People v. Escalera CA2/3

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.

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…