Filed 7/7/14 P. v. Trujillo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ALEX DAVID TRUJILLO,

 Defendant and Appellant.

 G044131

 (Super. Ct. No. 08WF2093)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, 

James Patrick Marion, Judge. Affirmed.

Susan D. Shors, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and 

Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.

* * *
2

INTRODUCTION

Defendant Alex David Trujillo struck two bicyclists while driving his 

pickup truck; one of the bicyclists died. After the collision, a test of defendant’s blood 

showed he was driving under the influence of alcohol and prescription medication. The 

prosecution offered evidence of defendant’s voluntary intoxication, as well as his 

previous conviction for driving under the influence, to establish implied malice 

supporting defendant’s conviction for second degree murder. Defendant raises three 

issues on appeal; finding no merit in any of them, we affirm defendant’s conviction.

First, defendant argues the trial court erred by failing to instruct the jury 

regarding involuntary intoxication. There was no evidence supporting a defense of 

unconsciousness or involuntary intoxication, however. For the same reason, defendant’s 

trial counsel was not ineffective for failing to request such an instruction.

Second, defendant argues the jury was erroneously permitted to consider 

evidence of his voluntary intoxication to establish implied malice. We conclude Penal 

Code former section 22 permitted the prosecution to offer evidence of a defendant’s 

voluntary intoxication to establish implied malice, while precluding the defendant from 

offering the same evidence to negate implied malice. Former section 22 did not violate a 

defendant’s due process or equal protection rights.

Finally, defendant argues the trial court erred by failing to instruct the jury 

on gross vehicular manslaughter while intoxicated, which is a lesser related charge of 

murder. The prosecution did not agree to an instruction on the lesser charge, and the trial 

court did not err in failing to give it.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

About 4:55 p.m. on October 12, 2008, defendant was driving his pickup 

truck eastbound on Lampson Avenue in Seal Beach. Witnesses observed defendant 

driving normally within the posted speed limit. However, defendant failed to negotiate a 
3

gradual left turn in the road, and his truck jumped the curb onto the sidewalk, hit two 

bicyclists, and struck a tree. Defendant did not apply the brakes or swerve before the 

collision. Catherine Busse, one of the bicyclists, died as the result of multiple blunt 

traumatic injuries.

Defendant was treated at the University of California, Irvine Medical 

Center. When questioned by paramedics and hospital personnel, he denied taking any 

medications or drinking alcohol that day. Defendant’s blood was drawn at 5:35 p.m., 

showing a blood alcohol level of 0.10 percent. Defendant’s blood was drawn again at 

6:20 p.m.; the blood alcohol level of that sample was 0.09 percent. Defendant’s second 

blood sample indicated the presence of therapeutic levels of oxycodone, hydrocodone, 

and alprazolam in his bloodstream.

1

An expert in forensic toxicology opined defendant’s blood alcohol content 

at the time of the collision would have been between 0.11 and 0.12 percent. The expert 

testified the other drugs in defendant’s system were central nervous system depressants 

that would have enhanced the effects of alcohol. Using retrograde extrapolation, the 

expert estimated that if defendant had not consumed any alcoholic beverages on 

October 12, his blood alcohol level of about 0.11 percent at 4:55 p.m. would have meant 

he had a blood alcohol level between 0.30 and 0.40 percent at 12:00 a.m. on October 12. 

Such a blood alcohol level would potentially be a lethal dose, at which defendant would 

have been expected to be grossly impaired. Defendant would have had to consume 

between 17 and 23 alcoholic beverages to reach that level, although his weight, tolerance

level, timing of consumption, food intake, and fatigue could affect the impacts of alcohol. 

Multiple pill bottles for OxyContin and hydrocodone were found at 

defendant’s home. Prescription receipts for OxyContin and hydrocodone were found in 

the glove compartment of defendant’s truck. All the bottles and receipts were labeled 

 

1

 Oxycodone, hydrocodone, and alprazolam are the generic forms of OxyContin, 

Vicodin, and Xanax, respectively. 
4

with warnings that the medication could make the user drowsy, caution should be used 

when operating a vehicle after taking the medicine, and alcohol could intensify the effects 

of the medication.

Defendant had been convicted of driving under the influence of alcohol in 

2002. When defendant was pulled over in 2002, he felt fine, believed he could operate a 

motor vehicle, and thought he was safe to drive and in control; defendant testified he 

would not have gotten in his car that evening if he did not feel safe to drive. After his 

conviction, defendant participated in a nine-month first offender driving under the 

influence program. At the conclusion of that program, defendant signed a statement,

acknowledging: “I understand that alcohol and/or drugs impair my ability to drive, and 

I understand the dangerous consequences of drinking or using drugs and driving. [¶] If 

you choose to ignore this warning and drive while under the influence of alcohol or drugs 

or both and someone is killed, you may be charged with vehicular manslaughter or 

murder. [¶] The element of malice in a charge of murder may be implied because you 

have the knowledge of the danger of the conduct . . . , and the risk that such conduct 

poses to the public.”

Both defendant and his wife testified that defendant drank alcohol at a 

wedding the night before the collision, but stopped drinking between midnight and 

1:00 a.m. Defendant was drunk, but he and his wife spent the night at the hotel where the 

wedding reception was held. Defendant took OxyContin, Soma, and Vicodin, as 

prescribed, in the evening of October 11, and took OxyContin, as prescribed, in the 

morning of October 12. Defendant’s wife testified defendant did not drink any alcohol 

during the morning of October 12, and did not appear impaired in any way. Defendant 

slept in the car while his wife drove home that morning. Defendant did some chores 

around the house and left at 4:00 or 4:30 p.m. to run errands. Both defendant and his 

wife testified that defendant did not drink any alcohol or take any prescription medication 

after they got home on October 12. 
5

Defendant’s wife did not observe any signs of intoxication before defendant 

left to go shopping. Defendant did not feel impaired. He would not have driven if he had 

felt drowsy. Defendant testified that on October 12, he did not feel he was a risk to 

others, and did not drive with a disregard for the safety of others.

Defendant’s physician testified he had treated defendant for back pain for 

many years, and had prescribed OxyContin, Vicodin, and Flexeril, a muscle relaxant. 

The physician had warned defendant about the effects of combining those medications 

with alcohol, particularly when driving, and cautioned defendant not to drive after taking 

Vicodin.

Defendant was charged with a single count of second degree murder (Pen.

Code, § 187, subd. (a)), and a jury convicted him. The trial court sentenced defendant to 

15 years to life in prison. Defendant filed a timely notice of appeal.

DISCUSSION

I.

INSTRUCTION ON INVOLUNTARY INTOXICATION

Defendant argues he was prejudiced by the lack of a jury instruction on 

involuntary intoxication. Defendant contends the trial court had a sua sponte duty to so 

instruct the jury; alternatively, he contends his trial counsel was ineffective for failing to

request such an instruction. Defendant does not identify the instruction or instructions he 

claims should have been given to the jury. We presume for purposes of this opinion that 

the potentially relevant instructions would have been CALCRIM Nos. 3425 and 3427.2

 

2

 CALCRIM No. 3425 reads as follows: “The defendant is not guilty of _____ 

<insert crime[s]> if (he/she) acted while unconscious. Someone is unconscious when he

or she is not conscious of his or her actions. [Someone may be unconscious even though

able to move.] [¶] Unconsciousness may be caused by (a blackout[,]/ [or] an epileptic

seizure[,]/ [or] involuntary intoxication[,]/ [or] _____ <insert a similar condition>). [¶]

[The defense of unconsciousness may not be based on voluntary intoxication.] [¶] The

People must prove beyond a reasonable doubt that the defendant was conscious when
6

A trial court has a sua sponte duty to instruct on defenses “‘only if it 

appears that the defendant is relying on such a defense, or if there is substantial evidence 

supportive of such a defense and the defense is not inconsistent with the defendant’s 

theory of the case.’” (People v. Breverman (1998) 19 Cal.4th 142, 157.) No evidence 

supported the giving of an instruction on involuntary intoxication in this case. No 

evidence was presented that defendant was unconscious at the time of the collision; to the 

contrary, he provided significant testimony of exactly what had happened before, during, 

and after the collision. “[U]nconsciousness need not rise to the level of coma or inability

to walk or perform manual movements; it can exist ‘where the subject physically acts but

is not, at the time, conscious of acting.’” (People v. Halvorsen (2007) 42 Cal.4th 379,

417.) Nothing in the record supports a contention that defendant was not conscious of his

actions at the time of the collision.

Further, no evidence was offered showing defendant unknowingly ingested 

an intoxicating substance or his intoxication was caused by the force, duress, or trickery 

of someone else. To the contrary, all the evidence at trial was that defendant knowingly 

ingested alcohol and prescription medications, but did not realize he was still suffering 

from the residual effects of the combination of substances at the time the collision 

occurred.

This case is similar to People v. Mahle (1969) 273 Cal.App.2d 309, 316, in 

which the appellate court held the trial court did not have a sua sponte duty to instruct the 

 

(he/she) acted. If there is proof beyond a reasonable doubt that the defendant acted as if

(he/she) were conscious, you should conclude that (he/she) was conscious, unless based

on all the evidence, you have a reasonable doubt that (he/she) was conscious, in which

case you must find (him/her) not guilty.”

 CALCRIM No. 3427 reads: “Consider any evidence that the defendant was

involuntarily intoxicated in deciding whether the defendant had the required (intent/ [or]

mental state) when (he/she) acted. [¶] A person is involuntarily intoxicated if he or she

unknowingly ingested some intoxicating liquor, drug, or other substance, or if his or her

intoxication is caused by the (force/[, [or] duress/, [or] fraud/, [or] trickery of someone

else), for whatever purpose[, without any fault on the part of the intoxicated person].” 
7

jury on involuntary intoxication where there was uncontradicted evidence the defendant 

had been taking a prescription medication while consuming alcohol for several months 

before committing murder. “From this evidence, the jury could properly conclude that 

defendant would be well aware of the combination of alcohol and drugs. Furthermore, 

defendant here does not contend that the drugs were taken involuntarily but rather that the 

combined effect of the drugs and alcohol was unforeseen. In view of defendant’s 

experience with the combined effects, the trial court properly determined that he was 

either aware thereof or willingly assumed the risk.” (Ibid.) 

People v. Chaffey (1994) 25 Cal.App.4th 852, relied on by defendant, is not 

to the contrary. The court in that case explained, “[a] person whose intoxication is not

voluntary is relieved from liability because of excusable mistake. ‘What prevents the

intoxication from being voluntary in these cases of fraud is not the trickery of the other

person but the innocent mistake of fact by the one made drunk, and an actual ignorance

of the intoxicating character of the liquor or drug has the same effect whether the mistake

is induced by the artifice of another or not. [Fn. omitted.]’ [Citation.]” (Id. at p. 856.) 

In Chaffey, the defendant was convicted of driving under the influence of an intoxicating

drug after she took an overdose of a prescription medication, intending to commit

suicide; the medication rendered her unaware of her actions and she drove her car while

in that condition. (Id. at p. 854.) There was evidence that the label warned the

medication would cause drowsiness. (Ibid.) The trial court found the intoxication was

voluntary because it was predictable the defendant would become sleepy and

“‘something would happen.’” (Ibid.) The Chaffey court affirmed the conviction because

the evidence supported the trial court’s conclusion, although it noted that the evidence

could have supported a conclusion that the defendant’s intoxication was involuntary

because the defendant did not know, and a reasonable person in her condition would not

have known, that an overdose of the medication would cause intoxication. (Id. at p. 857.) 

Because defendant was aware of the intoxicating effects of alcohol, and the potential that
8

taking his prescribed medication could intensify the effects of alcohol, Chaffey is

distinguishable, and the defense of involuntary intoxication was unavailable to defendant.

Defendant alternatively argues that his trial counsel’s failure to ask the

court to instruct on involuntary intoxication amounted to ineffective assistance of

counsel. To establish a claim of ineffective assistance of counsel, defendant must

demonstrate both that counsel’s performance was deficient, and that counsel’s deficient

representation prejudiced the defendant. (Strickland v. Washington (1984) 466 U.S. 668,

687.) 

In light of the state of the evidence, defendant has not demonstrated any 

deficiency in his trial counsel’s failure to request instructions on involuntary intoxication. 

As discussed ante, there was no evidence to which the jury could have applied the 

instructions defendant urges his counsel should have requested. Because the evidence did

not support an instruction on involuntary intoxication, defendant cannot demonstrate that

his trial counsel provided ineffective assistance of counsel by failing to request one. 

(People v. Slaughter (2002) 27 Cal.4th 1187, 1221 [argument that counsel was

ineffective for not requesting a particular jury instruction fails because the instruction was

unsupported by the evidence].)

II.

EVIDENCE OF VOLUNTARY INTOXICATION

Defendant argues the jury instructions erroneously permitted the jurors to 

consider evidence of his voluntary intoxication on the issue of implied malice, in 

violation of Penal Code former section 22, subdivision (b),3and his federal constitutional 

rights. 

 

3

 Effective January 1, 2013, Penal Code former section 22 was renumbered as 

Penal Code section 29.4. (Stats. 2012, ch. 162, § 119.)
9

Defendant forfeited this argument because he did not request an instruction 

limiting the jury’s use of evidence of his voluntary intoxication to establish implied 

malice. (People v. Jenkins (2000) 22 Cal.4th 900, 1020 [the defendant’s failure to 

request a jury instruction clarifying a legal principle waived any claim the trial court 

erred by not giving the instruction].) “An instruction on the significance of voluntary 

intoxication is a ‘pinpoint’ instruction that the trial court is not required to give unless 

requested by the defendant.” (People v. Rundle (2008) 43 Cal.4th 76, 145, disapproved

on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

Even if we were to consider defendant’s argument on its merits, we would 

conclude there was no error. Murder is “the unlawful killing of a human being, or a 

fetus, with malice aforethought.” (Pen. Code, § 187, subd. (a).) Malice may be implied 

“when a killing results from an intentional act, the natural consequences of which are 

dangerous to human life, and the act is deliberately performed with knowledge of the 

danger to, and with conscious disregard for, human life.” (People v. Cook (2006) 39 

Cal.4th 566, 596.) “It is well established that driving while intoxicated is an act which 

may support a conviction for second degree murder under an implied malice theory.” 

(People v. Ferguson (2011) 194 Cal.App.4th 1070, 1080; see People v. Watson (1981) 30 

Cal.3d 290, 300-301.)

In People v. Whitfield (1994) 7 Cal.4th 437, 451, the Supreme Court held 

Penal Code former section 22 did not preclude a defendant in a murder case from 

offering evidence of his or her voluntary intoxication on the issue of express or implied 

malice. In response to the People v. Whitfield holding, the California Legislature 

amended Penal Code former section 22, subdivision (b) to prohibit a defendant from 

using evidence of voluntary intoxication to negate implied malice. (See People v. 

Mendoza (1998) 18 Cal.4th 1114, 1125-1126; People v. Timms (2007) 151 Cal.App.4th 

1292, 1298.)
10

At the time of defendant’s trial, Penal Code former section 22 provided: 

“(a) No act committed by a person while in a state of voluntary intoxication is less 

criminal by reason of his or her having been in that condition. Evidence of voluntary 

intoxication shall not be admitted to negate the capacity to form any mental states for the 

crimes charged, including, but not limited to, purpose, intent, knowledge, premeditation, 

deliberation, or malice aforethought, with which the accused committed the act. [¶] 

(b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not 

the defendant actually formed a required specific intent, or, when charged with murder, 

whether the defendant premeditated, deliberated, or harbored express malice 

aforethought.” 

Thus, Penal Code former section 22, subdivision (a) prohibited a defendant

from using evidence of his or her voluntary intoxication to negate the capacity to form 

any mental states. Former section 22, subdivision (b) created a limited exception to 

former section 22, subdivision (a), by allowing a defendant in a murder case to use 

evidence of his or her voluntary intoxication to show he or she did not actually harbor 

express malice. By its clear terms, the limited exception created by former section 22,

subdivision (b) did not include implied malice. 

Nothing in Penal Code former section 22, subdivision (a), however, 

prohibited the prosecution from using evidence of a defendant’s voluntary intoxication to

establish an element of an offense. Consequently, the limited exception of former 

section 22, subdivision (b) did not apply to the prosecution. We reject defendant’s 

argument that former section 22’s prohibition on a defendant’s ability to offer evidence 

of voluntary intoxication to negate implied malice also precluded the prosecution from 

using such evidence to establish implied malice.

Defendant also argues Penal Code former section 22 violated his due 

process and equal protection rights because it prohibited him from using evidence of his 

voluntary intoxication to negate implied malice, while allowing the prosecution to use 
11

that evidence to prove implied malice. Defendant bases his argument on the United 

States Supreme Court’s decision in Montana v. Egelhoff (1996) 518 U.S. 37 (Egelhoff), 

which rejected a due process challenge to a Montana statute. The defendant in Egelhoff

was charged with deliberate homicide, a crime Montana law defined as “‘purposely’” or 

“‘knowingly’” causing the death of another human being. (Id. at p. 40.) The defendant 

argued the Montana statute barring evidence of voluntary intoxication to show the 

absence of the requisite mental state violated his due process right to present all relevant 

evidence rebutting the prosecution’s evidence on the offense charged. (Id. at p. 41.)

A plurality opinion authored by Justice Scalia explained criminal 

defendants have no absolute right to introduce relevant evidence, and the Montana statute 

would violate due process only if the defendant showed his “right to have a jury consider 

evidence of his voluntary intoxication in determining whether he possesses the requisite 

mental state is a ‘fundamental principle of justice.’” (Egelhoff, supra, 518 U.S. at 

pp. 42-43.) Justice Scalia’s plurality opinion concluded a defendant’s right to present 

evidence of voluntary intoxication was not a fundamental principle of justice because 

both common law tradition and the laws of a considerable number of states either 

prohibited or significantly limited a criminal defendant’s use of such evidence. (Id. at 

pp. 48-49.)

Justice Ginsburg wrote a separate concurring opinion joining in the 

conclusion the Montana statute did not violate due process. Justice Ginsburg

distinguished between statutes designed to exclude relevant, exculpatory evidence that 

might negate an essential element of the charged offense—which violate due process—

and statutes that redefine the elements of the charged offense and therefore render certain 

evidence irrelevant—which do not. (Egelhoff, supra, 518 U.S. at p. 57 (conc. opn. of

Ginsburg, J.).) “‘[A] state legislature certainly has the authority to identify the elements 

of the offenses it wishes to punish,’ [citation], and to exclude evidence irrelevant to the 

crime it has defined.” (Ibid.) Justice Ginsburg concluded the Montana statute redefined 
12

the mental state element because it “embodies a legislative judgment regarding the 

circumstances under which individuals may be held criminally responsible for their 

actions.” (Ibid.)

4

Defendant argues Penal Code former section 22 did not fit within 

Justice Ginsburg’s discussion of a redefinition of the mental state element for the crime 

of murder. That argument has been rejected by People v. Timms, supra, 151 Cal.App.4th 

1292, with which we agree. “[Former] section 22 is part of California’s history of 

limiting the exculpatory effect of voluntary intoxication and other capacity evidence. 

[Citations.] . . . Since 1872, the first sentence of section 22 (now at subdivision (a)) has 

declared the policy of this state that an act is not less criminal because the actor 

committed it while voluntarily intoxicated. . . . The next sentence declares the substantive 

law that voluntary intoxication is not available to a defendant as a basis for a diminished 

capacity defense. Subdivision (b) of section 22 establishes, and limits, the exculpatory 

effect of voluntary intoxication on the required mental state for a particular crime. . . . 

The absence of implied malice from the exceptions listed in subdivision (b) is itself a 

policy statement that murder under an implied malice theory comes within the general 

rule of subdivision (a) such that voluntary intoxication can serve no defensive purpose. 

In other words, section 22, subdivision (b) is not ‘merely an evidentiary prescription’; 

rather, it ‘embodies a legislative judgment regarding the circumstances under which 

individuals may be held criminally responsible for their actions.’ [Citation.]” (Id. at

p. 1300.)

 

4

 “‘“When a fragmented Court decides a case and no single rationale explaining 

the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as 

that position taken by those Members who concurred in the judgment on the narrowest 

grounds . . . .’”’ [Citation.] Justice Scalia’s plurality opinion expressed apparent 

complete agreement with Justice Ginsburg’s rationale. [Citation.]” (People v. Timms, 

supra, 151 Cal.App.4th at p. 1299; id. at pp. 1299-1300 [concluding Justice Ginsburg’s 

concurring opinion represents the holding of the court].)
13

Penal Code former section 22, subdivision (b)’s prohibition against using 

evidence of voluntary intoxication to negate implied malice did not violate a defendant’s 

due process rights. (See People v. Timms, supra, 151 Cal.App.4th at pp. 1300-1301; 

People v. Martin (2000) 78 Cal.App.4th 1107, 1117.)

We conclude defendant’s equal protection argument lacks merit. “A 

defendant claiming that state legislation violates equal protection principles must first 

demonstrate that the laws treat persons similarly situated in an unequal manner.” (People 

v. Timms, supra, 151 Cal.App.4th at p. 1302.) Defendant argues that Penal Code former 

section 22 treated the prosecution and the defense differently. However, the prosecution 

and defense are not similarly situated, and this differential treatment does not violate 

equal protection. 

III.

FAILURE TO GIVE INSTRUCTION ON VEHICULAR MANSLAUGHTER

Defendant argues that his federal due process rights were denied when the 

trial court failed to instruct the jury on the lesser related charge of gross vehicular 

manslaughter while intoxicated as an alternative to the charged crime of murder.

In People v. Birks (1998) 19 Cal.4th 108, 136 (Birks), the California

Supreme Court overruled People v. Geiger (1984) 35 Cal.3d 510, which held a

“defendant has a state constitutional right to instructions on lesser offenses that are not

necessarily included in the stated charge” and “instructions on lesser merely ‘related’

offenses can be given only upon the defendant’s request” (Birks, supra, at p. 112). The

Supreme Court in Birks held, inter alia, “the California Constitution should not be

construed to grant criminal defendants an affirmative right to insist on jury consideration

of nonincluded offenses without the prosecutor’s consent.” (Id. at p. 136, italics added;

see People v. Rundle, supra, 43 Cal.4th at p. 147 [“In Birks, however, we overruled the

holding of Geiger that a defendant’s unilateral request for a related-offense instruction
14

must be honored over the prosecution’s objection”]; People v. Nelson (2011) 51 Cal.4th

198, 215 [same].) In People v. Nelson, supra, 51 Cal.4th at page 215, the Supreme Court

stated, “[w]e have previously rejected an argument that the Birks rule violates the federal

Constitution.”

In People v. Sanchez (2001) 24 Cal.4th 983, 985, the California Supreme

Court held that the offense of gross vehicular manslaughter while intoxicated is not a

lesser included offense of murder. The Supreme Court explained: “Although it long has

been held that manslaughter is a lesser included offense of murder, this tradition has not

explicitly included offenses requiring proof of specific elements unique to vehicular

manslaughter. Unlike 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 when

the charge is gross vehicular manslaughter while intoxicated. Gross vehicular

manslaughter while intoxicated is not merely a degree of murder, nor is it a crime with a

lengthy pedigree as a lesser included offense within the crime of murder.” (Id. at p. 991.) 

The court further stated, “[a]lthough we recognize that historically manslaughter in

general has been considered a necessarily included offense within murder, that long and

settled tradition has not extended to the more recently enacted forms of vehicular

manslaughter that require proof of additional elements.” (Id. at p. 992.)

In Hopkins v. Reeves (1998) 524 U.S. 88, 96-97, the United States Supreme

Court held that criminal defendants do not have a federal constitutional right to jury

instructions on lesser related, as opposed to lesser included, criminal offenses.

As the California Supreme Court has held that gross vehicular 

manslaughter while intoxicated is not a lesser included offense of second degree murder, 

defendant was not entitled to an instruction on that lesser related charge. 
15

DISPOSITION

The judgment is affirmed.

FYBEL, ACTING P. J.

WE CONCUR:

IKOLA, J.

THOMPSON, J.