Filed 8/24/26
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B347919
(Super. Ct. No. 24F-07246)
Plaintiff and Respondent, (San Luis Obispo County)

v.

DYLAN RIVER LOSSING,

Defendant and Appellant.

At issue here is a judicially-created exception to Penal
Code 1 section 954. Section 954 permits multiple convictions for
the same act. Under the exception, if a defendant is convicted of
both a greater and a lesser included offense, the court must
dismiss one of the convictions before sentencing.
In the context of applying the exception, there is a split in
authority as to whether a conviction for driving under the
influence in violation of Vehicle Code section 23153 is a lesser
included offense of gross vehicular manslaughter while
intoxicated under section 191.5. We previously held Vehicle Code

1 Statutory references are to the Penal Code unless

otherwise indicated.
section 23153 is a lesser included offense when the crimes involve
the same victim. Here, the trial court determined Vehicle Code
section 23153 was not required to be dismissed as a lesser
included offense. Given the opportunity to revisit the issue, we
now hold that Vehicle Code section 23153 is not a lesser included
offense of section 191.5. We affirm.
FACTUAL AND PROCEDURAL HISTORY
In 2024, when he was 20 years old, appellant was driving
while intoxicated and crashed into another vehicle on the
highway, killing the driver. Appellant was charged with: gross
vehicular manslaughter while intoxicated (§ 191.5, subd. (a),
count 1); negligently causing bodily injury while driving under
the influence of alcohol (Veh. Code, § 23153, subd. (a), count 2);
and negligently causing bodily injury while driving with a blood
alcohol content (BAC) of .08 percent or more (Veh. Code, § 23153,
subd. (b), count 3). As to counts 2 and 3 (the DUI counts),
appellant was charged with enhancements for personally
inflicting great bodily injury on the victim (§ 12022.7, subd. (a)).
Appellant pleaded no contest to all counts and admitted the
enhancements. The trial court found appellant guilty and
imposed a low-term four-year prison sentence for count 1, 16-
month sentences on each DUI count, and three-year consecutive
terms for each great bodily injury enhancement. The court
stayed the sentences on the DUI counts pursuant to section 654,
which prohibits multiple punishments for the same criminal act.
The great bodily injury enhancements converted the DUI
convictions to violent felonies under section 667.5, subdivision
(c)(8). The violent felony classification triggered application of
section 2933.1, subdivision (a), which limited accrual of
appellant’s custodial work time credits to 15 percent.

2
 Appellant now asks this court to hold Vehicle Code section
23153 is a lesser included offense and to dismiss his DUI
convictions under the judicially-created exception requiring
dismissal of such offenses. If the DUI convictions are dismissed,
section 2933.1 does not apply. In that event, appellant asks us to
recalculate his credits.
The People disagree and argue an offense cannot be
considered “lesser included” unless it is impossible to violate the
greater offense without also violating the lesser. Because section
191.5 can be violated by establishing a violation of a statute other
than Vehicle Code section 23153, the People assert appellant’s
DUI conviction is not a lesser included offense and cannot be
dismissed.
DISCUSSION
Standard of review
In determining whether a crime is a lesser included offense
under the judicially-created exception, we apply a de novo
standard of review. (People v. Ortega (2015) 240 Cal.App.4th 956,
965.)
The judicially-created exception
Pursuant to section 954, a person may be convicted of more
than one crime arising out of the same act or course of conduct.
(§ 954; see also People v. Reed (2006) 38 Cal.4th 1224, 1226
(Reed).) Multiple convictions have the potential to result in
duplicative punishment, violative of principles of due process and
double jeopardy. Section 654 addresses those concerns and
provides, “[a]n act or omission that is punishable in different
ways by different provisions of law may be punished under either
of such provisions, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).)

3
Reading these statutes together, multiple convictions are
statutorily permitted but multiple punishments cannot be
imposed for the same act or indivisible course of conduct.
The judiciary created an exception to section 954. Under
the judicially-created exception, a defendant cannot be convicted
of both a greater and a lesser included offense, and one of the
offenses must be dismissed before sentencing. (People v. Pearson
(1986) 42 Cal.3d 351, 355 (Pearson), disapproved on other
grounds in People v. Vidana (2016) 1 Cal.5th 632, 650-651.)
The reason for the exception is admittedly “unclear.”
(Pearson, supra, 42 Cal.3d at p. 355.) Harms that may arise from
multiple convictions are already remediated by statute or post-
sentencing relief. For example, duplicative punishment is
prohibited by the mandates of section 654. Courts adhere to
these mandates by staying execution of a sentence for all but one
conviction arising out of each act or indivisible course of conduct.
Similarly, section 1023 protects against double jeopardy resulting
from multiple convictions. (§ 1023 [conviction bars subsequent
prosecution based on same act].) Concerns about post-judgment
impacts of multiple convictions can be addressed via dismissal
after a defendant’s sentence has been served. (Pearson, supra, 42
Cal.3d at p. 363, fn. 4 [recommending dismissal of stayed
convictions upon completion of sentence to avoid use of conviction
as future priorable offense].)
While we are not aware of a compelling justification for the
judicially-created exception, our Supreme Court has limited its
application. In other contexts, the determination of whether an
offense is lesser included can be made by considering the specific
facts of a case and/or the way the crime is charged. For purposes
of the judicially-created exception, however, courts must apply

4
the statutory elements test and must consider the elements only
in the abstract. (People v. Sanders (2012) 55 Cal.4th 731, 739;
Reed, supra, 38 Cal.4th at p. 1231.) Under this test, a crime is a
lesser included offense only if the greater crime “cannot be
committed without also necessarily committing [the] lesser
offense,” and without regard to the specific facts of the case.
(Reed, supra, 38 Cal.4th at pp. 1227-1229; see also People v. Wise
(2021) 69 Cal.App.5th 505, 510; Pearson, supra, 42 Cal.3d at p.
355.) The test purposely restricts the number of offenses that
will qualify as lesser included offenses under the exception.
(Reed, supra, 38 Cal.4th at pp. 1228-1229.)
The split of authority
Several cases have held that a violation of Vehicle Code
section 23153 is a lesser included offense of gross vehicular
manslaughter while intoxicated under section 191.5 where the
crimes involve the same victim. (See People v. Miranda (1994) 21
Cal.App.4th 1464, 1468 (Miranda); People v. Binkerd (2007) 155
Cal.App.4th 1143, 1145, fn. 1, 1147−1148 (Binkerd); see also
People v. Givan (2015) 233 Cal.App.4th 335, 351 (Givan); People
v. Meno (2024) 102 Cal.App.5th 943, 952 [review granted Sept.
11, 2024, S286092] (Meno).) In Givan and Meno, the People
conceded that Vehicle Code section 23153 was a lesser included
offense of section 191.5 where the crimes involved the same
victim. The appellate courts agreed without addressing the
arguments presented in this appeal. (Givan, supra, 233
Cal.App.4th at p. 351; Meno, supra, 102 Cal.App.5th at pp. 948,
954.) Accordingly, we do not analyze those cases here.
At the time Miranda was decided, section 191.5 required a
violation of either Vehicle Code sections 23152 (standard DUI) or
23153 (DUI with negligence or illegal act causing injury). The

5
People argued that where a victim’s death was instantaneous,
there was no “injury,” such that it was possible to violate section
191.5 based only on Vehicle Code section 23152, which does not
include injury as an element. The People then argued Vehicle
Code section 23153 was not a lesser included offense because
section 191.5 could be violated without violating Vehicle Code
section 23153.
The Miranda court rejected this argument and reasoned
that no death could occur without an injury. (Miranda, supra, 21
Cal.App.4th at p. 1468.) The court held it was not possible to
violate section 191.5 without also violating Vehicle Code section
23153, and therefore Vehicle Code section 23153 was a lesser
included offense under the elements test. (Ibid.)
Over a decade later, our division decided Binkerd. At that
time, section 191.5 had been amended to include Vehicle Code
section 23140 as an alternative predicate crime. In Binkerd, the
People argued Vehicle Code section 23153 was not a lesser
included offense under the statutory elements test because
section 191.5 expressly includes Vehicle Code section 23140 as an
alternative path to establish a violation of gross vehicular
manslaughter while intoxicated. (Binkerd, supra, 155
Cal.App.4th at p. 1148.) The People pointed out that the
elements of Vehicle Code section 23140 are distinct from sections
23152 and 23153. Vehicle Code section 23140 is applicable to a
defendant under the age of 21, and a violation can be established
if the defendant has a .05 percent BAC and is merely “affected
by” alcohol. By contrast, Vehicle Code sections 23152 and 25153
require proof that a defendant is under the influence and/or has a
.08 percent BAC. Because it is possible to violate section 191.5
via Vehicle Code section 23140 without also violating Vehicle

6
Code section 23153, the People argued section 23153 is not a
lesser included offense. We rejected the People’s argument and
offered five explanations for our determination that Vehicle Code
section 23153 was a lesser included offense.
First, we opined that Vehicle Code section 23140 includes
an “under the influence” element such that its elements are not
distinct from section 23153. (Binkerd, supra, 155 Cal.App.4th at
pp. 1148−1149.)
Second, we explained that section 191.5 was “written in the
disjunctive,” in that it specifically includes Vehicle Code sections
23140, 23152, and 23153 as alternative predicates to a conviction.
(Binkerd, supra, 155 Cal.App.4th at p. 1149.) We suggested that,
in applying the statutory elements test, courts should not
consider all pathways to a violation where a statute is written in
the disjunctive, but should instead analyze the elements by
limiting their review to the predicate crime at issue. (Ibid.)
Third, we observed that if we adopted the People’s analysis,
there would be no lesser included offense under section 191.5.
(Binkerd, supra, 155 Cal.App.4th at p. 1149.)
Fourth, we pointed out that pursuant to a statute
mandating license revocation for certain habitual traffic
offenders, a conviction under section 191.5 was considered a
conviction under Vehicle Code Section 23153. (Veh. Code,
§ 13350.5; Binkerd, supra, 155 Cal.App.4th at p. 1149.)
Fifth, we observed that the DUI conviction was subject to a
sentencing enhancement that was not available for a conviction
under section 191.5. (Binkerd, supra, 155 Cal.App.4th at p.
1149.) The enhancement results in an anomaly in that a DUI
offense can carry a harsher punishment than a section 191.5
conviction. We reasoned that, because “the Legislature has

7
provided a specific penalty for a conviction of manslaughter
occurring as a result of driving while intoxicated,” allowing the
DUI conviction to stand and imposing an enhanced sentence on
the DUI conviction “circumvents the statutory scheme for
vehicular manslaughter.” (Id. at pp. 1149-1150.)
Only recently has an appellate court disagreed with
Binkerd in cases involving the same victim. In People v. Yanez
121 Cal.App.5th 850 at pages 857−858 (Yanez), the Fifth District
held that Vehicle Code section 23153 is not a lesser included
offense of section 191.5. The Yanez court adopted the People’s
argument that, because a violation of section 191.5 can be based
on a violation of Vehicle Code section 23140, it is possible to
violate section 191.5 without violating Vehicle Code section
23153. (Yanez, supra, 121 Cal.App.5th at pp. 857−858.) The
Yanez court disagreed with the reasoning in Binkerd and held
that Miranda did not apply because it did not include an analysis
of Vehicle Code section 23140.
In addition to Yanez, our Supreme Court in In re Pope
(2010) 50 Cal.4th 777, 780 (Pope), implicitly acknowledged that a
conviction of Penal Code section 191.5 and Vehicle Code section
23153 can coexist. In Pope, as here, the defendant was convicted
of violating section 191.5 and Vehicle Code section 23153,
subdivisions (a) and (b), with an admission that the DUI counts
were committed with the infliction of great bodily injury. The
trial court sentenced the defendant on all three counts and stayed
the execution of sentence on the DUI convictions pursuant to
section 654. The DUI convictions qualified as violent felonies,
which triggered application of the limitation on accrual of
worktime credit under section 2933.1, subdivision (a). The
California Department of Corrections and Rehabilitation (CDCR)

8
relied on the DUI convictions in applying section 2933.1 to limit
the defendant’s accrual of credits. (Pope, supra, 50 Cal.4th at pp.
780−781.)
The defendant in Pope moved for habeas relief, arguing the
CDCR’s restriction of work time credits based on his DUI
conviction violated the prohibition on duplicative punishment set
forth in section 654. (Pope, supra, 50 Cal.4th at p. 781.) The trial
court granted the defendant’s habeas petition and the appellate
court reversed. In affirming the appellate court, our Supreme
Court held it was not error to use the defendant’s DUI convictions
to limit his accrual of credits. (Id. at p. 786.) The opinion did not
directly address lesser included offenses, but the court answered
the broader question of whether the law will tolerate a reduction
in credit accrual resulting from a Vehicle Code section 23153
conviction where a defendant has been convicted of both section
191.5 and Vehicle Code section 23153. The court affirmatively
held principles of justice and equity are not offended by the
limitation on custodial credit accrual in these circumstances.
(Ibid.)
Section 23153 is not a lesser included offense
Section 191.5, subdivision (a) defines gross vehicular
manslaughter while intoxicated as “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. . . .”
To determine whether Vehicle Code section 23153 is a
lesser included offense for purposes of applying the judicially-
created exception requiring dismissal, we apply the statutory
elements test. We may not consider the facts of the case or the
accusatory pleading. (Reed, supra, 38 Cal.4th at p. 1229 [“ ‘only a

9
statutorily lesser included offense is subject to the bar against
multiple convictions in the same proceeding. An offense that may
be a lesser included offense because of the specific nature of the
accusatory pleading is not subject to the same bar.’ ”].) If it is
possible to violate section 191.5 without violating Vehicle Code
section 23153, we must determine that Vehicle Code section
23153 is not a lesser included offense. (Pearson, supra, 42 Cal.3d
at p. 355.)
In conducting our analysis, we are mindful that the
dismissal requirement for a lesser included offense is a judicially-
created exception to section 954 – a statute that expressly
permits multiple convictions for the same act. Judicially-created
rules should be applied with restraint to ensure they serve the
purpose for which they were created. (Rodriguez v. Bethlehem
Steel Corp. (1974) 12 Cal.3d 382, 398.) As our Supreme Court
has acknowledged, the purpose of the exception to section 954 is
“unclear.” (Pearson, supra, 42 Cal.3d at p. 355.) We presume the
exception was intended to ensure due process and prevent
duplicative punishment, but we also observe that such concerns
can be addressed without requiring dismissal of a conviction
before sentencing.
With the foregoing in mind, we hold that Vehicle Code
section 23153 is not a lesser included offense of section 191.5
because section 191.5 can be violated via Vehicle Code section
23140, which includes elements distinct from the elements of
Vehicle Code section 23153.
In so holding, we disapprove of our prior decision in
Binkerd. (Cohen v. Superior Court (2024) 102 Cal.App.5th 706,
716 [“Courts of Appeal, and divisions thereof, are empowered to

10
reconsider — and in the appropriate case disapprove of or
overrule — prior decisions of those courts”].)
We disagree with our previous suggestion that Vehicle
Code section 23140 contains the same required elements as
Vehicle Code section 23153. Vehicle Code section 23140 permits
a conviction for driving while “affected by” an intoxicant with a
BAC as low as .05 percent. Vehicle Code section 23153 requires
driving under the influence of an intoxicant and/or a BAC of at
least .08 percent. The elements of these crimes are not the same.
Our prior observation that section 191.5 is written in the
disjunctive likewise does not support a finding that Vehicle Code
section 23153 is a lesser included offense. Under the statutory
elements test, we must evaluate the elements in the abstract.
Nothing in our jurisprudence suggests that we can isolate one of
several predicate crimes and evaluate only the elements of the
predicate crime we have selected. Doing so is inconsistent with
the statutory elements test because it relies on the accusatory
pleading instead of analyzing the elements in the abstract. Our
Supreme Court has made clear this is not permitted. (Reed,
supra, 38 Cal.4th at p. 1229.)
The remaining bases for our decision in Binkerd are case-
specific rationales that disregard the results of the statutory
elements test. For example, we expressed concern that if Vehicle
Code section 23153 was not a lesser included offense, there would
be no lesser included offense of section 191.5. But not all crimes
that may be based on the same act will have a lesser included
offense under the statutory elements test. (E.g., People v.
Robinson (2016) 63 Cal.4th 200, 210.) This fact does not warrant
judicial intervention.

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 Similarly, our observations that a Vehicle Code section
23153 conviction may result in a harsher punishment than a
conviction under section 191.5, or that a license revocation
statute treats violations of section 191.5 and Vehicle Code section
23153 the same, are simply not relevant to the statutory
elements analysis that governs our determination. The
judicially-created exception should be applied with restraint
given its limited utility, and there is no reason to expand the
statutory elements test to include consideration of legislative
policy.
The concerns underlying our holding in Binkerd can be
addressed without requiring dismissal. As to the specific issue
raised by appellant – that dismissal is warranted and he should
not be made to suffer a reduction in his accrual of custodial
credits – our Supreme Court has already determined that a
reduction in credits is a harm the law will tolerate in these exact
circumstances. (Pope, supra, 50 Cal.4th at p. 786.)
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION.

MCKAIG, J. *

We concur:

YEGAN, Acting P. J. BALTODANO, J.

* Judge of the Ventura Superior Court assigned by the

Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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 Michael S. Frye, Judge

Superior Court County of San Luis Obispo

______________________________

Heather J. Manolakas, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle and Gabriel Bradley,
Deputy Attorneys General for Plaintiff and Respondent.