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People v. Ortiz6/30/2004
an instruction on a lesser offense which is not necessarily included in the charged offense unless the People concur. (People v. Birks, supra, 19 Cal.4th at p. 136 & fn. 19.) We are bound by such precedent. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)"[A] lesser included offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]" (People v. Birks, supra, 19 Cal.4th at pp. 117-118.)
Defendant argues that the instructions he requested should have been given because they constitute lesser included offenses under the facts alleged in the amended information. But we conclude, as the trial court did, that defendant was not entitled to have the jury instructed on gross vehicular manslaughter in light of the Supreme Court's decision in People v. Sanchez (2001) 24 Cal.4th 983. There, the court determined that gross vehicular manslaughter while intoxicated is not a lesser included offense of murder. (Id . at p. 985.) The defendant's convictions for both offenses arose from a single incident involving a single death, yet the court upheld the dual convictions. While noting that manslaughter has historically been considered as a lesser included offense to murder, the court found that, "[u]nlike manslaughter generally, vehicular manslaughter while intoxicated requires proof of elements that are not necessary to a murder conviction. The use of a vehicle while intoxicated is not merely a 'circumstance,' but an element of proof...." (Id. at p. 991.)
*5 We are bound by Sanchez and find its reasoning applies equally to both of the crimes of gross vehicular manslaughter while intoxicated and gross vehicular manslaughter not involving drugs or alcohol. We therefore conclude that, as a matter of law, the court did not err in failing to instruct the jury with CALJIC Nos. 8.90 and 8.93.
DISPOSITION
The judgment is reversed, the order denying appellant's motion for a new trial is vacated, and the matter is remanded for a reconsideration of the motion as to the sufficiency of the evidence to support the second degree murder convictions. If the motion for new trial is denied, the court shall reinstate the judgment.
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