P. v. Hernandez
Filed 5/19/08 P. v. Hernandez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. NANCY LEDEZMA HERNANDEZ, Defendant and Appellant. | E042912 (Super.Ct.No. RIF129510) O P I N I O N |
APPEAL from the Superior Court of Riverside County. Robert J. McIntyre, Judge. Affirmed in part; reversed in part with directions.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, James D. Dutton, Supervising Deputy Attorney General, and Michael T. Murphy, Deputy Attorney General, for Plaintiff and Respondent.
Defendant pled guilty to vehicular manslaughter without gross negligence while intoxicated (count 1former Pen. Code, 192, subd. (c)(3)), driving under the influence of a drug while causing an injury (count 2Veh. Code, 23153, subd. (a)), and child endangerment (count 3Pen. Code, 273a, subd. (a)). Additionally, defendant admitted she caused injury to an additional victim in her commission of the offense in count 1 (Veh. Code, 23558) and that she personally inflicted great bodily injury upon two victims in her commission of the offense in count 2 (Pen. Code, 12022.7, subd. (a)). On appeal, defendant contends the court erred in permitting her conviction as to both counts 1 and 2, as count 2 was a lesser included offense of count 1. The People concede the issue. We agree and, therefore, reverse defendants conviction under count 2 and strike the corresponding enhancements. In all other respects, the judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant attempted to make a left turn into a grocery store parking lot during which she cut off the path of a motorcyclist traveling in the opposite direction. The motorcyclist collided with defendants vehicle. The collision resulted in the death of the motorcyclist and substantial injuries to his passenger. Blood tests later revealed that defendant was under the influence of methamphetamine. Defendant had her two-year-old son as a passenger in her vehicle.
In return for her plea, defendant was promised a maximum sentence of five years. The court later imposed the maximum sentence, an aggregate term of five years in prison consisting of the following: the upper term of four years on count 1; the midterm of two years on count 2, concurrent; the midterm of four years on count 3, concurrent; one year on the count 1 enhancement, consecutive; and three years consecutive on each of the count 2 enhancements, stayed.
II. DISCUSSION
Under the [legal] elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. (People v. Izaguirre (2007) 42 Cal.4th 126, 131.) Where a defendant has been convicted of a lesser included offense, the conviction must be reversed and any attached enhancements stricken. (People v. Binkerd (2007) 155 Cal.App.4th 1143, 1150 (Binkerd).) In determining whether a defendant may be convicted of multiple charged crimes, only the elements test is to be applied. (People v. Izaguirre, supra, at p. 131.)
In virtually identical circumstances, the court in Binkerd concluded that driving under the influence of drugs or alcohol and causing injury (Veh. Code, 23153, subd. (a)) is necessarily a lesser included offense of vehicular manslaughter without gross negligence while intoxicated (former Pen. Code, 192, subd. (c)(3); Binkerd, supra, 155 Cal.App.4th at p. 1150.) This is because one cannot commit the latter without committing the former. (Binkerd, supra, at pp. 1147-1150.) Thus, defendants conviction on count 2 must be reversed and all attached enhancements stricken.
III. DISPOSITION
Defendants conviction on count 2 is reversed and all attached enhancements stricken. The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Ramirez
P.J.
/s/ Hollenhorst
J.
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