Filed 4/6/16 P. v. Moore CA4/1
                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                   COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                          STATE OF CALIFORNIA



THE PEOPLE,                                                            D067559

         Plaintiff and Respondent,

         v.                                                            (Super. Ct. No. SCS269906)

KEVIN MOORE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Dwayne K. Moring, Judge. Affirmed in part; reversed in part.

         John L. Staley, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney

General, Peter Quon, Jr., Randall D. Einhorn and Stacy A. Tyler, Deputy Attorneys

General, for Plaintiff and Respondent.
                                            I.

                                   INTRODUCTION

       A jury found Kevin Moore guilty of gross vehicular manslaughter while

intoxicated (Pen. Code, § 191.5, subds. (a), (c)(1))1 (count 1) and driving under the

influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) (count 2). With

respect to count 2, the jury found true the special allegation that Moore personally

inflicted great bodily injury upon the victim, a person 70 years of age or older

(§ 12022.7, subd. (c)). In a bifurcated trial, the court found true that Moore had

suffered four prison priors (§ 667.5, subd. (b)). The court sentenced Moore to a total

aggregate term of 14 years on count 1, consisting of the upper term of 10 years on the

substantive offense and a total of 4 years for the 4 prison priors. The court stayed

execution of the sentence on count 2 pursuant to section 654.

       On appeal, Moore claims that his conviction on count 2 for driving under the

influence of drugs causing injury (Veh. Code, § 23153, subd. (e)) should be reversed

because it is a lesser included offense of count 1, gross vehicular manslaughter while

intoxicated (§ 191.5, subds. (a), (c)(1)), and a defendant may not be convicted of both

a greater and lesser included offense. The People concede the error and request that

we reverse the conviction on count 2 and strike the enhancement attached to that

count. We accept the People's concession and reverse the conviction on count 2 for




1     Unless otherwise specified, all subsequent statutory references are to the Penal
Code.
                                            2
driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (e))

and strike the enhancement (§ 12022.7, subd. (c)) attached to that count.

                                            II.

                              FACTUAL BACKGROUND

         While under the influence of cocaine, Moore drove his vehicle onto a sidewalk.

Moore's vehicle struck and killed 89-year-old victim Tomas Macaraeg Mondares.2

                                            III.

                                      DISCUSSION

                     Moore's conviction on count 2 must be reversed
                     because it is a lesser included offense to count 1

         Moore claims that his conviction on count 2 for driving under the influence of

drugs causing injury (Veh. Code, § 23153, subd. (e)) should be reversed because it is a

lesser included offense of count 1, gross vehicular manslaughter while intoxicated

(§ 191.5, subds. (a), (c)(1)). Moore's claim raises a pure "legal question." (People v.

Ramirez (2009) 45 Cal.4th 980, 983, fn. 3 (Ramirez) [whether an offense is a

necessarily included offense of another is a "legal question"].) Accordingly, we apply

a de novo standard of review. (See, e.g., People v. Butler (2003) 31 Cal.4th 1119,

1127.)




2     We provide an abbreviated summary of the facts of the underlying offenses
because they are not relevant to Moore's claim on appeal.
                                             3
A.     Governing law

       "In California, a single act or course of conduct can lead to convictions 'of any

number of the offenses charged.' [Citations.] However, a judicially created exception

to this rule prohibits multiple convictions based on necessarily included offenses."

(Ramirez, supra, 45 Cal.4th at p. 984.) In applying the bar against multiple

convictions for necessarily included offenses, a court must "inquire whether all the

statutory elements of the lesser offense are included within those of the greater

offense. In other words, if a crime cannot be committed without also committing a

lesser offense, the latter is a necessarily included offense." (Id. at p. 985.)

       Section 191.5 provides in relevant part:

           "(a) 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
           Section 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.

           "[¶] . . . [¶]

           "(c)(1) . . . [G]ross vehicular manslaughter while intoxicated in
           violation of subdivision (a) is punishable by imprisonment in the
           state prison for 4, 6, or 10 years."

       Vehicle Code section 23153, subdivision (e) provides:

           "It is unlawful for a person, while under the influence of any drug,
           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."

                                             4
      In People v. Miranda (1994) 21 Cal.App.4th 1464, 1468 (Miranda), the court

concluded that Vehicle Code section 23153 is a necessarily included offense of former

section 191.5, subdivision (a). At the time Miranda was decided, former section

191.5, subdivision (a) required that the People prove, among other elements, that the

defendant violated either Vehicle Code section 23152 or Vehicle Code section 23153.3

The Miranda court rejected the People's argument that Vehicle Code section 23153

was not a necessarily included offense of former section 191.5, subdivision (a) because

one could commit a violation of former section 191.5, subdivision (a) without

necessarily violating Vehicle Code section 23153—such as, by violating Vehicle Code

section 23152. Without specifically referring to Vehicle Code section 23152, the

Miranda court rejected this argument, reasoning:

          "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 Penal Code section 191.5 has
          occurred. The People do not suggest how a victim could be killed
          by a moving vehicle and not incur injury in the process. We
          cannot envision such a scenario, nor is one created by a
          hypertechnical reading of Penal Code section 191.5. Appellant's




3       The Miranda court quoted former section 191.5, subdivision (a) as prohibiting
" 'the unlawful killing of a human being without malice aforethought, in the driving of
a vehicle, where the driving was in violation of Section 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 which might produce death, in an unlawful manner,
and with gross negligence.' " (Miranda, supra, 21 Cal.App.4th at p. 1468.)
                                           5
          conviction of violating Vehicle Code section 23153, subdivision
          (a) cannot stand."4 (Miranda, supra, 21 Cal.App.4th at p. 1468.)

       The Legislature has since amended section 191.5 to provide that a violation of

section 191.5, subdivision (a) may also be predicated on a violation of Vehicle Code

section 23140, which prohibits minors from driving with a blood alcohol content of

0.05 percent or more. Thus, it now appears to be possible for a minor to violate

section 191.5 without violating Vehicle Code section 23153 in those cases in which

the violation of section 191.5, subdivision (a) is predicated upon a violation of Vehicle

Code section 23140.

       In People v. Binkerd (2007) 155 Cal.App.4th 1143 (Binkerd), the court relied

on Miranda in concluding that Vehicle Code section 23153 is a necessarily included

offense of former section 192, subdivision (c), which required that the defendant

commit a "violation of Section[s] 23140, 23152, or 23153 of the Vehicle Code . . . ."

(Binkerd, supra, 155 Cal.App.4th at p. 1147, quoting former § 192, subd. (c).)5 The



4      Although not clearly stated in the opinion, the Miranda court may have
intended to conclude that any defendant who violates former section 191.5,
subdivision (a) and Vehicle Code section 23152, will also have violated Vehicle Code
section 23153, in light of the requirement in section 191.5 that "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
which might produce death, in an unlawful manner, and with gross negligence."
(Miranda, supra, 21 Cal.App.4th at p. 1468.)
5      Former section 192, subdivision (c), which defined the crime of vehicular
manslaughter while intoxicated without gross negligence, is now codified in section
191.5, subdivision (b). (Binkerd, supra, at p. 1146, fn. 1.) As noted in the text, section
191.5, subdivision (a) defines the crime of vehicular manslaughter while intoxicated
with gross negligence, commonly referred to as gross vehicular manslaughter while
intoxicated.
                                            6
Binkerd court specifically rejected the People's argument that Vehicle Code section

23153 is not a necessarily included offense of section 192, subdivision (c)(3) because a

violation of section 192 may be predicated upon the violation of Vehicle Code section

23140. (Binkerd, supra, at p. 1148.) The Binkerd court noted that the defendant in

that case "was over the age of 21 at the time and could not be charged with violating

Vehicle Code section 23140." (Id. at p. 1149.)6

B.     Application

       Under Miranda and Binkerd, driving under the influence of drugs causing

injury (Veh. Code, § 23153, subd. (e)) is a lesser included offense of gross vehicular

manslaughter while intoxicated (§ 191.5, subds. (a), (c)(1)). The People cite Miranda

in their brief,7 and concede that a violation of Vehicle Code section 23153,

subdivision (e) is a necessarily included offense of section 191.5, subdivision (a).

       In light of this concession, we assume that Miranda and Binkerd were correctly

decided, and that Vehicle Code section 23153, subdivision (e) is a necessarily included

offense of section 191.5, subdivision (a). Accordingly, we conclude that Moore's

conviction on count 2 for driving under the influence of drugs causing injury (Veh.

Code, § 23153, subd. (e)) must be reversed because it is a lesser included offense of

count 1, gross vehicular manslaughter while intoxicated (§ 191.5, subds. (a), (c)(1)).

(See People v. Moran (1970) 1 Cal.3d 755, 763 [where defendant is convicted of a



6      In this case, the record indicates that Moore was 57 years old at the time of the
offense.
7      Moore cited both Miranda and Binkerd in his opening brief.
                                            7
greater and lesser offense, "the conviction of the lesser offense must be reversed"].)

We must also strike the enhancement for personally inflicting great bodily injury on an

elder (§ 12022.7, subd. (c)) attached to the reversed conviction. (See Miranda, supra,

21 Cal.App.4th at pp. 1468-1469 [striking enhancement of reversed conviction].)8




8       In his reply brief, Moore notes that the trial court imposed a court operations
assessment in the amount of $80, pursuant to section 1465.8, subdivision (a)(1), which
authorizes the trial court to impose an assessment of $40 per count. Moore also notes
that the court imposed a court facility assessment in the amount of $60, pursuant to
Government Code section 70373, which authorizes the trial court to impose an
assessment of $30 per count. Moore argues that a reversal on count 2 requires that we
modify the court operations assessment (§ 1465.8, subd. (a)(1)) from $80 to $40, and
the court facility assessment (Gov. Code, § 70373) from $60 to $30.
         Ordinarily, we will not consider arguments raised for the first time in reply.
(See Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78
Cal.App.4th 847, 894, fn. 10.) However, in light of our reversal on count 2, a failure
to modify the assessments would result in an unauthorized sentence. (See People v.
Hamed (2013) 221 Cal.App.4th 928, 941 [improperly imposed assessments are
unauthorized sentences that may be corrected on appeal].) Accordingly, we order the
assessments modified as requested by Moore.
                                            8
                                           IV.

                                     DISPOSITION

       Moore's conviction on count 2 for driving under the influence of drugs causing

injury (Veh. Code, § 23153, subd. (e)) is reversed and the enhancement attached to

count 2 for personally inflicting great bodily injury on an elder (§ 12022.7, subd. (c))

is stricken. The court operations assessment (§ 1465.8, subd. (a)(1)) is modified from

$80 to $40, and the court facility assessment (Gov. Code, § 70373) is modified from

$60 to $30. In all other respects, the judgment is affirmed.



                                                                       AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.




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