Can a defendant be convicted of a gross vehicular manslaughter charge under section 954 of the California Criminal Code?

The prosecutor did not adopt "wholly inconsistent" positions at the first and second trials. (People v. Castillo, supra, 49 Cal.4th at p. 155.) "Section 954 sets forth the general rule that defendants may be charged with and convicted of multiple offenses based on a single act or an indivisible course of conduct. It provides in relevant part: 'An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense . . . . The prosecution is not

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required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged . . . .' " (People v. Pearson (1986) 42 Cal.3d 351, 354, italics added.) Nevertheless, "multiple convictions may not be based on necessarily included offenses." (Id. at p. 355.)

Gross vehicular manslaughter, however, is not a lesser included offense of murder. (People v. Sanchez (2001) 24 Cal.4th 983, 987-991; disapproved on a different point in People v Reed (2006) 38 Cal.4th 1224, 1227-1228.) As the Sanchez court explained: "Although as a factual matter, a murder may be carried out by means of a vehicle and by an intoxicated driver, in the abstract it obviously is possible to commit a murder without committing gross vehicular manslaughter while intoxicated. Accordingly, dual conviction in the present case was appropriate although the trial court properly avoided dual punishment pursuant to section 654 by staying execution of sentence for the vehicular manslaughter offense." (Id. at p. 988.)