I concur in the judgment. I also generally concur in the opinion prepared for the court by former Chief Justice Lucas. I write separately only to make the following observation. The double jeopardy clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the due process clause of the Fourteenth Amendment (Benton v. Maryland (1969) 395 U.S. 784, 793-796 [23 L.Ed.2d 707, 715-717, 89 S.Ct. 2056]), “protects” a defendant “against a second prosecution for the same offense” “after conviction” as well as “after acquittal.” (North Carolina v. Pearce (1969) 395 U.S. 711, 717 [23 L.Ed.2d 656, 664-665, 89 S.Ct. 2072].) For present purposes, the “same offense” encompasses the greater including offense and the lesser included offense. (Brown v. Ohio (1977) 432 U.S. 161, 164-169 [53 L.Ed.2d 187, 193-196, 97 S.Ct. 2221].) Hence, the double jeopardy clause protects defendant against a second prosecution for gross vehicular manslaughter while intoxicated, the greater including offense, after conviction for vehicular manslaughter while intoxicated, the lesser included offense.
Respondent’s petition for a rehearing was denied June 12, 1996, and the opinion was modified to read as printed above.