San Francisco Criminal Lawyer BlogDUI Causing Injury Is Not a Lesser Included Offense of Gross Vehicular Manslaughter While Intoxicated When the Victims Are Different
People v. Demacedo (Cal. Ct. App., Nov. 12, 2025, No. A170580) 2025 WL 3169575, at *1–4
Summary: Demacedo was convicted of three counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) for the death of three victims, as well as felony violations of Vehicle Code section 23153, subdivisions (a) and (b) for driving under the influence of alcohol and with an elevated blood alcohol level and causing injury to Sarah (DUI causing injury).
Demacedo argued that the DUI causing injury counts must be dismissed as lesser included offenses of the vehicular manslaughter while intoxicated convictions. The Court of Appeal held that a violation of Vehicle Code section 23153 is not a lesser included offense of Penal Code section 191.5, subdivision (a) when the offenses involve different victims.
Factual and Procedural Background
While driving under the influence of alcohol, Demacedo crashed his car into another vehicle containing four individuals. Three of the victims were killed at the scene. The fourth victim, Sarah, was severely injured but survived. Demacedo had a blood alcohol content (BAC) of .18 percent, more than double the legal limit.
Demacedo was charged by information with 10 felonies: three counts of second degree murder (Pen. Code, § 187, subd. (a); counts 1, 2, & 3), three counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a); counts 4, 5, & 6), driving under the influence of alcohol and causing injury to Sarah (Veh. Code, § 23153, subd. (a); count 7), driving with a BAC of 0.08 percent or more and causing injury to Sarah (Veh. Code, § 23153, subd. (b); count 8), and two counts of perjury (Pen. Code, § 118; counts 9 & 10).
Demacedo pled no contest to the perjury charges. A jury found him guilty on all counts. This appeal addresses the vehicular manslaughter offenses and the DUI causing injury offenses.
The trial court sentenced Demacedo to an aggregate term of 47 years to life in prison. Demacedo appealed.
DUI Causing Injury Is Not a Lesser Included Offense of Gross Vehicular Manslaughter While Intoxicated When the Victims Are Different
Demacedo argues DUI causing injury under Vehicle Code section 23153, subdivision (a) or (b) is a lesser included offense of gross vehicular manslaughter while intoxicated under Penal Code section 191.5, subdivision (a)—even where, as here, the victims of the offenses are different.
In California, a defendant may generally be convicted of, but not punished for, multiple charges arising from a single act or course of conduct. (People v. Reed (2006) 38 Cal.4th 1224, 1226(Reed); Pen. Code, § 954.) However, “[a] judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.‘” (Reed, at p. 1227.)
“When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and the conviction of the lesser offense must be reversed. If neither offense is necessarily included in the other, the defendant may be convicted of both, ‘even though under [Penal Code] section 654 he or she could not be punished for more than one offense arising from the single act or indivisible course of conduct.’ ” (People v. Sanders (2012) 55 Cal.4th 731, 736.)
The elements test
“ ‘Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former.’ In other words, ‘ “[i]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.” ’ ” (People v. Sanders, supra, 55 Cal.4th at p. 737.)
Gross vehicular manslaughter while intoxicated is defined in Penal Code section 191.5, subdivision (a) as “the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.” A violation of Vehicle Code section 23153 is one way that gross vehicular manslaughter while intoxicated may be committed. (People v. Machuca (2020) 49 Cal.App.5th 393, 399 (Machuca).)
Vehicle Code section 23153 “provides that the offense of driving under the influence and causing bodily injury to another person may be committed in various ways, including driving under the influence of any alcoholic beverage (id., subd. (a)), driving with a [BAC] of 0.08 percent or more (id., subd. (b)), or driving a commercial vehicle with a [BAC] of 0.04 percent or more (id., subd. (d)).” (Machuca, supra, 49 Cal.App.5th at p. .)
In Machuca, the defendant was convicted of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)),as well as two counts of DUI causing injury (Veh. Code, § 23153, subds. (a) & (b)) as to a second victim who survived the collision. (Machuca, at p. 397.) Because the DUI causing injury counts arose from injuries to a different victim from the gross vehicular manslaughter count, the court rejected Machuca’s contention that the DUI causing injury counts must be dismissed as lesser included offenses. The court reasoned that, in contrast to cases where DUI causing injury was deemed a lesser included offense of vehicular manslaughter while intoxicated because they were based on the injury and death of a single victim, Machuca could have killed the deceased victim in violation of Penal Code section 191.5, subdivision (a) without injuring the surviving victim in violation of Vehicle Code section 23153.
The Court concluded that Penal Code section 654 did not prohibit multiple punishment when a single drunk driving incident results in convictions for vehicular manslaughter against a decedent victim and a violation of Vehicle Code section 23153 as to a separate victim.
The Court held that Vehicle Code section 23153 is not a lesser included offense of Penal Code section 191.5, subdivision (a) when the offenses involve different victims.
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