What is the test for a motion to stay a sentence for a defendant convicted of gross vehicular manslaughter while intoxicated?

We accept respondent's concession as proper because the crime of gross vehicular manslaughter while intoxicated (count 1; Pen.Code, 191.5, subd. (a) ) cannot be committed without also committing the crime of driving under the influence and causing bodily injury (count 2; Veh.Code, 23153, subd. (a) ). A defendant may not be convicted of both a greater and an included lesser offense. (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595, citing People v. Moran (1970) 1 Cal.3d 755, 763, 83 Cal.Rptr. 411, 463 P.2d 763 [If the evidence supports the verdict as to the greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.].) A court must dismiss, instead of stay the sentence for, a necessarily included offense. (People v. Pearson, supra, at p. 355, 228 Cal.Rptr. 509, 721 P.2d 595 ; People v. Moran, supra, at p. 763, 83 Cal.Rptr. 411, 463 P.2d 763.) Thus, the trial court erred when it stayed the sentence in count 2. Accordingly, we order dismissal of count 2.

[233 Cal.App.4th 352]