When will a defendant be convicted of involuntary manslaughter under section 273ab of the Criminal Code?

However, when we compare the second alternative for involuntary manslaughter with section 273ab, we find a distinction between "force that to a reasonable person would be likely to produce great bodily injury" and an "act which might produce death ... without due caution." Section 273ab is predicated on a probability of great bodily injury to the victim (see People v. Preller (1997) 54 Cal.App.4th 93, 98, 62 Cal.Rptr.2d 507), while the second definition of involuntary manslaughter is based on the possibility of the death of the victim. Section 273ab speaks to reckless conduct, ("likely to produce" injury) while the second definition of involuntary manslaughter encompasses careless or negligent conduct ("without due caution and circumspection"). It is therefore apparent that the elements of involuntary manslaughter are not necessarily encompassed within the elements of section 273ab. Involuntary manslaughter is a lesser related rather than a lesser included offense of the charged crime.

Although the case did not reach the specific issue, our conclusion is consistent with recently decided People v. Albritton (1998) 67 Cal.App.4th 647, 79 Cal.Rptr.2d 169. In Albritton defendant was convicted of violating both sections 192, subdivision (b) and section 273ab. The court rejected his claim that these convictions were inconsistent and affirmed the judgment. (Id. at p. 656, 79 Cal.Rptr.2d 169.) However, if one of these crimes were necessarily included in the other, the conviction for involuntary manslaughter would not have been permitted. A defendant cannot be convicted of two crimes, one of which is the lesser included of the first.