## Facts

- In January 2012, DeMarcus Monte Givan sped, ran a red light, and collided with another vehicle.
- The collision killed a passenger (Laura Fulce) and caused major injuries to the driver (Tommy Fulce) and another passenger.
- Responding officers observed red/watery eyes, a faint odor of alcohol, and incoherent speech.
- About an hour after the crash, a hospital blood test showed Givan’s blood-alcohol concentration was 0.17%.
- Givan testified he drank cocktails (cognac mixed with energy drinks) the prior evening, stopped around 10:00 p.m., slept, and believed he was sober when he drove the next morning.
- A defense expert testified that energy drinks mixed with alcohol can mask perceived impairment by reducing awareness of alcohol’s effects.
- Givan was convicted of gross vehicular manslaughter while intoxicated (Penal Code § 191.5(a)), DUI causing injury (Veh. Code § 23153(a)), and driving with BAC ≥ 0.08 causing injury (Veh. Code § 23153(b)), with multiple injury/BAC enhancements and prior-strike findings.

## Issues

1. Whether the trial court had a sua sponte duty to instruct on mistake of fact based on evidence that energy drinks allegedly caused Givan to believe he was not intoxicated.
2. Whether trial counsel rendered ineffective assistance by not requesting a mistake-of-fact instruction.
3. Whether DUI causing injury (Veh. Code § 23153(a)) is a lesser included offense of gross vehicular manslaughter while intoxicated (Penal Code § 191.5(a)), requiring reversal of the DUI conviction.

## Decision

- The Court of Appeal held the trial court had no sua sponte duty to instruct on mistake of fact because the evidence did not support a legally cognizable mistake-of-fact defense for the charged DUI-related general-intent offenses.
- The court rejected the ineffective assistance claim for lack of prejudice; a mistake-of-fact instruction would properly have been refused, and there was no reasonable probability of a different verdict.
- The court held Veh. Code § 23153(a) is a lesser included offense of Penal Code § 191.5(a) under the statutory-elements test and reversed the conviction on count 2.
- The conviction on count 1 was affirmed; count 3 remained in place with its sentence stayed.
- The judgment was affirmed in part and reversed in part, with remand for further proceedings consistent with the opinion.

## Legal Principles

- DUI causing injury under Veh. Code § 23153(a) and (b) is a general-intent offense requiring proof that the defendant drove while under the influence (or with proscribed BAC) and caused injury; it does not require proof the defendant knew of his intoxication.
- A mistake-of-fact instruction is required sua sponte only when substantial evidence supports a defense that, if believed, would negate an element of the offense.
- A defendant’s belief that he was sober, even if influenced by voluntary consumption patterns (including alcohol mixed with energy drinks), does not negate an element of general-intent DUI offenses and does not support a mistake-of-fact defense.
- Failure to request an instruction is not prejudicial where the instruction is not supported by law or substantial evidence and would properly be denied.
- Under the statutory-elements test, Veh. Code § 23153(a) is a lesser included offense of Penal Code § 191.5(a) because § 191.5(a) requires driving “in violation of” § 23153; dual convictions for both based on the same act are improper, requiring reversal of the lesser offense.

## Conclusion

The court affirmed the gross vehicular manslaughter while intoxicated conviction but reversed the separate DUI causing injury conviction because it was a lesser included offense; it also held no mistake-of-fact instruction was required and counsel was not ineffective for failing to seek one.


People v. Givan, 233 Cal. App. 4th 335 (Cal. Ct. App. 2015)