Friday, November 14, 2025
Page 3
Court of Appeal:
DUI Is Not Lesser-Included Offense of Vehicular Homicide
Opinion Says Manslaughter Verdict Does Not Preclude Conviction for Charges Relating to Injuries Caused by Same Drunk Driving Incident if Separate Victims Are Attached to Each Count
By Kimber Cooley, associate editor
Div. Three of the First District Court of Appeal has held that the crime of causing injury while driving drunk is not a lesser included offense of gross vehicular manslaughter while intoxicated, where separate victims are attached to each of the counts, such that a guilty verdict on the latter charge does not preclude a conviction on the former.
Acknowledging case law establishing that one incident causing injury to multiple victims may only be charged as a single instance of intoxicated driving because the criminal statute is focused on the actus reus of operating a vehicle rather than the imposition of harm, the court said that the logic falls apart when manslaughter charges are also asserted due to a collision causing death and harm to a multitude of parties.
Justice Ioana Petrou wrote Wednesday’s opinion, which was posted to the California Courts website yesterday, saying:
“The case before us presents the question of whether a conviction for DUI causing injury is a lesser included offense of gross vehicular manslaughter while intoxicated in the specific instance when, as here, the convictions are predicated on different victims. The answer is no.”
Acting Presiding Justice Carin T. Fujisaki and Justice Victor Rodríguez joined in the decision.
Fatal Collision
The question arose after Denis Demacedo was convicted of eight offenses relating to a fatal traffic collision that occurred in Daly City on March 9, 2013. Demacedo had gone out for pizza and beer with his teammates after a soccer match before driving his vehicle and striking a car being driven by 23-year-old Armado Acevedo, who was making a legal U-turn at the time of the collision.
Also inside the vehicle were Armado Acevedo’s mother, Josefa Osorio Acevedo, his 15-year-old brother, Josue Osorio, and the driver’s fiancée, Sarah Sangraw. Only Sangraw survived the crash; however, she was in a coma for two weeks and required six surgeries to deal with her injuries.
Demacedo, who was later found to have a blood alcohol content of at least 0.18% at the time of the accident, suffered scratches and a bloody nose. He was on probation for a 2010 driving under the influence incident when he collided with Acevedo’s car.
In November 2014, a jury found him guilty of three counts of vehicular manslaughter while intoxicated, in violation of Penal Code §191.5(a), as well as a drunk driving offense that caused injuries, in violation of Vehicle Code §23153(a) and (b). He was sentenced to 47 years to life in prison.
After Div. Three affirmed the conviction but ordered that an amended abstract of judgment be prepared to conform to the sentence imposed, San Mateo Superior Court Judge Susan Greenberg made the corrections and resentenced him to the same indeterminate life sentence on April 10, 2024.
Lesser-Included Offense
Petrou noted that “[a] defendant may generally be convicted of, but not punished for, multiple charges arising from a single act or course of conduct,” but said that a judicially created exception to this rule exists where the convictions involve a lesser-included offense.
She explained that, “[w]hen deciding whether multiple conviction of charged offenses is proper, we apply what is known as the elements test,” which asks whether the greater crime can be committed without also necessarily committing the lesser violation.
Comparing the elements of §191.5(a) to §23153, she remarked:
“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.’ ”
Saying that a violation of §23153 is one way that gross vehicular manslaughter may be committed, she pointed out that the section prohibits driving under the influence of alcohol or drugs and causing bodily injury to another person.
Fifth District Opinion
Citing the 2020 divided decision by the Fifth District Court of Appeal in People v. Machuca, Petrou said that she agreed with the court’s conclusion that the two crimes are separate offenses when the convictions are predicated on different victims.
Justice Jennifer R.S. Detjen, joined by Justice Thomas DeSantos, wrote the majority opinion in Machuca, reasoning that, where multiple victims are involved, a defendant’s actions could result in death to one victim, in violation of Penal Code section 191.5, without injuring anyone else.
Dissenting, Justice Mark W. Snauffer came to the opposite conclusion based in part on the 1985 California Supreme Court decision in Wilkoff v. Superior Court, which held that an incident of driving under the influence that causes injury to several persons is chargeable only as one count.
Rejecting Demacedo’s reliance on Wilkoff, Petrou wrote that “we do not read [that case] to mean that a person may never be convicted of both vehicular manslaughter and DUI causing injury even if those offenses are predicated on different victims” and said:
“[O]ur holding aligns with Wilkoff’s instruction to the trial court to set aside the duplicative Vehicle Code section 23153 charges while leaving intact the vehicular manslaughter count premised on the decedent victim.”
She concluded:
“In sum, a violation of Vehicle Code section 23153 is not a lesser included offense of Penal Code section 191.5, subdivision (a) when the offenses are premised on different victims. As that is the case here, Demacedo’s contention that his DUI causing injury convictions must be dismissed is unavailing.”
The case is People v. Demacedo, A170580.
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