Filed 9/18/14 P. v. Escalera CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,                                                          B251439

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA072880)
         v.

ELIAS ESCALERA, SR.,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden
Zacky, Judge. Reversed in part with directions; otherwise affirmed.


         Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
                                      INTRODUCTION
       A jury found defendant and appellant Elias Escalera, Sr., guilty of gross vehicular
manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). He was also convicted of
driving under the influence of alcohol, causing injury (Veh. Code, § 23153, subd. (a),1
hereafter section 23153(a)) and of driving with a 0.08 percent or higher blood alcohol
level causing injury (§ 23153, subd. (b), hereafter section 23153(b)). Because the section
23153(a) and section 23153(b) offenses are necessarily lesser included offenses of gross
vehicular manslaughter, we reverse the conviction of those counts.
                      FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual background.2
       On March 3, 2012, Dalia Rizo, Enrique Reyes (Dalia’s husband), Juan Reyes
(Enrique’s 15-year-old brother), and Eusebia Pedrosa de Reyes (Enrique’s and Juan’s
mother) were driving home in Enrique’s car.3 The car stalled on the 405 Freeway, so
Enrique put on the emergency lights and pulled into the emergency lane on the right side
of the freeway. Enrique and Juan got out of the car. Eusebia remained in the back seat.
Dalia sat in the front.
       Escalera, who had been drinking beer that day, was driving his white Suburban on
the 405 Freeway. Witnesses saw him driving erratically before he veered off the road
and crashed into the Reyes’s car, killing Eusebia and injuring Enrique, Dalia, and Juan.
       At the scene, an officer smelled alcohol on Escalera’s breath and noticed that he
had nystagmus in both eyes, which were red and glossy. His speech was slurred and
thick. Escalera said he’d consumed 12-ounce cans of beer. A preliminary alcohol
screening test showed a blood alcohol content of .23. A second test was .24. His blood
was drawn at the hospital, and his blood alcohol concentration was .25 percent.

1
       All further undesignated statutory references are to the Vehicle Code.
2
      Because the issues on appeal concern a discrete legal issue, we state the factual
background in brief.
3
       We use first names to avoid confusion.

                                            2
II.    Procedural background.
       A jury, on August 15, 2013, found defendant guilty of: count 1, murder (Pen.
Code, § 187, subd. (a)); count 2, driving under the influence of alcohol, causing injury
(§ 23153(a)); count 3, driving with a 0.08 percent or higher blood alcohol level causing
injury (§ 23153(b)); and count 5, gross vehicular manslaughter while intoxicated (Pen.
Code, § 191.5, subd. (a)). As to counts 2, 3, and 5, the jury found true personal infliction
of great bodily injury allegations (Pen. Code, § 12022.7, subd. (a)). As to count 5, the
jury found true two prior conviction allegations (Pen. Code, § 191.5, subd. (d)).
       On September 16, 2013, defendant was sentenced, on count 1, to 15 years to life in
prison. On count 5, he was sentenced to 15 years to life plus 9 years for the great bodily
injury enhancements. As to counts 2 and 3, the court imposed three years for each of the
counts plus three separate 3-year sentences (Pen. Code, § 12022.7). The sentences on
counts 2, 3, and 5 were imposed but stayed under Penal Code section 654.
                                          DISCUSSION
I.     The convictions on counts 2 and 3 must be reversed because they are
necessarily included offenses of count 5.
       Escalera contends that his count 2 conviction for driving under the influence
causing injury (§ 23153(a)) and count 3 conviction for driving under the influence with a
blood alcohol level of 0.08 percent or higher causing injury (§ 23153(b)) must be
reversed because they are necessarily lesser included offenses of his conviction of
count 5 for gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5,
subd. (a)). We agree.
       A defendant may not be convicted of both an offense and a necessarily lesser
included offense. (People v. Montoya (2004) 33 Cal.4th 1031, 1034.) A lesser offense is
necessarily included in a greater offense if the statutory elements of the greater offense
include all the statutory elements of the lesser offense, so that the greater cannot be
committed without also committing the lesser. (Ibid.; People v. Reed (2006) 38 Cal.4th
1224, 1227-1228; People v. Binkerd (2007) 155 Cal.App.4th 1143, 1147 (Binkerd);
People v. Miranda (1994) 21 Cal.App.4th 1464, 1467.) “When a defendant is found

                                              3
guilty of both a greater and a necessarily lesser included offense arising out of the same
act or course of conduct, and the evidence supports the verdict on the greater offense, that
conviction is controlling, and the conviction of the lesser offense must be reversed.
[Citations.]” (People v. Sanders (2012) 55 Cal.4th 731, 736.)
       Escalera was convicted of count 5, gross vehicular manslaughter while
intoxicated. “Gross vehicular manslaughter while intoxicated is the unlawful killing of a
human being without malice aforethought, in the driving of a vehicle, where the driving
was in violation of [s]ection 23140, 23152, or 23153 of the Vehicle Code, and the killing
was either the proximate result of the commission of an unlawful act, not amounting to a
felony, and with gross negligence, or the proximate result of the commission of a lawful
act that might produce death, in an unlawful manner, and with gross negligence.” (Pen.
Code, § 191.5, subd. (a).)
       Escalera was also convicted of count 2, driving under influence in violation of
section 23153(a): “It is unlawful for a person, while under the influence of any alcoholic
beverage to drive a vehicle and concurrently do any act forbidden by law, or neglect any
duty imposed by law in driving the vehicle, which act or neglect proximately causes
bodily injury to any person other than the driver.”
       He was also convicted of count 3, driving with a 0.08 or more blood alcohol in
violation of section 23153(b): “It is unlawful for a person, while having 0.08 percent or
more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any
act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which
act or neglect proximately causes bodily injury to any person other than the driver.”
       A violation of section 23153—either subdivision (a) or subdivision (b)—is a part
of the definition of vehicular manslaughter in Penal Code section 191.5, subdivision (a).
It is therefore “apparent that Vehicle Code section 23153, subdivision (a) is necessarily
included in Penal Code section 191.5. One person who injures a person while driving
under the influence commits a violation of Vehicle Code section 23153; and if that
person dies from that injury—whether immediately or sometime later—a violation of



                                             4
Penal Code section 191.5 has occurred.” (People v. Miranda, supra, 21 Cal.App.4th at
p. 1468; see Binkerd, supra, 155 Cal.App.4th at pp. 1148-1150.)
       Respondent concedes that section 23153(a) is a necessarily included offense of
Penal Code section 191.5, subdivision (a), but does not concede that section 23153(b)—
driving with 0.08 percent blood alcohol—is a necessarily included offense. Respondent
argues that because Penal Code section 191.5, subdivision (a) can be violated by
violating section 23140 alone,4 section 23153(b) is not a necessarily included offense.
       Binkerd rejected this argument. (Binkerd, supra, 155 Cal.App.4th at pp. 1148-
1149.) Binkerd noted that Penal Code section 191.5, subdivision (a) “is written in the
disjunctive. The statute is violated if one drives a vehicle in violation of either Vehicle
Code section[] 23140, 23152, or 23153. The statute does not provide that one has to
violate all three sections of the Vehicle Code to commit the offense of vehicular
manslaughter.” (Binkerd, at p. 1149.) “In cases where one victim dies from an alcohol-
related accident due to a violation of Vehicle Code section[] 23140, 23152, or 23153, the
Vehicle Code violation would always be a lesser included offense of [the vehicular
manslaughter statute].” (Ibid.)
       We agree with Binkerd. A person who injures someone while driving with 0.08
percent blood alcohol violates section 23153, and if the victim dies, a violation of Penal
Code section 191.5 has occurred. The lesser offense—causing injury while driving with
0.08 percent blood alcohol—is necessarily included in the greater offense of gross
vehicular manslaughter while intoxicated.
       Escalera’s convictions of counts 2 and 3 are reversed and the true findings on the
great bodily injury enhancements attached to them are stricken.




4
       Section 23140 makes it illegal for a person under 21 to drive a vehicle with 0.05
percent blood alcohol. The People therefore argue that a person under 21 who drives
with 0.05 percent blood alcohol and causes a death can be found in violation of Penal
Code section 191.5, subdivision (a) without also violating section 23153(b), which
requires a person to have a 0.08 percent blood alcohol.

                                              5
II.   Modification of the court operations fee and criminal assessment.
      Penal Code section 1465.8, subdivision (a)(1), provides that a $40 fee shall be
imposed on every conviction of a criminal offense (a court operations fee). Government
Code section 70373, subdivision (a)(1), provides that a $30 assessment shall be imposed
on every conviction of a criminal offense. Under those sections, the trial court imposed
an $160 court operations fee and an $120 assessment. Because we reverse the
convictions on counts 2 and 3, the fee must be reduced to $80 and the assessment must be
reduced to $60.




                                            6
                                     DISPOSITION
       Defendant and appellant Elias Escalera, Sr.’s convictions of counts 2 and 3 are
reversed. The court operations fee under Penal Code section 1465.8, subdivision (a)(1),
is reduced to $80, and the criminal conviction assessment under Government Code
section 70373, subdivision (a)(1), is reduced to $60. The Clerk of the Superior Court is
directed to prepare a corrected abstract of judgment and to forward the corrected abstract
to the Department of Corrections. The judgment is otherwise affirmed.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 ALDRICH, J.


We concur:


              KLEIN, P. J.




              KITCHING, J.




                                            7
