two Vehicle Code provisions at issue are basically identical: both prohibit driving a vehicle while under the influence of an intoxicating substance and concurrently doing any act prohibited by law or neglecting to perform any duty imposed by law in driving the vehicle, proximately causing bodily injury to another person. The difference between the offenses is the nature of the intoxicating substance: in one subdivision it is alcohol, while in the other it is the combination of alcohol and a drug. The question is whether a person who drives while under the combined influence of drugs and alcohol necessarily drives while under the influence of alcohol. The answer is no because there are situations in which a person might drive under the combined effects of drugs and alcohol when their consumption of the same amount of alcohol alone would not have impaired his or her ability to operate a motor vehicle.

The trial court did not err in failing to instruct on an LIO to gross vehicular manslaughter while intoxicated because the lesser offense was not supported by the evidence. Cady also argued the trial court erred by not instructing on the LIO of vehicular manslaughter without gross negligence. The trial court was required to instruct on the lesser offense only if a reasonable jury could find that Cady was not guilty of vehicular manslaughter with gross negligence. Gross negligence is the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. The test is objective: whether a reasonable person in the defendant’s position would have been aware of the risk involved. Here, the evidence showed that Cady’s passengers told him to slow down but instead of doing so, he sped up as he entered a curve. Thus, there was no substantial evidence to warrant the giving of the LIO instruction. In any event, any arguable error was harmless given the evidence and the fact that Cady took responsibility for the gross vehicular manslaughter counts in an effort to avoid murder convictions.

Any error in failing to instruct on the lesser offense of vehicular manslaughter without gross negligence was invited by defendant. Invited error will be found where trial counsel expresses a deliberate tactical purpose in resisting an instruction that is later the subject of an appellate issue. Here the record reflects that defense counsel made a deliberate choice to forego an instruction on the LIO to gross vehicular manslaughter. During the jury instruction conference and closing argument, defense counsel stated that Cady took responsibility for committing gross vehicular manslaughter as charged in three of the counts. This was an effort to avoid second degree murder convictions. In so doing, Cady specifically invited the trial court not to instruct on the LIO and therefore may not invoke the court’s failure to so instruct as a basis for reversal.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D068582A.PDF