Monday, October 8, 2007

California DUI is LIO of Vehiclular Manslaughter w/out Gross Negligence

California DUI / Drunk Driving Criminal Defense Attorneys news

California DUI is LIO of Vehiclular Manslaughter without gross negligence

People v. Binkerd (2007) , Cal.App.4th
[No. B198470. Second Dist., Div. Six. Oct. 2, 2007.]
THE PEOPLE, Plaintiff and Respondent, v. JESSICA ROSE BINKERD, Defendant and Appellant.

(Superior Court of Santa Barbara County, No. 1213963, Joseph Lodge, Judge.)

(Opinion by Perren, J., with Gilbert, P.J., and Yegan, J., concurring.)

COUNSEL

S.R. Balash, Jr., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey, John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PERREN, J.-

Jessica Rose Binkerd appeals from the judgment entered following her plea of no contest to vehicular manslaughter without gross negligence (count 1, Pen. Code, § 192, subd. (c)(3)) fn. 1 and driving under the influence of alcohol causing injury (count 2, Veh. Code, § 23153, subd. (a)). She admitted the special allegations of causing injury to more than one victim (Veh. Code, § 23558) as to both counts and causing great bodily injury (§ 12022.7, subd. (a)) as to count 2. The trial court sentenced her to five years four months in state prison on count 2 including enhancements, and stayed imposition of sentence on count 1. (§ 654.)

Appellant contends the trial court improperly entered judgment on count 2 because it is necessarily a lesser included offense of count 1, and that the prosecutor committed misconduct by arguing to the court that she was ineligible for probation. We conclude that driving under the influence of alcohol causing injury (count 2) is a {Slip Opn. Page 2} necessarily lesser included offense of vehicular manslaughter without gross negligence (count 1). Accordingly, we reverse the conviction on count 2 and remand for resentencing.