People v. Cady, D068582

On Jan 10, 2014, Cady drove an SUV after drinking (and recently using marijuana), accelerated despite passenger warnings, lost control at ~87–97 mph, and the vehicle rolled multiple times; three passengers died and two were injured.
Cady was tried on counts including three counts of gross vehicular manslaughter while intoxicated (Pen. Code §191.5(a)) (counts 4–6), and three DUI-with-injury counts: driving under the influence of alcohol causing injury (Veh. Code §23153(a)) (count 7), driving with BAC ≥ .08 causing injury (Veh. Code §23153(b)) (count 8), and driving under the combined influence of alcohol and a drug causing injury (Veh. Code §23153(f)) (count 9).
Jury acquitted Cady of murder, convicted him of counts 4–9, found true great-bodily-injury/death enhancements, and the court sentenced him to 18 years (count 8 chosen as principal term; other sentences stayed under Pen. Code §654).
Cady appealed arguing (1) count 7 (23153(a)) is a lesser included offense of count 9 (23153(f)), so the conviction on count 7 must be reversed; and (2) the trial court erred by not sua sponte instructing the jury on the lesser included offense vehicular manslaughter while intoxicated (Pen. Code §191.5(b)) for counts 4–6.
The Court of Appeal found 23153(a) is a lesser included offense of 23153(f) and reversed count 7; it rejected the claim of instructional error on the manslaughter counts (and alternatively found any error invited by defense counsel and harmless).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Veh. Code §23153(a) (DUI‑alcohol causing injury) is a lesser included offense of §23153(f) (DUI‑combined alcohol+drug causing injury)	§23153(f) requires proof of combined influence, not necessarily proof of being under the influence of alcohol alone, so (a) is not necessarily included	A defendant under combined influence necessarily was under the influence of alcohol because alcohol was a necessary cause of the impairment	(Reversed count 7) §23153(a) is a lesser included offense of §23153(f); conviction on the lesser must be reversed when defendant was convicted of the greater
Whether the trial court erred by failing to instruct sua sponte on the lesser included offense Pen. Code §191.5(b) (vehicular manslaughter while intoxicated) for counts 4–6 (charged as §191.5(a) gross vehicular manslaughter)	Trial court had sua sponte duty to give lesser instruction if there was substantial evidence supporting guilt of lesser but not greater	Defense argued strategy: counsel expressly asked court not to give lesser instructions and repeatedly conceded gross negligence in closing to avoid murder convictions	(Affirmed) No reversible error — court found defense invited the omission (tactical waiver) and, in any event, no substantial evidence supported conviction only of the lesser; any error would have been harmless

People v. Sanders, 55 Cal.4th 731 (discusses rule against multiple convictions when one offense is a necessarily included lesser)
People v. Reed, 38 Cal.4th 1224 (elements test for lesser included offenses)
People v. Toure, 232 Cal.App.4th 1096 (discussed by parties as instructive on lesser‑included issues)
People v. Souza, 54 Cal.4th 90 (sua sponte duty to instruct on lesser included offenses and invited‑error doctrine)
People v. Shockley, 58 Cal.4th 400 (definition of substantial evidence supporting lesser‑included instruction)
People v. Watson, 30 Cal.3d 290 (standard for gross negligence and Watson prejudice standard)